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181 Cards in this Set
- Front
- Back
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Three types of jurisdiction:
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• In personam
• In rem • Quasi in rem |
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In personam jurisdiction
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Jurisdiction over the person, i.e. the defendant
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In rem jurisdiction
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Jurisdiction over property or a thing
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Quasi in rem jurisdiction
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Court attaches the defendant’s property in order to apply it to satisfy the claim
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Jurisdiction over nonresidents
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• According to Neff court, nonresident defendant must be personally served with process within the state or must voluntarily appear before the court (consent to the jurisdiction)
• State court could also seize defendant’s property located in the state at the outset of the action. If property was seized, service by publication was acceptable – no personal service necessary |
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Personal Jurisdiction
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Means of Asserting Jurisdiction:
1. Presence in the state at service 2. Domiciled in forum state 3. Consent to jurisdiction 4. Minimum contacts with the forum state 5. Long arm statute (Constitutional) |
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Minimum Contacts is satisfied by:
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Minimum contacts is satisfied if the defendant has committed a specific act related to the cause of action or has continuous & limited acts or defendant has substantial and pervasive contacts in the forum state.
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Minimum Contacts Test
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D must have such minimum contacts with the forum such that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice
Breakdown: 1. Minimum contacts 2. Reasonableness to assert jurisdiction |
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Fair Play and Substantial Justice Factors
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1. Nature and quality of actions in the forum state
2. Interest of the parties 3. Interest of the state: Providing a forum, access to evidence and witnesses |
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What determines sufficient minimum contacts?
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• Volume of contacts – amount of activity
• Purposeful availment • Balance of convenience • Location of witnesses and evidence • Location of injury • Continuity of contacts • State interest in protecting citizens and business community and deterring misconduct |
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My Parents Frequently Forget to Read Childrens' Stories
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Minimum Contacts
Purposeful availment Foreseeability Fair play & substantial justice Relatedness of contact and claim Convenience State's interest |
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What 2 requirements do you need for jurisdiction?
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• Does subjecting the nonresident defendant to jurisdiction violate her 14th Amendment right to Due Process? (minimum contacts)
• Does subjecting the nonresident defendant to jurisdiction violate the state’s own jurisdictional statute? |
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To what extent can a federal district court exercise personal jurisdiction?
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A federal district court may exercise jurisdiction only to the extent a state court of the state in which it sits could exercise jurisdiction
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Specific v. General Jurisdiction
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• Specific jurisdiction: Defendant’s forum contacts are sporadic, but the cause of action arises out of these contacts.
• General jurisdiction: cause of action does not arise from defendant’s forum-related activities but defendant has minimum contacts and state’s jurisdiction is reasonable. Harder standard to meet |
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Subject Matter Jurisdiction (CA)
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Superior Court has general Subject Matter Jurisdiction (EXCEPT exclusive Fed cases)
Unlimited Civil Cases: Amount in controversy > $25k Limited Civil Cases: Amount <= $25k Small Claims <= $7500 (or $5000 for entities) |
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What do you need to establish federal jurisdiction?
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• Subject matter jurisdiction (diversity/federal question)
• Personal jurisdiction over each D (in personam or quasi in rem) • D served adequately • Venue • D received adequate notice and opportunity to be heard |
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Federal Subject Matter Jurisdiction
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1. Diversity of Citizenship
2. Federal Question 3. US Constitution 4. Treatise |
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Diversity of Citizenship
(Subject Matter Jurisdiction) |
• The action must be between citizens of different states (or a foreigner)
• The amount in controversy must exceed $75,000 |
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Complete diversity rule
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“There is no diversity of citizenship jurisdiction if any plaintiff is a citizen of the same state as any defendant”
Test: When the case is filed |
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Amount in controversy (Diversity)
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Good faith allegation that claim EXCEEDS $75,000
P who recovers less than $75,000 may be liable to D for litigation costs (not att. fees) AGGREGATION allowed when case is a single P against a single D (unless joint) EQUITABLE RELIEF: P's viewpoint OR D's viewpoint injunction's value exceeds $75,000 COLLUSION: can't assign just to achieve diversity EXCLUSIONS: divorce, alimony, child custody or probate |
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Individuals (Diversity)
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Citizenship is the state of a HUMAN's domicile.
Domicile is established by two concurrent factors 1. Presence instate (physical) 2. Subjective intent to make it her permanent home (mental) - No single factor determinative for intent Always have a domicile, can't have more than one |
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Corporations (Diversity)
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Don't talk about domicile
1. All states where incorporated AND 2. the ONE state where the corporation has its principle place of business (PPB) i. Headquarters OR ii. Where the corp. does more production of service activity than anywhere else Note: Many courts use nerve center unless ALL activity in one state |
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Unincorporated Associations (Diversity)
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Use the citizenship of all members
Includes general and limited partners |
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Decedents, minors, and incompetents (Diversity)
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Look to their citizenship, not the citizenship of their representative
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What is supplemental jurisdiction?
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Adding on of a state claim to a case in Federal court
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Supplementary Jurisdiction
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Additional Claims May Be Added if:
1. At least one claim with Subject Matter Jurisdiction 2. Additional claim shares a "common nucleus of operative fact" (same T/O) 3. P would ordinarily be expected to try them together in one proceeding LIMIT: In a diversity case, a plaintiff can't use supplemental jurisdiction to get around lack of diversity |
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What are the 2 types of supplemental jurisdiction?
