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234 Cards in this Set

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  • Back
  • 3rd side (hint)

6 areas of Fed J and Civ Pro

1. Right court?


2. Learning about case?


3. Complex case?


4. Adjudication


5. Appellate review


6. preclusion

personal jurisdiction (PJ)

court’s power over the PARTIES

PJ generally must be authorized by statute AND consttutional.



look at what 2 things?

1. look @ state's long arm statute


2. Due process clause



What does dp clause require for PJ

parties directly affected by ct action must receive notice of action + minimum contacts that = fair and reasonable
Of the two step analysis for PJ, one is FAR MORE IMPORTANT. which one?

the CONSTITUTION

most grant PJ in these 5 situations

∆ present in forum state / personanlly served with process


∆ domiciled forum state


∆ is citizen


∆ consents (express or implied, by appearnace)


∆ commited acts, that bring him w/in state's long arm

In personal Jurisdiction, statutory analysis is usually one sentence: “ _____”
the statute reaches the constitutional limit.
POINTS. Constitutional analysis of In personal jurisdiction. ASK, does D have ___________________?”

- min. contacts w. the forum


- so Jx does not offend tad'l notions: fair play / subst justice

PJ. hit these THREE words

CONTACT,



RELATEDNESS,



FAIRNESS

PJ ANALYSIS.



minimum contacts require:

RELEVANT CONTACT must result from


1. purposeful availment of forum (d’s voluntary act); AND 2 foreseeable (it must be foreseeable that D would get sued in this forum).
With the relatedness factor of in personal j, constitutional analysis. Does law suit arise from ___________________ ?

PLAINTIFF’S CLAIM w/ THE FORUM

note - question on state's long arm statute likely.


if π injured in State A by ∆, π may still sue in State A regardless of whether ∆ is home there

If there is relatedness btw contact and P’s claim, Where the claim arises from DEFENDANT’S contact with the forum, it is called: ______________.
SPECIFIC PJ

What if the claim doesn’t arise from D’s contact with forum? Then, jurisdiction is OK ONLY if the court has ____________.
GENERAL PJ (if so, D can be sued there for a claim that arose anywhere in the world).

Std. for General PJ?

D must have CONTINUOUS, and SYSTEMATIC TIES w/ the forum. D is essentially at home at the forum
Where is a HUMAN always ‘at home’, has GENERAL PJ?
where DOMICILED
Where is a corporation essentially at home, has GENERAL PJ? WHERE IT IS ______
where it is FORMED
Can General PJ be based on sales or purchases within the forum?
no, some physical presence required
There is no ______ analysis is general pj.
FAIRNESS analysis in general pj
Fairness is only a relevant factor with ________.
Specific PJ
Three factors of Fairness for Specific PJ ?

convenience (doesn’t guarantee mot convenient, jut can’t be unconstitutionally bad). state’s interest (provide forum for its citizens); plaintiff’s interest (maybe injured and wants to sue at home)
Inconvenience is difficult to show because, ________ .
the relative wealth of the parties is not determinative.
SUMMARY OF CONSTITUTIONAL TEST

* Contact (Purposeful availment / foreseeability);


* Relatedness (general v. specific);


* Fairness ( convenience; state’s interest; plaintiff’s interest)

If doofus sells widgets to co. in MN, and widget blows up in NV, is PJ IN NV CONSTITUIONAL?

Analysis: purposeful availment? Maybe no (didn’t ship to NV) foreseeable? probably foreseeable that widgets would travel. Is there Relatedness? YEs! claim arises directly from the contact between doofus and NV. Fariness/ reaonabless? convenience, doofus may complain, but no facts of grave inconvenience. State’s interest? forum state (nv) has interest in providing its ppl a forum against out of state careless manufacturers. Plaintiffs interest? P is hurt and would be difficult to litigate in D’s home state.

SUBJECT MATTER JURISDICTION (SMJ) is the court’s power over the ______.


case

Basic Idea is that , once we know P will sue D in a particular state, but SMU helps us determine what court
state o federal

Fedearl courts can only hear 2 big typos of cases
diversity of citizenship and federal question
Diversity of Citineship cases have what two reqruiements?

1. either (a) btw citizens of DIFF states OR (b) BTW citizen of a state AND a citizen of a foreign country (alienage) AND


2. AIC exceeds $75,000

Complete Diversity Rule:


There is no diversity if P is a citizen of the same state as _____.

