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123 Cards in this Set

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If G sues F for an injunction to tear down part of his house that blocks G’s view. Can he qualify for the amount in controversy requirement for diversity jurisdiction?
Yes – if one of two tests are met:

1. Plaintiff’s viewpoint – does the blocked view decrease the value of plaintiff’s property by more than $75k?

2. Defendant’s viewpoint – would it cost defendant more than $75k to comply with the injunction?
What do you ask to determine if federal question jurisdiction is appropriate?
Is plaintiff enforcing a federal right?
Mayberry RR gives G a lifetime pass in settlement of a claim by G. After several years, RR refuses to honor the pass, asserting that a federal statute prohibits such passes. G sues the RR for specific performance, alleging the statute does not apply. So, the complaint mentions a federal law and raises a federal issue. Is there federal question jurisdiction?
No – G is not enforcing a federal right!
Okay, we’re in federal court on federal question or diversity jurisdiction, can I add some more other claims?
Maybe – you’ve got to ask if you can have supplemental jurisdiction – must have at least one FQ or D jurisdiction.

Test: The claim we want to add must share a “common nucleus of operative fact.”

Caveat: A plaintiff in diversity jurisdiction cannot add a defendant who would destroy diversity.
So, I’m a plaintiff from NV and the defendant is from MA, can I get supplemental jurisdiction over a second defendant from NV?
You cannot use supplemental jurisdiction to overcome a lack of diversity in a diversity of citizenship case.

You can use supplemental jurisdiction to overcome a lack of diversity for a claim by a plaintiff in a FQ case.
P (UT) sues D (UT) for (1) violation of federal antitrust laws and joins a transactionally related claim for (2) violation of state antitrust laws. Is this okay?
Claim 1 is okay because it’s a FQ. Claim 2 is not a FQ, nor diversity, but it is allowed for supplemental jurisdiction. The limitation on supplemental jurisdiction only applies to diversity cases.
Can you restate the rule about hearing a non-federal, non-diversity claims?
A non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS:

1. It is asserted by the plaintiff
2. In a diversity of citizenship (not FQ) case AND
3. Would violate complete diversity.
What is removal?
A defendant (only) can have case filed in state court “removed” (transferred) to federal court. One-way street.
What cases can be removed?
Only cases that would meet diversity or federal question jurisdiction?
Where can cases be removed to?
Only to the federal district embracing the state court in which the case was originally filed
When can a case be removed?
No later than 30 days after service of the first removable document – usually initial service of process.

All D’s must agree to removal.

Plaintiffs can’t remove, even if they are countersued.
P (PA) sues D1 (NV) and D2 (MA) in MA state court for $500k. Can the D’s remove?
No – there is a special rule for diversity cases only. No removal if any D is a citizen of the forum.
How does one remove?
1. D files notice of removal in federal court, stating grounds of removal; signed under Rule 11; attach all documents served on D in state action.
What happens if removal was procedurally improper?
P must move to remand to state court; must do so w/in 30 days of removal. If no fed SMJ, P can move to remand anytime. (No time limit on raising lack of F SMJ.)
How might a defendant waive the right to remove?
A D who files a permissive counterclaim probably waives the right to remove, but not if he files a compulsory counterclaim.
How might a defendant waive the right to remove?
A D who files a permissive counterclaim probably waives the right to remove, but not if he files a compulsory counterclaim.
What is the Erie doctrine?
In diversity cases, federal court must apply state substantive law.
What are the easy substantive examples for Erie?
1. Elements of a claim or defense
2. Statute of limitations
3. Rules for tolling the statutes of limitations
4. Choice of law

Mnemonic: CELT (Choice, element, Limitations, Tolling)
CELT
What if it’s not one of the clear Erie problems?
1. If Fed law - trumps
2. No federal law on point, tests:

A. Outcome determinative – apply state law

B. Balance of interest – weigh fed/state interest

C. Avoid forum shopping

TOBS - (fed law TRUMPS, if no fed law, tests: OUTCOME determinative, BALANCE interest, avoid forum SHOPPING)
TOBS
How does venue work?
In federal court – plaintiff may have venue in any district where:
- all defendants reside
- a substantial part of the claim arose.
If no District anywhere in the US that meets either then venue ok:
- in a FQ case – in any district where any D “is found”
- in a Div case – any dist where any D is subject to personal J
Wayne Newton (D. Nev) sues D1 (M.D. Ga) and D2 (S.D. GA). One venue choice would be any district where any district where a substantial part of the claim arose. What about where D’s reside?
Special rule where all D’s reside in different districts of the same state, P can lay venue in the district in which any of them resides.
Where do D’s reside for purposes of venue?
1. Humans – domicile
2. Corps – ALL districts where subject to personal jurisdiction when case is filed
(Don’t confuse citizenship for jurisdiction w/ citizenship for venue – FMC a DE corp is a citizen for J in DE and MI (principal place of business) but a citizen for venue of all 50 states, since does business in all those jurisdictions)
Where can one transfer venue?
You can only transfer to a district where case could have been filed. (Meaning 1. proper venue AND 2. personal J over D. – AND must be true w/o waiver of D)
How does court determine if they should transfer venue
1. If venue in original J proper - weigh public/private factors

2. If venue not proper – court may transfer in the interests of justice or dismiss
What are the basic rules of service of process?
P must give notice to D. Must deliver to D (1) a summons (formal court notice of suit and time for response) and (2) a copy of the complaint. Must serve w/in 120 days of filing case or case dismissed without prejudice (unless P shows good cause for delay in serving).
What are the mechanics of service?
Process must be served to a person at least 18 years old
1. Personal service – given to D personally, anywhere in forum state

2. Substituted service – okay if 1) D’s usual abode, 2) serves someone of servable age + discretion who resides there

3. Service on agent – okay if receiving service is w/in scope of agency.

4. State law – can use rules of service of forum state

5. Waiver by mail – P mailed to D by first class mail – OK if D returns waiver w/in 30 days – D waives only service, nothing else. If not returns, D must pay for cost of service.

Mnemonic: WASPS (Waiver, Agent, Substituted, Personal, State)
WASPS
What are the geographic limitations of venue?
Venue only good in state if state law allows (long arm) unless:

Bulge Rule

Statutory interpleader
When is someone immune from service of process?
When a D is instate to be a witness or party in another civil case.
What happens with the subsequent papers, after the service of process?
For subsequent papers, they are served by delivering or mailing the document to the party’s attorney (or pro se party). If mailed, add 3 days for any required response.
What does rule 11 require for filings?
The attorney must sign all pleadings, written motions and papers, certifying that to the best of their 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 investigations)
When is certification under rule 11 effective? Are sanctions available?
It’s effective every time position is “presented” to the court – so it’s a continuing certification.

Sanctions may be levied, but only to deter, not punish.
What do you do when the other side has violated Rule 11?
Motion for violation of Rule 11 is served on the other parties but is not immediately filed with court. The party allegedly violating Rule 11 has 21 days “safe harbor” to withdraw the document or fix the problem. If does – no sanctions, if not – motion can be filed.
Can the court raise Rule 11 problems on its own?
Yes – can raise sua sponte.
What is a complaint? How is it filed?
Complaint is the 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

(Court more lenient w/ pro se litigants – these requirements must be met)
What matters have to be pleaded with specificity?
Fraud, Mistake, Special Damages

Special Damages do not normally flow from an event (permanent erection)
How might a defendant respond to a complaint?
One of two ways under Rule 12:

1. By motion

2. By answer

W/in 20 days after service of process – or risk default
What are motions and how are they filed? What motions are generally filed for issues of form?
Motions are not pleadings, they are requests for a court order.
Two main types
1) Form:

1. 12(e) motion for more definite statement – pleading so vague D can’t frame response (rare)
2. 12(f) motion to strike, aimed at immaterial things, e.g. demand for jury when no right exists.
What motions are generally filed for defenses under 12(b)?
12(b) defenses:

1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insuff. of process (prob w/ papers)
5. Insuff. of service
6. Failure to state claim
7. Failure to join indispensable party

Some PVPS i Can't Play (Subject-matter, Personal, Venue, Process, Service, Claim, Party)
Some PVPS i Can't Play
What defenses are waivable? What does it mean to be waivable?
2, 3, 4, 5

2. Lack of PJ
3. Improper Venue
4. Insuff. of process (prob w/ papers)
5. Insuff. of service

The waivable defenses must be in the first rule 12 response or they’re wiaved.