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• Pendant
• Ancillary |
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Pendant jurisdiction
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• Plaintiff asserts a federal question claim against a non-diverse party in federal court and adds on a related state law claim that is part of the same case or controversy
• E.g. plaintiff sues employer under Title VII for sexual harassment and adds on assault claim • Court has jurisdiction • Tells us how the plaintiff can add claims |
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Ancillary jurisdiction
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• Defendants can assert claims against other parties even if the federal court would not have jurisdiction over claims if asserted separately, so long as the claims are part of the same case or controversy
• Defendants (including 3rd party defendants) can assert cross-claims, compulsory counterclaims, and third party claims |
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Right of Removal
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Defendant has a right to remove case from state court to federal court if it could have been brought in federal court originally
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Removal
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D can remove a case if it has federal Subject Matter Jurisdiction EXCEPT:
- Diversity cases: No removal if any D is citizen of forum - No removal more than 30 days after filing of pleading making case removable - Diversity cases: No removal more than 1 year after filing - Filing permissive counterclaim may waive right to remove |
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What is the Procedure for Removal?
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1. D files notice of removal in federal courts
2. Stating grounds of removal 3. Signed under Rule 11 4.Attach all documents served on D in state action 5. Copy to all adverse parties |
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Can you waive your Right to Remove?
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A D who files a PERMISSIVE counterclaim in state court probably WAIVES the right to remove Filing a MANDATORY counterclaim in state court probably DOES NOT WAIVE
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Forum Non Conveniens
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• Personal jurisdiction exists and venue is proper but forum is extremely inconvenient for defendant AND
• If appropriate forum is another country, court can dismiss •• Basically, transfer under 1406 can’t be done • State court can dismiss a case more conveniently litigated in another state |
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Eerie Doctrine (basic)
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In diversity cases, federal court must apply state substantive law.
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Substantive law is Clear (Eerie):
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1. Elements of claim or defense
2. Statute of limitations 3. Rules for tolling statutes of limitations 4. Choice of law |
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Substantive Law is Hard (Eerie)
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If there a federal law on point that directly conflicts with state law?
If so, apply the federal law as long as it is arguably procedural. (FRCP is valid if is “arguably procedural”) If no federal law is on point, but federal judge wants to something other than apply state law. If the issue is one of substantive law, she must follow state law. Analyze the facts per these three tests, and come to a reasonable conclusion 1. Outcome determinative: would applying or ignoring the state rule affect outcome of case? If so, it's probably a substantive rule, so should use state law 2. Balance of Interests: does either federal or state system have strong interest in having its rule applied? 3. Avoid Forum Shopping: if the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law. |
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28 USC Section 1391
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Venue
• Determines in what judicial district the suit can be brought • a) diversity cases; (b) federal cases; (c) defines where corporation is resident |
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28 USC Section 1404
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• Venue is appropriate but inconvenient
• Court may transfer the case to a more convenient district or division |
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In both diversity and federal question cases venue is proper in judicial district:
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1) where any defendant resides if all reside in same state
2) where substantial part of events giving rise to action occurred or property is located 3) Fallback option: district where defendant is subject to personal jurisdiction (minimum contacts) can be “found.” |
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In cases involving a corporation, venue is proper when:
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• Corporations “reside” in any judicial district in which there is personal jurisdiction at the time the action is commenced
• See analysis for states with multiple districts – deemed to reside in the district where the corporation has the most significant contacts (you pretend each district is a state and do the minimum contacts analysis for each district) |
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Where do D's reside for venue purposes
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Humans: domicile
Corporations: all districts where it is subject to personal jurisdiction when the case is filed |
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Transfer of venue
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Sending a case from one federal district to another.
Can only transfer to a district where case could have been filed. Means: (i) a proper venue which (ii) has personal jurisdiction over D (must be true without waiver by the D) Court discretion to transfer even if proper if convenience and interests of justice 1. Public factors (what law applies, what community should be jury) 2. Private factors (where are the witnesses, evidence, etc?) Court to which transferred applies choice of law rules from original court If improper, can transfer or dismiss |
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Pleadings
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Documents setting forth claims and defenses. Federal rules adopt “notice” pleadings. Only required to convey enough of one's contentions to put others on notice and to allow a meaningful response
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Complaint
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Principal pleading by plaintiff. Filing commences an action.
Requirements: 1) statement of subject matter jurisdiction; 2) short and plain statement of the claim, showing entitled to relief; 3) Demand for judgment. (Even though courts tend to be more forgiving or lenient with pro se litigants, these requirements must be met.) Special matters that must be pleaded with particularity or specificity: fraud, mistake, and special damages. Note: Special damages do not normally flow from an event. |
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When and how many times can a complaint be amended?
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Once before the answer is served
• Otherwise need leave of the court • Leave should be liberally granted |
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Defendant's Response to a Complaint
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Rule 12 requires D to respond in one of two ways:
1) by motion or 2) by answer Either must be within 20 days after service of process (or else risk default). |
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What ways may you answer a complaint?
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• Admit allegation
• Deny allegation • Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation (usually deemed a denial) • Can admit part of an allegation and deny another part • General denial of everything (rarely done) |
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When and how many times can an answer be amended?
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Once within 20 days of service
• Otherwise need leave of the court • Leave should be liberally granted |
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Timing of the motions
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D must bring 12(e) before filing her responsive pleading.
The 12(b)s may be brought by pre-answer motion or put in the answer. |
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Timing of the Answer
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Serve within 20 days after service of process if D makes no motions;
If D does make a Rule 12 motion, and it is denied, she must serve her answer within 10 days after court rules on motion. If D waives service, has 60 days from P's mailing of waiver form in which to answer. (Waiver of service does not waive personal jurisdiction or venue.) |
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What is an Answer?