ANY defendant

Who are “citizens” of different states?

natural person, corporation, unincorporated association (like partnership, LLC); decedents, minors, or incompetents

Natural person is a ______, citizenship is the state of her _____.
US citizen / domicile
A natural person’s domicile is established by two factors
PRESENCE AND INTENT
We test for diversity when __________.
the case is FILED
CORPORATION CITIZENSHIP = 2 ways
1. State where incorporated AND 2. state where it has its (one and only) PRINCIPAL PLACE OF BUSINESS (PBB), create citizenship
Can a corporation have two corporation citizenships?
yes (inc. / PPB)
Where is the corporation’s PPB?
it’s where managers direct, control, and coordinate activities (the nerve center

where they call the shots)

****To determine citizenship of Unincorporated association (like partnership, LLC). Use the citizenship of all _________ (that includes _______________).
MEMBERS, that includes general and limited partners. we don’t care where business was formed, or where it has its PPB

Partnership has partners who are citizens of 18 states. What is Partnership’s citizenship?
citizenship of all 18 states
With decedents, minors, or incompetents, whose citizenship do you look for?
decedent, minor, or incompetent ( we don’t care about executor’s citizenship)
What is the second requirement for diversity citizenship?
Amount in Controversy: claim must EXCEED 75,000
P sues for exactly 75,000?
no diversity j
WHATEVER THE P CLAIMS IN GOOD FAITH IS ok UNLESS IT IS CLEAR TO BE A LEAGL CERTAINTY THAT SHE CANNOT:
RECOVER MORE THAN $75,000. + IF YOU WON LESS THAN $75,000, YOU MAY HAVE TO PAY FOR THE DEFENDANT’S LITIGATION COSTS
Aggregation means
adding two or more claims to meet the amount requirement.
P suds D for 40 grand breach of K and 50 grand on unrelated claim. is this ok for diversity jurisdiction?
Yes, because one P can aggregate claim against one defendant
Is there a limit on aggregation between one P against one D?
No, not if ONE p versus ONE d (multiple plaintiffs cannot aggregate)
Anytime P sues JOINT tortfeasors, use the _______________ for diversity j
TOTAL VALUE OF THE CLAIM, because any one of the three could have been liable for full amount (not aggregation)
When suing for equitable relief, there are two tests that allow for diversity J

Plaintiff’s viewpoint (does issue decrease value of his property by more than $75,000. D’s viewpoint. would it cost D more than 75 grand to comply with injunction
Federal Courts will not hear actions involving issuance of _____, ______, or ______, or ______ (think family)
divorce, alimony or child custody decree or to probate an estate.
FEDERAL QUESTION (FQ) CASES. Complaint must who a right or interest founded substantially on a federal law. The claim “_______” federal law.
the claim “arises under” federal law.
in FQ, is citizenship of parties relevant?
no
in FQ, is amount in controversy relevant?
no
in FQ, always use the
WELL PLEADED COMPLAINT RULE. It is not enough that some federal issue is raised by the complaint. the P’s claim itself must “arise under” federal law. So we look at the claim and ignore the other material P alleged.
Under FQ, does P enforcing a federal right? Yes? _____. No? ________
Yes, FQ. NO? no FQ
Diversty and FQ can get a case INTO fed court. Once the case is there, there may be ADDITIONAL claims in that case. For every single claim, test whether it invokes ________ or ________. If so, it can come into the case. If it does not, we go to ________.
diversity or FQ. SUPPLEMENTAL JURISDICTION.
Can supplemental j be used to get a case into federal court?
no
To have supplemental j, there must _____________ .
already be a claim in federal court
The test for Supplemental Jurisdiction. The claim we want to get into federal court must share a “_________________” with the claim that invoked federal smj. thi test is ALWAYS MET BY CLAIMS THAT ARISE FROM _________________ as the underlying claim.
“common nucleus of operative fact”. This is always met by claims that arise from the same TRANSACTION OR OCCURRENCE (T/O) as the underlying claim.

Suppl Jx only applies to __________________ . in a DIV case, π cannot use supplemental jx to overcome a _______________ in a diversity case.

when claim invoked federal sm jx .



can't use to overcome:


a lack of DIV.

but π CAN use SUPPLEMENTAL J to overcome a lack of diversity in a __________ case.

FQ case

in a diversity case, SUPPL jx can be used to overcome ___________

AIC req't.



so if no AIC, or no FQ . . . can use supplemental jurisdiction if: ∆ isn't same state as π
Federal Courts will not hear actions involving issuance of _____, ______, or ______, or ______ (think family)
divorce, alimony or child custody decree or to probate an estate.

FQ: Complaint must have a right or interest founded substantially on a federal law. aka claim “_______” federal law.

“arises under”

in FQ, is citizenship of parties relevant?
no
in FQ, is amount in controversy relevant?
no
in FQ, always use the

WELL PLEADED COMPLAINT RULE. It is not enough that some federal issue is raised by the complaint. the P’s claim itself must “arise under” federal law. So we look at the claim and ignore the other material P alleged.