PVPS - Personal J, Venue, Process, Service
PVPS
What is the answer? When is it due?
It’s a pleading. It must be served w/in 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 w/in 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 J or venue)
Answer - How does one respond to the allegations of a complaint?
1) Admit
2) Deny
3) State lack info to admit or deny

#3 acts as a denial, but can’t be used if info is public knowledge or is in D’s control
Answer - What happens if you fail to deny an allegation?
Constitutes an admission on any matter except damages. In his complaint, P alleges X. In his answer, D says, “P cannot prove X.” D has failed to deny X and thus has admitted that X is true.

You must say “Deny” – if you argue you haven’t denied therefore you’ve admitted!
P sues D for breach. D answers, denying material allegations. At trial, D introduces evidence that the K was procured by P’s fraud and is therefore unenforceable. P objects, what result?
The evidence is inadmissible because it relates to an affirmative defense that D failed to plead. You must plead affirmative defenses – if you fail to plead an affirmative defense you waive that defense.
Andy and Barney, each driving his own car, collide and each is injured. Andy sues Barney to recover for his injuries. Barney files and serves his answer and defends that case, which is litigated to judgment. Now Barney sues Andy to recover for his injuries from the same wreck. Barney’s case is dismissed. Why?
B’s claim was a compulsory counterclaim and must have been filed in the first case.

A Compulsory Counterclaim arises from the same T/O as P’s claim.

Counterclaim is an offensive claim against an opposing party. Filed with defendant’s answer.
What is a permissive counterclaim?
It’s a claim that does not arise from the same T/O as plaintiff’s claim. It 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 in federal court.
What is a cross-claim?
An offensive claim against a co-party. It must arise from the same T/O as the underlying action. Not compulsory
Andy (NC) sues Barney (SC) and Aunt Bee (SC) for personal injuries of $500k arising from a car crash (B was driving AB’s car). No federal law is involved. So it’s a diversity case. AB doesn’t know who’s at fault, but knows her car ($85k) is shot. She wants to recover the property damage. What does she do?
1. File a compulsory counterclaim against A. It’s an opposing party and arises from the same T/O as P’s claim, so compulsory. Obviously, there’s no FQ J, but is there diversity? Yes – counter claim invokes diversity b/c AB is from a state diverse to A and it is for an amount > $75k.
2. AB may cross-claim against B. It’s against a co-party and arises from the same T/O as the underlying case, so it’s a cross-claim. What about subject matter jurisdiction? No FQ. What about diversity? Does not invoke diversity b/c not from diverse states.
(Barney (SC)
A (NC) ----( )
(Aunt Bee (SC)
So, is there SJ over cross? Yes, b/c it (1) meets the test – same T/O and 2) not a claim by a plaintiff, so limitigation on claims by plaintiffs in div cases does not apply.
Can a party amend a case?
Yes, a plaintiff has a right to amend once before D serves her answer.

A defendant has a right to amend once w/in 20 days of serving his answer.
What if there’s no right to amend left?
The parties may seek the leave of the court, it will be granted if “justice so requires.” Courts usually allow unless delay or prejudice. If a claimaint amends, D must respond w/in 10 days or remaining 20 days, whichever longer.
What is a variance? What happens when there is a variance?
It’s where the evidence presented at trial does not match what was pleaded. If the evidence is not objected to, the variant party may amend the complaint to conform to the evidence presented.
E sues for breach of K. Wilbur answers. At trial, E introduces evidence that Wilbur assaulted him. Wilber doesn’t object. Okay?

What if Wilbur does object?
If Wilbur doesn’t object, the evidence is okay. It’s admitted b/c Wilber doesn’t object. After trial, Mr. Ed can move to amend the complaint to conform to the evidence to show the assault claim. We want the pleadings to reflect what was tried.

If Wilbur does object, evidence of assault inadmissible b/c it is at “variance with the pleadings.”
Mr. Ed files his complaint and has process served on July 1. The statute of limitations runs on July 15. In August, Mr. Ed seeks leave to amend to add a new claim. Is the new claim time-barred because the statute ran on July 15?
No – amended pleadings “related back” if they concern the same conduct, transaction or occurrence as the original pleading.

Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid SOL problem.

