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116 Cards in this Set
- Front
- Back
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Major Testable Areas |
1) Right Court? (PJ; SMJ; Venue)
2) Learning about case (process; pleadings; disco.)
3) Complex cases (party joinder)
4) Adjudication (pretrial; trial)
5) Appellate Review
6) Preclusion (claim and issue preclusion) |
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Choosing the Right Court
Personal Jurisdiction
(Two-Step Analysis) |
Does the court's ability to assert jurisdiction:
1) Satisfy a (long-arm) statute?
2) Satisfy the Constitution (due process) |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Statutory Analysis) |
Some state statutes allow PJ over defendants who (1) are served w/ process in the state; or (2) are domiciled in the state; or (3) do certain things (e.g., commit tortious act, conduct business) in the state.
But most statutes say long-arm statute reaches the constitutional limit. |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Constitutional Analysis - Standard) |
Does the defendant have such "minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?" (International Shoe) |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Constitutional Analysis - Easy Cases) |
- D is domiciled in the forum
- D consents to suit in the forum
- D is present in the forum when served w/ process |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Constitutional Analysis - Three-Pronged Analysis for Harder Cases) |
1) Contacts
2) Relatedness
3) Fairness |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Constitutional Analysis - Contacts) |
There must have been relevant contact between the Def. and the forum state. There are two factors to be addressed here:
1) The contact must result from PURPOSEFUL AVAILMENT (i.e., D's voluntary act to reach out to the forum state, such as trying to make money there, using the roads, or causing some effect).
2) It must be FORESEEABLE that the defendant would get sued in the forum as a result of his purposeful availment/contacts. |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Constitutional Analysis - Relatedness) |
There must be relatedness between this contact and the Plaintiff's claim.
Two categories of relatedness: 1) Specific PJ 2) General PJ |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Constitutional Analysis - Relatedness - SPECIFIC P.J.) |
Does the plaintiff's claim ARISE FROM the defendant's contact with the forum?
If so, there is SPECIFIC personal jurisdiction over the defendant in the forum. |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Constitutional Analysis - Relatedness - GENERAL P.J.) |
If the plaintiff's claim does NOT arise from defendant's contact with the forum, then juris. is only ok if the court has GENERAL P.J. If the forum has general PJ over the def., the def. can be sued in that forum for a claim that arose anywhere in the world.
To have GENERAL P.J., Def. must have "continuous and systematic ties with the forum" such that the defendant is "essentially at home" in that forum.
Natural persons are always "essentially at home" where they are domiciled.
Businesses are always "essentially at home" where: 1) It is formed, i.e., incorporated; 2) Where it has its principal place of business.
Additionally, a business might be essentially at home where it has a regional headquarters or major production facilities.
A business is NOT essentially at home basd simply on sales or purchases within the forum. |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Constitutional Analysis - Fairness) |
Note: Fairness analysis only comes into play with SPECIFIC p.j. cases (not general).
Factors to consider: - Convenience (it's ok so long as it doesn't put the defendant at a "severe disadvantage in the litigation;" note that relative wealth of parties is not determinative);
- The STATE's interest (e.g., to provide a forum for its citizens); and
- The PLAINTIFF's interest (e.g., has been injured and wants to sue at home) |
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Choosing the Right Court
Personal Jurisdiction
(In Personam - Summary of Constitutional Test) |
1) CONTACT (purposeful availment & forseeability?)
2) RELATEDNESS (general vs. specific p.j.?)
3) (If specific p.j.) FAIRNESS (convenience, state's interest, plaintiff's interest) |
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Choosing the Right Court
Subject Matter Jurisdiction
(Two Types of Hearable Cases) |
1) Diversity of Citizenship
2) Federal Question |
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Choosing the Right Court
Subject Matter Jurisdiction
(Diversity - Two Requirements) |
Two requirements for diversity cases:
1) The case is either: (a) between "citizens of different states;" or (b) between "a citizen of a state and a citizen of a foreign country" (i.e., alienage); AND
2) The AMOUNT IN CONTROVERSY EXCEEDS $75k.
Note: CANNOT be = to $75k, must be greater |
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Choosing the Right Court
Subject Matter Jurisdiction
(Diversity - Complete Diversity Rule) |
No diversity of citizenship if ANY plaintiff is a citizen of the same state as ANY defendant. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Diversity - Amount in Controversy) |
Rule: Plaintiff's GOOD FAITH claim must EXCEED $75k (not counting interest on the claim or costs of litigation). |
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Choosing the Right Court
Subject Matter Jurisdiction
(Diversity - Amount in Controversy - Equitable Relief) |
Scenario: P sues D for an INJUNCTION to tear down part of his house that block's P's view. TWO TESTS--if either are satisfied, the court will hear the case:
1) Plaintiff's viewpoint: does the blocked view decrease the value of P's property by more than $75k?
2) D's view: would it COST D more than $75k to comply with the injunction? |
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Choosing the Right Court
Subject Matter Jurisdiction
(Diversity - Exclusions) |
Federal courts will NOT hear actions involving issuance of divorce, alimony, or child custody decree, or to probate an estate (regardless of parties' citizenship and amount in controversy). |
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Choosing the Right Court
Subject Matter Jurisdiction
(Federal Question - "Well Pleaded Complaint" Rule) |
The PLAINTIFF'S COMPLAINT must show a right or interest founded substantially on a federal law (e.g., the federal constitution or a federal statute).
