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87 Cards in this Set

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Personal Jurisdiction (basic)
In what state can P sue D? (state or federal doesn't matter)

P wants to impose a personal obligation on D. Jurisdiction is over the person, not property, because of some contact between D and the forum state

1. Satisfy a statute (state long arm)

2. Satisfy the Constitution (Due Process)
Statutory Analysis (In personam jurisdiction)
All have have domicile, presence and consent

Some long arm statutes simply say they reach the constitutional limit.

Others list things that a nonresident might do in the forum to submit herself to jurisdiction there. (Argue both ways)
Constitutional Analysis- basic test (in personam jurisdiction)
Does the D have “such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice”????

Easy Cases (domiciled, presence, consent)
Contact (Con Analysis- in personam jurisdiction)
Some tie between D and the forum

The contact MUST result from PURPOSEFUL AVAILMENT (D's voluntary act – reach out)
ie. ship goods, use road, cause an effect

FORESEEABILITY that D would get sued in this forum
Fairness (Con Analysis- in personam jurisdiction)
Fair play and Substantial Justice

1. RELATEDNESS: between the contact and the claim (important if small amount of contact)

- Don't need if substantial ties (domiciled, continuous business, served)- general jurisdiction

2. CONVENIENCE (severe disadvantage in the litigation- hard)

3. STATE”S INTEREST (provide forum for its citizens)
My Parents Frequently Forget to Read Childrens' Stories
Minimum Contacts

Purposeful availment

Foreseeability

Fair play & substantial justice

Relatedness of contact and claim

Convenience

State's interest
In rem and quasi in jurisdiction
Jurisdictional basis is property

Statutory basis is an attachment statute

Constitutional

- Historically: attachment only necessity

- Modern: My Parents Frequently Forgot to Read Children's Stories
Subject Matter Jurisdiction (basic)
State or federal court?

2 types of federal cases

1. Diversity of Citizenship

2. Federal Question
Diversity of Citizenship (SMJ)
The action must be between citizens of different states (or a foreigner)

The amount in controversy must exceed $75,000
Complete diversity rule
“There is no diversity of citizenship jurisdiction if any plaintiff is a citizen of the same state an any defendant”

Test: When the case is filed
Individuals (Diversity)
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
Corporations (Diversity)
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

- Many courts use nerve center unless ALL activity in one state
Unincorporated Associations (Diversity)
Use the citizenship of all members

Includes general and limited partners
Decedents, minors, and incompetents (Diversity)
Look to their citizenship, not the citizenship of their representative
Amount in controversy (Diversity)
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
Federal Question jurisdiction
Claim arises under federal law (no diversity or amount in con req)
- Well-plead complaint: sets forth only a claim

ASK: “Is P enforcing a federal right?”

- Fed. Law may not allow something, this is not creating a RIGHT

- Ask for every claim!!! (If no, diversity? If no, try supplemental jurisdiction)
Supplemental Jurisdiction
Lets a federal court hear ADDITIONAL claims over which there is no diversity of citizenship or GQ jurisdiction

Test: Claim must share a “common nucleus of operative fact”
- Comes out of “same transaction or occurrence” (T/O)

Court has discretion where:
1. FQ dismissed early
2. State law complex
3. State law issues predominate
Limitation to Supplemental Jurisdiction
By P only in diversity of citizenship cases

Cannot use to overcome a lack of diversity (second D no diversity)

Can use to overcome lack of diversity for a P in a FQ case

Can use to overcome a lack of amount in controversy for claims by P in a diversity cases

Can use for anyone, but P

So a non-federal, non-diversity claim can be heard in federal court if it meets “the test: UNLESS
1. Asserted by a plaintiff
2. In a diversity of citizenship case
3. Would violate complete diversity
Removal
Allows D to have case filed in state court “removed” to fed court.

Only state to federal. If improper, fed remands

Can remove if the case could be heard in fed courts

Case can only be removed to the federal district embracing the state court in which the case was originally filed

Must remove no later than 30 days after SERVICE of the first removable document. (Some become removable after original service)

All D's must agree

Even with counterclaim, P can't remove

Special rules for diversity cases

1. No removal if any D is a citizen of the forum

2. No removal more than one year after case filed (even if D citizen of forum dropped)
Procedure for Removal
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
Waiver of Right to Remove
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
Eerie Doctrine (basic)
In diversity cases, federal court must apply state substantive law.
Substantive law is Clear (Eerie):
1. Elements of claim or defense
2. Statute of limitations
3. Rules for tolling statutes of limitations
4. Choice of law
Substantive Law is Hard (Eerie)
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.
Venue
Which federal court

