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718 Cards in this Set
- Front
- Back
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In terms of 'right court,' federal courts need …
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personal jurisdiction, subject matter jurisdiction, venue
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Federal courts can hear only ________ or ___________ types of cases.
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federal question… diversity
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Diversity requires:
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Action must be between citizens of different state (or citizen and alien) AND the amount in controversy must > $75K
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Complete diversity is lacking if...
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any P is citizen of the same state as any D.
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How to determine litigant's citizenship, if litigant is person?
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Domicile (physical presence in state, plus subjective intent to make it her permanent home)
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Every person has ________ domicile
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one, and only one
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Diversity is tested at time case is ______
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filed
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If P moves states in order to sue under diversity in federal court, is there diversity?
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Yes, *if* P had the subjective intent to make the new state her permanent home but not if she moved solely to create diversity
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How to determine litigant's citizenship for purposes of diversity, if litigant is corporation?
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both the state where incorporated AND the one state where the corporation has its principal place of business
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A corporation can have _______ state of citizenship; and _______ principal place of business
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more than one; only 1
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Jim Cramer, Inc. (inc. in PA, principal place of business (PPB) NJ), sues Booyah Corp. (inc. in Del, PPB PA). Is there diversity?
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No - both have PA citizenship
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To determine principal place of business, two tests:
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Nerve centers (where decisions are made, usually HQ); Muscle center (where corporation does most work). Usually, use nerve center, unless all corporate activity is in one state
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How to determine litigant's citizenship, if litigant is unincorporated association (partnership, llc, etc.)?
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state of citizenship of all the members, including GPs and LPs
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How to determine litigant's citizenship, if litigant is decedent, minor, incompetent?
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Based on their citizenships, not the citizenship of their representatives
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Is there diversity if P's claim is exactly $75k?
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No
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How to determine amount of controversy?
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Whatever the plaintiff pleads in good faith is OK, unless it is clear to a legal certainty that she cannot recover more than $75 (e.g., statutory ceiling)
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What P wins is __________ to jurisdiction, but if P wins less than $75K, she …
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Irrelevant… may have to pay the winner's litigation cost.
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P can aggregate claims to > the $75K limit, if __________.
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one P v. one D.
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For joint claims (P v. joint tortfeasors) establish diversity based on ____________ claim. Why?
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the total value of the … because any one of them could be liable for the total amount.
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To establish the amount in controversy in equitable suits for injunctive relief…
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two tests; either can suffice: Does harm cost P > $75K (or decrease value of P's property, etc.), or, would it cost D > $75K to comply with injunction?
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Cases federal courts won't hear, even if diversity requirements are met:
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Actions involving issuance of divorce, alimony or child custody degree, or to probate an estate
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For federal question jurisdiction, P must meet the ___________, meaning that __________.
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well-pleaded complaint rule … P's claim, properly pleaded, must arise under federal law - i.e., is P enforcing a federal right?
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Is citizenship/amount in controversy relevant in a federal question case?
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No
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Once a case is in federal court, test whether ___________ meets federal question or diversity jurisdiction; if not, P needs ____________.
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every single claim … supplemental jurisdiction.
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+What is the test for federal supplemental jurisdiction?
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A claim must share a 'common nucleus of operative fact,' with the claim that invoked federal subject matter jurisdiction - this i.e the claims arise from the same transaction or occurrence as the underlying claim.
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What is the limit for supplemental jurisdiction?
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In a diversity case, P may not use supplemental jurisdiction to overcome a lack of diversity.
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Can P use supplemental jx to overcome a lack of diversity for a claim in a federal question case?
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Yes.
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P may use supplemental jx to overcome ____________ in a federal diversity case.
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A lack of amount in controversy - but not a lack of diversity
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_____________ can use supplemental JX to overcome either a lack of complete diversity or amount in controversy in any case (diversity or FQ).
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Any party but P
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A non-federal, non-diversity claim can be heard in federal court if _______________, unless it is __________, ______________, AND _______________.
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it meets the test for supplemental jurisdiction (common nucleus of operative fact - i.e., same transaction/occurrence)… asserted by a P, in a diversity case, AND would violate complete diversity.
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Courts have discretion not to hear the supplemental claim…
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if the FQ is dismissed early in the proceedings, or if state law claim is complex, or if state law issues would predominate.
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Removal allows ____________ to have a case filed ________ to ____________,
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Defendants (only) … in state court … to a federal court.
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If removal is improper…
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federal court can remand to state court.
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D can remove a case if __________.
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if it could be heard in federal court - that is, it would invoke diversity or federal question.
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Where can a case be removed?
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To the federal district embracing the state court in which the case was originally filed.
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When can a case be removed?
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No later than 30 days after SERVICE of the first removable document (usually service of process)
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Must all defendants agree to remove a case?
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Yes.
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When can P remove a case to federal court?
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Never never never.
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P(PA) sues D(CA) in Pennsylvania state court for tort damages of $500,000. Can D remove?
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Yes - there is diversity.
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P(GA) sues D-1(CA) and D-2 (Alabama) in an Alabama state court for $500K - NOT on a federal question. Can D-1 and D2 remove?
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No removal if any defendant is a citizen of the forum.
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P(GA) sues D-1(CA) and D-2 (Alabama) in an Alabama state court for $500K - NOT on a federal question. Later, P dismisses the claim against D-2. Can D-1 remove?
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Yes, within 30 days from service of dismissal of D-2. BUT in a diversity case, there is no removal >1 year after the case was filed in state court.
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What permission does D need to remove the case?
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None
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If removal was procedurally improper, P…
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must move to remand to state court within 30 days of removal.
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Erie doctrine -
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In diversity cases, federal court must apply state substantive law.
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State law is substantive, and so governs in a diversity case on these settled issues:
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Elements of a claim or defense, statute of limitations, rules for tolling statutes of limitations, and conflict/choice of law rules.
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If it's unclear whether state law is substantive, ask…
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is there a federal law on point that directly conflicts with state law? If so, federal law wins.
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A FRCP is valid if it is …
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'arguably procedural' - none has ever been ruled invalid
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If state law is not clearly substantive, and there is no federal law on point, but federal judge wants to do something other than follow state law, 3 tests:
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Is state rule outcome determinative? If so, state rule is probably substantive. Balance of interests? (Does either federal/state system have strong interest in having its rule applied?) Avoid forum shopping (If Federal court ignores state law on this issue, will it cause parties to flock to federal court? if so, generally apply state law)
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Venue tells
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exactly which federal court
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Local actions, about ___________, must be filed _____________.
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ownership, possession or injury to land … in the district where the land lies.
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If it's not a local action, it is called
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transitory
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In any transitory case, P may lay venue in …
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any district where ALL Ds reside (or if all Ds reside in different districts of the same state, P can lay venue in the district in which any of them resides), or a substantial part of the claim arose.
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Human beings 'reside' for purposes of venue…
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in the same state where they are domiciled
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Corporations reside for purposes of venue…
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in all districts where they are subject to personal jurisdiction when the case is filed.
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Venue can only be transferred…
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to a district where case could have been filed (i.e., proper venue and personal jx over D)
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Court has discretion to order transfer of venue based upon…
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public factors (what law applies, what community should be burdened w/ jury service), and private factors (convenience, e.g., where witnesses and evidence are).
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The court to which the case is transferred under a change of venue applies…
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choice of law rules of the original court (even if P sought the transfer)
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If venue in original forum is improper, court may transfer…
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in the interests of justice or dismiss
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What is forum non conveniens?
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If there is a far more appropriate court elsewhere, a court may dismiss (usually w/o prejudice) to let P sue D there
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Why does a court dismiss for forum non conveniens?
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Because the more appropriate court is one to which transfer is impossible because it is in a different judicial system (e.g., a foreign country)
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Does it matter for forum non conveniens that P may recover less than in the other court?
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Not determinative
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FNC dismissal is almost never granted if…
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P is resident of the present forum.
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__________gives notice to D of the case
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Service of process
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Service of process involves ___________ documents: ______________.
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two… a summons (formal court notice of suit and time for response) and a copy of the complaint = process
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Process must served _________
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within 120 days of filing the case, or else the case is dismissed w/o prejudice, unless P shows good cause for delay in serving
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Who can serve process?
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Any nonparty at least 18 years old.
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How is process served?
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Personal service, substituted service, service on D's agent, State law, waiver by mail
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Where may personal service be given?
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Anywhere in the forum state.
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How may substituted service be served?
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OK if its D's usual abode, and if P served someone of suitable age and discretion who resides there.
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Serving process on D's agent is OK…
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as long as receiving service is w/I the scope of the agency
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How does waiver by mail work?
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Process is mailed to D by first class mail, posted prepaid - OK if D returns waiver w/I 30 days. D waives only formal service of process. If D does not send waiver form back, P must serve her using other methods and D may be required to pay the cost of service.
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Process delivered to D in another state is allowed …
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only if the forum state law allows.
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When does D have immunity from service?
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If D is served for a federal civil case, while in state to be a witness or party in another civil case.
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Once process is served, subsequent papers may be served…
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by delivering or mailing the document to the party's attorney; if mailed, add 3 days for any required response.
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Federal pleading is…
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notice pleading
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_____________ requires attorney or pro se party to sign _____________, except ____________.
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Rule 11… to sign all pleadings, written motions and papers … discovery documents.
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Under Rule 11, the signor certifies that …
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paper is not for any improper purpose, legal contentions are warranted by law; factual contentions and denials have evidentiary support (or are likely to after further investigation)
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Rule 11 certification is …
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continuing - it is effective every time a position is 'presented' to the court.
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Rule 11 sanctions are intended to _____________, not to ___________; they can be non-___________.
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deter, not punish; they can be non-monetary.
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Rule 11 procedure:
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Rule 11 motion is served on other parties but not immediately filed with the court; other party has 21 day safe harbor to withdraw document of fix problem; if not, motion can be filed. BUT if documents filed by court, no safe harbor.