That is, the plaintiff's claim must ARISE UNDER federal law.
It is NOT sufficient that some federal issue is raised by the complaint. (Meaning, the plaintiff can't anticipate the defendant's defense involving a federal issue.) |
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Choosing the Right Court
Subject Matter Jurisdiction
(Diversity - Classification of Citizenships) |
1) Natural persons: where they are domiciled
2) Corporations: a) State where incorporated; AND b) State where it has its (one and only) principal place of business ("nerve center"/heaquarters test)
3) Unincorporated associations (e.g., LLCs, Gen. Partnerships): use the citizenship of ALL individual members
Note: For decedents, minors, incompetents: use THEIR citizenship, not the citizenship of the person representing them in litigation. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Diversity - Amount in Controversy - Aggregation) |
Aggregation: Adding two or more claims to meet the amount in controversy requirement.
RULE 1: There is NO LIMIT to the number of claims we can aggregate by ONE plaintiff against ONE defendant; and the claims can be unrelated.
RULE 2: You CANNOT aggregate two less-than-$75k claims by two SEPARATE plaintiffs against a single defendant.
RULE 3: ONE plaintiff CAN sue JOINT tortfeasors for joint claims if the total value of claims is greater than $75k. - Ex.: P can sue joint tortfeasors X, Y and Z for $75,000.01. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Supplemental Jurisdiction - Test & Limitation) |
Scenario: We have a case already in federal court (through diversity or FQ). Now we have some additional claim in that case and this additional claim does not meet diversity or FW. Can we get this in with supplemental juris.?
TEST: The claim we want to get in must share a "common nucleus of operative fact" with the claim that invoked federal SMJ. This test is ALWAYS satisfied by claims that arose from the same TRANSACTION or OCCURRENCE as the underlying claim.
LIMITATION: In a DIVERSITY case, Plaintiff cannot use supp. juris. to overcome a lack of DIVERSITY. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Supplemental Jurisdiction - "Solid Gold Summary") |
RULE: A non-federal, non-diversity claim CAN be heard in a federal court if it meets "the test" (i.e., same transaction or occurrence) UNLESS it is:
- Asserted by a plaintiff, - In a DIVERSITY of citizenship case, AND - It is against a citizen of the same state as the plaintiff. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Supplemental Jurisdiction - Discretionary Factors) |
Court has discretion to refuse supplemental jurisdiction if:
(1) the federal question is dismissed early in the proceedings; or
(2) the state law claim is complex; or
(3) state law issues would predominate. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Removal - General Rules) |
Removal transfers case from a state trial court to a federal trial court. (If improper, fed. court can "remand" case back to state.)
- Typically, within 30 days of service of process.
- ALL defendants who have been served with process must join in removal. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Removal - What Cases Can Be Removed?) |
Generally, any case that meets the requirements for diversity or federal question can be removed.
EXCEPTIONS if removing based on diversity:
1) No removal if ANY Def. is a citizen of the FORUM ("instate defendant rule"); and
2) No removal more than one year after the case was filed in state court. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Removal - Where to?) |
Cases will only be removed to the federal district court that embraces the state court where the case was filed. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Removal - Procedure) |
Defendant files notice of removal in fed. court, stating grounds of removal and signed under Rule 11. Attaches all docs. served on D in state action. Serve a copy on all adverse parties. Then file copy of notice in state court.
- If removal improper, P must move to remand to state court within 30 days. |
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Choosing the Right Court
Subject Matter Jurisdiction
(Diversity - The Erie Doctrine) |
RULE: A federal court sitting in DIVERSITY juris. must apply state SUBSTANTIVE law.
Three questions to ask:
1) Is there a federal law (e.g., federal constitution, statute, or Rule of Procedure/Evidence) on point that directly conflicts w/ state law? If so, apply the federal law, as long as valid and "arguably procedural" (i.e., does not modify substantive rights).
2) If no federal law on point, is it one of these "easy" substantive issues? - Elements of a claim or defense; - Statute of limitations; - Rules for tolling statutes of limitations; or - Conflict/choice of law rules. If so, apply the state substantive law.
3) If not one of the "easy" substantive cases, ask whether applying the state rule be: - Outcome determinative? - Balancing of federal vs. state interests? - Encouraging forum shopping? |
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Choosing the Right Court
Venue (Basic Idea and Choices) |
SMJ gets us into federal court. Venue tells us WHICH federal court (i.e., which district).
Basic Choices: Plaintiff may lay venue in any district where:
- ALL defendants reside; OR - A substantial part of the claim arose.
Note: If all Ds reside in different districts of the same state, Plaintiff can lay venue in the district in which any D resides. |
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Choosing the Right Court
Venue (Where Ds "Reside") |
A human person resides in the district where domiciled.
A business resides in all district where it is subject to personal jurisdiction for this case (either gen. or specific). |
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Choosing the Right Court
Venue (Transfer of Venue) |
A federal district court may transfer the case to another federal district court, but ONLY to a district where the case COULD have been filed originally. (i.e., to a proper venue that has PJ over the defendant.)