Treat it as though filed on 7/1 before statute ran on 7/15.
What is a necessary party?
An absentee (A) who meets any of these tests:

1. Without A, court cannot accord complete relief (worried about multiple suits)
2. A’s interest may be harmed if he isn’t joined (practical harm)
3. A claims an interest which subjects a party (usu D) to mult obligations

JT aren’t necessary.

Mnemonic: HIM (Harmed, Inadequte, Multiple)
HIM
BB holds 1000 shares of stock in Priceline.com. Will Shatner claims he and Bob agreed to buy stock jointly and that he paid for half the stock. Will sues PL.com, seeking to have B’s shared canceled and stock reissued in their joint names. Is BB a necessary party?
Yes. He probably meets all three tests, but at the minimum, (2) his interest will be harmed if he isn’t joined. In fact, they will be canceled.
What do we do next if we’ve found a party that is necessary?
We now see if joinder is feasible. It’s feasible if:

1. There is PJ over him
2. Joining him would not make diversity impossible

If Joinder is possible, A brought into case, and court decides whether he is D or P.
What if we can’t join the necessary party?
If joinder is not feasible, the court has two options.

1. Proceed w/o him
2. Dismiss case

Factors:

a) is there an alternative forum available? (esp. state court)

b) what is the actual likelihood of prejudice?

c) can the court shape relief to avoid that prejudice?

PD - ALR (Proceed, Dismiss, Alternative, Likelihood, Relief)

If the court decides to dismiss (rather than proceed w/o Bob), then Bob is “indispensable.”
PD - ALR
How do I remember these different third party thingies?
Joinder rules that start with C (counterclaim, cross claim) are claims involving present parties. Claims that start with “I” involve joining someone new to the case.
What is impleader?
A defending party wants to bring in someone new for one reason: the third party defendant (TPD) may owe indemnity or contribution to the defending party on the underlying claim.
When can one implead?
W/in 10 days after serving answer; after that, need court permission.
Pam sues Doris to recover for personal injuries from car wreck. Doris has a right to indemnity from Insco (or a right of contribution from a joint tortfeasors) what are the steps of impleading?
1. File third-party complaint naming Insco as TPD; and
2. Serve process on the TPD (So must have personal jurisdiction over TPD)
After the TPD is joined, can plaintiff assert a claim against TPD? Can TPD assert a claim against plaintiff?
Yes – if the claims arise from the same T/O as underlying case.
Impleader – assuming there is no FQ and all claims > $75k, P is a citizen of PA, D is citizen of NV, TPD is citizen of PA. Analyze.

TPD
^
|

Plaintiff------>Defendant
1. Is there SMJ over D’s claim against TPD? Yes – it meets diversity (NV v. PA and > $75k) P is irrelevant to D v. TPD
2. Is there SMJ over TPD’s claim against P? No diversity and no FQ, but supp. J is OK b/c meets test (T/O) and special limitation on P’s adding D’s to defeat div doesn’t apply to claims by non-Ps
3. Is there SMJ over P’s claim against TPD? No diversity and no FQ and NO Supplemental! Meets test, but violates limitation (A P cannot use Supp J to avoid lack of diversity in div case – this can only go to state court)
What’s the bulge rule?
Absentees joined as necessary parties or for impleader may be served outside the forum state (even without a state long-arm statute), but only w/in 100 miles of the federal courthouse. Not available to serve process on original D’s.
What is intervention?
An absentee wants to join a pending suit. She chooses to come in either as P or as D. Court may realign her if it thinks she came in on “wrong” side. Application to intervene must be timely.
What is intervention of right? What is permissive intervention?
Intervention of right - A’s interest may be harmed if she is not joined and her intervention is not adequately represented now?

Permissive intervention - A’s claim or defense and the pending case have at least one common question. Discretionary w/ court. OK unless delay or prejudicte
What happens if we have a diversity case and the plaintiff intervener is not diverse from the defendant (or the defendant-intervener is not diverse from the plaintiff). Is there supplemental jurisdiction over a claim by or against an intervenor?
Generally no – the court won’t allow in a non-diverse intervenor.
What is interpleader?
One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency.
Who are the different players in interpleader?
The person with property is called the stakeholder.

The folks with the claims are called claimants.
What are the two types of interpleader in federal court? What are the rules of interpleader?
Rule (FRCP 22) and statutory.