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1. Respond to allegations of complaint:
(i) admit (ii) deny (iii) state that you lack sufficient information to admit or deny; - # iii acts as a denial, but can't be used if the information is public knowledge or is in defendant's control. - Failure to deny can constitute an admission on any matter except damages. 2. Raise affirmative defenses. - These basically say “even if I did all the terrible things plaintiff says, plaintiff still cannot win.” - Classic affirmative defenses are statute of limitations, statute of frauds, res judicata, self-defense. - MUST PLEAD OR WAIVED |
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What are the requirements to Amend after the statute of limitations has run - FED and **CA**?
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New Claim: amended pleading relate back if they concern the same conduct, transaction or occurrence as the original pleading. - Relation back treats the amended pleadings as though it was filed when the original was filed, so it can avoid a statute of limitations problem. To change a D after the statue has run. This will relate back if: 1. It concerns the same conduct, transaction or occurrence as the original; 2. The new party knew of the action, within 120 days of its filing; AND 3. She also knew that but for a mistake, she would have been named originally (Applies when P sued wrong D first, but the right D knew about it) Also SEE Amending Pleadings CA for Discussion of Fictitious Ds.
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Amendment after the statute of limitations has run
Relation Back |
Join a new claim: amended pleading relate back if they concern the same conduct, transaction or occurrence as the original pleading.
Relation back means you treat the amended pleadings as though it was filed when the original was filed, so it can avoid a statute of limitations problem. To change a D after the statue has run. This will relate back if: 1. It concerns the same conduct, transaction or occurrence as the original 2. The new party knew of the action, withing 120 days of its filing and 3. She also knew that but for a mistake, she would have been named originally (Applies when P sued wrong D first, but the right D knew about it) |
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What are the guidelines for relation back?
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• New party must receive notice of the action within 120 days after the suit is filed • New party will not be prejudiced by the delay in preparing its case
• Defendant knew or should have known that but for a mistake, the action would have been brought against it |
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Counterclaims
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• Generally asserted by defendants against plaintiffs
• Some are compulsory – same evidence rule • Some are permissive |
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What is a compulsory counterclaim?
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The counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim
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When must defendant raise counterclaim?
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The defendant must assert the claim in response to the plaintiff’s lawsuit or the claim is waived
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What is a permissive counterclaim?
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• Defendant has permission to assert these in conjunction with the plaintiff’s lawsuit
• Counterclaim does not arise out of the same transaction or occurrence but is between the same parties |
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Federal Jurisdiction over compulsory vs. permissive counterclaims
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• If the counterclaim is compulsory, the federal court retains jurisdiction over it
• If the counterclaim is permissive, the federal court has no jurisdiction. The counterclaim will be dismissed to be filed in federal court |
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“Arising out of” Test for compulsory counterclaims
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Will the same evidence substantially dispose of the issues raised by both the plaintiff’s and the defendant’s claims?
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Liberal test for compulsory counterclaims
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Just looks at whether the counterclaim arises out of a logical sequence of events from the original claim
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Cross-Claims
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• Asserted by one party against a co-party. Plaintiff against plaintiff or defendant against defendant
• Rule 13(g) – cross-claim must arise out of same transaction or occurrence as original claim or counterclaim or must relate to property at issue in original claim |
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What is a Cross-Complaints - **CA**?
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ALL claims by defendant are called CROSS COMPLAINTS in CA Cross-Complaint Against P: Same as Counter claim in Fed. Same Rules RE compulsory too. Cross-Complaint Against Co-party: Same as Cross-Claim in fed. Cross-Complaint against Third Party Defendant - Same as Impleader
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What is the process to Joinder of Normal Parties?
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1. Proper D and P's (who may be joined)
• Arise from same T/O AND • Raise at least one common question • Then assess subject matter jurisdiction 2. Necessary and indispensable parties • This is where an absentee (someone not originally joined) is forced to join in the case. Joinder rules that start with "C" (counterclaim, crossclaim) are claims between present parties. Claims that start with "I" involve someone new to the case |
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Necessary and indispensable parties are necessary if
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1. Without A, the court cannot accord complete relief
2. A's interest may be harmed if not joined (practical harm) 3. A claims an interest which subjects a party (usually D) to multiple obligations Joint tortfeasors are not necessary Can be joined if joinder is feasible |
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Joinder is feasible where
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1. There is personal jurisdiction
2. Joining him will not make it impossible to maintain diversity |
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Where Joinder is not feasible
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1. Proceed without him
2. Dismiss the whole case Factors (i) Is there an alternative forum available? (ii) what is the actual likelihood of prejudice? (iii) can court shape relief to avoid that prejudice? |
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What is Impleader? And who can sue whom in that situation?
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A defendant party wants to add new third party defendant. The TPD may owe indemnity or contribution to the defending party on the underlying claim Right to implead within 10 days after serving answer, after that, need court permission After TPD join, P can assert claim against TPD and TPD can assert claim against P if the claim arises from the same T/O as the underlying case - SMJ FQ, diversity and supplemental analysis apply. - P may not have SMJ over TPD even though TPD may assert claim against P. - Supplemental Limitation does not apply to TPD
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Example of Impleader (Third party practice)
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• Plaintiff sues defendant
• Defendant forces in new party • Defendant becomes third party plaintiff • New party is third party defendant • 3rd party defendant is liable to third party plaintiff for all or part of the original plaintiff’s claim • The same event has to give rise to the claim of the plaintiff against the defendant and the claim of the defendant against the third party or parties |
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What is Intervention?
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Absentee WANTS to join a suit: Intervention as a right: A's interest may be harmed if she is not joined and not represented currently Permissive Intervention: A's claim of defense has at leave one common Q. Discretion with court, avoid 'Delay or Prejudice' No supplemental JDX over intervenor's claim, if it lacks Diversity.
