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136 Cards in this Set
- Front
- Back
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Personal Jurisdiction (The Basic Idea)
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Involves one question – Can P sue in this state?
Analysis is not different depending on whether the case is filed in state or federal court |
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Personal Jurisdiction (Two Step Initial Analysis)
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1. Satisfy a statute (e.g. long arm statute) AND
2. Satisfy the constitution |
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Statutory Analysis
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Some states allow PJ over D’s who
1. Are served with process in the state or 2. Are domiciled in the state or 3. Do certain things (e.g. commit a tortious act, conduct business) in the state BUT in most states say JXN is OK if it meets constitutional test – so the statutory analysis is usually one sentence “The statute reaches the constitutional limit” (this is PA and NJ) |
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Constitutional Analysis (General and Steps)
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If D is domiciled in the forum or consents, or is present in the forum when served with process (at least not tricked into forum), those are traditional bases to meet the test. The test is
1. Contact (purposeful availment and foreseeability) 2. Relatedness 3. Fairness |
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Contact
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There must be a relevant contact between D and forum state. There are two factors to be addressed here
Conduct must result from “purposeful availment 1. Must be a voluntary act 2. D must reach out to the forum, cannot be an accident 3. Maybe they tried to make some money in the forum or used the roads there, or caused some effect in the forum Foreseeability 1. It must be foreseeable that D would get sued in this forum |
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Relatedness
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Relatedness between the contract and plaintiff’s claim. Ask this: Does P’s claim arise from D’s conduct with the forum?
If yes – specific personal jxn If not – jxn is okay only if the court has general personal jurisdiction (e.g. D can be sued there for a claim there that arose anywhere in the world) |
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Specific Personal Jurisdiction
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Arises where the claim is related to D’s contact with the forum
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General Personal Jurisdiction
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D has continuous and systematic ties with the forum so that D is “essentially at home” in the forum
1. For a human – that means domiciled 2. For a business – where the business is formed and where it has its principal place of business 3. There might be other places – like where it has a regional headquarters or production facilities but we’re not sure 4. Can’t be based on sales or purchases within the forum – we need some physical presence |
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Fairness
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Is jxn fair? Three questions
1. Convenience – but due process does not guarantee that the suit will be in the most convenient forum for D. Even if it’s hard for D to travel to the forum and to get her witnesses to the forum it is constitutionally okay unless it puts D at SEVERE DISADVANTAGE in litigation (almost impossible to show – wealth is not determinative) 2. State’s interest – e.g. provide forum for its citizens (always throw it in) (good thing to say – forum state might have an interest in providing courtroom for its people whoa re harmed by allegedly careless out of state manufacturers) 3. Plaintiff’s interest – e.g. maybe injured and wants to sue at home (could be difficult for him to do so) |
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Subject Matter Jurisdiction (Basic Idea)
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Now we know that P will sue D in a particular state – SMJ asks will it be federal or state?
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Federal Courts can hear two types of suits
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1. Diversity
2. Federal Question |
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Diversity of Citizenship Cases (Requirements)
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Case is either between citizens of different states (diversity) or between a citizen of a state and a citizen of a foreign country (alienage)
Amount in controversy exceeds 75k |
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Complete Diversity Rule
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No diversity if any P is a citizen of the same state as any D (states include DC and PR)
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Natural Person (Defined)
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A US citizen, citizenship is the state of her domicile
Domicile is established by two factors 1. Presence in the state AND 2. Intent to make it her permanent home (e.g. paying in-state tuition and registering to vote) A human cannot have more than one domicile at any time You can move after you file the complaint – we don’t care what happens to citizenship after the case is filed r what the citizenships were before the case was filed |
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Corporation Citizenship
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A corporation is citizen of state
1. Where incorporated and 2. State where it has its one and only PPB So a corp can be a citizen of two states at one time. No diversity if D is a resident of either state |
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PPB
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PPB is where managers direct, coordinate and control corporate activities – the “nerve center”
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Citizenship of Unincorporated Association (Like Partnerships, LLC)
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Citizenship of all members (that includes general and limited partners) – we don’t care where the business is formed and where it has PPB
So if they all live in 18 states, they’re citizens of 18 states |
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Decedents, minors, incompetents (citizenship)
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Use their citizenship, not the citizenship of the representative
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Amount in controversy
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In addition to the complete diversity rule, P’s good faith claim must exceed 75k
1. Exactly 75k isn’t okay 2. Whatever the P claims in good faith is OK unless there is a clear and legal certainty that she can’t recover more than 75k 3. Distinctions on next cards |
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AIC – What if P sues for more than 75k but ultimately receives less?