Removal. ∆ suded in state court, might be removed to fed ct.


Removal transfers the case from _____ to _______ (one way street)

state to federal

Diversty and FQ can get a case INTO fed court. Once the case is there, there may be ADDITIONAL claims in that case. For every single claim, test whether it invokes ________ or ________. If so, it can come into the case. If it does not, we go to ________.

diversity or FQ. SUPPLEMENTAL JURISDICTION.
Can supplemental j be used to get a case into federal court?
no
To have supplemental j, there must _____________ .
already be a claim in federal court
The test for Supplemental Jurisdiction. The claim we want to get into federal court must share a “_________________” with the claim that invoked federal smj. thi test is ALWAYS MET BY CLAIMS THAT ARISE FROM _________________ as the underlying claim.
“common nucleus of operative fact”. This is always met by claims that arise from the same TRANSACTION OR OCCURRENCE (T/O) as the underlying claim.
THE LIMITATION for SUPPLEMENTAL JURISDICTION only applies to __________________ . in a diversity case, plaintiff cannot use supplemental jurisdiction to overcome a _______________.
DIVERSITY. lack of diversity.
P CAN USE SUPPLEMENTAL J to overcome a lack of diversity for a claim in a _____.
FQ case
P can also use SUPPLEMENTAL J to overcome a lack of amount in controversy for a claim in a __________ .
diversity case
So a non-federal, non-dversity claim can be heard in federal court if it meets the TEST . . . UNLESS .. . it is:

a. asserted by plaintiff. b. in a diversity of citizenship (not FQ) case AND c.
Court has discretion to refuse supplemental j if (1) ___ (2) ____ or (3) _____.
FQ is dismissed early in the proceedings or 2. state law claim is complex, or 3. state law issues would predominate.
Removal only goes from ________ court to _______ court.
STATE to FEDERAL
When does removal occur?
w/in 30 days of service of the first paper that shows the case is removable (usually within 30 ds of service of process)
all defendants who have been served with process must _________ to removal.
agree
If there are multiple defendants, served at different times, the thirty days for removal starts when ? _________.
latest defendant served
Can plaintiff ever remove? why?
No, bc P can never remove. even if she’s a defendant on a counter-claim.
What cases can be removed? (important) The general rule is that any case that meets _____ or _______
diversity of citizenship OR, FQ
If you’re trying to remove for diversity, TWO BIG EXCEPTIONS, that only apply if removing for diversity. what are the 2 BIG exceptions?

1. no removal if any ∆ is a citizen of forum (instate ∆ rule) AND


2. NEVER removal more than one year after the case was filed in FQ cases. (exam… DATES are always there for a REASON)
What is the procedure for Removal?

∆ files notice of removal in fed ct, stating grounds of removal; signed under rule 11.


* attach all docs served on D in state action.


• serve copy on all adverse parties.