Exception: The court can transfer to any district (even an improper venue) if all parties consent (though unlikely that P will do so) and the court finds cause for the transfer. |
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Choosing the Right Court
Venue (Transfer - Where venue in original district was proper) |
If venue in the original district is proper, the court may transfer to another district. It's in the court's discretion, based on convenience for the parties and witnesses and "the interests of justice." Factors the court would look to:
- Public: what law applies, what community should be burdened with jury service, keeping local controversy in local court
- Private: convenience (i.e., where are the witnesses and evidence?)
The transferee court applies the same choice of law rules the original court would |
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Choosing the Right Court
Venue (Transfer - Where venue in original district was improper) |
If venue in the original district was improper, the court may transfer in the interests of justice OR dismiss the case. |
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Choosing the Right Court
Forum Non Conveniens (Foreign) |
Like transfer, there is another court that is the center of gravity of the case. But in FNC, the court does not transfer to the other court--instead, it DISMISSES or STAYS the case.
Why? Because transfer is impossible b/c the more convenient court is in a different judicial system (e.g., a FOREIGN COUNTRY!).
- Requires a very strong showing of the public/private convenience, etc. factors.
The other court must be available and adequate. |
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Learning About the Case
Service of Process (Basic Idea) |
Plaintiff must give notice to Def., deliver to Def.:
(1) a summons (formal court notice of suit and time for response); and
(2) a copy of the complaint.
Together, these are called process.
Any nonparty who is at least 18 years old can serve process. |
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Learning About the Case
Service of Process (How to Serve) |
1) Personal service (give to Def. personally)
2) Substituted service - Process is left w/ D's butler at D's summer home. Ok as long as (1) it's D's actual abode, and (2) served someone of SUITABLE AGE and DISCRETION who RESIDES there.
3) Service on D's agent
4) Methods permitted under STATE LAW (e.g., by mail if allowable)
5) Waiver by mail |
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Learning About the Case
Service of Process (Waiver by Mail) |
Mail to Def. a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (e.g., stamped, addressed envelope). If Def. executes and mails the waiver form to P within 30 days, D has waived service.
By doing this, D does NOT waive any defense like lack of PJ.
P then files D's waiver in court and it is effective when filed.
If D does not return waiver form and does not have good cause for failing to do so, D must pay P for the cost of personal or substituted service. |
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Learning About the Case
Service of Process (Other Documents) |
For later papers (e.g., answer, other pleadings, motions, discovery) we serve by delivering or mailing the document to the party's attorney (or pro se party). If mailed, add 3 days for any required response. Can email if the party consented to that. |
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Learning About the Case
Pleadings
(Rule 11 - Certifications) |
Rule 11 applies to all documents except discovery. It says that, whenever the lawyer or pro se party signs documents, she certifies that, to the best of her knowledge and belief, after reasonable inquiry:
- The paper is not for an improper purpose;
- The legal contentions are warrented by law (or nonfrivolous arguments for law change); and
- The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).
This is a CONTINUING certification, every time you "present" a position to the court (e.g., when you later advocate a position taken in the document. |
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Learning About the Case
Pleadings
(Rule 11 - Sanctions) |
Sanctions for violations of Rule 11 may be ordered against the attorney, firm, or party. The court must give a chance to be heard before imposing a Rule 11 sanction.
Rule 11 sanctions are supposed to deter a repeat of bad conduct (rather than punish it).
Sanctions can be non-monetary (e.g., require the lawyer to attend professionalism classes).
Monetary sanctions, if any, are often paid to the court, rather than the other party. |
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Learning About the Case
Pleadings
(Rule 11 - Safe Harbor) |
If the other party violates Rule 11, you can serve a motion for Rule 11 sanctions ON the other party, but you can't file it right away.
The violating party has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If they do not do so, THEN the motion can be filed with the court. |
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Learning About the Case
Pleadings
(Rule 11 - Sua Sponte) |
The court can raise Rule 11 problems sua sponte. The court usually issues an "order to show cause" why sanctions should not be imposed. The court must give a party a chance to be heard before imposing a sanction. |
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Learning About the Case
Complaint (Requirements) |
Filing a complaint commences an action. The complaint must contain:
- Statement of grounds of subject matter juris.;
- Short and plain statement of the claim, showing the plaintiff is entitled to relief; and
- Demand for the relief sought. |
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Learning About the Case
Complaint (Normal Standard) |
In stating the claim, federal courts formerly used simple "notice" pleading.
Today, the standard required is that plaintiffs "must plead facts supporting a PLAUSIBLE claim" (as opposed to merely a possible claim).
To determine plausibility, the judge uses her own experience and common sense. |
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Learning About the Case
Complaint (Higher Standard) |
Three matters must be pleaded with even more detail (i.e., with particularity or specificity):
- Fraud - Mistake - Special damages. |
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Learning About the Case
Defendant's Response
(Two options under Rule 12) |
Rule 12 requires the defendant to respond in one of two ways to Plaintiff's complaint:
1) By motion, or
2) By answer
To avoid default, Defendant must do one of those things within 21 days after service of process. Or, if you waived service, you get 60 days from when plaintiff mailed the waiver form. |
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Learning About the Case
Defendant's Response
(Rule 12 Motions - Issues of Form) |
Rule 12 motions can request a court order for:
- Motion for a more definite statement (b/c pleading so vague that D can't frame a response)
- Motion to strike, which is aimed at immaterial things (e.g., demand for jury when no jury right exists; any party can bring this) |
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Learning About the Case
Defendant's Response
(Rule 12 Motions - 12(b) Defenses - Overview) |
Defendant can motion under Rule 12 for the court to dismiss on the following grounds:
1) Lack of SMJ
2) Lack of PJ
3) Improper venue
4) Insufficiency of process (problem w/ the papers)
5) Insufficient service of process
6) Failure to state a claim
7) Failure to join indespensable party.