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That’s okay – but a P who wins less than 75k may have to pay D’s litigation “costs” (usually loser pays winners costs, which do not include attorney’s fees)
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Aggregation (AIC)
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Adding two or more claims together to meet the amount requirement.
1. There is no limit to the number of claims we can aggregate by one P against one D – claims do not have to be related in anyway 2. But two P’s cannot aggregate their claims to make 75k 3. P can however sue joint tortfeasors for claims that exceed 75 – take the value of all their claims (number of parties irrelevant) |
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Equitable Relief (AIC)
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P sues D for an injunction to tear down part of his house that blocks P’s view
1. Plaintiff’s Viewpoint: does the blocked view decrease the value of P’s property by more than 75? 2. D’s viewpoint: would it cost more than 75k to comply with the injunction? |
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Federal Question Cases
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Complaint must show the right or interest founded substantially on a federal law (e.g. federal constitution, legislation) – the claim arises under federal law
1. Citizenship and AIC is irrelevant 2. Well pleaded complaint rule – not enough that some federal issue is raised by the complaint. P’s claim itself must arise under federal law. So we look to the claim and ignore the other material P alleged Ask – is P endorsing a federal right? If yes – go to federal court. If no, cannot |
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Supplemental Jurisdiction (Defined)
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Cannot be used to get a case into federal court. We need a case already in federal court through diversity or federal question. If we have some additional claims and this additional claim does not meet diversity or FQ we might be able to get it into federal court
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Supplemental Jxn (The Test)
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Must share a common nucleus of operative fact with the claim that invoked federal subject matter jurisdiction. This test is always met by claims that arise from the same T?O as the underlying claim. Subject to limitation (on next card)
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Supplemental Jxn (Limitation)
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But in a diversity case, the P cannot use supplemental jurisdiction to overcome a lack of diversity
1. P can also use sup jxn to overcome a lack of diversity for a claim in the FQ case (P sues D (same state) for federal antitrust laws and join a state claim – that’s cool) 2. P can also use sup jxn to overcome a lack of amount in controversy for a claim in a diversity case P just can’t use it to overcome lack of diversity |
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Supplemental Jxn – Solid gold summary
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A non-federal, non-diversity claim can be heard if it meets “the test” UNLESS it is
a. Asserted by a plaintiff b. Is a diversity of citizenship (not FQ) case AND c. Is against a citizen of the same state as the plaintiff |
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Supplemental Jxn (Discretionary factors)
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Court has discretion to refuse supplemental jxn if
Federal question is dismissed early in proceedings State law claim is complex State law issues would predominate) |
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Removal (Defined)
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Defendant sued in state court may be able to remove the case to federal court.
Removal transfers the case form a state trial court to a federal court (one way street) If removal was improper – fed ct can remand back |
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Removal (When?)
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Within 30 days of service of the first paper that shows the case is removable – usually means within 30 days of service of process
1. All D’s whoa re served with process must join 2. The 30 days start anew if the new D is served with process on 30 days after the rest of the D’s |
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Can P remove (counter-claims)?
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P can’t remove if a counter-claim is filed against him
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What Cases can be removed? (General rule)
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Any case that meets the requirement for diversity or federal question
BUT TWO BIG EXCEPTIONS (next card) |
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Removal Exceptions
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These exceptions only apply if we are removing on the basis of diversity.
1. No removal if D is a citizen of the forum (in state D rule) AND 2. No removal of more than one year after the case was filed in state court, BUT if one D disqualifies form exception and he is dropped from case, case could be removable - case is removable after one year limit (you have 30 days from dismissal to remove) |
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Where do we remove to?
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Only to the federal district court that embraces the state court where the case was filed
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Removal Procedure
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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. Serve a copy on all adverse parties. Then file copy of notice in state court.