1. Local actions: actions re ownership, possession or injury (including trespass) to land must be filed in the district where the land lies

2. If no local action, two basic choices

(i) In any case, plaintiff may lay venue any district where
ALL D's reside (All D's in different districts of same state, P can lay in any district in which one resides)

(ii) a substantial part of the claim arose

3. If neither, then

(i) In a federal question case, in any district where and D “is found”

(ii) In diversity, in any district where D “subject to personal jurisdiction”
Where do D's reside for venue purposes
Humans: domicile

Corporations: all districts where it is subject to personal jurisdiction when the case is filed
Transfer of venue
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
Forum Non Conviens
If there is a far more appropriate court elsewhere, may dismiss without prejudice.

Transfer is impossible (ie foreign country)

Public and private factors

Requires a very strong showing: dismissal

Does not matter if will recover less

Almost never granted if P is resident of the present forum
Service of Process (Procedure)
In addition to personal jurisdiction, must give notice

Deliver to D

A summons

A copy of the complaint

Serve within 120 days of filing case or dismissed (unless good cause for delay)
Service of Process (Considerations)
Process may be served by any nonparty who is at least 18 yrs. old

Personal service: Papers given to D personally anywhere in forum state

Substituted service: Process if another person at usual abode, suitable age and discretion

Service on D's agent as long as within scope; corp: registered agent

State law: any method permitted by state law

Waiver by mail: Process is mailed to D by first class mail, postage prepaid. Ok, if return waiver form in 30 days. Waives only formal service. If no waiver, may be forced to pay cost of service

Geographic Limitations: Process is delivered to D in another state. OK only if forum state law allows (for example, with a long-arm statute).

- Two exceptions (where federal court can serve outside the forum state regardless of state law) (1) bulge rule (2) statutory interpleader

Immunity from Service: only in State to be witness or party in another civil case
Pleadings
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
Rule 11
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)
Complaint
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.

- Special damages do not normally flow from an event.
Defendant's Response to a Complaint
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).
Types of motions (Rule 12)
Motions are not pleadings; they are requests for a court order.

Issues of form:
(1) 12(e) motion for more definite statement -- pleading so vague D cannot frame a response (rare)

(2) 12(f) motion to strike, which is aimed at immaterial things, e.g., demand for jury when no right exists; any party can bring.

Rule 12(b):
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
Waivable Motions
Must be put in FIRST Rule 12 response

2) Lack of personal jurisdiction
3) Improper venue
4) Insufficiency of process
5) Inusufficient service of process

Indispensable party and failure to state a claim be raised any time during trial

Subject matter can be raised anytime, including after trial
Timing of the motions
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.
Timing of the Answer
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.)
Answer
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
Counterclaims
These are offensive claims against an opposing party, e.g., D v. P.

They are filed with defendant's answer.

1. Compulsory: arises from the same T/O as P's claim.
- MUST BE FILED IN THE PENDING CASE, OR IT'S WAIVED.
- The claim cannot be asserted in another action. (If dismissed, never have to answer, never had to assert)

2. Permissive: does not arise from same T/O as plaintiff's claim.
- Does not have to be asserted in pending case; can sue in separate action.

If a counterclaim is procedurally OK, then assess whether it has subject matter jurisdiction (diversity or FQ).
- If so, it's OK.

- If not, can you get supplemental jurisdiction? (compulsory counterclaim always meets test)
Cross-claims
Offensive claims against a co-party.

Claim must arise from the same T/O as the underlying action.

Not compulsory.

Check FQ? Diversity? Supplemental?

- Not considered P for purpose of supplemental
Amending pleadings.
Plaintiff has a right to amend once before responsive pleading or within 20 days of service of pleading

Defendant has a right to amend once within 20 days of serving his answer.

If there's no right to amend, seek leave of court; it will be granted if “justice so requires.”

- Courts usually allow unless there's delay or prejudice.

- If a claimant amends, D must respond within 10 days or remaining 20 days, whichever is longer.