These can be put either in a motion or in the defendant's answer. |
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Learning About the Case
Defendant's Response
(Rule 12 Motions - 12(b) Defenses - Waivable) |
The following defenses MUST be put in the FIRST Rule 12 response (either motion or answer), or else they are waived:
2) Lack of PJ
3) Improper venue
4) Insufficiency of process (problem w/ the papers)
5) Insufficient service of process |
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Learning About the Case
Defendant's Response
(Rule 12 Motions - 12(b) Defenses - Non-Waivable) |
The following defenses are not waived if they are not raised in the first Rule 12 response.
1) Lack of SMJ (can be raised anytime, even on appeal)
6) Failure to state a claim and 7) Failure to join indespensable party (can be raised anytime through the trial) |
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Learning About the Case
Defendant's Response
(Answer - Overview) |
The defendant's answer is a pleading. It must be served within 21 days after service of process.
The answer should do three things:
1) Respond to allegations of the complaint;
2) Raise affirmative defenses, if any; and
3) Raise counterclaims, if any. |
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Learning About the Case
Defendant's Response
(Answer - Responding to allegations of complaint) |
The defendant, in his answer, must (1) admit, (2) deny, or (3) state that he lacks sufficient information to admit or deny.
RULE: Failure to deny an allegation is construed as an admission on any matter EXCEPT damages. |
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Learning About the Case
Defendant's Response
(Answer - Raising Affirmative Defenses) |
Affirmative defenses inject new facts into the case which would allow Def. to win. Classic affirmative defenses are things like the statute of limitations, statute of frauds, res judicata, and self-defense.
You MUST plead affirmative defenses or you RISK waiver. |
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Learning About the Case
Counterclaim
(Compulsory vs. Permissive) |
A counterclaim is a claim against an opposing party, e.g., Def. vs. Plaintiff. It is part of Defendant's answer.
COMPULSORY counterclaims are those which arise from the same transaction or occurrence as the Plaintiff's claim. Unless this claim has already been filed in another case, it MUST be filed in the present case, or else the claim is waived.
PERMISSIVE counterclaims do NOT arise from the same T/O as P's claim. It may be filed in the defendant's answer in this case or it can be asserted in a separate case.
NOTE: If a counterclaim is procedurally ok, assess whether it invokes diversity or FQ juris. If so, it's ok in federal court. If not, try supplemental jurisdiction. |
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Learning About the Case
Crossclaim |
A crossclaim is a claim against a co-party. It MUST arise from the same T/O as the underlying action.
The crossclaim is PERMISSIVE; it does not have to be filed in this case.
NOTE: If a crossclaim is procedurally ok, assess whether it invokes diversity or FQ juris. If so, it's ok in federal court. If not, try supplemental jurisdiction. |
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Learning About the Case
Amending Pleadings (Plaintiff's Right) |
Plaintiff has a right to amend once within 21 days after the defendant serves her first Rule 12 response. |
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Learning About the Case
Amending Pleadings (After Plaintiff's Right Expires) |
After the 21 day period passes (wherein Plaintiff had a right to amend), the plaintiff must seek leave of the court. This will be granted if "justice so requires."
The courts consider delay, prejudice, and the futility of the amendment. |
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Learning About the Case
Amending Pleadings (Variance) |
A variance is where the evidence at trial does not match what was pleaded.
Scenario: P sues for breach of K; D answers. At trial, P introduces evidence that D assaulted him. D does not object. Evidence of assault is admitted into evidence (b/c D didn't object). At or after trial, P can move to amend the complaint to conform to the evidence because, absent D's objection, we want the pleading to show the assault claim (reflects what was actually tried).
If D does object, then the evidence of assault would be inadmissible b/c it is "at variance with the pleadings." |
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Learning About the Case
Discovery
(Required Disclosures - Overview) |
The following things must be produced even though no one asks for it:
1) Initial disclosures;
2) Experts;
3) Pretrial evidence. |
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Learning About the Case
Discovery
(Required Disclosures - Experts) |
As directed by the court, parties must identify experts "who may be used at trial" and produce a written report containing opinions, data used, qualifications, compensation for study, etc. THat report and drafts of it are work product. |
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Learning About the Case
Discovery
(Required Disclosures - Pretrial) |
No later than 30 days before trial, parties must give detailed information about trial evidence, including documents an didentity of witnesses to testify live or by disposition. |
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Learning About the Case
Discovery
(Discovery Tools - Overview) |
1) Depositions
2) Interrogatories
3) Requests to produce
4) Physical or mental examination
5) Request for admission |
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Learning About the Case
Discovery
(Discovery Tools - Depositions - Overview) |
Questions can be oral or written. The deponent gives SWORN oral answers to questions by counsel. Recorded by sound or video or stenographically and a transcript can then be made.