2. If Removal was procedurally improper – P moves to remand to state court, must do within 30 days of removal (but if there is no federal subject matter jurisdiction – P can move to remand ANYTIME or fed court can remand ANYTIME) 3. D who files permissive counterclaim in state court probably waives right to remove (filing compulsory counterclaim there probably does not waive right to remove) 4. If P sues for 75k or less in a state court that allows recovery for more than what P claimed, D may be able to remove on basis of diversity (Requirements: D alleges in notice of removal that amount exceeds 75k. Fed court keeps case if D shows that amount actually exceeds 75k) |
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Erie Doctrine (Black Letter Definition)
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In diversity cases, the federal court must apply state substantive law
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Erie Doctrine (If Federal Law is On Point)
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If federal law is on point (constitution, FRCP, FRE) – apply federal law if valid (supremacy clause)
FRCP is valid if arguably procedural – never has been held invalid If there is no federal law on point think – is the statute easy or hard? |
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Erie Doctirne (No Federal Law on Point – Easy Cases)
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A state will always have jurisdiction over
1. Elements of claim or defense 2. Statute of Limitations 3. Rules for Tolling Statutes of Limitations 4. Conflict or choice of law rules |
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Erie Doctrine (No Federal Law on Pont – Hard Cases)
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If substantive, you must follow state law. Three tests
1. Outcome determinative – would applying or ignoring the state rule affect the outcome of the case? If so –probably substantive, use state law 2. Balance of interests – does either federal or state system have strong interest in having its rule applied? 3. Avoid forum shopping – if federal court ignores state law will it cause parties to flock to federal court? If so – should probably apply state law |
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Venue (Basic Idea)
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SMJ told us that we can take a federal court, venue tells us exactly WHICH federal court. The country is divided into federal districts. P is suing in federal court and wants to lay venue in proper district
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Venue (Basic Choices)
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P may lay venue in any district where
1. All D’s reside or 2. A substantial part of the claim arose SPECIAL RULE: If all D’s in different districts of same state – P can lay venue in the district in which any D resides |
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Where does D reside for venue purposes?
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In district where domiciled
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Where does a business (corporation or non-incorporated) reside?
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In all districts where subject to PJ for this case – VERY BROAD
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Transfer of Venue
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A federal district court may transfer the case to another federal district court WHERE CASE COULD HAVE BEEN FILED to a proper venue that has PJ over defendant
A major exception (next card) |
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Transfer of Venue (Exception)
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A court may transfer to any district (even an improper venue) if all parties consent (unlikely P will do so) AND the court finds cause for the transfer
1. If venue in original district is proper - 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” – Courts are nervous about this because transfer overrides P’s choice of forum Look to public (things like what law applies, what community should be burdened with jury service, keeping local controversy in the local court) and private (convenience, where are the witnesses and where are the evidence) factors showing the other court is center of gravity AND Transferee court applies the same choice of law the original court would 2. If original district improper – court may transfer in the interests of justice or dismiss |
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Forum Non Conveniens
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There is another court that is the center of gravity that just makes more sense than the present court – but court does not stay or transfer to other court
1. It dismisses or stays the case because transfer is impossible – the more convenient court is in a different judicial system (e.g. a foreign country) 2. FNC almost never granted if P is a resident of the present forum 3. Court must be available and “adequate” – P’s recovery inn most courts will not be as large as American courts – that doesn’t make it inadequate – we just want P to get a day in court |
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Service of Process (Basic Idea)
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Must give notice to D
Must deliver to D 1. A summons (formal court notice of suit and time for response) and 2. Copy of the complaint Those two above docs together all called process |
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Who can serve process?
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Any nonparty who is at least 18 – does not have to be appointed by the court
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How is process served?
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1. Personal service – can be anywhere
2. Substituted service (usually D’s abode) – MUST SERVE someone of suitable age and discretion who resides there. 3. Service on D’s agent – process can be delivered to D’s agent. OK if receiving service is in a scope of agency (corporation’s registered agent, managing agent, or officer) 4. State law – Can also use methods permitted by state law of state where federal court sits or service is made 5. Waiver by mail (Separate card) |
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Waiver By Mail (Service of Process)
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Mail to D a copy of the complaint and two copies of 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
1. Does not waive any defense 2. P then files D’s waiver in court – effective when filed 3. If D doesn’t have good cause for failing to return waiver form – she has to pay the cost of service |
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Other Documents (Service of Process)
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For later papers – we serve by delivering or mailing docs to party’s attorney or pro se party
Add 3 days for any required response. Can email party if parties consent |
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Rule 11 (generally)
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Applies to all docs except discovery (treated by another rule)
When you sign a court document you certify that 1. The paper is not an improper purpose 2. The legal contentions are warranted by law (or a nonfrivolous argument for law change) 3. The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation) Also – when you make a certification every time you “present a position to the court” you give continuing certification |
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Rule 11 (Sanctions)
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May be ordered against any attorney, firm or party
Court must give a chance to be heard before imposing Rule 11 sanction Meant to deter, not to punish Can be non-monetary or monetary (monetary often paid to court) |
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Rule 11 – How to Move For Sanctions
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Can’t immediately move for sanctions, you have to have a safe harbor of 21 days in which to fix problem and avoid sanctions.