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Can court raise Rule 11 problems sua sponte?
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Yes - and if so there is no safe-harbor
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Filing ___________ commences an action.
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the complaint
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Requirements for the complaint:
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statement of subject matter jurisdiction; short and plain statement of the claim, showing that P is entitled to relief; demand for judgment.
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What is the standard for notice pleading?
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Facts supporting a plausible claim
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Special matters, including _______________ must be pleaded with _____________
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fraud, mistake, and special damages (do not normally flow from event - e.g. permanent erection)… particularity or specificity
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D may respond to complaint either ____________; either must be _______ or risk _______.
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by motion or answer… within 20 days after service of process… default
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Motions of form include…
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motion for more definite statement (pleading is so vague, D can't frame a response); motion to strike - e.g., immaterial things
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Rule 12(b) defenses include:
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(1) Lack of SMJ; (2) Lack of PJ; (3) improper venue; (4) insufficiency of process; (5) insufficient service of process; (6) failure to state a claim; (7) failure to join indispensable party
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Which rule 12(b) defenses may be raised either by motion or answer?
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All of them.
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Which rule 12(b) defenses are waivable?
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2-5: (2) Lack of PJ; (3) improper venue; (4) insufficiency of process; (5) insufficient service of process
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Waivable 12(b) defenses _______________
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must be included in the first piece of paper, or else they are waived
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Which rule 12(b) defenses can be raised any time at trial?
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(6) failure to state a claim; (7) failure to join indispensable party
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Which rule 12(b) defense is never waived - can be raised even on appeal?
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(1) Lack of SMJ
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Answer must be filed
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within 20 days after service of process, or within 10 days after court denies a Rule 12 motion - unless D waived service, in which case D has 60 days from P's mailing of waiver form to answer
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An answer must:
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respond to the allegations of the complaint (admit, deny, state that lack sufficient information to admit/deny); raise affirmative defenses
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Stating that D lacks sufficient information to admit or deny acts as a _______; D can't use if ___________
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denial… the information is public knowledge or within D's control
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Failure to deny can constitute __________ on any matter except ___________.
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an admission… damages.
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If D says 'P can't prove X,' has P denied X?
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No - use the word deny
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What does an affirmative defense state?
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Even if P is correct, P cannot win - e.g., statute of limitations, statute of frauds, res judicata, self defense.
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If D does not plead an affirmative defense, D …
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risks waiving the affirmative defense.
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A counterclaim…
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is a claim against an opposing party (e.g., D v. P)
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A counterclaim must be filed…
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with D's answer
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Two types of counterclaims:
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Compulsory (arises from same T/O as P's claim; must be filed in pending case or else it's waived FOREVER); Permissive (arises from different T/O; may be asserted in pending case or later)
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What is the only compulsory claim in federal court?
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Counterclaim
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If P sues D, D answers P and then sues P later related to same T/O, what result?
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D's case is dismissed because it's a compulsory counterclaim.
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If P sues D, D moves to dismiss; motion granted. Later, D sues P later related to same T/O, what result?
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D's case stands, because since D never had to file an answer in the first case, D never had to file the counterclaim
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If counterclaim is procedurally OK, assess … if that doesn't work, it will be OK through _________.
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SMJ .. Supplemental jurisdiction.
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A cross claim is a claim against a…
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co-party
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Cross claims ___________ arise from ______________.
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must … same transaction as the original claim
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Which cross claims are compulsory?
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None
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P has a right to amend once before ________
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D serves his answer.
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If P amends, D must respond…
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within 10 days or the amount of time remaining on his 20 days, whichever would be longer
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D has a right to amend once _________
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within 20 days after serving his answer.
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If there is no right to amend…
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seek leave of court; it will be granted if justice so requires, based on delay and prejudice.
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Variance is where ___________ does not match __________.
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evidence at trial… what is pleaded.
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If D does not object to a variance, what happens?
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Evidence at variance with the pleadings is admitted; after trial, P can amend pleadings to conform to the evidence.
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If D does object to a variance, what happens?
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Evidence at variance with the pleadings is inadmissible
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Amended pleadings to add claims ______________if they concern ______________ as the original pleading.
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relate back… same conduct, transactions or occurrence
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Relation back means __________
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you treat the amended pleading as if it was filed when the original was filed, so it can avoid a statute of limitations problem.
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Amended pleadings to change defendants relate back if…
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it concerns the same conduct, transaction, or occurrence as the original, the new party knew of the action within 120 days of its filing, and she also knew that but for a mistake, she would have been named originally.
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Amendments to change defendants relate back in this factual situation, only:
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P sued the wrong D first, but the right D knew about it.
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Required disclosures in discovery involve
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initial disclosures, experts, pretrial
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Discovery tools may not be used until after _____________, unless _______________.
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Rule 26(f) conference … court order or stipulation allowed
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What is a key issue about discovery tools?
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Which can be used to get info from non-parties.
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Which discovery tools can be used to get info from non-parties?
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Depositions (but non parties must be subpoenaed); requests to produce (if non-party subpoenaed)
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What is a subpoena duces tecum?
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A subpoena that requires deponent to bring documents
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Interrogatories
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only go to parties, answered in writing under oath, response required w/I 30 days
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Physical or mental exams are the only discovery tool that requires…
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court order, on a showing that the health of the parties, or someone in the party's control, is in actual controversy and there is 'good cause'
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The standard for scope of discovery:
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can discover anything relevant to a claim or defense (i.e., something in the pleadings)
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Relevant for discovery means:
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Reasonably calculated to lead to the discovery of admissible evidence
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Which is broader in discovery: relevant or admissible?
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Relevant
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___________ is not discoverable, but party objecting must ___________
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Privileged matter … object with particularity
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Most heavily tested topic in discovery is
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work product, aka trial preparation materials
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Work product is
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material prepared in anticipation of litigation
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Work product is generally protected from discovery unless…
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proponent shows substantial need and info is not otherwise available
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Work product is absolutely protected from discovery if it is
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mental impressions, opinions, conclusions, and legal theories
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Does work product have to be generated by a lawyer?
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No - a party or any representative of a party may generate work product
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Three ways to enforce discovery rules:
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Protective order (request is overburdensome, involves trade secrets, etc.), partial violation (light sanction); total violation (heavy sanction)
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A party seeking discovery sanctions must…
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certify to the court that she tried in good faith to get the info without court involvement
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Are there sanctions if a party fails to produce electronically stored information because it was lost in the operation of an electronic info system?
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not if info was lost in good faith
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In partial violations, sanctions are in two step:
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Order compelling party to comply + costs of bringing motion; if party violates that order, RAMBO sanctions plus costs, could be held in contempt (unless problem is refusal to submit to medical exam)
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In total violations, sanctions are in one step:
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Rambo plus costs - no need to get order compelling answers
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RAMBO sanctions give judge choices of:
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establishing facts as true, striking pleadings of the disobedient party (as to issues re the discovery), disallow evidence from the disobedient party (as to discovery issues), dismiss P's case (if bad faith), enter default judgment against d (if bad faith)
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Who may be joined as co-plaintiffs?
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Parties whose claims (1) arise from same T/O; and (2) involve at least one common q.
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Who may be joined as co-defendants?
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Parties, when claims against them (1) arise from the same T/O and (2) involve at least one common question
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What to do after deciding whether a party may be joined as a co-party?
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Assess SMJ
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When are absentees required to join the case?
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When Absentee meets any of these tests: Without A, court cannot accord complete relief (fear of multiple suits); A's interest may be harmed if A isn't joined (practical harm) or A claims an interest that subjects a party (usually D) to multiple obligations; Practical Harm is most tested on Bar Exam
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Are joint tortfeasors 'necessary parties?'
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NO
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Necessary and indispensible parties involves assessing:
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Who's required, Can A be joined? If A cannot be joined, what happens…?
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Whether a necessary and indispensible party can be joined depends on …
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whether joinder is feasible - PJ, diversity?
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If A cannot be joined, the court may
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proceed without A or dismiss the case. Courts consider alternative forum (look for state court), actual likelihood of prejudice, whether court can shape relief to avoid that prejudice
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What happens if court decides to dismiss rather than proceed without A?
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A is 'indispensible.'
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Joinder rules that start with _____ are claims between present parties
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C - e.g., counterclaim/cross claim
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Joinder claims that start with ____ involve bringing someone new to the case
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Impleader, Intervention
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Impleader is
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used by defending party to bring in 3d party who may owe indemnity or contribution to D on underlying claim
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D may implead by right _______; after that ____________.
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within 10 days after serving answer… need court permission
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How to implead:
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file 3d party complaint naming 3d party as TPD; serve process on TPD (so must have personal jx)
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Can a plaintiff assert a claim against a TPD?
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Yes, if that claim arises from the same transaction or occurrence as the underlying case, and there is SMJ, or through supplemental jx
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After TPD is joined, can TPD assert a claim against P?
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Yes, if that claim arises from the same transaction or occurrence as the underlying case, or through supplemental jx
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Initial requirements for class action:
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Numerosity (too many class members for practicable joinder), commonality (some questions of law or fact in common to the class), typicality (representative's claims/defenses are typical of those of the class), and representation is adequate (the class rep will fairly and adequately represent class)
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Prejudice class action:
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Class treatment is necessary to avoid harm either to class members or the party opposing the class
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Injunction/declaratory judgment class action (not for money damages)
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Equitable relief sought because class was treated alike by other party (e.g., unemployment discrimination)
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Damages class action
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Common questions predominate over individual questions, and the class action is the superior method to handle the dispute - MOST LIKELY TO BE TESTED - e.g., mass tort
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Court must determine _____ whether to ______ the case as a class action
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at an early practicable time… certify
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If the court certifies the class, it must ____________
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define the class and the class claims, issues or defenses, and appoint class counsel
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Class counsel must ____________________-
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fairly and adequately represent the interest of the class
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Does the court notify the class of pendency of the class action?