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What are the Class Action Initial Requirements, Federal? Relating to representation?
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Must satisfy all of these
1. Numerosity: too many class members for practicable joinder 2. Commonality: there are some questions of law or fact in common to class 3. Typicality: representative's claims/defenses typical of those of the class 4. Adequate representation: the class representative will fairly and adequately represent class |
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What are the Three types of Class Actions? Subject Matter.
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1. Prejudice: class treatment necessary to avoid harm either to the class members or to the party opposing the class (individual suits depleting a fund)
2. Injunction or declaratory judgment (not damages) sought because class was treated alike by other party (employment discrimination) 3. Damages i. Common questions predominate over individual questions AND ii. Class action is the superior method to handle the dispute - i.e Class Tort |
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Class Action Certification
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Representatives sues on behalf of group.
Court must determine “at an early practicable time” to CERTIFY the case to proceed as a class action. If the court certifies the class, it must “define the class and the class claims, issues, or defenses,” and to appoint a class counsel. Class counsel must fairly and adequately represent the interests of the class. In Type 3 (damages), the court must notify class members, including individual notice (usually by mail) to all reasonably identifiable members. - The notice tells them various things, including (i) they can opt out (ii) they'll be bound if they don't and (iii) they can center a separate appearance through counsel. Rep pays. Who's bound by the judgment? - All class members, except those who opt out of a Type 3 class. (Remember, though, no right to opt out of a Type 1 or Type 2 class action.) |
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Class Subject Matter Jurisdiction
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• The class could invoke FQ jurisdiction by asserting a claim arising under federal law.
• Class action brought under diversity of citizenship: look only to the representatives • For determining the amount in controversy, though, courts are badly split. i. Some say that every member of the class must claim more than $75,000. ii. But, other courts (INCLUDING THE NINTH CIRCUIT) say OK if the representative's claim exceeds $75,000, regardless of class members' claims. |
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When can plaintiff voluntarily dismiss case without court permission?
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• Plaintiff can dismiss case without court permission before defendant serves an answer or motion for summary judgment
• Without court permission, parties can submit stipulation of dismissal signed by all |
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Is a first time voluntary dismissal with or without prejudice?
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Without prejudice. Second time is with prejudice.
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What are the Required Disclosures in discovery? Must be made no matter what.
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Must be made even if no one asks for them: 1. Initial disclosures. Must identify persons and documents likely to have discoverable information that the disclosing party may use to support its claims or defenses, computation of damages and insurance for any of judgment. 2. Experts. As directed by court, must identify experts 'who may be used at trial' and produce written report containing opinions, data used, qualifications, compensation for study, etc. 3. Pretrial. No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition.
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What are the Discovery Tools?
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1. Depositions
2. Interrogatories 3. Requests to Produce 4. Physical or mental examinations 5. Requests for admission 6. Oath 7. Supplement |
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What are the Depositions procedures?
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Questions can be oral or written. Sworn oral statements by deponent responding to questions by counsel (or pro se parties), recorded by sound or video/sound or stenographically. Transcript can then be made. Can depose nonparties or parties.
- Nonparty should be subpoenaed, however, or she is not compelled to attend. Subpoena could be “duces tecum,” which requires the deponent to bring material (e.g., documents) with her. Party need not be subpoenaed; notice of the deposition, properly served, is sufficient to compel attendance. 1. Cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. - Deposition cannot exceed one day of seven hours unless court orders or parties stipulate. 2. Use at trial (all subject to rules of evidence): i) impeach the deponent; ii) any purpose if the deponent is an adverse party; iii) any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence. |
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What are the Interrogatories procedures and **CA** distinctions?
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Questions propounded in WRITING to another party, to be answered in writing under oath. Time Frame: Must respond with answers or objections within 30 days.
Unable to Respond: Can say you don't know the answer, but only after reasonable investigation; if the answer could be found in business records and it would be burdensome to find it, can allow propounded access to those records. Use at trial: cannot use your own answers; others may be used per regular rules of evidence. Limits: Cannot serve more than 25 (including subparts) without court order or stipulation. - **CA** No limit on FORM interrogatories - **CA** No more than 35 of drafted interrogatories |
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What are the Requests to produce procedures and **CA** distinctions?
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Description: Requests to another party (or to non-party if accompanied by subpoena) requesting that she make available for review and copying various documents or things, or permit entry upon designated property for inspection, measuring, etc. - **CA** cannot use on nonparty. But can subpoena to deposition with 'duces tecum' Timeframe: Must respond within 30 days of service, stating that the material will be produced or stating objection
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When is a Physical or mental examination allowed?
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Only available through court order upon showing that party's (or person in party=s control, e.g., parent in control of child) health is in actual controversy and a good cause, which means you need it and can't get it elsewhere.
Person examined may obtain copy of report without making this showing, but by doing so waives his doctor-patient privilege re reports by his doctors re that condition |
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What is a Request for admission?
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A request by one party to another party to admit the truth of any discoverable matters. Use: Often to authenticate documents Timeframe: Must respond within 30 days of service. The response is to admit or deny; can indicate lack of information only if indicate you've made a reasonable inquiry. NOTE: Failure to deny tantamount to admission; can amend if failure not in bad faith
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Duty to supplement
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If a party learns that its response to required disclosure, interrogatory, request for production or request for admission is incomplete or incorrect, it must supplement its response.
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Parties sign substantive answers under oath
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Every discovery request and response is signed by counsel certifying it is warranted, not interposed for improper purpose and not unduly burdensome.