1. Court can raise it sua sponte 2. Usually imposes an order to show cause why sanctions should not be imposed – court must give party a chance to be heard before imposing sanctions |
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Complaint (Requirements)
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1. Statement of grounds of SMJ
2. Short and plain statement of claim – showing entitled to relief 3. Demand for relief sought NOT NOTICE PLEADING – must plead facts supporting a plausible claim. To determine plaiusibility, judge uses her own experience and common sense |
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Matters that must be pleaded with Particularity or Specificity
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1. Fraud
2. Mistake 3. Special Damages – damages that do not normally flow from an event |
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D’s Response to Complaint (Generally)
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Rule 12 requires D to respond either
1. By motion 2. By answer |
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When must D file Rule 12 answer or motion?
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Within 21 days after service of process.
If you waived service, you get 60 days from when P mailed you the waiver form |
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Motions
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Not pleadings, require court order
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Motions for Issues of Form
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Motion for more definite statement – meaning pleading is so vague that D can’t frame a response (this is rare)
Motion to Strike which is aimed at immaterial things (e.g. demand for jury when no right exists, any party can bring) |
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Rule 12(b) defenses (list)
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Lack of SMJ
Lack of PJ Improper Venue Insufficiency of Process (Problem with the Papers) Insufficient service of process Failure to state a claim Failure to join an indispensible party NOTE: can be in either motion or answer |
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12(b) defenses (specifics)
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The waivable ones are – PJ, Venue, Process, Insufficient service (waivable means that you put them in the first rule 12 response or they are waived)
The defenses of failure to state a claim and indispensible parties can be brought any time through a trial SMJ is never waivable – can be brought even after trial |
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The Answer
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Not a pleading – serve within 21 days after service of process
Respond to allegations of complaint 1. Admit 2. Deny 3. State you lack sufficient knowledge to admit or deny (no. 3 is denial but can’t be used if your public knowledge or in D’s control) Failure to deny can be an admission on any matter except damages Raise affirmative defenses – classic ones are 1. Frauds, RJ, self-defense 2. You must raise them or you risk waiver |
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Counterclaim
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Claim against an opposing party. Two types
1. Compulsory 2. Permissive If counterclaim is procedurally okay, then assess whether it invokes diversity or federal question jurisdiction. If so – OK in federal court – if not, try supplemental jxn |
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Compulsory Counterclaim
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Arises from same T/O as P’s claim, unless you have already filed claim in another case – must file it in pending case or claim is waived
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Permissive Counterclaim
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Not the same T/O – you may file it in your answer in this case or can assert it in a separate case, or you can bring it in a separate lawsuit
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Cross Claim
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Claim against a co-party. Must arise from the same T/O as the underlying action.
Cross claim is permissive, you don’t have to file it in this case – again look to JXN and tell the examiner what you are doing |
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Counter/cross Claims and Supp Jxn
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Once you file a counter claim or cross claim (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 jxn (diversity, fed q, or supplemental)
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Amending Pleadings (Four Fact Patterns)
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1. Right to amend
2. If no right to amend, seek leave of court 3. Variance 4. Amendment after SOL has run (“relation back”) |
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Right to Amend
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P has right to amend once within 21 days after D serves her first rule 12 response
D has right to amend once within 21 days of serving his answer |
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Seeking leave of Court
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If there is no right to amend, seek leave of court, and it will be granted it “justice so requires”
Court’s look to delay, prejudice and futility of amendment |
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Variance
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The evidence at trial does not match what was pleaded
1. At or after trial P can move to amend the complaint to conform to the evidence if D does not object to protect his claim (ensures pleadings do not match what was actually tried) 2. If D does object – evidence is inadmissible because it is at “variance with the pleadings” |
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Amendment after SOL has run (“relation back”)
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RULE: Amended pleadings “relate back” if they concern the same conduct, T/O of original pleading. So it can avoid SOL problem.