You can depose PARTIES OR NONPARTIES. A nonparty should be subpoenaed, however, or else is not compelled to attend. A party need not be subpoenaed--properly served notice is sufficient to compel attendance). |
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Learning About the Case
Discovery
(Discovery Tools - Depositions - Specific Rules) |
- You 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.
- Unless they agree, a nonparty cannot be required to travel more than 100 miles from their residence or regular place of business.
- A notice of subpoena to a busienss may require it to designate the right person for the deposition (e.g., to depose the person who designed a particular product). |
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Learning About the Case
Discovery
(Discovery Tools - Depositions - Use at Trial) |
Subject to the rules of evidence, depositions can be used at trial:
- To impeach the deponent;
- For any purpose, if the deponent is an adverse party;
- For any purpose if the deponent (regardless of whether a party or not) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence. |
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Learning About the Case
Discovery
(Discovery Tools - Interrogatories) |
Interrogatories are questions IN WRITING, which can only be directed to ANOTHER PARTY.
They are to be answered in writing under oath. The receiving party must respond with answers or objections within 30 days.
The responding party can say you don't know, but only after reasonable investigation.
If the answer could be found in business records and it would be burdensome to find it, that party can allow the asking party access to records.
At trial, you cannot use your own answers, but others may be used per rules of evidence.
Cannot serve more than 25 (including subparts) without court order or stipulation. |
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Learning About the Case
Discovery
(Discovery Tools - Requests to Produce) |
Requests can be made to another party OR A NONPARTY if accompanied by SUBPOENA.
Subpoena should request that the make available for review and copying documents or things, including electronically stored information (ESI), or permit ENTRY upon designated property for inspection, measuring, etc.
Should specify the form in which ESI is to be produced (hard copy or electronic).
Requests must be responded to within 30 days of service, stating that the material will be produced or stating objection. |
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Learning About the Case
Discovery
(Discovery Tools - Physical or Mental Exam) |
These are ONLY available through COURT ORDER on a showing that the party's (or person in party's control, e.g., parent in control of child) health is in ACTUAL CONTROVERSY and "GOOD CAUSE" (i.e., you need it and can't get it elsewhere).
The party seeking the order chooses the suitably licenced person to perform the exam.
The person examined may obtain a copy of the report simply by asking for it, but by doing so waives his doctor-patient privilege re: reports by his own doctors about that condition. |
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Learning About the Case
Discovery
(Discovery Tools - Request for Admission) |
A request by one party only to ANOTHER PARTY to admit the truth of any discoverable matters.
Often, the propounding party will send copies of documents to be authenticated with such a request.
Must be responded to within 30 days of service. The response is to admit or deny; can indicate lack of information only if you also indicate that you made a reasonable inquiry.
Failure to deny is an admission, but you can amend if hte failure was not in bad faith. |
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Learning About the Case
Discovery
(Discovery Tools - Certifications) |
Parties sign substantive answers to discovery under oath. Every discovery request and response is signed by counsel certifying:
1) It is warranted;
2) It is not interposed for an improper purpose; and
3) It is not unduly burdensome. |
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Learning About the Case
Discovery
(Duty to Supplement) |
Scenario: After your response, things change. What if you learn that our response to a required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect. What must you do?
Parties have a duty to supplement their responses if incorrect or incomplete. |
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Learning About the Case
Discovery
(Scope of Discovery - Relevancy Standard) |
You can discover "anything relevant to a claim or defense."
Relevancy includes anything that is "reasonably calculated to lead to the discovery of admissible evidence." (Thus, discoverable is BROADER than admissible.) |
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Learning About the Case
Discovery
(Privilege - Work Product - Scope) |
You cannot discover communications protected by privilege.
"Work product" privilege covers materials prepared in anticipation of litigation. It can be material generated by a party or any representative of that party. |
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Learning About the Case
Discovery
(Privilege - Work Product - Overcoming) |
Work product privilege may be overcome if the party seeking discovery proves that:
1) they have a substantial need for the informaiton; and
2) it is not otherwise available.
Ex.: A witness writes statement for opposing atty.; witness dies before party seeking discovery has chance to interview him. Party seeking discovery can overcome work product privilege to get satement. |
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Learning About the Case
Discovery
(Privilege - Work Product - What Can't Be Overcome) |
For certain items, the work product privilege CANNOT be overcome. Namely, things which show the attorney's:
- Mental impressions; - Opinions; - Conclusions; or - Legal theories.
Notes, etc., containing these things are virtually sacrosanct. |
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Learning About the Case
Discovery
(Privilege - Claiming) |
If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection EXPRESSLY and describe the materials in detail.
You can do this in a PRIVILEGE LOG, which lists the materials by date, author, recipient, privilege, tec. |
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Learning About the Case
Discovery
(Privilege - Inadvertent disclosure) |
If you inadvertently produce protected material, notify the other party as soon as possible.
The other party then has to return, sequester or destroy it (pending a decision by the court about whether there has been a waiver of the privilege). |
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Learning About the Case
Discovery
(Expert Witnesses) |
In addition to the required disclosures about experts, a party may take deposition of any expert "whose opinions may be presented at trial."