• file copy of notice in state court
The Erie Docrine. a federal court in a diversity case must decide an issue. In deciding that issue, does she have to follow state law? Black letter:
in diversity cases, the federal court must apply state substantive law. 3 steps
Erie Doctrine step 1 is ______.
is there a federal law (any fed law) that directly conflicts with state law? If so, apply federal law if it’s valid (bc of the supremacy clause)
Erie Doctrine step 2 is, if no federal law on point, ask, ______? Name the four EASY ONES
if no federal law on point, ask is this issue one of the easy ones? The 4 easy ones: 1. elements of a claim or defense; 2. statute of limitations; 3. rules for tolling statutes of limitations, and 4 conflict of law rules.
Why are these the four easy ones within the Erie Doctrine? 1. elements of a claim or defense; 2. statute of limitations; 3. rules for tolling statutes of limitations, and 4 conflict of law rules.
these are all substantive law, and you must apply STATE LAW.
Erie Doctrine step 3 is when (there’s no federal law on point, there’s not a substantive issue, and perform what three tests?
Outcome determinative; Balance of Interests; Avoid forum shopping
Erie Doctrine Outcome determinative: would ____________ the state rule affect outcome of case?
applying or ignoring If so, it’s probably a substantive rule, so should use state law.
Erie Doctrine Balance of interests: does either federal or state system have __________________?
strong interest in having its rule applied?
Erie Doctrine: Avoid forum shopping: if the federal court ignores state law on this issue, will it ___________?
cause parties to flock to federal court? If so, should probably apply state law.
The basic idea of VENUE is that it tells us exactly ____ federal court
WHICH
Plaintiff may lay VENUE in ANY DISTRICT WHERE ____________ OR _________.
ALL DEFENDANT’S RESIDE (see other card) OR a SUBSTANTIAL PART of the CLAIM AROSE
SPECIAL RULE for VENUE when ALL defendants reside in DIFFERENT ________ of __________, Plaintiff can lay venue in the district in which ______ D resides.
if all D’s in diff. districts of SAM STATE, can lay venue in district in which any D resides.
Where does a humna reside for venue purposes?
domicile
Where doe business reside for venue purposes?
in ALL districts where corporation subject to PJ for this case (Can be very broad . . . I.E. partnership may have 18 citizenships
TRANSFER OF VENUE: A federal district court may transfer the case to another federal district court, IF:
the case could have been filed in new district, to a proper venue that has PJ over the defendant
Exception to transfer of venue
court can transfer to any district 9even an improper venue) if all parties consent (unlikely that P will do so ) and the courts finds cause for the transfer.
Tranfer affect plaintiff’s rights to choose a forum. In deciding whether to transfer, what factors does Court look to?
public and private factors showing that the OTHER district is the center of gravity.
Whether transfer of venue is proper, public factor looks at things like:
what law applies, what community should be burdened with jury service, keeping lcoal controversy in local court
Whether transfer of venue is proper, private factor looks at
CONVENIENCE
where are the witnesses and the evidence?
The transferee court applies what law rules?
the same choice of law rules the original court would.
If original district improper, the cour may transfer in the interests of ____ or ____.
justice or dismiss.
FORUM NON CONVENIENS (FNC). Like transfer, ther eis another court that is the center of gravity, that just makes more sense than the present court. but here, the court does not transfer to that other court. what does court do?
dismiss or stay. why? the most convenient court is in a different judicial system.
FNC dismiss almost never granted if:
P is resident of the present forum
SECOND BIG TOPIC
learning about the case
The basic idea of service of press is that D must receive
notice.
FOR SERVICE OF PROCESS TO BE PROPER, A 1 _________ AND 2 _____ ARE DELIVER TO D. THESE TWO DOCUMENTS ARE CALLED: _____.
summons and copy of complaint. these 2 documents are called PROCESS.
Who can serve process?
any non party over 18
How is process served? Personal service. Papers are given to ________.
d personally
How is process served? Substituted service.process is left with D’s butler at D’s summer home. OK IF:
(1) at defendant’s usual abode and (2) can only serve someone of suitable age and discretion who RESIDES THERE.
Process can be delivered to D’s ______, IF receiving service is ______.

Process can be delivered to D’s Agent, IF receiving service is within scope of agency.
State law. Can also use methods of service permitted by state law of the state where ____________ or ____________.
the federal court sits or where service is made. (So if state law allowed service by mail for this case, you can use that in federal court.)
Waiver by mail. Mail to D 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 D executes and mails waiver form to P within 30 days, D __________.
waives service of process (not PJ)
-- By doing this, does D waive any defense like lack of PJ? _____________________
What does P do then?
Suppose D fails to return the waiver form. P then has D served personally or by substituted service. If D did not have good cause for failing to return the waiver form is there a penalty for D?
YES. She pays the cost of SERVICE if she has NO good EXCUSE
Other documents also need to be served (answer, other pleadings, motions, discovery) we serve by __________ to the party’s attorney or __________.
MAILING OR DELIVERING to party’s attorney or pro se party. If mailed, add 3 days for any required response. can email if party consented
Rule 11 applies to all documents except _____
discovery
When lawyer or pro se party signs document, she certifies after reasonable inquiry three things are true: what?
not for improper purpose, legal contentions are warranted by law, AND factual contentions and denials of factual contentions have evidentiary support
rule 11 is a ______ certification
continuing (if I argue position from document 6 mos. later, certification follows you)
The court must _________ before imposing a rule 11 sanction.
give a chance to be heard
Rule 11 sanctions are not to ________, but to ________.
NOT to punish, but to deter. (can be non-monetary)
If other party violates rule 11, can you move for sanctions? (classic bar question)

no, other party gets 21 days of safe harbor, to correct error, before you can file
Can court raise rule 11 problems on its own (sua sponte)?
yes
court usually issues an _______ wh sanctions should not be imposed
order to show cause, give party chance to be heard before imposition canction.
Filing the ____ commences an action.
complaint
what are the 3 requirements of a Complaint?

i. Stmt: grounds of SM jx;


ii. Short/ plain stmt. of claim, showing entitled to relief;


iii. Demand for relief sought.
IN the complaint, plaintiff must plead facts supporting a _______ claim
plausible (judge decides using own experience/ common sense)

What three matters must be pleaded in the complaint, with particularity or specificity?