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Discovery (Required Disclosures)
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Produced even though no one asks for it
1. Initial Disclosure – unless court order or stipulation of parties differs, within 14 days of Rule 26(f) conference, you must identify persons, electronically stored info (ESI) and docs that are likely to have discoverable info that the disclosing party may use to support its claims or defenses. P must give computation of damages and D must disclose insurance for any judgment 2. Experts – as directed by court – must identify experts who may be used at trial and produce a written report containing opinions, data used, qualifications, compensations for study, etc. That report and drafts of it are work product 3. Pretrial – no later than 30 days before trial, must give detailed information about trial evidence, including docs and identify of witnesses to testify by jxn |
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Discovery (Key Issue)
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Which methods can be used to get info form non-parties?
All discovery tools can be used to get info from parties |
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Depositions
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Questions may be oral or written (if written read by court reporter)
Deponent gives sowrn oral answers to questions by counsel (or pro se parties recorded by sound or dictated stenographically and transcript can be made 1. Can depose nonparties and parties – nonparties should be subpoenaed – they are not compelled to attend (duces tecum – bring docs with you) 2. Parties need not be subpoenaed, notice of depo, properly served, sufficient to compel attendance (can’t take more than 10 depos, can’t depose same person twice without court approved stipulation, cannot exceed one day of seven hours unless court orders or parties stipulate) 3. Unless she agrees, nonparty not required to travel more than 100 miles 4. Notice of subpoena to business records requires you to designate the right person |
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Use Depositions at trial to
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Impeach deponent
Any Purpose if Deponent is adverse Party Any purpose if deponent is unavailable for trial unless that absence was procured by party seeking to introduce evidence |
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Interrogatories
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Questions in writing to another party to be answered in writing under oath
Must respond within 30 days – can say you don’t know but only after reasonable investigation. (reasons: can’t be found in business records, would be burdensome to find, can allow access to records) Can’t use your own answers – others may be used per rule of evidence Can’t serve more than 25 |
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Requests to Produce
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Requests to Produce to another party or non-party if accompanied by subpoena
30 days after service to respond |
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Physical or Mental Examination
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Only available through court order on showing that PARTY’S health is in actual controversy and good cause
Party seeking order chooses suitably licensed person to perform exam Person examined may obtain copy of report simply by asking for it – but by doing so waives his Dr./Patient priv regarding reports by his doctors regarding that condition |
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Request for Admission
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A request by one party to another party to admit the truth of any discoverable matters
1. Often propounding party will send copies of docs to be authenticated with the request 2. Must respond within 30 days of service – the response is to admit or deny – can indicate lack of info only if indicated to make reasonable inquiry 3. Failure to deny is an admission – amend if failure is not in bad faith |
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Rule 11-type rules on discovery
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Parties sign substantive answers to discover under oath
Every request and response is signed by counsel certifying 1. Warranted 2. Not interposed for improper purpose 3. Not unduly burdensome |
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Duty to Supplement
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Self policing duty if things change – you have to supplement disclosures, rogs, RFP’s and RFA’s if incurred
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Scope of Discovery
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We can get anything relevant to claim or defense
Relevant is broad. Includes things that are “reasonably calculated to lead to discovery of admissible evidence” But you cannot discover communications protected by privilege |
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Work Product
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Opinion – never discoverable (mental impressions, opinions, conclusions, legal theory)
Fact (substantial need, not otherwise available) DOES NOT NEED TO BE GENERATED BY A LAWYER – CAN BE THE PARTY OR ANY REP OF A PARTY |
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Privilege Log
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If you are claiming attorney client privilege or work product, you have to do it in a document that lists materials by date, author, recipient, privilege, etc. called a privilege log