Remember, Rule 11 does not apply to discovery documents, so this is a separate certification for them. |
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What are Parties duties in responding to discovery?
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Certified: Every discovery request and response is signed by counsel certifying it is warranted, not interposed for improper purpose and not unduly burdensome. Not Rule 11, this is a separate certification. Supplement: If a party learns that its response to required disclosure, interrogatory, request for production or request for admission is incomplete or incorrect, it must supplement its response. - **CA** there is no duty to supplement discovery. But opposing party can propound supplemental interrogatories twice before date of trial is set.
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What is allowed for **CA** Discovery in LIMITED cases?
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Depositions: 1 ONLY Interrogatories, inspection demands, and requests for admission: Combined total of 35. Additional Discovery: Only with a court order
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What is the Substantive scope of discovery Fed and **CA**?
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1. Standard. Can discover anything 'relevant to a claim or defense.' - Relevant mean'reasonably calculated to lead to the discovery of admissible evidence (this is broader than admissible)' - For good cause, the court can expand discovery to 'relevant to the subject matter of the case.' - **CA** always at the broader 'relevant to subject matter' standard 2. Privileged matter not discoverable - **CA** Privilege must be identified with particularity 3. Work product or 'trial preparation materials' Generally protected from discovery. SEE Work Product Card 4. Expert witnesses: - Must produce information about experts who may be used at trial without request from party. - Party may take deposition of any expert 'whose opinions may be presented at trial.' - **CA** Party may request simultaneous exchange of expert information
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What is Work Product Fed and **CA**? And when is it discoverable?
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Work product of lawyers and OTHERS in anticipation of litigation is discoverable only if: 1) upon showing substantial need; AND 2) avoid undue hardship **CA** Only work product produce BY ATTORNEY is protected. The court must secure against: 1) mental impressions 2) opinions 3) conclusions 4) Legal Theories
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How Party seeks enforcement of discovery rules?
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1. Receiving party seeks protective order (26(c), e.g., overburdensome, or involves trade secrets and we want an order limiting use to the litigation); 2. Partial Violation: Receiving party answers some and objects to others expect a LIGHT sanction. 3. Total Violation: Receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production expect a HEAVY sanction.
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What are Sanctions against a Party for failure to comply with discovery, Fed and **CA**?
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To seek, the party must certify to the court that he tried in good faith to get the info without court involvement
1) In situation 1(b) (partial violation): order compelling the party to answer the unanswered questions, plus costs of bringing motion (including attorney=s fees). 2) Violation of order compelling: RAMBO plus costs (and attorney=s fees re the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam) 3) In situation 1(c) (total violation): RAMBO plus costs (and attorney=s fees re the motion); 4) False denial of request to admit: recover only costs (and attorney=s fees) of having to prove the issue. 5) Failure to make required disclosure: other side can choose to treat as situation 1(b) or treat as situation 1(c) and the party failing to make disclosure cannot use the info at trial, unless failure was justified or harmless. -- RAMBO SANCTIONS (choices available to judge): i. Establishment order (establishes facts as true) ii. Strike pleadings of the disobedient party (as to issues re the discovery) iii. Disallow evidence from the disobedient party (as to issues re the discovery) iv. Dismiss plaintiff's case (if bad faith shown) v. Enter default judgment against defendant (if bad faith shown) **CA** Sanctions are basically the same but not as harsh. Court will generally move through each level to encourage party to comply. |
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Sanction against nonparty
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contempt (for violating subpoena or court order)
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Sanction against attorney
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Liable for all expenses (including attorneys= fees) incurred by the other side if she counseled one of these bad acts
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What are the Pretrial Adjudication (List of Options)?
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1. Voluntary Dismissal **CA** Involuntary Dismissal
2. Default and Default Judgment 3. Failure to State a Claim 4. Summary Judgment |
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What is a Voluntary Dismissal?
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Plaintiff files a written notice of dismissal. Dismissed w/out prejudice unless second case
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What is a Involuntary Dismissal Fed and **CA**?
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All courts have authority to dismiss for various reason, such as not following procedure. **CA** Mandatory Dismissal 1) Not brought to trial within 5 years of filing 2) Process is not served within 3 years after filing.
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Default
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Default is a notation made by the court clerk on the docket sheet for the case.
A claimant gets a default by showing the clerk of the court that the defendant failed to respond within 20 days after being served with process. Defendant can respond anytime before the default is entered on the docket. Having a default does not entitle the claimant to recover. She needs a judgment to enforce and recover money or other remedies. The clerk of the court can enter judgment if: 1. There has been no response at all by the defendant; 2. The claim itself is for a sum certain; 3. Claimant gives an affidavit that that is owed; and 4. Defendant is not a minor or incompetent. |
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Default cont.
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If any of those four things is not true, the claimant must go to the court itself (not the clerk) to get the judgment.
The judge will hold a hearing and has discretion about whether to enter the judgment. D gets notice of that hearing only if she has made some appearance in the case. 1. A default judgment cannot exceed what the claimant demanded in her complaint (or be a different type of relief. This is different from when a case goes to trial. There, the claimant can recover more than she claimed in the complaint (or a different type of relief). 2. After default, D can move to set aside the default, usually by showing good cause and a viable defense. Good cause usually means excusable neglect. 3. After default judgment, D can move to set aside the judgment. Same basic showing as to set aside the default. |
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What is a Failure to State a Claim both Fed and **CA**?
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Under Rule 12(b)(6) D can move to dismiss for failure to state a claim. - It tests only the sufficiency of P's allegations. Standard: The court assumes all allegations are true and asks this: if P proved all she has alleged, would she win a judgment? If after pleadings are closed: motion on the pleadings **CA** General Demurrer - See Demurrer card.