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In a damages class, the court MUST notify class members, including individual notice (usually by mail) to all reasonably identifiable members
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What must class action notice tell class members?
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They can opt out; they'll be bound if they don't; they can enter a separate appearance through counsel
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Who pays to give class notice?
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Class action rep
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Who is bound by a class action judgment?
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All class members except those who opt out of a Type 3 class
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Settlement or dismissal of a certified class action requires…
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court approval; court will give notice to class members to get feedback on whether the case should be settled/dismissed; in a damages class action, court must give members a 2d shot at opting out
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Class action and SMJ:
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Fed Q works; Diversity, look only to rep and not to other class members to determine diversity and amount in controversy
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Voluntary dismissal…
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may be allowed on court order (and P may have to pay for D's costs); sometimes P may simply file a written notice of dismissal
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P may voluntarily dismiss by written notice without prejudice …
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before D serves her answer or a motion for summary judgment.
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Voluntary dismissal means…
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P can refile the case
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If P refiles a case and dismisses it by written notice…
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claim can never again be reasserted - dismissal is with prejudice
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If first dismissal is in state court, P refiles in federal court and files voluntary dismissal by written notice…
|
dismissal counts as 2d dismissal even though first case was in state court; P may never again refile because dismissal is with prejudice.
|
|
|
Standard for Rule 12(b)(6) motion:
|
Court assumes all allegations are true; if P proved everything she alleged, would she win a judgment?
|
|
|
In ruling on a Rule 12(b)(6) motion, court considers…
|
only the face of the complaint; not evidence.
|
|
|
Court will likely grant a 12(b)(6) without prejudice to …
|
give P another chance to say complaint
|
|
|
P's complaint sets forth elements of a claim, but also on its face shows that there is a complete defense that bars the claim, will a 12(b)(6) motion be granted?
|
Yes - standard is, if everything P says in complaint is true, motion granted
|
|
|
What's the term for a motion for failure to state the claim if D has already filed his answer
|
Motion for judgment on the pleadings
|
|
|
Motion for summary judgment must show
|
No genuine dispute as to material issue of FACT, and that she is entitled to judgment as a matter of law
|
|
|
Can a party move for partial summary judgment?
|
Yes
|
|
|
What can court consider in motion for summary judgment?
|
Evidence - which it considers in the light most favorable to the moving party
|
|
|
Why is there ever a trial?
|
To resolve disputes of fact
|
|
|
Pleadings are _______ evidence, unless _______, but they may be relevant to a motion for summary judgment if they __________
|
NOT… they are verified… show an admission
|
|
|
Evidence in affidavit for summary judgment must be …
|
firsthand knowledge
|
|
|
If firsthand evidence creates a dispute on a material issue of fact…
|
summary judgment cannot be granted
|
|
|
The final pre-trial conference determines…
|
issues to be tried and evidence to be proffered
|
|
|
Pretrial conference order ______________ and may be amended _____________ (or by ___________)
|
takes the place of the pleadings… to prevent manifest injustice… or by conforming to evidence if evidence beyond the pretrial conference order is proffered and not objected to
|
|
|
The final pretrial conference order is a roadmap of…
|
issues to be tried and evidence to be proffered, names of witnesses, etc. there are no surprises at trial.
|
|
|
Juries determine ________ and are instructed on ______ by _______
|
facts… the law… the judge
|
|
|
Seventh amendment (only in federal court) preserves the jury in
|
civil actions at law
|
|
|
If a case involves both law and equity, the jury hears
|
only issues of law; equity issues are tried subsequently, before the judge
|
|
|
Party must demand a jury trial _______ no later than ___________ after service of the last plea that raises a jury triable issue
|
in writing … 10 days
|
|
|
In selecting jurors, each side gets ________ strikes for cause; _______ peremptory strikes, which must be used in a _____________
|
unlimited … three … race and gender neutral way
|
|
|
Is jury selection in civil trials state action?
|
Yes
|
|
|
No fewer than ______ jurors and no more than ____; _______ alternate jurors
|
6… 12 … 0
|
|
|
Granting a ______________ takes the case away from the jury
|
motion for judgment as a matter of law
|
|
|
A JMOL can only be brought
|
after the other side has been heard at trial
|
|
|
The standard for granting a JMOL is…
|
reasonable people could not disagree on the result
|
|
|
Renewed motion for judgment as a matter of law (formerly judgment notwithstanding the verdict) means…
|
court finds that the jury reached a conclusion that reasonable people could not have reached
|
|
|
What is a prerequisite for a renewed motion for judgment as a matter of law?
|
Motion for judgment as a matter of law
|
|
|
When must a renewed motion for judgment as a matter of law be filed?
|
w/I 10 days after entry of judgment
|
|
|
Grant of new trial is ________ than grant of renewal motion for judgment as a matter of law, because ___________
|
less radical.. It just means the court will start over and decide who wins
|
|
|
In federal system, appeal is from federal district court to…
|
united states court of appeals
|
|
|
As a general rule, can appeal only ________, meaning
|
from final judgments, meaning an ultimate decision by the trial court of the merits of the entire case
|
|
|
Where is a notice of appeal filed, and when?
|
In the trial court, w/I 30 days after entry of final judgment
|
|
|
To determine if it's a final judgment, ask…
|
after making this order, does the trial court have anything left to do on the merits of the case?
|
|
|
Is grant of a motion for new trial a final judgment?
|
No, because the court must hold a new trial
|
|
|
Is denial of a motion for new trial a final judgment?
|
Yes
|
|
|
Is grant of motion to remand to state court a final judgment?
|
No
|
|
|
Is grant/denial of renewed motion for judgment as a matter of law a final judgment?
|
Yes
|
|
|
Personal jurisdiction is the question of whether…
|
P can sue D in this state?
|
|
|
Requirements for personal jurisdiction:
|
satisfy a statute, satisfy the U.S. Constitution
|
|
|
In personam jurisdiction means:
|
P wants to impose a personal obligation on D - jurisdiction is over the person, not her property, because of some contact between D and the forum state.
|
|
|
Constitutional Analysis for in personam jurisdiction…
|
International Shoe: Does D have minimum contacts with the forum so that exercise of JX does not offend traditional notions of fair play and substantial justice.
|
|
|
Easy ways to satisfy International Shoe test:
|
D is domiciled in forum, or consents, or is present in forum when served with process (at least if not forced or tricked into forum) - these are 'traditional bases' and almost always meet the constitution test.
|
|
|
Factors in the constitutional analysis:
|
Contact (purposeful availment, Foreseeability) + Fairness (relatedness, convenience, state's interest)
|
|
|
Purposeful availment for PJ purposes means …
|
D must reach out to forum through a voluntary act. E.g., trying to make money, using roads, causing some effect,
|
|
|
Foreseeability for purposes of PJ means…
|
it must be foreseeable that D could get sued in this forum
|
|
|
What is relatedness mean for PJ purposes?
|
Does D's claim arise from D's contacts with the forum? If so, there is specific personal jx. Otherwise, JX OK only if court has general personal jurisdiction.
|
|
|
What must be true for there to be general personal jx (i.e., when claim does not arise from D's contacts with the forum)?
|
D must have continuous and systematic ties with the forum - e.g., domicile, incorporation, doing continuous business
|
|
|
What does convenience mean for purposes of PJ -
|
Forum is OK unless it puts Ds at a severe disadvantage in the litigation - almost impossible standard - good process does not guarantee D a good/convenient court just one that's not unconstitutionally/grossly bad
|
|
|
What does state's interest mean for purposes of PJ -
|
providing a forum for its citizens
|
|
|
Sum of constitutional test for personal jurisdiction:
|
My Parents Frequently Forgot to Read Children's Stories - (MINIMUM contacts, PURPOSEFUL availment, FORESEEABILITY, FAIR play and substantial justice, RELATEDNESS of contact and claim - here, discuss both specific and general jx), CONVENIENCE, STATE'S interest)
|
|
|
Who has burden of showing lack of convenience for PJ?
|
D
|
|
|
What matters for PJ re an Internet website?
|
An interactive website may be purposeful availment, but a passive website, providing only information, in another state, is probably not a relevant contact
|
|
|
Superior court has _____________ jurisdiction; thus, it can hear ______________.
|
general subject matter jurisdiction… any civil case, unless it involves a federal question cases invoking exclusive federal jurisdiction (bankruptcy federal securities, antitrust, patent infringement)
|
|
|
A limited civil case is one in which ____________________
|
the amount in controversy is less than or equal to $25K
|
|
|
Key limitation in a limited civil case:
|
No P can recover > $25K
|
|
|
Limited civil cases are governed by statutes that limit…
|
pleadings and discovery
|
|
|
Small claims cases are heard by _____; amount in controversy limits are __________
|
a small claims division of the superior court; $7.5K or less for individuals, $5K or less for entity
|
|
|
Who determines what kind of case - limited or unlimited, and how?
|
Plaintiff, based on 'amount of the demand, or the recovery sought, or the value of the property , or the amount of the lien, that is in controversy' - NOT including attorney's fees, interest or costs.
|
|
|
If P files a ______ she must note the classification in the caption of the complaint; otherwise ____________.
|
limited civil case; the case is an unlimited civil case
|
|
|
If a case is misclassified, or if the original classification should be changed because of subsequent events, what happens?
|
Case can be reclassified
|
|
|
How can a case be reclassified?
|
Automatic - clerk of court reclassifies if P amends her complaint in a way that changes the classification (by changing amount in controversy); on motion (a party/the court can reclassify; court must give notice to all parties and hold a hearing)
|
|
|
In determining whether to reclassify…
|
the court may not consider the merits of the underlying claim - the court will not try the case simply to determine classification; the court may go beyond the pleadings, considering judicial arbitration award, settlement conference statement
|
|
|
If there is a motion to reclassify, the court may reclassify from unlimited to limited when the judge is convinced that the matter…
|
will necessarily result in a verdict of $25K or less - that > $25K is virtually unobtainable
|
|
|
If there is a motion to reclassify, the court may reclassify from limited to unlimited when the judge is convinced that…
|
there is a possibility the verdict will > $25K.