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Inadvertently Producing Protected Material
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Notify other party ASAP. Other party may (pending decision re waiver)
Return Sequester Destroy |
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Protective Order
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Used for overburdensome stuff, trade secrets, or orders limiting disclosure
Partial Violation 1. Receiving party answers some and objects to others (if objections are not upheld – partial violation – we expect light sanction) Total Violation 1. Receiving Party fails to completely attend depo – respond to rogs or respond to RFP’s – total violation |
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Sanctions against a party
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Party seeking sanctions must certify that she tried in good faith to get info without court involvement (only sanctions in exceptional cases if party lost ESI because it was lost in good faith, routine operation of electronic info)
Partial Violation – 2 steps 1. Order compelling party to answer unanswered questions, plus costs (atty’s fees) of bringing motion 2. If they violate that – RAMBO sanctions plus costs – could be held in contempt for violating court order (except no contempt for refusing to submit to medical exams) Total violation 1. No order compelling – RAMBO plus costs |
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RAMBO SANCTIONS
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Choices available to judge
1. Establishment order (establishes facts as true) 2. Strike pleadings of the disobedient party (as to issues regarding the discovery) 3. Disallow evidence from the disobedient party (as to issues regarding the discovery) 4. Dismiss plaintiff’s case (if bad faith shown) 5. Enter default judgment against D (if bad faith shown) |
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Proper Defendants and Plaintiffs
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Folks who may be joined
P is putting case together and figuring out who parties should be |
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Necessary and indispensible parties
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Some absentees (nonparties) must be forced to join the case
Who’s necessary? An absentee who meets any of these tests 1. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits) 2. A’s interest may be harmed if he not joined (practical harm) 3. A’s claim an interest that subjects a party (usually a D ) to risk of multiple obligations Second test is probably the most likely – you’re worried about harm to the absentee |
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If A can be joined (indispensible parties)
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See if joinder is feasible
1. Court decides whether he’s a P or D and checks to see if there is PJ over him and joining him will not goof up diversity jxn 2. If joinder is feasible, Bob is brought into the case |
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If A cannot be joined
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Court must do one of two things
1. Proceed without A 2. Dismiss the case How to decide? 1. Is there an alternative forum available? (maybe some state court) 2. What is the actual likelihood of harm to Bob? 3. Can the court shape relief to avoid that harm to Bob? If the court decides to dismiss rather than proceed without A – A is indispensible |
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The Letter Trick: Joinder Rules that Start with C v. I
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Joinder Rules that Start with C (Counterclaim, Crossclaims) are claims between present parties
Claims that start with “I” involve joining someone new to the case |
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Impleader
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Third party practice – a defending party wants to bring in someone new (third-party defendant). Generally because TPD may owe indemnity or contribution to defending party on underlying claim:
1. There is a right to implead within 14 days of serving your answer (after that you need court’s permission) 2. After TPD is joined, P may assert claim against TPD if claim arises from same T/O as underlying case 3. After TPD is joined TPD may assert a claim against P if claim arises as same T/O as underlying case 4. SMJ – assess each claim separately – if none try SMJ |
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Intervention
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Absentee wants to join pending to suit – she can come in as either P or D. Court may realign her if thinks she came in the wrong side. Application to intervene must be “timely”
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Intervention of Right
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A’s interest may be harmed if she is not joined and is not adequately represented now (similar to test b for necessary parties)
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Permissive Intervention
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A’s claim or defense and the pending case have at least one common question. Discretionary with court OK unless delay or prejudice
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Intervention – Make Sure You Assess …
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SMJ!