FRAUD (bar exam classic), mistake, and special damages.


i.e. π alleges ∆ defrauded, must give particularity or specificity
special damages are those that ______.
do not normally flow from an event

How can Defendnat respond to a complaint? when?
by motion or by answer. within 21 days of service of process (or else default)

IF you waived service, you (D) get ____ days from when π mailed you the waiver form.

60

Motions that address Issues in form

- motion for more definite stmt. (pleading so vague ∆ can’t frame a response)


- motion to strike (aimed at immaterial things)

What are the 7 pre-answer motions/ or Rule 12(b) defenses?

(1) lack of SM jx; (2) lack of PJ; (3) improper venue; (4) insufficiency of process (problem with the papers);


(5) insufficient service of prcs; (6) failure to state a claim;


(7) failure to join indispensable party.
12 b defenses can be put in either ______ or ________

These can be put either in motion or in the answer.

*must know*: Which 12 b defenses are waived if not raised by motion or answer?

(2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process (problem with the papers); (5) insufficient service of process;

AT TRIAL, may ∆ move to D/M for fail. to join indispensable party/ failure to state a claim?



YES, not waiveable defenses

After trial, asserts for the first time that the court lacks subject matter jurisdiction. OK?

Yes. SM jx is never waived, even if raised for first time on appeal

The answer is a _____. serve it within _____ after served with process
a pleading, within 21 days.

In the answer, D must respond to allegations of complaint, 3 options:

1 admit 2 deny 3 lack sufficient info to admit or deny.


- #3 acts as denial, cant be used if info public knwlg or in ∆'s cntrl

Failure to deny is an admission on any matter except damages. In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” Did D make a mistake?

yes, if not denied, admitted

Raise affirmative defenses. These inject a new fact into the case, which will allow D to win. Classic affirmative defenses are: ____ / ______ / ______ / ______

statute of limitations,


statute of frauds,


res judicata,


self-defense.

You must _____ affirmative defenses, to assert, o/w it's __.

plead, or affirmative defenses waived.

Counterclaim. This is a claim against opp. party (∆ v. π) It is part of ∆'s answer. The two types of counterclaim:

Compulsory & Permissive:

Compulsory: arises from the same T/O as P’s claim. Unless you have already filed the claim in another case, YOU MUST
FILE THIS IN THE PENDING CASE, OR THE CLAIM IS WAIVED. only compulsory claim in the world
Permissive does not arise from same T/O as P’s claim. You may file it in
your answer in this case or can assert it in a separate case.
Crossclaim. This is a claim against _________.
a co-party.
A Crossclaim must arise from the same _________ as __________.
T/O as the underlying action.
The crossclaim is _______; you do not have to file it in this case.

permissive

FACTS: P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled. It’s a diversity case. NOTE- Sterling should file a compulsory counterclaim against P, bc it’s against an opposing party and arises from the same T/O as P’s claim. Now, is there SM jx on his over compulsory counterclaim?

Yes, Sterling has 200k counterclaim against P

PROMPT: Sterling may file a crossclaim against Draper. It’s against a co-party and arises from the same T/O as the underlying case, so it’s a crossclaim. What about subject matter jurisdiction?

NO, no diversity


- supplemental jurisdiction over this crossclaim? Yes. Why? BC it (1) meets “the test” - it arises from the same T/O as the underlying case. (2) this is not a claim by a plaintiff, so “the limitation” does not apply.

Once you file a counterclaim or crossclaim (or any claim) you can join any other claim to it. But that other claim (like any claim in federal court) must invoke_____________.

subject matter jurisdiction (diversity, federal question, or supplemental jurisdiction).

AMENDING PLEADINGS = 4 FACT PATTERNS

Right to amend.


No right to Amend.


Variance. amendment after the statute of limitations has run (“relation back”)
First question when you get a amendment question, is there a ______ ?
right to amend

∏ has a right to amend ONCE within

21 days after defendant serves first 12b response

∆ has a right to amend ONCE within
21 days of serving his answer.

No response. Receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production. This is a total violation, so we expect a ________.
heavy sanction.

if routine good faith deletion of electronically stored info (ESI), are there sanctions?
not likely

If there is a partial response, there are TWO STEPS TO SANCTIONS. What is the first step?
You move for an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.

IF the party violates the order compelling him to answer, then second step is ____________ and could be __________________.