|
|
|
How do multiple claims a case's classification?
|
The whole case is either limited or unlimited.
|
|
|
If P sues D for $20K in a limited civil case, D files a cross-complaint against P for $26K. What happens?
|
The entire case is reclassified as unlimited.
|
|
|
IN federal court venue is laid in ________; in state court, it is laid in _____________.
|
an appropriate federal district … an appropriate county
|
|
|
Venue for local actions:
|
For recovery of, or determination of an interest in, or for injury to real property, lay venue in the county where the land is.
|
|
|
An action is either local or ___________.
|
transitory
|
|
|
Additional rule for venue in Contract cases:
|
venue is also OK in the county where the contract was entered or to be performed.
|
|
|
If original venue is improper, D can…
|
move to transfer to a proper county, either with or before his responsive pleading
|
|
|
How do you serve process to corporations/other businesses?
|
deliver process to registered agent, or to an officer or general manager, either personally or by leaving process with someone apparently in charge at her office during usual work hours
|
|
|
Service by publication is allowed only if…
|
D cannot be served, after demonstrating reasonable diligence to serve D in another way
|
|
|
Service of subsequent documents
|
Can be delivered or mailed; if mailed, add 5 days to time required for response
|
|
|
Frivolous/bad faith means …
|
raised something completely without merit or for the sole purpose of harassing an opposing party - must be in litigation
|
|
|
There is _____ safe harbor for frivolous litigation or tactics; there must be _________ and ___________.
|
no … a motion (by a party or the court) and an opportunity to be heard
|
|
|
In a personal injury or wrongful death case, how can D find out about actual/punitive damages?
|
D requests statement of damages (SOD); P must provide it w/I 15 days; P must serve her SOD on D before she can take a default
|
|
|
In a case involving punitive damages, how can D find out about amount claimed?
|
D requests statement of damages (SOD); P must provide it w/I 15 days; P must serve her SOD on D before she can take a default
|
|
|
What does 'fact pleading' mean for P?
|
P must allege the 'ultimate facts' on each element of each cause of action
|
|
|
Heightened pleading requirements:
|
P must plead with particularity circumstances constituting fraud, civil conspiracy, tortious breach of contract, unfair business practices, and toxic exposure product liability claims
|
|
|
Fictitious defendants -
|
P may name D as a Doe defendant; P must also allege that P is unaware of D's true identity and include a 'charging allegation' against D. Later, P may be able to amend the complaint to name the Doe defendant when she discovers identity, even if after statute of limitations has run.
|
|
|
Verified pleadings are…
|
signed under penalty of perjury by the party; required in shareholder derivative suits and for suits against governmental entities; may be treated as affidavits (for use in SJ)
|
|
|
D must answer within _______ days _________.
|
30 ... after service of process is deemed complete.
|
|
|
General demurrer can be used to assert ________ defenses: _________ and ____________
|
2… P failed to state facts sufficient to constitute a cause of action, lack of subject matter jx (i.e., exclusive fed q)
|
|
|
How does a court consider a defense that P failed to state facts sufficient to constitute a cause of action?
|
like Rule 12(b)(6) - court takes all allocations as true, limits assessment to the complaint (and judicial notice). If sustained court will usually try to let P replead.
|
|
|
How else can general demurrer defenses be raised?
|
In the answer, in a motion for judgment on the pleadings
|
|
|
Is the demurrer aimed at entire complaint or individual causes of action?
|
Can be either
|
|
|
Is a demurrer considered a motion or a pleading?
|
Pleading
|
|
|
What defenses can be raised in a special demurrer?
|
Complaint is uncertain, ambiguous or unintelligible; complaint is unclear about which theories of liability are asserted against each D; lack of legal capacity; existence of another case between same parties on the same cause of action; defect or misjoinder of parties; failure to plead whether a contract is oral/written; failure to file a certificate (required for professional negligence of architects, engineers, land surveyor)
|
|
|
How else can special demurrer defenses be raised?
|
In the answer, in a motion for judgment on the pleadings
|
|
|
What if special demurrer defenses are not raised by demurrer or answer?
|
they are considered waived
|
|
|
How does the court consider special demurrer defenses?
|
As with the general demurrer, the court treats allegations as true and limits assessment to the complaint and matters of judicial notice
|
|
|
Is a special demurrer a pleading?
|
Yes
|
|
|
When are special demurrers not available?
|
Limited civil cases
|
|
|
Motions are 'granted'/'denied.' Demurrers are ____________ or ___________.
|
Sustained or overruled
|
|
|
Motion to quash service of summons is used to assert…
|
lack of PJ, or improper process, or improper service of process
|
|
|
Challenging PJ in a motion to __________ is called a _____________
|
quash service of summons… special appearance
|
|
|
A special appearance to challenge PJ in a motion to quash service of summons must be made _______________- or else, D ___________________.
|
before or with a demurrer or a motion to strike, or else D waives those defenses.
|
|
|
P sues D. D files an answer in which he asserts the affirmative defense of lack of PJ. What result, why?
|
D has waived lack of PJ, because an answer is a general appearance.
|
|
|
If court denies the motion to quash, the moving party can seek appellate review ______________
|
ONLY by writ of mandate from the Court of Appeal within 10 days of service of the written notice of entry of the order denying her motion.
|
|
|
Motion to dismiss or stay for inconvenient forum - what is the timing?
|
Waived if raised after a demurrer or motion to strike.
|
|
|
What can D do in a motion to strike?
|
D can move to strike all or part of a complaint if it is 'irrelevant, false, or improper matter.'
|
|
|
If P files a malpractice case against a professional, but fails to file the required licensed professional's certificate, D can…
|
attack the complaint with a special demurrer or move to strike the entire complaint.
|
|
|
SLAPP stands for
|
strategic lawsuits against public participation
|
|
|
Anti-SLAPP motions are motions to __________, filed by __ when _______________.
|
strike … D… P sues D for an act D took in furtherance of her free speech right, or the right to petition the government on a public issue
|
|
|
What burden does D have in an anti-SLAPP motion? What burden does P have?
|
D must show that P's cause of action arises from protected activity; then burden shifts to P to show probability of winning on the merits
|
|
|
When is anti-slapp motion not available?
|
If P's case is truly in the public's interest, or on behalf of the general public (e.g., P doesn't seek greater relief than that sought for public)
|
|
|
If D wins an anti-SLAPP motion, D can sue the person who sued her for malicious prosecution. This is called ___________-
|
a SLAPPback suit.
|
|
|
In an answer, D _________
|
responds to the allegations of the complaint (admits, denies, states lack of information, which = admission) and raises affirmative defenses.
|
|
|
In a general denial -
|
D denies each and every allegation of P's complaint - only use if true
|
|
|
In stating affirmative defenses, D must…
|
state ultimate facts sufficient to constitute an affirmative defense.
|
|
|
If D's answer is insufficient, P can…
|
demur to the answer.
|
|
|
If P filed a verified complaint, D must…
|
file a verified answer
|
|
|
Can D include demand for recovery against P in an answer?
|
no; for that, D must file a cross-complaint.
|
|
|
When must D respond?
|
D must file demurrer, answer, or other motion within 30 days after SOP deemed complete; a motion to strike does not extend the time in which to file an answer or demurrer
|
|
|
If a demurrer or motion fails, D must…
|
answer within 10 days after the ruling.
|
|
|
Claims by the Defendant:
|
Cross-complaint against P; cross-complaint against co-party; cross-complaint against third-party defendant
|
|
|
Cross-complaint must be ______________ the answer
|
a separate document from
|
|
|
A cross-complaint against P is _______ a federal counterclaim.
|
the same as
|
|
|
A cross-complaint against P must be filed __________ the answer.
|
before or at the same time as
|
|
|
A cross-complaint against P is compulsory if_______________; otherwise it is called a ____________
|
it arises from the same T/O as P's claim… cross-complaint (same name).
|
|
|
A cross-complaint against a co-party may be filed…
|
any time before the court has set a trial date
|
|
|
A cross-complaint against a co-party must _________, and is never __________.
|
arise from the same T/O as the underlying dispute… compulsory
|
|
|
A cross-complaint against a 3d party defendant is like
|
federal interpleader
|
|
|
Right to file a cross-complaint against a third-party defendant is _________ in state court; it works for ______, __________, and __________, as long as it arises from same T/O, or an interest in the controversy which is the basis of the underlying claim.
|
broader … indemnity, contribution, any claim that the TPD is liable for on the underlying case
|
|
|
Person against whom a cross-complaint is asserted must __________
|
respond w/I 30 days.
|
|
|
If a cross-complaint is asserted against one who has not yet appeared, it must be served with a __________, to get _______ over the person.
|
summons … PJ
|
|
|
P has a right to amend as a matter of course ____; P may also amend once as a matter of course __________.
|
before d files an answer or demurrer … after demurrer but before trial on the issue raised by the demurrer.
|
|
|
When can a party seek leave to amend? It is usually….
|
Anytime… usually granted unless delay or prejudice.
|
|
|
May parties conform pleadings to the evidence?
|
Yes
|
|
|
The court will usually sustain a demurrer or grant a motion to strike __________.
|
with leave to amend.
|
|
|
______is available to add new claims after the statute of limitations has run, but only if ___________.
|
Relation back … if the new claim relates to the same general facts as originally alleged.
|
|
|
Is relation back available to change a D if the statute of limitations has run?
|
Yes, if there was a misnomer - P sued wrong D and D knew.
|
|
|
Relation back is OK to name fictitious defendants…
|
if original complaint was filed before the statute of limitations ran and contained charging allegations against the fictitious defendant; P was genuinely ignorant of the identity of the Doe defendants; P pleaded that ignorance in the original complaint.