Where a party has a Consulting Expert (i.e., retained in anticipation of litigation but will not testify at trial), there is no discovery absent "exceptional need" (probably meaning that such expertise is not available elsewhere). |
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Learning About the Case
Amending Pleadings (After Statute of Limitations has run) |
RULE: Amended pleadings "relate back" if they concern the same conduct, transaction or occurrence as the original pleading; thus, you can avoid a statute of limitations problem if the original pleading was filed on time.
Illustration: - P files his complaint and has process served on July 1. The SOL runs on July 10. - In August, P seeks leave to amend to add a new claim. - If the original claim and the new claim concern the same conduct, T/O, there is relation back. - Thus, we would treat the August amendment as though it was filed on July 1, and so it is still timely. |
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Learning About the Case
Discovery
(Required Disclosures - Initial Disclosures) |
Unless court order or stipulation of parties differs, within 14 days of the Rule 26(f) conference, you must identify persons, electronically stored info (ESI) and documents that are "likely to have discoverable information that the disclosing party may use to support its claim or defense."
Plaintiff must give a compuattion of damages and D must disclose insurance for any of judgment. |
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Learning About the Case
Discovery
(Enforcement of Discovery Orders - Types of Responses) |
1) Protective Order: the responding party may seek a protective order (e.g., request is overburdensome, or involves trade secrets) and we want an order limiting disclosure to the litigation or ESI is not reasonably accessible (e.g., deleted files)
2) Partial response: receiving party answers some and objects to others. If the objections are not upheld, this is a partial violation, so we expect a light sanction.
3) No response: receiving party fails completely to attend deposition, respond to interrogatories or torespond to requests for production. This is a TOTAL violation, so we expect a heavy sanction. |
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Learning About the Case
Discovery
(Enforcement of Discovery Orders - Sanctions - good faith loss of ESI) |
The party seeking sanctions must certify to the court that she tried in good faith to get the info w/out court involvement.
If party fales to produce ESI b/c it was lost in good faith, routine operation of an electronic info system, only sanctioned in exceptional cases. |
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Learning About the Case
Discovery
(Enforcement of Discovery Orders - Sanctions - partial response) |
Two steps:
1) You move for an order COMPELLING the party to answer the unanswered questions, plus costs (including atty's fees) of bringing motion.
2) If the party violates the order compelling him to answer, then we ask for "Rambo" sanctions plus costs. Receiving party could be held in comtempt for violating a court order (except there's no contempt for refusing to submit to medical exam). |
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Learning About the Case
Discovery
(Enforcement of Discovery Orders - Sanctions - No response) |
If the receiving party doesn't respond at all, move for "Rambo" sanctions plus costs (and atty's fees for the motion). No need to get an order compelling answers--go straight to rambo. |
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Learning About the Case
Discovery
(Enforcement of Discovery Orders - Sanctions - "Rambo" Sanctions) |
Choices available to judge:
- Establishment order (establishes facts as true) - Strike pleadings of the disobedient party (as to issues regarding the discovery) - Disallow evidence form the disobedient party (as to issues re: the discovery) - Dismiss plaintiff's case (if bad faith shown) - Enter default judgment against defendant (if bad faith shown) |
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Complex Cases & Party Joinder
Proper Defendants and Plaintiffs |
These are people who MAY be joined.
Scenario: three people are injured when taxi in which they are riding crashes. Yes, may sue together as co-plaintiffs b/c their claims:
1) arise from the same T/O; and 2) Raise at least 1 common question.
But also must assess whether case invokes SMJ. |
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Complex Cases & Party Joinder
Necessary and Indespensible Parties |
Some absentees (nonparties) must be forced to join the case b/c they are necessary, if they meet any of these tests:
- Without X, the court cannot accord complete relief among existing parties (worried about multiple suits);
- A's interest may be harmed if he is not joined (practical harm); or
- A claims an interest that subjects a party (usually defendant) to a risk of multiple obligations.
Note: Joint tortfeasors are NEVER necessary.
Example of practical harm: - You hold 1k shares of stock in XYZ corp. Epstein claims he and you agreed to buy the stock jointly and that he paid for half the stock. Epstein sues XYZ corp, seeking to have your stock canceled and the stock reissued in their joint names. You are necessary b/c your interest would be harmed if Epstein wins. |
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Complex Cases & Party Joinder
Necessary and Indespensible Parties
(Can X be joined?) |
If X is necessary, then have to see if joinder is "feasible."
Court decides whether you come in as a P or D and checks to see if:
- There is personal jurisdiction over you; and - Joining you will not goof up diversity juris.
If joinder is feasible, you come into the case. |
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Complex Cases & Party Joinder
Necessary and Indespensible Parties
(If X cannot be joined...) |
The court must do one of two things: either proceed without you, or dismiss the entire case.
The court will consider: - Whether there is an alternative forum available (state court)? - What is the actual likelihood of harm to you? - Can the court shape relief to avoid that harm to you?
If court decides to dismiss the case rather than proceed without you, we call the absentee "indespensable" |
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Complex Cases & Party Joinder
Impleader/Third-Party Practice |
A defending party wants to bring in someone new (third-party defendant) b/c TPD may owe indemnity or contribution to the defending party on the underlying claim.
There is a right to implead w/in 14 days of serving your answer. After that, you need court permission.