Rule interpleader is a diversity case. 1) Stakeholder must be diverse from all claimants. 2) Amt. > $75k, 3) Service of process like a normal suit, 4) Venue – like a regular case

Statutory interpleader – 1) one claimant must be diverse from one other claimant 2) Amt. > $500, 3) Service – nationwide (no PJ probs over claimants in US) 4) Venue – any dist where any claimant resides.
Insco (inc. in DE, ppb NY) holds a fund of $100k under a life insurance policy. After the insured dies, potential claimants to the fund are Bonzo (NJ), Gonzo (MN) and Nonzo (NY). Insco wants to avoid being sued on the policy in three different actions. What can it do? How?
It will interplead

There’s no rule interpleader because it’s not diverse from all claimants.

There is statutory interpleader b/c one claimant is diverse from at least one other claimant. All other requirements met
What are the initial requirements for class action?
Numerosity – too many class members for practical joinder
Commonality – there are some questions of law and fact common to class
Typicality – representative’s claims/defenses typical of those in the class
Adequate representation – the class representative will fairly and adequately represent class.
Besides Numerosity, Common Question, Typicality, and Adequate Representation, what else must is required for class action?
Case must fit w/in one of three areas:
1. Prejudice – class treatment necessary to avoid harm to class members or party opposing class – Example: many claimants to fund
2. Injunction or declaratory judgment – sought because class was treated alike by other party – employment discrimination
3. Damages – 1) Common questions predominate over individual questions AND 2) class action is the superior method to handle dispute. EX: Bus crash
What is certification?
At an early practicable time, the court must determine whether to certify case to class action. If court certifies class, must “define the class and class claims, issues or defenses,” and appoint a class counsel who must fairly and adequately represent the interests of the class.
Does the court notify the class of pendency of the class action? Who pays for notification? Is notification required in all types of class action?
In the Type 3 class the court must notify the class members, including individual notice to all reasonably identifiable members. Notice tells them 1) they can opt out, 2) they’ll be bound if they don’t and 3) they can enter a separate appearance through counsel.

The class representative pays for notification.

It is not required for types 1 & 2
Who is bound by the judgment in a class action?
All members of the class except those who opt out of a type 3 class.
What happens when there’s a settlemtn or dismissal of class claims in a certified class action?
The court must approve all settlements or dismissals. Also, in all three types, 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 class, the court MUST give members a second chance to opt out.
What about a class action brought under diversity of citizenship?
You look only at the representative’s citizenship and amount. If his claim meets diversity, then okay.
What is the Class Action Fairness Act of 2005?
This act contains a grant of SMJ separate from regular diversity of citizenship J. It allows Fed Courts to hear class action if any class member is of diverse citizenship from any defendant and if aggregated claims of the class exceed $5M.
Summarize the Class action thought process.
1. Initial requirements (N, C, T, A)
2. Type
3. Certification
4. Notification
5. Who’s bound
6. Settlement & approval
7. Subject matter J
8. Class Action fairness Act of 2005
What are the required disclosures in Fed court?

(Unlike to be tested)
1. Initial disclosures – w/in 14 days of r26 conf. must ID parties/docs “likely to have discoverable info”
2. Experts – must Id experts who may be used
3. Pretrial – no later than 30 days before trial, give detailed info about trial evidence, including docs and ID of wits to testify live or by depo.
What are the basic discovery tools?
1. Depositions
2. Interrogatories
3. Requests to produce
4. Physical or mental examination
5. Request for admission
PAID-E (Produce, Admission, Interrogatories, Depositions, Examination)
What are the rules for depositions
Parties (w/ notice) or nonparties (w/ a subpoena)

Duces Tecum – w/ documents.

- No more than 10 depos, can’t depose same person twice & no more than 1 day of 7 hours w/o court approval or party stipulation
How can I use a deposition at trial?
1) Impeach the deponent
2) any purpose if deponent is adverse party
3) any purpose if deponent is absent, unless absence was procured by party to use deposition
Rules for interrogatories?
25 in 30 days

Cannot serve more than 25 interrogatories. Must respond w/in 30 days. Can say you don’t know answer, but only after reasonable investigation; if answer could be found in business records but burdensome to find, can allow propounder access to those records. At trial, cannot use own answers, others may be used per regular rules of evidence.