|
|
|
If P substitutes the true D within ___________ of filing, it __________.
|
three years … relates back.
|
|
|
The maximum of drafted interrogatories allowed in an unlimited civil case is ______, but ________; if then, ________.
|
35, but you can serve more with a declaration supporting the need for more… the responding party may serve a request to protective order?
|
|
|
subject matter jurisdiction
|
does the court have the power to decide this kind of case
|
|
|
federal courts are courts of ___ subjected matter jurisdiction
|
limited
|
|
|
State courts are generally courts of ___ subject matter jurisdiction
|
unlimited
|
|
|
In each case before federal court, subject matter jurisdiction must be ___. If challenged, it must also be ____
|
pleaded, proved
|
|
|
Subject matter jurisdiction (can / cannot) be waived
|
cannot
|
|
|
Who can dispute federal subj matter jurisdiction
|
anyone, including the P who brought the case
|
|
|
When can fed SMJ be disputed?
|
Any time, including at the end of trial, or first time on appeal.
|
|
|
Two kinds of federal SMJ:
|
federal question / "arising under"; and diversity of citizenship
|
|
|
Federal question SMJ exists where
|
P's claim is based on federal law--look at well-pleased complaint.
|
|
|
Presence of a fed q in defense (does /does not matter) in determining SMJ
|
does not
|
|
|
Louisville & Nashville R. Co. v. Mottley
|
Case that stands for the proposition that fed Q in defense case doesn't matter for federal Q SMJ --couple settled complaint with RR in return for lifetime passes, RR breached K under argument that they were not allowed under a fed statute.
|
|
|
To qualify for federal jurisdiction, a Fdiversity case that otherwise qualifies must involve an amount in controversy more than __
|
$75K
|
|
|
Probate and domestic relations case are __ from federal jurisdiction
|
excluded
|
|
|
Questions to ask to determine if federal jurisdiction
|
probate? domestic relations? fed q in plaintiff's complaint? Then fed SMJ.
amount in controversy >75K? Is Everyone on P side diverse from everyone on R side at time of filing OR has congress allowed minimal diversity? Then fed diversity jurisdiction |
|
|
what is minimal diversity
|
at least one P and one D are diverse
|
|
|
complete diversty
|
Everyone on P side diverse from everyone on R side - usu rqd for diversity jurisdiction
|
|
|
when does complete diversity have to be established?
|
at the time the complaint is filed
|
|
|
exceptions for complete diversity
|
only minimal diversity required for very large class actions with more than $5 million at stake, certain interstate mass torts, statutory interpleader,
|
|
|
assignment of a claim can be used to change diversity status
|
True as long as not done solely to affect jurisdiction; and only whole claim can be assigned
|
|
|
A >$75 K amount in controversy is required for (federal question / diversity )jurisdiction
|
diversity
|
|
|
moving or assigning debt is ok to affect diversity for purposes of jurisdiction as long as
|
it is not the sole reason for the move/ assignment, and the assignment is of the whole amount
|
|
|
How can it be determined if a case has met the $75 K limit?
|
Any good faith allegation is sufficient; suit dismissed only where there is a "legal certainty" that a recovery > $75K is impossible will suit be dismissed
|
|
|
When can you aggregate claims to exceed $75 K?
|
One P against one D for multiple claims; other P's can join on a case where at least one P has a claim > $75 K if all out of same transaction /occurence
|
|
|
What is pendent jurisdiction?
|
The discretionary power of a federal court to permit the assertion of a related state law claim, along with a federal claim between the same parties, properly before the court, provided that the federal claim and the state law claim derive from the same set of facts.
|
|
|
A federal court (must / may / must in some circumstances) grant pendent jurisdiction over a state claim arising out of the same transaction or occurence as a federal case over which it has federal q jurisdiction
|
may
|
|
|
The decision as to whether to grant supplemental jurisdiction lies withing the __ of the court
|
sound jurisdiction
|
|
|
FEd court has supplemental juridiction over __ counterclaims, regardless of ___
|
compulsory, the amount in controversy ( (tested often)
|
|
|
A permissive counterclaim can only be heard by a federal court if __
|
it otherwise meets diversity requirements (tested often)
|
|
|
What is the difference between a compulsory and permissive counterclaim?
|
Both supplemental jurisdiction, The former arises out of the same transaction or occurence.
|
|
|
cross claim
|
when a claim arises between co- plaintiffs or defendants out of the same transaction or occurence as the claim that has fed q jurisdiction, the cross claim gets federal supplementary jurisdiction
|
|
|
Supplemental jurisdiction can be established in what cases
|
pendent, pendent party, compulsory or permissive counterclaims, cross claims, permissive joinder
|
|
|
permissive joinder
|
If the claim of one diverse plaintiff satisfies the jurisdictional amount, a federal court may hear the claims of other diverse plaintiffs, regardless of amount, so long as all claims share a common nucleus of operative fact. (applies to class action suits, but different from rule that allows minimal diversity for $5 mil+ cases)
|
|
|
Supplemental jurisdiction works for federal question cases across the board and in diversity cases for ______; for _____________; and for voluntary joinder of plaintiffs, including class actions, where ____.
|
compulsory counterclaims, crossclaims, there is complete diversity with all named plaintiffs, where one of them has a claim exceeding $75,000, all claims share a common nucleus of operative fact
|
|
|
Supplemental jurisdiction means that the court (must, may, sometimes must, depending on the type of case) establish jurisdiction.
|
may
|
|
|
What is the difference between a permissive joinder and pendent party jurisdiction?
|
Permissive joinder applies to supplemental jurisdiction in diversity cases, and adds Ds; pendent party applies in federal q jurisdiction and adds diverse Ps
|
|
|
T/F : there is no supplementary jurisdiction possible for impleaded 3rd party Ds
|
True
|
|
|
T/F : there can be supplementary jurisdiction against additional Ds joined as necessary parties
|
False
|
|
|
T/F : there can be supplementary jurisdiction against intervenors under Rule 24
|
False
|
|
|
T/F : there cannot be supplementary jurisdiction against plaintiffs joined involuntarily under Rule 19
|
true
|
|
|
T/F there can be supplementary jurisdiction when a claim arises between co- plaintiffs or defendants out of the same transaction or occurence as the claim that has fed q jurisdiction
|
True
|
|
|
Removal
|
moves case from state to federal court.highly tested!!
|
|
|
T/F a case may sometimes be removed from federal to state court
|
False
|
|
|
Removal vs. transfer
|
REmoval--transfer from fed to state; transfer -- transfer betw fed courts
|
|
|
Removal is proper only if
|
the case could have been brought originally in federal court
|
|
|
Removal can be done by request of the (P, D, either)
|
D
|
|
|
T/F If one D wants to remove, the others can opt to stay in state court
|
False -- all Ds must agree to remove
|
|
|
Diversity removal must meet the requirements of original diversity jurisdiction, plus what two additional conditions?
|
1) no D can be a citizen of the state where the case was brought; 2) usu there is a one-year time limit for removal (but there's a provision to prevent bad faith tricks of P to prevent removal)
|
|
|
If the P brings a case in the D's state, where the P is diverse, can the D remove?
|
No
|
|
|
Plaintiff A from state N and Plaintiff B from O, sue Defendant Z from state O in state O. 15 months into the case, B drops out. Can Z remove to federal court?
|
Yes possibly -- there is a provision to prevent a plaintiff from keeping a non-diverse plaintiff in a case in bad faith simply to prevent removal.
|
|
|
removal procedures
|
notice files in fed court, with a copy to the state court. Removed imm as of filing. What if improper? P files a petition for remand, and hearing is held.
|
|
|
The question to ask in federal q supplemental jurisdiction is
|
whether or not the court can take jurisdiction over a state claim
|
|
|
TF compulsory counterclaims can be granted supplementary jurisdiction if it arises out of the same facts
|
false
|
|
|
Personal jurisdiction issues always concern ___
|
Defendants, because plaintiff has chosen the court
|
|
|
Overview: Every personal jurisdiction issue involves two questions:
|
1) Is the assertion of personal jurisdiction authorized by statute or rule
2. Is this assertion of personal jurisdiction permitted by the fed constitution |
|
|
Types of personal jurisdiction
|
in personam, in rem, quasi in rem
|
|
|
What to remember re. Constitutional analysis
|
There must be minimal contacts betw D and forum state, so that it's fair to sue the D there
|
|
|
T/F to establish subject matter jurisdiction, establishing minimal contacts between the P and the forum state is necessary
|
false -- need to est with D.
|
|
|
Personal jurisdiction (can / cannot) be waived)
|
can
|
|
|
T/F If a D shows up in court only to dispute jurisdiction, he has effectively waived his right to claim lack of jurisdiction
|
False
|
|
|
T/F If a D shows up in court and argues the case on its merirts before disputing jurisdiction, he will not prevail on the jurisdiction issue
|
true
|
|
|
a defect in jurisdiction must be raise either in __ or ___
|
1) a pre-answer motion to dismiss or 2) the answer
|
|
|
If a D fails to argue a defect in jurisdiction in a pre-answer motion or the answer___
|
removal for want of personal jurisdiction is waived.
|
|
|
To establish jurisdiction over an out of state D, both state and fed courts generally rely on __
|
state long-arm statutes
|
|
|
In addition to state long arm statutes, there are 2 important federal statutes for the bar exam:
|
1) Federal Interpleader Act (statutory interpleader) 2) Bulge Provision of the Federal Rules (14 and 19)
|
|
|
Federal Interpleader Act (statutory interpleader)
|
authorizes nationwide service of process
|
|
|
Bulge Provision of the Federal Rules
|
allows service on an impleaded third-party defendant under Rule 14 or for joining necessary parties under Rule 19 anywhere within 100 miles of the federal courthouse, even if the bulge extends into another state.