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What is a Summary Judgment?
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Moving party must show: 1) there's no genuine dispute as to material issue of fact; AND 2) that he is entitled to judgment as a matter of law. Court generally views the evidence in the light most favorable to the nonmoving party. The motion can be for 'partial' summary judgment, e.g., as to one of several claims. **CA** Burden shifting, if D shows that Ps claim lacks merit, burden moves to P to demonstrate (produce evidence) that a triable issue of fact exists. Procedure: 1) Moving party submits a statement listing each material fact that she claims is undisputed with evidence. 2) Nonmoving party may respond to each claim
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What are Affidavits?
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Are sworn statements, under penalty of perjury, so they can be evidence Pleadings are not evidence, unless a verified pleading
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What are Conferences and Meetings?
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1. Rule 26(f) Conference 2. Scheduling Order 3. Pretrial Conference
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What is a Rule 26(f) Conference?
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Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses and settlement. Must form discovery plan and present it to court in writing within 14 days.
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What is a Scheduling Order?
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Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, etc.
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What are Pretrial Conferences?
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Final pretrial conference determines issues to be tried and evidence to be proffered. The final pretrial conference order is an important document -- it is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. So there are NO surprises at trial.
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Jury Trial
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Juries determine FACTS, and are instructed on the law by the judge.
1. Requirement of demand. Must demand in writing no later than 10 days after service of the last pleading raising jury triable issue. Can do so in a pleading or separate paper. 2. Right to jury trial in federal court. Seventh Amendment (which applies ONLY in federal court (not state court) preserves the right to jury in “civil actions at law,” but not in suits at equity. If both, usually the court will try the jury issues first. 3. In the jury selection process (“voir dire”), each side has unlimited strikes for cause (e.g., bias, prejudice, related to a party). Each side also gets three “peremptory” strikes. Peremptory strikes must be used in a race and gender neutral way. 4. Motion for judgment as a matter of law |
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Motion for judgment as a matter of law
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Directed verdict
This is an exceptional order, the effect of which is to take the case away from the jury. Evidence viewd in light most favorable to motion's opponent laeds reasonable person to conclusion in favor of moving party |
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Renewed motion for judgment as a matter of law (judgment notwithstanding the verdict (JNOV)
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1. Situation: jury returns a verdict for one party, and the court enters judgment on the basis of the verdict. Now the losing party files a renewed motion for judgment as a matter of law which, if granted, would result in entry of a judgment for him. Move within 10 days after entry of judgment.
2. Standard: same as with motion for judgment as a matter of law. (So, if granted, the court is saying that the jury reached a conclusion reasonable people could not have reached.) 3. Motion for judgment as a matter of law AT CLOSE OF ALL EVIDENCE is a prerequisite! If you did not move for judgment as a matter of law at the close of all evidence, you cannot bring the renewed motion for judgment as a matter of law. |
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Motion for a new trial.
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1. Situation: judgment entered, but errors at trial require a new trial. Something happened that makes the judge think the parties should start over and re-try the case. Move within 10 days after judgment.
2. Grounds: (i) prejudicial (not harmless) error at trial makes judgment unfair (e.g., wrong jury instruction; evidentiary ruling); (ii) new evidence that could not have been obtained with due diligence for the original trial; (iii) prejudicial misconduct of party or attorney or third party or juror (e.g., juror conducted independent investigation of accident); (iv) judgment is against the weight of the evidence (serious error of judgment by jury). 3. Compare: grant of new trial is less radical than grant of renewed motion for judgment as a matter of law, because it means the court will simply start over and decide who should win. |
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Final Judgment Rule
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As a general rule, can appeal only from final judgments, which means an ultimate decision by the trial court of the merits of the entire case.
File notice of appeal in trial court within 30 days after entry of final judgment. Ask: after making this order does the trial court have anything left to do on the merits of the case? If so, probably not appealable |
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Interlocutory (non-final) review
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These might be appealed even though not final judgments.
1. Interlocutory orders reviewable as of right: orders granting, modifying, refusing, etc. injunctions; appointing, refusing to appoint receivers; findings of patent infringement where only an accounting is left to be accomplished by trial court; orders affecting possession of property, e.g., attachments. 2. Interlocutory Appeals Act. Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it. 3. “Collateral order” exception. Appellate court has discretion to hear ruling on an issue if it (a) is distinct from the merits of the case, (b) involves an important legal question, and (c) is essentially unreviewable if parties must await a final judgment (e.g., claim of immunity from suit, such as a state=s claim of Eleventh Amendment immunity from suit for damages). |
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Interlocutory (non-final) review cont.
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4. When more than one claim is presented in a case (e.g., claim and counterclaim), or when there are multiple parties, the trial court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay.
5. Extraordinary writ. Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only to enforce a clear legal duty. 6. Class action. Court of appeals has discretion to review order granting or denying certification of class action. Must seek review within 10 days of order. Appeal does not stay proceedings at trial court unless trial judge or court of appeals so orders. |
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Res Judicata and Collateral Estoppel (basic)
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Whenever there has been an earlier case, watch for these issues, which concern the preclusive effect of a prior judgment on the merits.
The question is whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2) |
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Res judicata
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Claim preclusion - prohibits re-litigation of a claim that has already been litigated by the parties and gone to judgment
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Res Judicata
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You only get to sue on a cause of action (or claim) once. So if you have a “claim,” you only get one case in which to vindicate all rights to relief for that claim.