RAMBO sanctions plus costs (+ atty fees re the motion) & could be held in contempt for violating a ct order (but no contempt for refusal to submit to medical exam).
If there is NO RESPONSE

RAMBO plus costs (and attorney’s fees for the motion). No need to get an order compelling answers. Go directly to RAMBO.
Rambo Sanctions include

Establishment order (establishes facts as true) / Strike pleadings of the disobedient party (as to issues re the discovery) / Disallow evid from disobedient party (as to issues re the discovery) / D/M π's or enter default ag. ∆ (if bad faith shown)

complex cases
party joinder
Proper defendants and plaintiffs are folks who ________
may be joined .
Three people are injured when the taxi in which they are riding crashes. May they sue together as co-plaintiffs? Yes, because their claims:
1. claims arise from same T/O; AND 2. raise at least one common question
What about co-defendants? May any one of 3 injured passengers sue the taxi driver and the cab company as co- defendants?
Yes, because the claims against the two (1) arise from the same T/O and (2) raise at least one common question.
Necessary and indispensable parties. Some absentees (nonparties) must be forced to join in the case. Why?
Because they are necessary (or “required”).

When is a party a necessary or indispensable party? 3 tests.

#1. without Absentee (A), court can’t accord complete relief among existing parties.


#2. A’s interest may be harmed if he is not joined (practice harm); or


#3. A (absentee) claims an interest that subjects a party (usually ∆) to a risk of multiple obligations. (most likely on bar exam is #2! HARM TO THE ABSENTEE!)
Are joint tortfeasors necessary for necessary and indispensable parties?
NO (can’t use to force joint tortfeasor into the case)

You hold 1000 shares of stock in XYZ Corp. David Epstein claims that you and he agreed to buy the stock jointly and that he paid for half the stock.



David sues XYZ Corp., seeking to have your stock canceled and the stock reissued in their joint names. Are you necessary? Yes. You probably meets all three tests for necessary. Which one is clearest?

Test #2 A’s interest may be harmed if he is not joined (practice harm). BC if plaintiff wins, absentee gets hurt (stock gets cancelled)

Can the absentee be joined? Yes if it’s feasible. To be feasible,


1st is there ______?


2nd, joining won't _______.

- PJ


- joining won’t goof up diversity jx. if joinder is feasible, you are brought into the case.

If A cannot be joined. What happens if you cannot be joined? The court must do one of two things. What are the choices?

court can proceed without you or dismiss entire case. to decide, court looks at three factors
What are three factors t odetermine if absentee should be joined when it’s not feasible?

1. is there an alternative forum available?


2. what is the actual likelihood of harm to absentee?


3. can ct shape relief to avoid harm to you?

compulsory joinder 3 steps


1. should prty be joined?


2. can absentee be joined?


3. can action proceed?

1. is ∆ indispensable or claim to be? (if Y, move on) (if no, no joinder issue)


2. subject to service of process? (absentee joined)


3. prejudice? (Y = d/m) (no = action proceeds)

Permissive joinder:



parties may join as πs or ∆s whenever: (2)

1. π claims ag. each: same T/O; &


2. Q of law or fact common to all aprties

CLAIMS THAT START WITH I involve: ____________________.

new party to the case

A defending party wants to bring in someone new (third-party defendant (“TPD”)). Why?

Because TPD may owe indemnity or contribution to the defending party on the underlying claim.
There is a right to implead within ________ of serving your answer. After that, you need court permission.
14 days
2 Steps for impleading the TPD in the pending case:

a. File third-party complaint naming Insco as TPD; and b. Serve process on the TPD. (So must have personal jurisdiction over TPD.)

After TPD is joined, may π assert a claim against TPD?



After TPD is joined, may TPD assert a claim against π?

Yes, if the claim arises from the same T/O as the underlying case.


(both)

Mneumonic Rule 22 interpleader msut follow R = R


Statutory interpleader has S S S

RR = regular rules (req. complete diversity or FQ)



SSS = special simpler standards. §1335. divorce: diversity and 500 bucks in issue; service may be nationwise; venue proper where any claimant resides

under rule 23, calss action is proper if

1. class so big, all impracticable


2. q of law or fact common to class


3. named prtys int. = class-typical


4. named partys adeq. rep class


5. either a) sepc action = harm; b. injuct/ decl. apprp. class


c. common q of law / fact predominate, superior to alt.

WHAT IS THE THIRD STEP FOR A CLASS ACTION. it’s not a class action until the court ________ it as such
CERTIFIES. if the court grants the motion to certify, it must define the class and the class claims, issues, or defenses.
What else must the court do if it certifies the class?

judge must name class lawyer, class counsel (must fairly and adequately rep interests of the class).