|
|
|
general vs. specific in personam jurisdiction
|
specific in personam is when a long arm statute allows jurisdiction only in connection with D's contacts in the forum. General in personam jurisdiction, allows suits on any matter.
|
|
|
T/F General in personam jurisdiction is established when a D enters the state to respond to a summons
|
False! This is one of the ways it cannot be established
|
|
|
Ways to establish general in personam jurisdiction:
|
physical presence; domicile; consent through K; consent through appointment of an in-state agent for service of process; state of incorporation for corp; principal place of business (natural persons, partnerships, corps); doing substantial business in the state for out-of-state corp ("foreign")
|
|
|
Is an informational website sufficient to create general in personam jurisdiction for a corp?
|
No. One that can be used to conduct business transactions does, however.
|
|
|
Constitutional due process concerns with jurisdiction revolve around the question of ___
|
minimal contacts
|
|
|
If "purposeful availment of protection by the forum's laws" is mentioned in a question, it is referring to
|
Constitutional/due process analysis of minimal contacts OR it is a red herring
|
|
|
T/F: Purposeful availment of the protection of the forum state’s laws by the plaintiff is important in ascertaining whether minimum contacts exist.
|
False -- personal jurisdiction concerns the D
|
|
|
Suing a D under a long arm statute in fundamentally fair because...
|
the action must arise out of the D's connections with the state.
|
|
|
In Rem Jurisdiction: Applies against any kind of property, real or intangible, so long as the property is___
|
in the state
|
|
|
Quasi In Rem Jurisdiction:
|
Tries to use in-state property as a basis for forcing an out-of-state defendant to litigate an unrelated claim. (property is seized, forcing the D to come to the state).
|
|
|
Quasi in rem jurisdiction is not important anymore because
|
now subject to minimal contacts analysis. If you have minimal contacts, you can get personal jurisdiction.
|
|
|
Server of process does 2 things:
|
establishes basis of personal jurisdiction and gives notice
|
|
|
ALL foreign corps doing business in a state are required by statute to keep __ for receiving service of process
|
an agent
|
|
|
To serve process on an infant, who is anyone under __, serve it on __
|
18, infant AND parent or guardian
|
|
|
For a partnership, serve a ______________ partner, an attorney __, or an authorized __________ for receiving service of process.
|
general, in fact, agent
|
|
|
For a corporation, serve ___
|
an officer, director or agent
|
|
|
To serve a nonresident motorist ...
|
states generally allow service on some state official, such as the Commissioner of Motor Vehicles, who is required to forward a copy to the out-of-state driver.
|
|
|
rule for service for In rem, quasi in rem...
|
do the best you can; failing service, you can give publication, BUT can't rely on publication if you can serve entities with "reasonable effort"
|
|
|
Jurisdiction is an issue of power, venue one of ____
|
administrative convenience
|
|
|
fed venue is proper in any district where any defendant resides if...
|
all Ds reside in the same state
|
|
|
Jurisdiction is proper where the claim...
|
arose
|
|
|
Where the Ds don't live in the same state, and where no jurisdiction is where the claim arose, the jurisdiction can be...
|
any district where any d resides
|
|
|
fed venue is proper in the district where the claim___
|
arose
|
|
|
If all Ds don't live in the same state, or if there is no district where the claim arose, venue is proper
|
in any district where any D resides
|
|
|
For business (all types) venue can be asserted ___
|
in all districts where personal jurisdiction can be asserted over it (where it can be served)
|
|
|
In suits begun in state court and removed to federal court, venue is automatically proper in the district where the _______________ court sits, even if that would otherwise not be so.
|
state
|
|
|
transfer
|
moving a case from one federal district to another
|
|
|
generally, transfer of venuecan only be to a district ___
|
with proper venue
|
|
|
Narrow exception allows a fed case to transfer to a district that DOES NOT HAVE proper venue when...
|
all parties consent and transferor had proper venue
|
|
|
Suit brought in district without proper venue ...
|
may be transferred to a district with proper venue or dismissed.
|
|
|
If the original court had proper venue, the law of the ________ controls. If the original court lacked proper venue, the law of the _________controls.
|
transferor district, transferee district
|
|
|
Erie Simply Stated: For the bar exam, Erie means simply that in diversity cases, federal courts apply state ___________law.
|
substantive
|
|
|
State substantive law will apply in diversity jurisdiction, and includes:
|
The substantive rules that determine who wins and who loses; statutes of limitations that set time limits on state causes of action;
Rules allocating the burdens of proof on state claims; and State rules on choice of law (usu the state law of the district). |
|
|
Federal procedures apply in federal court for adjudication of state-law claims. Federal procedures include anything covered by the
|
Federal Rules of Civil Procedure.
|
|
|
T/F a proper venue a federal case is any jurisdiction where any Plaintiff resides
|
FALSE - Ds rule for venue
|
|
|
Fed civ action is started by ...
|
filing a complaint with the clerk court
|
|
|
Federal diversity action is initiated...
|
acc to state law -- some by service on D
|
|
|
complaint
|
states claim for relief against D
|
|
|
cross claim
|
claim against a co-party
|
|
|
implead
|
D adds on a 3rd party D who may be liable to first D for all or part of damages the P may win
|
|
|
A D's answer to a complaint may include
|
response, affirmative defenses, counterclaims
|
|
|
the "answer" to a counterclaim is called a ...
|
reply
|
|
|
A P's recovery (is /is not) limited by claim for relief
|
is not (except for default judgement)
|
|
|
T/F Expected damages should always be specified by dollar amount in the complaint
|
False -- for tort and punitive damages in excess of $10K, complaint should just say "in excess of $10K"
|
|
|
"notice pleading" stands for the principle that a...
|
pleading does not have to include all facts or evidence, or even a legal claim -- nothing but fair notice -- "short and plain statement of the claim"
|
|
|
"special pleading"
|
exceptions to notice pleading, requiring that some kinds of claims be stated with particularity
|
|
|
What items need special pleading?
|
fraud, mistake, special damages
|
|
|
Main potential problem with notice pleading
|
Fishing expeditions
|
|
|
Cases that stand for a curtailment of notice pleading principle
|
Bell Atlantic v. Twombly (2007) (antitrust, accusations of improper agreemenAshcroft v Iqbal (2009)
|
|
|
Bell Atlantic v Twombly (2007
|
antitrust case , Ds accused of illegal agreement in violation of antitrust laws -- no evidence of agmt, only of opportunity. Ct. complaint is not sufficiently plausible; This is the first case changing notice pleading to require that complaints state a "plausible" case, to support that it is not a fishing expedition -- thought might only apply to antitrust, but followed by Ashcroft v Iqbal (2009) which expanded Twombly
|
|
|
Ashcroft v Iqbal (2009)
|
case against Ashcoft and FBI director Muller knew of or condoned racial and religious discrimination against individuals detained after 9/11. This case was the first to apply Twombly outside of antitrust, extending it to a constitutional tort claim.
|
|
|
In a diversity action, does fed or state civil procedure govern at what time an action begins for purposes of statute of limitations?
|
state
|
|
|
T/F A plaintiff's complaint must include a demand for judgment for the relief sought
|
true
|
|
|
T/F Damages for emotional distress following a assault and battery tort must be argued with particularity
|
false -- only damages not of the type to be expected need particularity
|
|
|
A "motion" is a request for a ___
|
court order
|
|
|
A motion to __ is the most versatile defense motion, and can be used to state a variety of claims
|
dismiss
|
|
|
a motion to dismiss can include any/all of the following claims:
|
o Lack of personal jurisdiction;
o Lack of subject matter jurisdiction; o Improper venue; o Failure to state a claim on which relief can be granted (demurrer); o Failure to join a necessary party; and o Forum non conveniens. |
|
|
*A claim of no personal jurisdiction or a claim of improper venue must be made...
|
at the earliest opportunity (the answer or a pre-answer motion to dismiss). VERY IMPT for bar exam
|
|
|
Lack of subject matter jurisdiction (can / cannot) be waived.
|
cannot
|
|
|
A motion to dismiss for ____ can be raised by any party at any time, including for the first time on appeal or by the court itself.
|
lack of subject matter jurisdiction
|
|
|
T/F lack of subject matter jurisdiction can be raised by any party, or by the court
|
True
|
|
|
T/f Motion for judgment on the pleadings is rarely encountered
|
True -- more likely summary judgment b/c dispute as to facts
|
|
|
Motion for judgment on the pleadings applies where the ...
|
complaint and answer agree as to the facts
|
|
|
motion for more definite statement
|
asks that a pleading be made more specific -- judges don't like, consider as dilatory
|
|
|
motion to strike
|
to delete scandalous/prejudicial matters that are irrelevant to the case; or (rarely) to strike a legally invalid defense
|
|
|
Failure to answer a complaint is ___
|
an admission
|
|
|
possible answers to complaints
|
Yes, no, I don't know
|
|
|
Affirmative defenses require __ and include the following:
|
assumption of risk, contributory negligence, duress, fraud, release, statute of frauds, and statute of limitations (anything that has a name /which we studied in law school is typically an affirmative defense)
|
|
|
T/F A failure to respond to a complaint in the answer is considered an incurable admission
|
False, it can be addressed through a timely amendment
|
|
|
Answers must usu be filed within ___
|
21 days of the pleading
|
|
|
If a defense is an affirmative defense it (must be raised in the answer / can sometimes be raised later in the judicial process)
|
must be raised in the answer
|
|
|
If a failure to respond is not cured by a timely amendment to the answer, the admission is ___
|
binding. Thus there is typically a boilerplate statement saying anything not specifically admitted or denied is denied.
|
|
|
*Amending pleadings -- 2 kinds
|
as of right (once within 21 days, unless cut short by D's answer/motion to dismiss -- then can't be brought); "by leave of court" -- after 21 days, or after "as of right" already filed (generally should be freely granted)
|
|
|
Statute of limitations and relation back
|
Subsequent amendments to a pleading may be considered to relate back to the date of the original pleading, or may be considered filed on its own filing date. This can be important if the SOL has run since initial pleading.