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Class Action (Initial Requirement)
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Must demonstrate ALL FOUR of these
1. Numerosity – too many class members for practical joinder (no magic number) 2. Commonality – some issues in common to all class members so resolution of that issue will generate answers for everybody 3. Typicality – representatives claims defenses typical to those of the class and 4. Representative Adequate – the class rep will fairly and adequately rep the class |
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Class Action (Three Types)
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After passing the four initial requirements, you must fit within one of three types
Type 1 – Prejudice – class treatment necessary to avoid harm either to class members or to non-class party. Example: many claimants to a fund. Individual suits might deplete the fund, leaving some without remedy. RARE Type 2 –Injunction or declaratory judgment (not damages) sought because D treated class alike (e.g. employment discrimination) Type 3 – Damages (e.g. mass torts) 1. Common questions predominate over individual questions AND 2. Class action is the superior method to handle dispute |
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Class Certification
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It’s not a class action until the court “certifies” it as such. If court grants motion to certify, it must define the class and the class claims issues or defenses
1. It also has to appoint class counsel 2. Class counsel must fairly and adequately represent the interests of the class |
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Class 3 Special Rules
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Court must notify class members that they are in a class. This means individual notice, usually by mail, to all reasonably identifiable members
Notice tells them various things including 1. They can opt out 2. They’ll be bound if they don’t 3. They can enter a separate appearance through counsel Rep pays to get notice (can be expensive) |
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How to settle or dismiss class action
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COURT APPROVAL
In all three types – 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 might give members second chance to opt out |
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SMJ of Class Actions
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Class could involve FQ jxn by asserting CA claim under federal law
If reps claim exceeds 75k and rep is diverse from defendants you could consider citizenship for diversity |
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CAFA
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Grants subject matter jurisdiction separate from diversity of citizenship jurisdiction
Lets federal court hear class action of (at least 100 members) if any class member (not just rep) is of diverse citizenship from any D and if the aggregated claims exceed 5 mil. Makes it easier for interstate CA’s to go to federal court. There are complicated provisions to ensure that local classes (where most class members and primary defendants are citizens of the same state) do not stay in federal court, they get dismissed (or if they were removed from state court they are remanded to state court) |
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Failure to State a Claim
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D moves to dismiss for failure to state a claim
Tests only sufficiency of P’s allegations Court ignores legal conclusions – looks at the allegations of fact in the complaint and asks – if these facts were true, would P win a judgment? If no – no sense in letting the case proceed because the law does not recognize a claim on these facts – court might let P amend to try to state a claim though. Court does not look at evidence Judge uses experience to see if facts support a “plausible claim” – judge uses experience and common sense If D has answered, called a MOTION FOR JUDGMENT ON THE PLEADINGS |
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Summary judgment (generally)
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Must show
1. No genuine dispute on a material fact and 2. P is entitled to P as a matter of law Move any time until 30 days of close of discovery. Can be for “partial judgment” (e.g. issue or claim) Court CAN look at evidence Would only need a trial to resolve disputes of fact |
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Summary Judgment (Evidence)
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Parties proffer evidence, usually affidavits or declarations, depo testimony or rog answers, under oath so they can be considered evidence. Court views evidence in light most favorable to nonmoving party.
Pleadings are not evidence 1. Only if pleadings are verified are they under oath. That’s really rare. Usually pleadings are not under oath and so are not considered evidence 2. But pleadings may be relevant for summary judgment if D failed to deny an allegation by , then it can be treated as fact on summary judgment 3. But we still use hearsay ruel- evidence must be first hand knowledge If evidence shows dispute of material fact – no summary judgment But if really definitive evidence that completely discredits other side – that will be enough |
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Rule 26(f) conference
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Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses, and settlement. Must form discovery plan, including issues about how electronically stored info will be produced and present it to a court in writing within 14 days
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Scheduling Order
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Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, etc.
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Pretrial Conferences
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Court may hold “pretrial conferences” to process the case and foster settlement. Final pretrial conference determines issues to be tried and evidence to be proffered. This is recorded in a pretrial conference order, which supersedes the pleadings. The final pretrial conference order is an important document, roadmap of issues to be tried, evidences to be presented at trial, witnesses, etc.
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Jury Trial
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Determines Facts – are instructed on law by the judges
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Right to jury trial
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Seventh amendment applies ONLY to federal court and preserves the right to jury in “civil actions at law” but not suits at equity.
If case involves law and equity 1. Jury Decides facts underlying damages claim but not equity claim 2. Jury issue tried first |
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How to demand jury trial
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In writing no later than 14 days after a service of the last pleading raising jury triable issue
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Voir Dire
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Each side might want to strike (remove) potential jurors – no limit on the number of strikes for cause.
Peremptory Strikes – each side gets three. Can’t use them in race or gender discriminatory way – jury selection is state action |
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Motion for Judgment as Matter of Law (JMOL)
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This is exceptional. Effect has been to take the case away from the jury.