1. Case 1 and Case 2 were brought by the same claimant against the same defendant. 2. Case 1 ended in a valid final judgment on the merits. (General rule: Unless the court said otherwise when it entered the judgment, any judgment is “on the merits” UNLESS it was based on ??? 3. Case 1 and Case 2 asserted the same “claim.” So P must seek in one suit all rights to relief encompassed in a single claim, or else he waives the right to get it later. - Most jurisdictions (including federal law) define “claim” transactionally: a claim is any right to relief arising from a transaction or occurrence. - BUT some courts say there are separate claims for property damage and for personal injuries, though, because those are different primary rights. |
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What about res judicata rules of a state?
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• Federal court must accept res judicata rules of deciding state
• Federal court must determine whether state court would want its dismissal to have preclusive effect on litigation in federal court |
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Collateral Estoppel
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This precludes relitigation of a particular issue litigated and determined before. That issue is deemed established in second action, so it cannot be relitigated. Requirements:
1. Case 1 ended in a valid, final judgment on the merits. 2. The same issue was actually litigated and determined in Case 1. (So, for example, a default judgment might not have a collateral estoppel effect, because the court might not have litigated anything.) 3. The issue was essential to the judgment in Case 1. (It supported the judgment.) 4. Against whom can collateral estoppel be asserted? Only against one who was a party to Case 1 (or who was represented by a party). THIS IS REQUIRED BY DUE PROCESS. |
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By whom can collateral estoppel be asserted?
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Traditional view (mutuality): only by one who was a party to Case 1.
- THIS IS NOT REQUIRED BY DUE PROCESS, AND SOME COURTS HAVE REJECTED IT TO ALLOW “NONMUTUAL” ASSERTION OF COLLATERAL ESTOPPEL. So non-mutual means it's being used by one who was not a party in Case 1. That person may be the defendant or the plaintiff in Case 2. |
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Collateral estoppel
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Issue preclusion - forecloses the relitigation of issues that were litigated and decided in a previous lawsuit
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Privity (collateral estoppel)
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A judgment binds only the parties involved and those in privity with them
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Circumstances of Privity
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• A nonparty who has succeeded to a party’s interest in property is bound by any prior judgments against that party
• A nonparty who controlled the original suit will be bound by the resulting judgment (i.e. a parent company controls a suit for the subsidiary) • Nonparty’s interests were adequately represented by a party in original suit |
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Mutuality of estoppel
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• Now defunct, • In the past, no person could benefit from a prior judgment when he stood to lose nothing by it, when he would not have been bound by it
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Defensive use of collateral estoppel
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• Defendant uses collateral estoppel to establish defense
• A sues b for medical malpractice related to surgery. Jury finds that A suffered no harm from surgery. A then sues C who assisted in same surgery. C seeks to bar A from re-litigating the issue of whether the surgery caused him harm |
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Offensive use of collateral estoppel
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• Use of collateral estoppel for purpose of establishing a claim for relief
• A sues B for accident, and jury finds B was negligent. C (passenger in A’s car) files suit against B based on same accident and seeks to preclude B from re-litigating the negligence issue. |
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Four factors needed for offensive collateral estoppel:
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• Could the nonparty have joined the prior litigation?
• Was the subsequent litigation foreseeable at time of first suit? • Is judgment at issue consistent with prior judgments against the defendant? • Are any procedural opportunities available to defendant that were not previously available? |
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Arbitration
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• Neutral judge or panel of judges conducts a hearing and decides case, • ward is generally binding
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Mediation
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• Neutral facilitator facilitates negotiation among parties
• There is no judgment • If mediation fails, parties proceed to trial |
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Advantages of ADR
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• Cost, • Speed , • Preserving relationships among parties
• No publicity, • Expertise of arbitrator or mediator |
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Disadvantages of ADR
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• Limited discovery and pleadings
• Limited opportunity to present evidence • Limited appeal rights • Selection of arbitrator • Lack of diversity among mediators and arbitrators • No precedential value of awards |
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Rule 4
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• Service can be affected by any person 18 or older who is not a party
• Service by delivery to individual personally or by leaving documents at individual’s home with a person of suitable age and discretion who resides there • Service to defendant’s agent • Service pursuant to state law •• If a state has a law dealing with service and you’re in that state, you can follow that law, even if you’re in federal court |
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Rule 4(d)
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• Service by mail
• Defendant who waives service in person gets 60 days to answer rather than 20 • Defendant who refuses waiver is assessed the costs of service |
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Rule 8(a)(1)
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Pleading for a claim for relief (claim, counterclaim, cross-claim, etc.) shall contain a short statement on grounds for court's jurisdiction and short statement showing pleader is entitled to relief and demand for judgment for the relief the pleader seeks
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Rule 10
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Set up of pleadings
(a) caption - names of parties, (b) paragraphs - separate statements |
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Rule 11
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Requires attorney (or party representing herself, called a pro se party) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule)
Certifying that to the best of her knowledge and belief, after reasonable inquiry: (1) the paper is not for an improper purpose (2) the legal contentions are warranted by law (or nonfrivolous argument for law change) (3) that factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation). Certification effective every time position is “presented” to the court (e.g., at filing, later advocating a position)Cso it=s a continuing certification. Sanctions may be levied (they are discretionary) against attorney, firm or party. Only deter (not punish) Motion for violation is served on other parties but is not immediately filed with court. Party allegedly violating Rule 11 has 21 days (“safe harbor”) to withdraw the document or fix the problem. If she does, no sanctions. If she does not do so, then the motion can be filed. Court can raise Rule 11 sua spontae (on its own) |
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Rule 11
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• Court may sanction lawyers or parties responsible for violation – 11(c)
• allegations are warranted by existing law or legitimate argument for extension of the law - 11(b)(2) • allegations must have evidentiary support - 11(b)(3) • Court has discretion – it may impose sanctions • Alleged violator has 21 days to withdraw or correct the challenged pleading • Court may impose sanctions on its own initiative with show cause opportunity - 11(c)(1)(b) |
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What happens if alleged violator of Rule 11 withdraws or corrects the challenged pleading?