The type 3 class action is most likely. IN the type 3 class, the court must notify class members that they are in a class. This means ___________ to all reasonably identifiable members

INDIVIDUAL NOTICE. notice tells them they can opt out, bound if they don’t opt out, and can enter a separate appearance through counsel ( bound if you don’t opt out)
Is notice required in type 1 or type 2?
no and which makes type3 class most likely. and there is no right to opt out of a type 1 or type 2 class action
can the parties settle or dismiss a certified class action?
yes, with court approval. (if type 3 class, judge will give them another chance to opt out)
CLASS ACTION / SMJ. the class could invoke FQ j by asserting a claim _____
arising under federal law
What about a class action brought under diversity of citizenship? For citizenship, you consider only
the rep.
What about a class action brought under diversity of citizenship? For The amount in controversy
the rep’s claim must exceed 75,000 dollars
The fourth big topic is
adjudicating the dispute.
2 forms for pretrial adjudication
failure to state a claim (12 b 6); summary judgment (r. 56)

For failure to state a claim, court only looks at allegations of fact in the complaint and asks

IF THESE FACTS WERE TRUE, would π WIN? (doesn’t look at evidence) remember, facts alleged must support plausible claim, judge uses exp. / c sense
Another name for 12b is
motion for a judgment on a pleading

Summary judgment is Federal Rule 56.


Must show 1 ____ and 2 ______

no genuine dispute on a material fact AND


entitled to JMOL (move no late than 30d after close of discovery) (can be for ‘partial jgmt)

In summary judgment, can court look at evidence?

yes. parties proffer evidence (usually affidavits or declarations), anything UNDER OATH, can be considered as EVIDENCE HERE (court views evidence in light most favorable to the nonmoving party
Why do we ever have a trial?
to resolve disputes of fact

P was hit by a car driven by ∆. P sues ∆ alleging ∆ ran a red light while P was in crosswalk, crossing street on agreen light. ∆ answers / denies these allegations. ∆ moves for SJ, attaching sworn statements from three witnesses saying that they saw the accident, D had the green light, and that P jumped in front of D’s car. Based on this evidence, there is no dispute of fact AND

the defendant is entitled to summary judgment as a matter of law (plaintiff should have given court evidence. pleading are not evidence).
evidence . . . in summary judgment . . . must be
first hand knowledge
Pleading are relevant to summary judgment in this way
defendant failed to deny allegation in the pleading

Summary judgment (SJ) must be denied when there is evidence (firs hand knowledge) for P that ______.
creates a dispute on a material fact.

The court may hold “pretrial conferences” to process the case and foster settlement. Final pretrial conference determines ___________ and ____________ . This is recorded in a pretrial conference order, which supersedes pleadings.
issues to be tried and evidence to be proffered. NO SURPRISES @ TRIAL

Right to jury trial in federal court. Seventh Amendment (which applies ONLY in federal court (not state court)) preserves the right to jury in: _________ , but not in ___________.
“civil actions at law,” but not in suits at equity.

What if a case involves both law and equity? Suppose a case involves a claim for damages (legal relief) and for an injunction (equitable relief).
Jury issues (civil actions at law) are tried first. Secondly, suits at equity are tried.
Must demand the jury ______ no later than ______ after service of the last pleading raising jury triable issue. If you don’t, you waive the right to a jury.
in writing, no later than 14 days
You get ___ peremptory strikes during voir dire. how MUST PEREMPTORY strikes be used?
in a race and gender neutral way.
Motion for Judgment as a Matter of Law (JMOL)
effect is to take the case away from the jury. can only be brought after the other side has been heard at trial.
Standard for JMOL?
reasonable people could not disagree on the result.

RJMOL = R______ J_______ as a M_________ Of L____.

renewed judgment as a matter of law (comes up after trial) same standard as JMOL (REASONABLE PEOPLE CAN’T DISAGREE, STIL VIEW Evid in LIGHT MOST FAVORABLE TO NON MOVING PARTY)

If RJMOL is granted it means the judge ______ the jury, and that the jury reached a conclusion that ___________.

reverses the jury, meaning jury reaches a conclusion reasonable people could not have reached.

Must move for JMOL _____, or you waive RJMOL.

at trial
What is a situation where a Motion for a new trial is appropriate?

Situation: Judgment entered, but errors at trial require a new trial. Something happened that makes the judge think the parties should start over and re-try the case. Move within 28 days after judgment.