Cannot be used on nonparties.
What is a request to produce? Rules for request to produce?
Request to party or nonparty (w/ sub.) to make available (thing, land, etc.) for inspection

Respond in 30 days - will produce or objection
Rules for physical or mental examination?
1. Court order

2. Party's (or person in party's control)

3. health is in actual controversy

4. Good faith

CPAG (Court order, Party, Actual controversy, Good faith)

Person examined may obtain copy of report w/o making this showing, but by doing so waives Dr/Pat privilege re reports by his doctors re that condition.
CPAG
Rules for 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 the authenticated with the request.

Must respond w/in 30 days of service. The response is to admit or deny; can indicate lack of information only if you’ve made reasonably inquiry. Failure to deny = admission. Can amend if failure is not in bad faith.
What discovery tools are usable against third parties?
1. Depositions.
2. Request to produce (w/ subpoena)
What are lawyers required to do with discovery answers? What is the lawyer’s duty after disclosures, etc. are made?
Substantive answers are signed by parties under oath. Every discovery request and response is signed by counsel certifying (1) warranted, (2) not interposed for improper purpose and (3) not unduly burdensome.

There is a 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.
What are the rules about scope of discovery?
1. Generally – anything relevant to a claim or defense – something relevant to the pleadings (narrower than in past – “to case” – Court can order broader discovery)
2. Privileged material not discoverable (see evidence)
3. Work product (material prepared in anticipation of litigation) generally protected
4. Expert witnesses – required to produce info about experts who may be used at trial w/o request from party – in add. Party may take depo of any expert whose opinions may be presented at trial
Howell sues Skipper for losses sustained when a vessel sank. Skipper, fearing the suit, had hired Shore, an attorney, who interviewed Gilligan, a witness to the sinking. Shore (a) had Gilligan write a statement regarding the incident; (b) made a note that based on what Gilligan says, assumption of risk would be a viable defense; and (c) made a note that Gilligan is stupid and would make a lousy witness at trial.

What, if anything is discoverable?
All three items are work product, because each was generated in anticipation of litigation. So, start w/ assumption that NOT discoverable. But, item (a) is discoverable if Howell shows:
1. Substantial need
2. Not otherwise available
So, if Gilligan is marooned on an island and therefore not available for deposition, it might be discoverable.

(b) and (c) are absolutely protected b/c they are (1) mental impressions, (2) opinions, (3) conclusions and (4) legel theories.
Does work product have to be generated by a lawyer?
No – it can be prepared by party or any representative of a party, not just the lawyer.
How might a discovery problem present itself to the court?
1. Protective order – Receiving party seeks protective order FRCP 26 (c) b/c request overburdensome or involves trade secrets and need order limiting use to litigation
2. Partial violation – receiving party answers some and objects to others. If the objections are not upheld, this is a partial violation and sanctions will be light.
3. Total violation – receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production. Total violation – heavy sanctions
What are the sanctions against a party for violations of discovery rules?
The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement. <– this should be in essay answer
Partial violation – 1) Court order compelling party to answer unanswered questions, plus costs of bringing motion 2) IF party violates order compelling answer, RAMBO sanctions plus costs and contempt (no contempt for failing to submit to med exam)
Total violation – RAMBO plus costs – no need to get order compelling answers
What are some other things that can get sanctions?
False Denial, Failure to make required disclosure

False denial of request to admit: only costs of proving issue

Failure to make required disclosure: Other side can treat as either partial or total violation. Party failing to make disclosure cannot use the info at trial, unless failure was justified or harmless.
D&D
What are the RAMBO sanctions?
These sanctions are choices available to judge:

- Establishment order (establishes facts as true)

- Strike pleadings of the disobedient party (as to issues re discovery)

- Disallow evidence from the disobedient party (as to issues re discovery)

- Dismiss plaintiff’s case (if bad faith shown)

- Enter default judgment against defendant (if bad faith shown)

ESDDD (Establishment, Strike, Disallow, Dismiss P, Default D)
ESDDD
What sanctions are available against a nonparty? Against an attorney?
Nonparty – contempt (for violating subpoena or court order)
Attorney – liable for all expenses (incl. atty fees) incurred by other side if she counseled one of these bad acts.
What is voluntary dismissal? How many times can a claim be voluntarily dismissed? What is the effect?
P files written notice of dismissal – P sues D, but (before D answers) dismissed the action by filing written notice of dismissal. This is okay, P may voluntarily dismiss w/o prejudice once before D serves her answer or a motion for summary judgment. Means P can refile.