After TPD is joined, plaintiff and TPD may assert claims against each other, if the claims arise from the same T/O as the underlying case.
Remember: always need proper SMJ |
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Complex Cases & Party Joinder
Intervention by Absentee |
Absentee (A) wants to join a pending suit, chooses to come in either as P (to assert a claim) or D (to defend a claim). Application to intervene must be timely.
Intervention of right if A's interest may be harmed if not joined and is not adequately represented now.
Permissive intervention if A's claim or defense and the pending case have at least one common question (discretionary w/ court).
Always check for SMJ. |
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Complex Cases & Party Joinder
Class Action (Initial Requirements) |
To be certified, must show the following:
1) Numerosity: too many class members for practicable joinder;
2) Commonality: there is some issue in common to all class members, so resolution of that issue will generate answers for everyone;
3) Typicality: representative's claims/defenses typical of those of the class; and
4) Representative adequate: the class representative will fairly and adequately represent the class. |
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Complex Cases & Party Joinder
Class Action (Type of Class) |
The class must fit within one of three types:
1) "Prejudice:" class treatment necessary to avoid harm either to class members or to the non-class party (ex.: many claimants to a fund; indiv. suits might deplete fund, leaving some w/out remedy)
2) Injunction or declaratory judgment sought b/c D treated the class alike (ex.: employment discr.)
3) "Damages:" two requirements-- - Common questions predominate over individual questions; AND - class action is the superior method to handle the dispute (example: mass torts) |
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Complex Cases & Party Joinder
Class Action (Steps Court Must Take) |
If the court grants the motion to certify the class, it must "define the class and the class claims, issues, or defenses."
The court must also appoint class counsel, who must fairly and adequately represent the interests of the class.
For "Damages" type classes, the court must notify all class members that they are in a class--individual notice (usually by mail) to all reasonably identifiable members telling them certain info, including: - They can opt out; - They'll be bound if they don't opt out; and - They can enter a separate appearance through counsel. |
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Complex Cases & Party Joinder
Class Action (Who is bound by judgment?) |
In a certified class action, all members except those who opted out of a type 3 ("damages") class are bound by the judgment.
Note: no right to opt out of type 1 or 2 classes. |
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Complex Cases & Party Joinder
Class Action (Settling or Dismissing) |
The parties may settle or dismiss a certified class action ONLY with court approval.
In all three types of classes, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed.
If it's a Type 3/Damages class, the court might give members a second chance to opt out. |
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Complex Cases & Party Joinder
Class Action (SMJ) |
The class could invoke FQ juris. by asserting a claim arising under Fed. law.
For diversity of citizenship cases, only consider the REPRESENTATIVE's citizenship (not the other class members) and the representative's amount in controversy/claim.
So, as long as the rep is diverse from all defs., and as long as the rep's claim exceeds $75k, the class action will invoke diversity. |
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Complex Cases & Party Joinder
Class Action (Class Action Fairness Act - CAFA) |
This grants SMJ separate from diversity of citizenship juris.
It lets a fed. court hear a class action (of at least 100 members) if ANY class member (not just the rep.) is of diverse citizenship from ANY defendant if the aggregated claims of the class exceed $5 million.
Makes it easier for interstate class actions to go to fed. court. |
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Adjudication
Pretrial (Motion to Dismiss for Failure to State a Claim--12(b)6) |
D moves to dismiss for failure to state a claim. Tests the sufficiency of P's allegations. Court looks only at allegations of fact in the complaint and asks: "IF these facts were true, would plaintiff win a judgment?"
Court does not look at evidence in evaluating--just the face of the complaint only.
Note: Same motion, if made after D has answered, is called a Motion for Judgment on the Pleadings. |
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Adjudication
Pretrial (Summary Judgment - Rule 56) |
Moving party must show: (1) there is no genuine dispute on a material fact, and (2) that she is entitled to judgment as a matter of law.
Move no later than 30 days of close of discovery.
Can be for partial judgment (e.g., on an issue or claim).
Whether to grant motion is discretionary--court may look at evidence, including affidavits or declarations, deposition testimony or interrogatory answers (all under oath).
Court views the evidence in the light most favorable to the nonmoving party. (Court does not judge credibility of evidence here.)
Note: Pleadings are typically not under oath and are not considered evidence; but look to see if D failed to deny an allegation by P. |
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Adjudication
Conferences and Meetings
(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 for discovery plan, including issues about how ESI will be produced, and present it to court in writing within 14 days. |
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Adjudication
Conferences and Meetings
(Scheduling Order) |
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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Adjudication
Conferences and Meetings
(Pretrial Conferences) |
The court may hold "pretrial conferences" to process the case and foster settlement. Final pretrial conference determines issues to be tried and evidence to be profferred. This is recorded in a pretrial conference order, which supersedes the pleadings.
This final pretrial conference order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. |
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Adjudication
Trial, Judgment, and Post-Trial Motion
(Jury Trial - Right) |
Sevent Amendment preserves right to jury trial in "civil actions at law" but not suits at equity. If case involves both, jury decides the facts underlying the damages (law) claim, but not the equity claim. Jury issues are tried first.