Variance: evidence at trial does not match what was plead (can move to amend the complaint to conform to the evidence)
Amendment after the statute of limitations has run
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)
Joinder of Parties
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
Necessary and indispensable parties are necessary if
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
Joinder is feasible where
1. There is personal jurisdiction

2. Joining him will not make it impossible to maintain diversity
Where Joinder is not feasible
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?
Impleader
Third Party Practice

A defendant party wants to bring in someone new (third party defendant)for one reason: 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

For subject matter jurisdiction: FQ, diversity and supplemental analysis apply
Class Action Initial Requirements
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
Three types of Class Actions
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
Class Action Certification
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 (b) 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.)
Class Subject Matter Jurisdiction
- 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.
Required Disclosures
1. Initial disclosures. Unless court order or stipulation of parties differs, in most cases, within 14 days of the Rule 26(f) conference, must identify persons and documents Alikely 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 Awho 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.
Discovery Tools
1. Depositions
2. Interrogatories
3. Requests to Produce
4. Physical or mental examinations
5. Requests for admission
6. Oath
7. Supplement
Depositions
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.
Interrogatories
Questions propounded in writing to another party, to be answered in writing under oath.

Must respond with answers or objections within 30 days.

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 propounder access to those records.

At trial, cannot use your own answers; others may be used per regular rules of evidence.

Cannot serve more than 25 (including subparts) without court order or stipulation.
Requests to produce
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.

Must respond within 30 days of service, stating that the material will be produced or stating objection
Physical or mental examination
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
Request for admission
A request by one party to another party to admit the truth of any discoverable matters.

Often used to authenticate documents; the propounding party will send copies of the documents to be authenticated with the request.

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. Failure to deny tantamount to admission; can amend if failure not in bad faith
Parties sign substantive answers under oath
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.
Duty to 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.
Substantive scope of discovery
1. Standard. Can discover anything “relevant to a claim or defense.”

For good cause, the court can order discovery “relevant to the subject matter of the case.”

- Relevant means “reasonably calculated to lead to the discovery of admissible evidence (this is broader than admissible)

2. Privileged matter not discoverable

3. Work product or “trial preparation materials” (material prepared in anticipation of litigation). Generally protected from discovery

4. Expert witnesses. Remember, required to produce information about experts who may be used at trial without request from party. In addition, party may take deposition of any expert “whose opinions may be presented at trial.”
Work Product
Work product of lawyers and OTHERS in anticipation of litigation is discoverable only

1) upon showing substantial need
2) avoid undue hardship

The court must secure against
1) mental impressions
2) opinions
3) conclusions
How Party seeks enforcement of discovery rules
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. Receiving party answers some and objects to others. At worst, if the objections are not upheld, this is a partial violation, so we expect a light sanction.

3. Receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production. This is a total violation, so we expect a heavy sanction.
Sanctions against a Party
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)
Sanction against nonparty
contempt (for violating subpoena or court order)
Sanction against attorney
Liable for all expenses (including attorneys= fees) incurred by the other side if she counseled one of these bad acts
Pretrial Adjudication
1. Voluntary Dismissal
2. Default and Default Judgment
3. Failure to State a Claim
4. Summary Judgment
Voluntary Dismissal
Plaintiff files a written notice of dismissal.

Dismissed w/out prejudice unless second case
Default
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.

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.
Failure to State a Claim
Under Rule 12(b)(6) (called “demurrer” in some state courts), 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
Summary Judgment
Moving party must show

1) there's no genuine dispute as to material issue of fact

2) that he is entitled to judgment as a matter of law.

The motion can be for “partial” summary judgment, e.g., as to one of several claims.

Court generally views the evidence in the light most favorable to the nonmoving party. The idea is to weed out cases in which we don't need trial
Affidavits
Are sworn statements, under penalty of perjury, so they can be evidence

Pleadings are not evidence, unless a verified pleading
Conferences and Meetings
1. Rule 26(f) Conference

2. Scheduling Order

3. Pretrial Conference
Rule 26(f) Conference
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.
Scheduling Order
Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, etc.
Pretrial Conferences
The court may hold “pretrial conferences” as needed to expedite the case and foster settlement.

Final pretrial conference determines issues to be tried and evidence to be proffered.

Recorded in pretrial conference order that basically supersedes the pleadings; may be amended only “to prevent manifest injustice.”

Or could amend by conforming to evidence if evidence beyond the pretrial conference order is proffered and not objected to.

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.
Jury Trial
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
Motion for judgment as a matter of law
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
Renewed motion for judgment as a matter of law (judgment notwithstanding the verdict (JNOV)
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.
Motion for a new trial.
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.
Final Judgment Rule
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
Interlocutory (non-final) review
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).

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.
Res Judicata and Collateral Estoppel (basic)
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)
Res Judicata
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.
Collateral Estoppel
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.
By whom can collateral estoppel be asserted?
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 nonmutual 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.