|
|
|
If a judge denies amendment of pleadings after 21 days have passed without providing a reason, this is (allowed / not allowed) because...
|
not allowed because the court is supposed to freely grant amendments unless has a good reason. To do otherwise is an abuse of discretion.
|
|
|
"time barred" means
|
a statute of limitations has run, barring the complaint
|
|
|
An amendment relates back
|
relates to the same conduct, transaction or occurrence
|
|
|
The rationale behind not allowing some amendments to relate back to the original pleading date is ___
|
lack of notice
|
|
|
*An amendment to a complaint adding a new D must ...
|
concern the same conduct, transaction or occurrence as the original pleading; and the party to be added must have known or had reason to know that the action should have been brought against the new party.
|
|
|
*A suit is filed against a corporate subsidiary, and the complaint is amended to name the parent company. Meanwhile, the statute of limitations runs. Will the amendment relate back?
|
Yes because the amendment concerned the same transaction and the suit originally filed gave the parent notice.
|
|
|
*Suppose a plaintiff slips and falls on a sidewalk in a shopping area but mistakenly sues the wrong store. Time passes and the plaintiff realizes he sued the wrong defendant. Now he wants to amend his complaint to sue the correct defendant. Meanwhile, the statute of limitations has run. Does the amendment relate back?
|
No, it does not relate back and the action is time barred. The new defendant had no reason to know, and no notice, of the original action.
|
|
|
Do pleadings need to be verified?
|
No
|
|
|
define verification
|
the declaration under oath or upon penalty of perjury that a statement or pleading is true, located at the end of a document.
|
|
|
define certification
|
attorney signature, address, telephone number -- this "certifies" that there is an appropriate legal or factual basis for the filing. Fuller version: the attorney attests that to the best of his/her knowledge, the filing is being made after reasonable inquiry, with no improper purpose so as to harass, delay, or needlessly increase costs, and that the allegations are supported by existing law or nonfrivolous argument as to changing the law, and that the allegations or denials are supported or likely to be supported by factual inquiry.
|
|
|
If a pleading is found to be frivolous or to otherwise contravene the attorney's obligations in certifying it, it is a violation of __ and can result in ___
|
Rule 11, the attorney bearing any costs incurred by the other side related to the filing.
|
|
|
Rule 11 -- biggest weakness
|
spawns threats, and litigation regarding violation of Rule 11
|
|
|
T/F only the client bears the cost of improper filings
|
False-- Rule 11 holds the attorney liable.
|
|
|
T/F an answer can contain a cross claim
|
false
|
|
|
T/F a D's motion to dismiss should be filed as part of his answer
|
False -- responsive pleadings (ones which require a response) must be filed first RESEARCh THIS I'm FUZZY
|
|
|
A complaint should not be dismissed for lack of a real party in interest until ...
|
reasonable time has been made for the substitution of the correct plaintiff.
|
|
|
Before dismissing a complaint for lack of a real party of interest, the court should wait ___ to allow substitution of the correct plaintiff
|
reasonable time has been made for the substitution of the correct plaintiff.
|
|
|
T/F real party of action refers to filing against the right defendant
|
False -- refers to right plaintiff
|
|
|
incompetents and children (infants) can only sue or be sued through __
|
guardian (or parent)
|
|
|
A partnership can be sued as an entity if ...
|
the question is under federal question jurisdiction
|
|
|
To sue a partnership under diversity jurisdiction, __ must be made a party.
|
each and every partner
|
|
|
T/F To sue a partnership under diversity, it is sufficient to sue a single partner who is diverse from all Ps
|
False -- each and every partner must be added
|
|
|
Permissive joinder of parties
|
Any number of plaintiffs or defendants can be added to a case if the complaints arise out of the same transaction or occurence
|
|
|
Under permissive joinder of parties, no party can be added who would destroy __
|
diversity
|
|
|
If multiple claims arise out of the same accident -- e.g. a product defect claim -- must a separate case be brought against each D?
|
No, there can be permissive joinder of defendants
|
|
|
compulsory joinder
|
Ds can compel Ps to join other Ds whose presence is indispensable for a just adjudication
|
|
|
T/F A potential D whose presence is necessary for a just adjudication must be joined to a case.
|
False -- only joined if feasible
|
|
|
T/F If there is a compulsory joinder of a D , and if a party lacks minimum contacts with the state, he still might be joinable under a bulge provision
|
true
|
|
|
In addition to regular grounds for in personam jurisdiction, ___ applies to compulsory joinder of necessary parties
|
bulge provision
|
|
|
What if a compulsory joinder can't be made because it would destroy diversity?
|
court's discretion as to whether to hear the case (and characterize the missing D as "merely necessary") or dismiss it (Characterizing the D as truly indispensible)
|
|
|
Intervention as of right
|
may be allowed when the outsider claims an interest in the lawsuit a because his case will be resolved (or compromised) by the disposition of the pending action. This involves (usu) adding him as an additional P. Permission of court not required.
|
|
|
permissive intervention
|
P can be added at court's discretion if common question of law or fact -- can be allowed if 0 overlap of fact
|
|
|
T/F a plaintiff may not be added through permissive intervention if there is a common question of law between his case and the original, but where the facts are independent
|
False
|
|
|
Sally is homeless in Chicago and wants to bring an "as applied" constitutionality challenge to a state statute which she claims is being used to clear the streets of the homeless, leaving them no place to sleep. She wants to be joined as a plaintiff to a constitutional challenge of the same statute on both facial and as-applied grounds, with the as-applied facts arising in Skokie, IL. Is there a valid basis to allow her to join the law suit?
|
Maybe, if as-applied challenge is similar enough that the court determines that there is a common question of law. This would be a permissive joinder by the court.
|
|
|
T/F Supplemental jurisdiction applies to intervention Plaintiffs
|
false
|
|
|
Can someone intervene in a diversity suit who has less than a $75K claim if an existing party meets the $75K requirement?
|
No -- no supplemental jurisdiction for intervenors.
|
|
|
interpleader
|
used to resolve the claim of someone who holds party as to which there are competing claims, designed to avoid inconsistent obligations/outcomes
|
|
|
An insurance company needs to pay out $3 bil for a major oil spill. Multiple classes of claimants are lined up to bring suit, so that if they all win, the total payout will be far in excess of the actual damage. What could the insurance company do to avoid this outcome?
|
Interpleader
|
|
|
Stakeholder
|
the possessor of the property against which there are multiple claims in an interpleader action
|
|
|
stakeholder-claimant
|
in an interpleader, where the possessor of the property makes an argument to retain some of the property
|
|
|
T/F A stakeholder may only use interpleader as a D
|
false -- can use offensively as a stakeholder-plaintiff
|
|
|
Can stakeholder interpleaders be either Ps or Ds?
|
Yes. The stakeholder as a plaintiff can interplead all the claimants as Ds; or if sued, can interplead all the other claimants as additional Ps
|
|
|
2 types of interpleader
|
rule (allowed by rule 22 for a case already in the court's jurisdiction); and statutory (Fed. Interpleader Act)
|
|
|
If a federal court doesn't have personal jurisdiction over all of the parties, how can an interpleader be accomplished?
|
Federal Interpleader Act
|
|
|
FEderal Interpleader Act
|
allows interpleader jurisdiction with relaxed jurisdiction rules: claim is $500+, venue is proper where any claimant resides, nationwide service allowed, minimal diversity for diversity jurisdiction
|
|
|
T/F permissive joinder of parties is only allowed for plaintiffs
|
False
|
|
|
T/F a party cannot be joined if his claim does not meet the jurisdictional amount.
|
False
|
|
|
T/F In addition to intervention by right, permissive intervention may be allowed by the court only when there is a common question of both law and fact between the intervenor’s claim and the primary claim.
|
False
|
|
|
T/F Supplemental jurisdiction is not permitted with respect to either intervention as of right or permissive intervention.
|
True
|
|
|
T/F for statutory interpleader, jurisdiction is proper where any claimant resides
|
false -- this rule is for venue
|
|
|
T/F For federal rule interpleader, the stakeholder is required to either deposit with the court the property at issue or post a bond in an appropriate amount.
|
False -- this is for statutory interpleader
|
|
|
For statutory interpleader, what additional requirement is there as regards the property in question?
|
the stakeholder is required to either deposit with the court the property at issue or post a bond in an appropriate amount.
|
|
|
T/F In order for a party to be joined, the claims or defenses must arise out of the same transaction or occurrence, but there need not be a common question of law or fact.
|
False
|
|
|
T/F Between the same P and the same D if no one of multiple claims if < $75K, it is barred from diversity jurisdiction
|
False -- between one P and one D, all claims can be aggregated
|
|
|
Counterclaims are raised in __
|
the D's answer
|
|
|
+compulsory counterclaim
|
if you don't plead it, you lose it -- compulsory because it arises out of the same transaction/occurence as the main claim
|
|
|
What is the goal of requiring compulsory counterclaims?
|
judicial economy
|
|
|
A P brings a diversity case asking for $100K. D has a counterclaim out of the same facts, but only for $10K damages. What should he do?
|
He has a compulsory counterclaim -- no $ limit apply
|
|
|
T/F If a D's compulsory counterclaim has expired its statute of limits, he's out of luck.
|
False -- SOL tolls as of the date of P's complaint
|
|
|
T/F a D can bring a counterclaim that would not usu be eligible for federal court
|
True -- if a compulsory counterclaim, jurisdictional and SOL limitations are removed.