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The motion goes no where and the court never even sees it
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Rule 11(b)(2)
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Sanctions are not appropriate if party has “a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.”
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Rule 12
Form Related Motions |
Form-Related Motions:
(e) More definite statement - pleading is so vague D cannot frame a response (rare) (f) To strike - which is aimed at immaterial things, e.g., demand for jury when no right exists; any party can bring this motion. |
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Rule 12
Non-Waivable Motions |
Non-Waivable Motions
(1) No SMJ (6) Failure to state a claim (7) Failure to join indispensable party |
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Rule 12
Waivable Motions |
Must be put in FIRST Rule 12 response
Waivable Motions (2) Lack of Personal Jurisdiction (3) Improper Venue (4) Insufficiency of Process (5) Insufficient Service of Process Indispensable party and failure to state a claim can be raised any time during trial Subject matter can be raised anytime, including after trial |
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Rule 12(e)
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Motion for a more definite statement
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Rule 12(b)
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Motion to dismiss based on:
1) lack of subject matter jurisdiction 2) lack of personal jurisdiction 3) improper venue 4) insufficiency of process 5) insufficient service of process 6) failure to state a claim; 7) failure to join indispensable party These can be raised either by motion or by answer |
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When must a Rule 12(b)(6) motion be filed?
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It must be filed before the answer
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What must a Rule 12(b)(6) motion state?
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It must state that complaint fails to allege a claim upon which relief can be granted
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How are facts in complaint dealt with in a 12(b)(6) motion?
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All material facts well pleaded in complaint must be taken as true
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How is a 12(b)(6) case usually dismissed?
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Usually a motion to dismiss is given with prejudice, which means that its garbage and you can’t bring it again. Every once in a while a judge will dismiss a case without prejudice, which means you can retool it and bring it again
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When must a 12(b)(6) motion be denied?
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If there is a contested issue of material fact.
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Rule 12(h)(1)
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Provides that lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process will be waived forever if omitted from a pre-answer motion, or if no motion is made, from the answer
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Rule 12(h)(2)
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Provides that failure to state a claim upon which relief can be granted, failure to join an indispensable party, and failure to state a legal defense to a claim can be made in any pleading or by motion for judgment on the pleadings, or at trial on the merits
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Rule 12(h)(3)
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Provides that lack of jurisdiction of the subject matter may be made at any time
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Rule 13(h)
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If a party asserts a counterclaim or cross-claim, it can add parties as long as rules 19 and 20 are not violated
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Rule 14
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Impleader
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Rule 15
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Amendments
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Rule 15(a)
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Adding a new claim if statute of limitations has not expired
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Rule 15(c)(2)
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Adding new claim after statute of limitations expires
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Rule 15(c)(3)
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Relation back
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Rule 16
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Pretrial conference
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Rule 18(a)
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• Addresses joinder of CLAIMS
• One party can join in the same lawsuit as many claims as it has against another party even if they are unrelated |
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Rule 19
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Compulsory joinder of parties
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Rule 20
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Permissive joinder of parties
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Rule 23
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Class actions
• First, all four prerequisites of 23(a) are met • Then, must fulfill one of the requirements of 23(b) |
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Rule 23(e)
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Settlement of class actions
• Court approval required • Notice to all class members required, as directed by the court |
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Rule 26(a)(1)(A-D)
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Initial disclosures and what must be disclosed in them
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Rule 34
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Request for production of documents
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Rule 37
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Discovery sanctions
• Reimburse opponent for expenses relating to failure to cooperate • Court can strike portions of pleadings, exclude evidence, decide issues against disobedient party • Dismiss complaint or declare default judgment |
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Rule 41(a)(1)
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Voluntary dismissal
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Rule 41(b)
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Dismissal of case constitutes a judgment on the merits unless:
• Judge says it’s not a judgment on the merits • Dismissed for lack of jurisdiction • Dismissed for improper venue • Dismissed for failure to join party under Rule 19 |
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Rule 49
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• Special verdict – jury gets particular questions and must make written finding on each issue
• General verdict – normal liable/not liable verdict • General verdict and interrogatories – jury issues a verdict and then answers specific questions about its finding of fact |
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Rule 50(a)
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Judgment as a matter of law
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Standard under Rule 50(a):
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• Judge must find that “there is no legally sufficient evidentiary basis for a reasonable jury to find for the [opposing] party.”
• Evidence too weak to support a rational verdict for opposing party. |
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Rule 50(b)
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Renewing motion for judgment after trial
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Rule 55(a)
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Entry of default
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Rule 55(b)
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Judgment by default
Judgment is usually entered by the court after a hearing. In rare circumstances, if damages easily ascertainable, clerk may enter judgment |
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Rule 55(c) factors
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• Whether plaintiff will be prejudiced
• Whether defendant has a meritorious defense • Whether defendant’s culpable conduct led to the default |
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Rule 56
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Summary judgment
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Rule 59: New trial appropriate if:
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• Serious error occurred during trial
• Verdict was against the clear weight of the evidence • Motion made no later than 10 days after entry of judgment • Motion made by any party or by the judge sua sponte |
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Rule 56(f)
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Court can order continuance of motion for summary judgment to allow further discovery
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Rule 60(b)
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Relief from judgment or order - mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud
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How long after judgment can Rule 60(b) be used?
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Not more than 1 year
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Rule 65(b)
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Temporary restraining order
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