Can only be brought after the other side has been heard at trial Standard for granting – reasonable people could disagree on result Court views evidence in light most favorable to non-moving party |
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Renewed Motion for Judgment as a Matter of Law (RJMOL)
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Same as JMOL but comes up after trial
1. Case went to the jury and court enters judgment on basis of verdict. Now losing party files a renewed motion for JMOL 2. If RJMOL is granted – overturns jury verdict! 3. Must move within 28 days after judgment 4. Must have moved for JMOL at proper time at trial 5. Same standard as JMOL – if granted – jury must reach conclusion that reasonable people could not have reached 6. Court views evidence in light most favorable to nonmoving party |
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Motion for a New Trial
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Judgment entered but errors require a new trial
Something happened to make judge think parties should start over and re-try case Move within 28 days after judgment New trial is actually a less drastic judgment because it isn’t final. RJMOL on the other hand, takes judgment from one party and gives it to another. |
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Grounds for Motion for a New Trial
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1. Error makes judgment unfair
2. New evidence could have been gotten with due diligence 3. Prejudicial misconduct of party or attorney or third party or juror 4. Judgment is against the weight of the evidence 5. Inadequate or Excessive Damages |
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Final Judgment Rule
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As a general rule can appeal only from final judgments – ultimate decision by trial court of the merits of the entire case. File notice of appeal in trial court within 30 days after entry of final judgment
ASK: After making this order does trial court have anything left to do on merits of case? If so – not final. Denial of summary judgment motion and grant of motion of new trial are two good examples of something not final |
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Interlocutory Review
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Non-final May be appealable even
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Interlocutory Orders that are reviewable as of right
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Orders granting, modifying, refusing injunctions, appointing, refusing to appoint receivers, patent infringements, etc.
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Interlocutory Appeals Act
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Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference or opinion and COA agrees to hear it
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Collateral Order Exception to IAA
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Discretion to hear ruling on issue if
1. Distinct form merits of case 2. Involves important legal question 3. Essentially unreviewable if parties await final judgment |
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Multiple Parties and Claims (Interlocutory Appeals)
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When more than one claim is present, multiple parties, trial judgment may expressly direct entry of final judgment as to one or more of them if it makes express finding no reason for delay
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Extraordinary Writ
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Not technically an appeal – but original proceeding in appellate court to compel judge to make or vacate particular order
Not a substitute for appeal available only to enforce clear legal duty |
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Class Action Appeals
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COA has discretion to review order granting or denying certs of class actions – must seek review at COA (not in trial court) within 14 days of order)
Appeal here does not stay proceedings at trial court unless COA or DC says so |
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Preclusion (Basic Idea)
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When there has been earlier case – watch for issues which concern preclusive effect of prior judgment on merits. Does judgment already entered preclude litigation on any matters in second case?
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Claim Preclusion
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Res Judicata
You only get to sue on a claim once. So you only get one case in which to vindicate all rights to relief for that claim |
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Claim Preclusion (Requirements)
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Case 1 and Case 2 were brought by same claimant against the same defendant. NOTE: not just same parties but same guy suing same guy in both cases
Case 1 ended in valid final judgment on the merits. Unless court said otherwise, any judgment is on the merits, UNLESS 1. Jxn 2. Venue 3. Indispensible Party Case 1 and Case 2 asserted the same “claim” Majority view: Claim is any right to relief arising from a T/O |
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Issue Preclusion
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Collateral Estoppel
Narrower – any issue litigated in case 1, same issue comes up in case 2. But if issue preclusion applies will not allow it to be relitigated in case 2 – established in case 2 |
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Issue Preclusion Requirements
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1. Case 1 ended in final judgment on merits
2. Same issue was actually litigated and determined in Case 1 3. Issue was essential to the judgment in case 1 (without this issue judgment in Case 1 would have been different) Can only be AGAINST somebody who was a party to case one. Who can bring it? Sometime we allow nonmutuality (next cards) |
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Nonmutual Defensive Issue Preclusion
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This is when the one using it was not a party in Case 1 and is a D in case 2.
Same requirements above. BUT Is it being asserted by someone who was NOT a party to Case 1? Most courts allow it. P asserted against had a full chance to litigate in case 1. (Feds, PA, NJ) |
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Nonmutual Offensive Issue Preclusion
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One using it was not a party to case 1 and is a P in case 2
Same requirements above The tough part is fifth. Will allow it if NOT UNFAIR How do we determine that? 1. D had full opportunity to litigate 2. D could foresee multiple suits 3. D could not have easily joined in Case 1 4. No inconsistent judgment about the issue (inconsistent findings would be unfair) Used by Feds, PA, NJ |