Grounds for motion for a new trial : 5 different grounds

(1) error at trial makes judgment unfair (e.g., wrong jury instruction); (2) new evidence that could not have been gotten before with due diligence; (3) prejudicial misconduct of party or attorney or third party or juror (e.g., juror conducted independent investigation of accident); (4) judgment is against the weight of the evidence (serious error of judgment by jury); (5) inadequate or excessive damages.
New trial is ___ drastic than RJMOL. Why?
less. doesn’t take away from one party, just start over
FIFTH BIG TOPIC =
APPEAL
Final judgment rule: As a general rule, can appeal only from FINAL JUDGMENTS, which means an ________________________.
ultimate decision by the trial court of the merits of the entire case. (which means there’s nothing left to do on the merits of the case)
File notice of appeal in _______ within 30 days after entry of final judgment.
trial court

Interlocutory review means ________-________.
non-final
LIKELY ISSUE. CLASS ACTION / INTERLOCUTORY. Court of appeals has discretion to review order _______ or __________.
granting or denying certification of class action.
LIKELY ISSUE. CLASS ACTION / INTERLOCUTORY. Must seek review at the court of appeals (not in the trial court) ____________
within 14 days of order. Appeal here does not stay the proceedings at trial court unless the court of appeals or district court says so.
SIXTH BIG TOPIC IS
preclusion
CLAIM PRECLUSION (RES JUDICATA) MEANS YOU ONLY GET TO SUE ON A CLAIM _______.
ONCE. so you only get one case in which to vindicate all rights to relief for tha claim.
3 Requirements for RES JUDICATA (claim preclusion)

REQ’T 1: case 1 and 2 were brought by SAME CLAIMAINT against the SAME DEFENDANT (not just the same parties, same guy suing same guy. REQ’T 2: case 1 ended in a VALID FINAL JUDGMENT ON THE MERITS!! ) REQ’T 3. case 1 and case 2 = SAME “CLAIM”
general rule: unless ct said o/wise when it entered the judgment, any judgment is ON THE MERITS, unless it was BASED ON ___________, _______, or ______.
jurisdiction, venue, or indispensable parties.

Case 1: P sues D for personal injuries sustained in an auto collision. A valid 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 the court dismiss Case 2 under the doctrine of claim preclusion?

Yes . . . . Case 1 final j on merits? Yes . . . . Did CASE 1 and CASE 2 assert the same claim? (split of authority, maj. says yes. minority says no)
Majority view on same “claim”, within claim preclusion is that its the same claim when both cases involve the same ___.
T/O. dismiss claim 2 for claim preclusion under majority view.

Minority view on same “claim” within claim preclusion is that case 1 and case 2 are not the SAME if they involve different types of rights. thus under minority view, if first suit for injury and second for property (same T/O), case is ___________ (under the MINORITY view).
not dismissed.

Issue preclusion (collateral estoppel). This is narrower. 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. We deem it established in Case 2.
What are the 5 Requirements for ISSUE PRECLUSION (collateral estoppel)

1. 2nd case ended in a valid final judgment on merits . 2. same issue was actually litigated and determined in C 1. 3. issue essential to judgment in case 1. 4. against somebody who was a party to case 1. 5. person can assert issue preclusion.

WHO CAN ASSERT ISSUE PRECLUSION? (by whom?). The starting point is

mutuality. only by one who was a party to case 1. THIS IS NOT REQUIRED BY DUE PROCESS, AND SOME COURTS HAVE REJECTED IT TO ALLOW “NONMUTUAL” ASSERTION OF ISSUE PRECLUSION.

***** Nonmutual defensive issue preclusion, means the one using it was _______________ in case 1 and is _______________ in case 2.

not a party in Case 1 and is defendant in Case 2).

Roommate, driving your car, is involved in a car collision with Joey. You are vicariously liable for Roommate’s acts. Case 1: Joey sues Roommate. Roommate wins, based on a finding that Joey was negligent, which caused the wreck. The court enters final judgment for Roommate. Case 2: Joey sues you. can you assert issue preclusion as tot he finding of joey’s negligence? STEPS OF ANALYSIS (5).

did case 1 end in valid judgment? yes to #1. Was the same issue litigated and determined in Case 1? Yes to #2. Was that issue essential to the judgment in Case 1? Yes to # 3. (4) Is issue preclusion being asserted against one who was party to Case 1? yes to #4. (5) BUT, is it being asserted BY someone (you) who was NOT party to Case 1. Under mutuality rule, could not be done. Most courts today allow this if what? If Joey had chacne to litigate in case #1.

Nonmutual offensive issue preclusion means the one using it was not _______ IN Case 1 and is the _______ IN Case 2).
a party in case one and plaintiff in case 2.

Same facts, except Case 2 is brought by you against Joey. You sue to impose upon Joey liability for damage to your car from the wreck Joey had with Roommate. You want to assert collateral estoppel as to the finding in the first case that Joey was negligent. Can you?

most courts probably say no… but you need to take factors

NONMUTUAL OFFENSIVE ISSUE PRECLUSION. A clear trend in the law will allow nonmutual offensive issue preclusion it is is NOT UNFAIR what are the 4 factors?

1. full and fair opportunity to litigate in case 2; could foresee multiple suits; 3 could not have joined easily in case 1; and 4. NO INCONSISTENT JUDGMENTS ON this ISSUE.