But, if the 2nd case is dismissed by written notice, it is with prejudice, so claim cannot be re-asserted. This is true even if the 1st case was in state court
What is entry of default? What happens next?
1. An entry of default is merely ministerial, shown as an entry on the docket sheet. You need a default judgment to enforce and recover.
2. Entry of default is prerequisite to entry of default judgment. Default is entered by the clerk after P shows that D failed to respond w/in required time. D can respond anytime until default is entered on docket.
When can a default judgment be entered by the clerk?
ONLY if four things are true:
1. D has made no response at all
2. P’s claim is for a sum certain (or calculable) + costs
3. P gives an affidavit that the sum is owed AND
4. D is not a minor or incompetent
What happens if the clerk of the court can’t enter the default judgment?
P must go to the court to get default judgment. Judge can hold a hearing on damages or other issues if she feels it’s necessary. D gets notice of this hearing only if he made some appearance in the case.
How much can P recover in default judgment?
No more than what she asked for. (If tried, P can recover more)
Can the D get relief from default or default judgment?
Yes – D can move to set aside the default or default judgment. Generally must show good cause for default + viable defense.
What’s a 12(b)(6)?

What's the standard the court uses?

What can the court look at?
Failure to state a claim. D moves to dismiss for failure to state a claim. It tests only the sufficiency of P’s allegations.

Standard: Court assumes all allegations are true and asks: If P proved all she has alleged, would she win a judgment?

Court cannot look at evidence, only face of the complaint.
How does one get summary judgment?
Moving party must show (1) there’s no genuine dispute as to material issue of fact and (2) that she is entitled to judgment as a matter of law.

Court views evidence in light most favorable to nonmoving party.
Can you move for partial summary judgment? What’s that?
Yes – it’s summary judgment on one of the claims. It weeds out those claims that don’t need trial.
Larry sues Daryl for damages, alleging that Daryl slugged him in the nose. Daryl answers and alleges the affirmative defense of self-defense. Then Daryl moves for summary judgment, attaching affidavits of a priest, a rabbi, and a nun, all of whom swear they saw the incident, and that Larry attacked Daryl first w/o provocation or warning.

In response, Larry files no affidavits, but relies on the allegations in his complaint. If Daryl moves for summary judgment, what result?
Motion for summary judgment granted. Larry gave no evidence, pleadings are not evidence. That means the only evidence before the court are the affidavits offered by Daryl. Based on that evidence, there is no dispute of fact and Daryl is entitled to judgment as a matter of law.

Look at evidence and ask is there a dispute on a material issue of fact?
Larry sues Daryl for damages, alleging that Daryl slugged him in the nose. Daryl answers and alleges the affirmative defense of self-defense. Then Daryl moves for summary judgment, attaching affidavits of a priest, a rabbi, and a nun, all of whom swear they saw the incident, and that Larry attacked Daryl first w/o provocation or warning.

Larry responds with an affidavit from Dick, who swears he heard about the fight and was told that Daryl started it. Motion for summary judgment?
Probably granted – Dick’s affidavit is inadmissible hearsay, so we’re in the same situation as before, no evidence for Larry, so no facts in issue.
Larry sues Daryl for damages, alleging that Daryl slugged him in the nose. Daryl answers and alleges the affirmative defense of self-defense. Then Daryl moves for summary judgment, attaching affidavits of a priest, a rabbi, and a nun, all of whom swear they saw the incident, and that Larry attacked Daryl first w/o provocation or warning.