Must demand the jury IN WRITING no later than 14 days after service of the last pleading raising jury triable issue. If you don't you WAIVE the right to a jury. |
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Adjudication
Trial, Judgment, and Post-Trial Motion
(Jury Trial - Voir Dire) |
In the jury selection process, each side might want to strike (remove) potential jurors. There is no limit on the number of strikes "for cause" (e.g., bias, prejudice, juror is related to a party). Each side also gets three "peremptory" strikes.
Note: Peremptory strikes must be used in a race and gender-neutral way. |
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Adjudication
Trial, Judgment, and Post-Trial Motion
(Motion for Judgment as a Matter of Law - JMOL) |
This is exceptional. The effect is to take the case away from the jury. Can only be brought AFTER the other side has been heard at trial.
The standard for granting JMOL is that no reasonable factfinder could find for the other party (or "reasonable people could not disagree on the proper result").
Court views the evidence in the light most favorable to the non-moving party. |
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Adjudication
Trial, Judgment, and Post-Trial Motion
(Renewed JMOL) |
Same as JMOL, but comes up after trial.
Standard: same as with JMOL.
Must move within 28 days after entry of judgment.
REMEMBER: you MUST have moved for JMOL at trial to be able to renew it, and you have to renew it on the SAME GROUNDS! |
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Adjudication
Trial, Judgment, and Post-Trial Motion
(Motion for New Trial) |
Move w/in 28 days after judgment.
Grounds: - Error at trial makes judgment unfair - New evidence that could not have been gotten before w/ due diligence; - Prejudicial misconduct of party or attorney or third party or juror; - Judgment is against hte weight of the evidence; - Inadequate or excessive damages. |
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Appeal
Final Judgment Rule |
As a general rule, can only appeal from FINAL judgments, which means an ultimate decision by the trial court on the MERITS of the entire case.
File notice of appeal in the TRIAL court within 30 days after entry of final judgment.
Question to ask: after making this order, does the trial court have anything left to do on the merits of the case? |
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Appeal
Interlocutory (non-final) review |
Some orders are appealable even though not final judgments:
- orders granting/modifying/refusing, etc. injunctions
- Trial judge CERTIFIES that the order involves a controlling issue of law as to which there is substantial ground for difference of opinion AND the appellate court agrees to hear it;
- Collateral orders
- When more than one claim presented in a case, or multiple parties, and trial court directs entry of final judgment as to one or more of them AND makes express finding that there is NO JUST REASON FOR DELAY
- Court of appeals has discretion to review order granting/denying certification of class action |
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Preclusion
Claim Preclusion/Res Judicata
(Basic Idea and Requirements) |
You only get to sue on a claim once--so you only get 1 case in which to vindicate all rights to relief for that claim. Requirements for preclusion:
1) Case 1 and Case 2 were brought by the same claimant against the same defendant
2) Case 1 ended in a vlid final judgment on the merits.
3) Case 1 and Case 2 asserted the same "claim" (majority view: any right to relief arising from the same transaction or occurrence)
Note: Important minority view says that there are separate claims for property damage and for personal injuries b/c those are different "primary rights." |
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Preclusion
Claim Preclusion/Res Judicata
(Hypo) |
Case 1: P sues D for personal injuries sustained in an auto collision. A vlid final judgment on the merits is entered.
Case 2: P files a second suit against D, seeking recovery for property damage from the same crash. Should court dismiss Case 2 under res judicata?
- Yes same claimant vs. same defendant - Yes Case 1 ended in valid final judgment on merits - Majority view: yes, both cases asserted same claim (b/c both involve same T/O), so YES, dismiss Case 2.
- Minority view: Do not dismiss Cas 2 b/c case 1 and case 2 involved different primary rights (personal injury vs. property damage). |
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Preclusion
Issue Preclusion/Collateral Estoppel
(Basic Idea and Requirements) |
Scenario: an issue was litigated in case 1. The same issue comes up in Case 2. But if issue preclusion applies, we will not allow the issue to be relitigated in case 2, b/c it was established in case 1. Requirements:
1) Case 1 ended in valid, final judgment on merits
2) Same issue was ACTUALLY LITIGATED and determined in Case 1
3) The issue was ESSENTIAL TO THE JUDGMENT in Case 1
4) Can only be asserted AGAINST someone who was a party to case 1 (or was represented by a party in case 1). |
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Preclusion
Issue Preclusion/Collateral Estoppel
(Who Can Assert?) |
Some courts require MUTUALITY--can only be asserted by someone who was a party to case 1.
Some courts allow nonmutual DEFENSIVE issue preclusion (meaning, the party asserting it was not a party in case 1, but is the defendant in case 2).
Fewer courts allow nonmutual OFFENSIVE issue preclusion (meaning, the party asserting it was not a party in case 1, but is the plaintiff in case 2). Courts will not allow this to be done if it is unfair, e.g.: - Did party being asserted against have a full and fair opportunity to litigate in case 1? - Could he foresee multiple suits? - Could party asserting it have joined easily in case 1? - No inconsistent judgments about the issue? |
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Appeal
Interlocutory (non-final) review
(Collateral Order doctrine) |
Appellate court has discretion to hear ruling on an issue if it:
- Is distinct from the merits of the case; - Involves an important legal question, and - Is essentially unreviewable if parties must await a final judgment.
(Best example: claim of immunity from suit, such as an 11th Amendment immunity claim--b/c if they have to defend themselves first, they've already lost the immunity.) |