Larry responds with deposition testimony from an alcoholic, drug addicted, convicted swindler who swears he saw the incident and that Daryl attacked Larry without provocation. Motion for summary judgment?
Denied – The evidence for Larry is admissible and creates a dispute on a material issue of fact. The court looks at evidence in the light most favorable to the non-moving party.
What are the pretrial conferences?
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 “to prevent manifest injustice” (tough standard).
What’s the importance of the final pretrial conference report?
Final pretrial conference order is important document – roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. So, no surprises at trial.
When is there a right to jury trial in federal court?
7th amendment preserves right to jury in “civil actions at law” but not suits at equity.
What if a case involves both law and equity? Is there a right to jury trial?
When there are both law and equity in a case, there is a jury for law issues, judge for equity issues.
What does one have to do to get a jury?
Demand jury in writing no later than 10 days after service of the last pleading raising jury triable issue.
Tell me about voir dire?
Each side gets unlimited strikes for cause, and 3 peremptory strikes – must be used in race/gender neutral way. Jury selection is state action, even in civil action.
What do I do when the other side rests?
Motion for judgment as a matter of law (old name: directed verdict) Takes case away from jury.

Rule: Reasonable people could not disagree on the result (view evidence in light most favorable to non-moving party)
Tell me about the renewed motion for judgment as a matter of law?

When must it be filed?
Old name: Judgment notwithstanding the verdict (JNOV)

After jury comes back, file w/in 10 days after entry

Standard – same as judgment as matter of law

Prerequisite: At close of all evidence, must move for judgment as a matter of law
P presents her evidence at trial, after which D moves for a judgment as a matter of law. Denied. D puts on her evidence. At close of all evidence, D does not move for judgment as matter of law. Jury finds for P and judgment is entered for P. Can D make a renewed motion for judgment as a matter of law?
No – she waived it by failing to move for judgment as a matter of law at the close of all evidence.
Tell me about the motion for a new trial?

What is it?

When must it be filed? On what grounds?
Judgment entered, but errors at trial require new trial. Move w/in 10 days.

Grounds: 1) prejudicial error at trial makes judgment unfair; 2) new evidence that could not have been obtained w/ due diligence for original trial; 3) prejudicial misconduct of party or attorney or 3d party or juror; 4) judgment against weight of evidence.

New trial less radical than renewed motion for judgment as matter of law – court simply starts over.

Mnemonic: NEW-M (NEW Evidence, ERROR, against WEIGHT, MISCONDUCT)
NEW-M
Tell me about motion to set aside the judgment. What are the grounds and timing?
Grounds/Timing
1. Clerical error / any time
2. Mistake, excusable neglect or surprise / reasonable time (<= 1 year)
3. new evidence not been found w/ due diligence for a new trial motion / reasonable time (<= 1 year)
4. Judgment void – reasonable time (no maximum)

Color ME Violet (Clerical, Mistake, Evidence, Void - Any time, 1 year, 1 year, reasonable time - respectively)
Color ME Violet Any 11 Reasons
Which are final judgments one can appeal from?

Denial of a motion for summary judgment?

Grant of a motion for a new trial?

Denial of a motion for a new trial?

Grant of a motion to remand to state court?

Grant or denial or renewedmotion for judgment as a matter of law?

When does notice of appeal have to be filed?
Denial of a motion for summary judgment – no
Grant of a motion for new trial – no
Denial of a motion for new trial – yes
Denial of a motion to remand to state court – no
Grant of motion to remand to state court – no (by statute, even though federal work is done)
Grant or denial of renewed motion for judgment as matter of law – yes (either way a final judgment)

Notice of appeal must be filed in trial court w/in 30 days of entry of final judgment.
When can I get an interlocutory review?
Interlocutory (non-final) review:
1. Reviewable as of right: injunctions, receivers, patent infringement (when only damages left) attachments
2. Interlocutory appeals act – if Judge certifies that it involves a controlling issue of law
3. Collateral order exception – appellate court has discretion to hear ruling on an issue if it (a) is distinct from merits of case (b) involves an important legal question and (c) essentially unreviewable if parties await final judgment (ex: claim of immunity from suit)
4. When more than one claim is presented in ca case, or when there are multiple parties, trial court may expressly direct entry of final judgment as to one or more of parties if it makes an express finding no reason for delay
5. Extraordinary writ: Not technically an appeal, but an original proceeding in appellate court to compel judge to make or vacate a particular order – not substitute for appeal, only avail. To enforce clear legal duty
6. Class action – court of appeals has discretion to review orders granting or denying certification of class action. 10 days after decision.
What does the 11th amendment mean for Massachusetts?
It bars federal courts from hearing damages claims against a state – unless the state waives the immunity.

It is okay to sue an individual state actor for equitable relief. No 11th amendment problem there.