|
|
|
T/F a compulsory counterclaim can get supplemental jurisdiction
|
true
|
|
|
T/F a D can bring a permissive counterclaim that would not usu be eligible for federal jurisdiction
|
false
|
|
|
What is a permissive counterclaim
|
A claim brought by D against the P that is NOT related to the same facts, and which must be a cause which could be brought independently in the same court
|
|
|
TF A cross claim must arise out of the same transaction or occurence
|
True
|
|
|
T/F A cross claim gets supplemental jurisdiction
|
True
|
|
|
cross claim
|
by P against P or D against D
|
|
|
T/F A cross claim is sometimes compulsory
|
False -- b/c might compromise common case
|
|
|
T/F cross claims toll to original complaint date
|
I think so but not sure
|
|
|
+Impleader
|
aka 3rd party practice.Allows a defendant to implead someone who is or may be liable to the D for all or part of the P’s claim against him.
|
|
|
3rd party practice
|
aka Impleader. Allows a defendant to implead someone who is or may be liable to the D for all or part of the P’s claim against him.
|
|
|
what is the new D called in an impleader action?
|
3rd party defendant
|
|
|
What is the first D called relative to the new D in an impleader action?
|
3rd party plaintiff
|
|
|
What is a 3rd party D and 3rd party P?
|
In impleader actions, the new D is the 3rd party D and the initial D is the 3rd party P.
|
|
|
If the fact pattern suggests contribution among joint tortfeasors, what civ pro issue might be relevant?
|
3rd party practice/ impleader
|
|
|
Two tortfeasors injure a plaintiff. The plaintiff sues one but not the other. The sued defendant can ___ the other tortfeasor.
|
implead
|
|
|
T/F a sued D can implead another D because the new D is liable to the plaintiff
|
False. The D can implead if he has a right of contribution, because the new D is or may be liable to the defendant for part of plaintiff’s claim against him.
|
|
|
An employee negligently wrecks the company car while running company errands. The company can __ the employee in resulting tort case because though the employer is vicariously liable, the employee will likely have to pay part or all of the resulting damages.
|
implead
|
|
|
T/F If a D is impleaded, any claims of the other Ds against him is covered by supplemental jurisdiction.
|
True
|
|
|
T/F If a D is impleaded (impled?), any additional claims brought by a P against him is covered by supplemental jurisdiction.
|
false -- only D contribution /indemnification claims allow supplemental jurisdiction. P would have to establish jurisdiction.
|
|
|
What is the policy reason that a P's claim against an interpleaded D can't get supp jurisdiction?
|
Because P could then sue a diverse D, and wait for the D to interplead others, allowing P to bring case in fed court where otherwise not allowed.
|
|
|
T/F bulge rule applies to impleaded personal jurisdiction
|
True
|
|
|
Class action prerequisites
|
numerousness; common qs of law or fact; typicality of claims represented by named class; adequacy of representation
|
|
|
dismissal or compromise of a class action requires ___
|
judicial approval
|
|
|
in a class action, diversity exists if ______ and ____ have/has a claim > $75K
|
all named Ps are diverse from opposing parties and at least one named P has a claim > $75K
|
|
|
Class Action Fairness Act of 1995
|
allows very large class actions, involving 100 or more members, with $ 5 million or more at stake and minimal diversity to be heard in fed court
|
|
|
Personal jurisdiction (Does / does not) have to be established over a third party defendant
|
does, but with the extra help of the bulge rule
|
|
|
The three stages of mandatory discovery
|
1) initial disclosure
- names, addresses, contact of persons with potentially discoverable info; -copies or descriptions of items and documents ; -computation of damages and applicable insurance agmts; 2) expert witnesses (qualifications, publications, information on which they based their opinions, and compensation.); 3) list of all witnesses and exhibits to be used at trial |
|
|
TF the information on which expert witnesses base their opinions are part of mandatory disclosure
|
true
|
|
|
T/F names of individuals who are not going to be called as witnesses may be part of mandatory discovery
|
true -- if they potentially have discoverable information
|
|
|
Failure to made mandatory disclosure bars the party from ...
|
using that information at trial. (This procedure has not been followed in the states, or even in many U.S. districts. so this is unlikely to be tested)
|
|
|
objections are generally required within __ days of discovery
|
14
|
|
|
+scope of discovery: the key is ___. You can discover...
|
relevance, anything admissible at trial, and anything that might lead to something admissible at trial (with exceptions such as privilege)
|
|
|
communication between spouses, or attorney and client (are / are not) discoverable
|
are not -- evidentiary privilege
|
|
|
Does hearsay hold an evidentiary privilege?
|
No, because it might lead to admissible evidence -- have to assert a basis of privilege to exempt hearsay
|
|
|
TF an attorney can refuse a discovery request on the basis that the evidence is not admissible
|
False
|
|
|
+ attorney work product rule
|
26(b)(3) protection for materials and documents prepared in anticipation of litigation or trial by another party or its representative. (usu attorney and staff, but could be accountants ,consultants etc as well)
|
|
|
+TF Joe came to Attorney with concerns that he might be sued for a contract he had just broken. Attorney took notes during their meeting. Client sued Joe the following month. Are attorney's notes from the meeting discoverable?
|
potentially -- work product that pre-dates any actual preparation for litigation or trial does not qualify for work product rule
|
|
|
+when can materials otherwise protected by attorney work product rule be discovered?
|
if a party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. If the court orders discovery of trial preparation materials, Rule 26(b)(3)(B) requires the court to protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
. |
|
|
+ Attorney interviews a potential witness in a trial, and takes extensive notes. She decides not to call the witness, but knows that the opposing counsel probably will. Witness dies unexpectedly. Opposing counsel seeks Attorney's notes in discovery. What will happen?
|
In an exception to the work product rule for necessity, the court will likely allow it if there is no alternative source (E.g. a police interview with the witness), but will make efforts to protect Attorney's impressions or planning concerning the litigation from discovery.
|
|
|
Attorney flies to China to interview a key witness. Opposing counsel asks for attorney's notes about the interview on the basis of excessive costs in doing a similar interview. Will Opposing counsel get the notes?
|
Probably not. Expense is not a sufficient argument to support violation of the attorney work product rule
|
|
|
The mental impressions of an attorney are never ___
|
discoverable
|
|
|
A witness or party can always get a copy of ___
|
his own statement to an attorney
|
|
|
+expert witnesses must provide almost all information, including the expert's report unless___
|
they will not be called as witnesses
|
|
|
TF information about an expert witness who will not be called at trial can be discoverable
|
False
|
|
|
protective orders re. discovery
|
for good cause shown, courts can do almost anything to lessen burden or expense of discovery through a protective order.
|
|
|
A subpoena for a witness to be deposed must be accompanied by __
|
a witness fee and mileage
|
|
|
To depose a party _ is sufficient. For a mere witness, a ____ is required
|
notice, subpoena
|
|
|
oral depositions are generally limited in time to
|
7 hours on 1 day
|
|
|
subpoena duces tecum
|
requires person to bring documents or other materials to the deposition
|
|
|
to depose an organization given the subpoena to the organization, who will select __
|
the person best able to answer your questions
|
|
|
When can depositions be held?
|
Any time after mandatory disclosure is completed
|
|
|
TFAll federal courts have mandatory disclosure requirements
|
false -- many fed districts have opted out of mandatory disclosure
|
|
|
if there aren't mandatory disclosure requirements, there can be no deposition until __-
|
30 days after serving the complaint
|
|
|
written depositions
|
red herring? rarely used. discovery device with oral answers to written questions. inability to adjust questions was fatal
|
|
|
TF one way of getting discovery information from a potential witness is through interrogatories
|
false -- only allowed of parties
|
|
|
Interrogatories are limited to __ questions unless the court allows more for good cause.
|
25
|
|
|
interrogatories are
|
a discovery device consisting of written questions to a party, with response by written answers under oath
|
|
|
Interrogatories can only be asked of __
|
parties, not mere witnesses
|
|
|
TF one way of responding to a burdensome interrogatory request is to give access to an electronic resource with the requested material
|
true, if the cost of locating the relevant material is relatively the same for both sides
|
|
|
request to produce and permit
inspection |
aka Discovery and Inspection of Documents and Land -- allows to discover things under the control of a party - NOT a a witness -- which must be described with particularity (not "your files"). A response is due within 30 days
|
|
|
Can a request to permit inspection of land under the control of a witness be issued?
|
No -- these can only be given to parties
|
|
|
Can the opposing attorney ask to see D's business records as part of discovery?
|
NO -- a request to produce and permit inspection must include a description of items to be produced with particularity. "business files" is likely too general.
|
|
|
TF an eye witness can be asked to submit to an eye examination as to her eyesight by opposing counsel
|
False -- physical and mental exams only for parties where the aspect of mental or physical health is in controversy, and only for good cause
|
|
|
Discovery requests can require physical or mental examination only when___
|
1) it is a party; 2) the mental or physical health is at controversy; and 3) there is good cause shown
|
|
|
TF Requests for admissions is one way of discovering new information
|
False -- these can't be used for information you don't already know
|
|
|
The point of requests for admissions is not really for __ but __
|
discovery purposes, to streamline the trial
|
|
|
Failure to respond to a request for admissions is ___
|
an admission.
|
|
|
All pleadings, discovery requests, and all responses to discovery, the attorney of record must ___
|
sign the response.
|
|
|
Signature on all responses, pleadings and discovery requests by an attorney of record has what effect?
|
certifies the information has a reasonable basis and is made in good faith.
|
|
|
TF Admissions to a request for admissions has no preclusive effect
|
True
|
|
|
TF Admissions to a request for admissions can be used against a party in future cases
|
false
|
|
|
Admissions (in response to request for admissions) have no preclusive effect. This means..
|
they can't be used against a party in a future proceeding.
|
|
|
TF discoverability and admissibility involve the same inquiry
|
False
|
|
|
the deposition of an adverse party is admissible at trial as
|
a statement against interest
|
|
|
A deposition of a mere witness can be used at trial ___
|
to impeach the witness
|
|
|
Deposition of a witness who does not testify can be used if the witness is dead or beyond the court’s subpoena power or otherwise unavailable. It also can be used if the witness is more than _____ miles from the place of trial.
|
100
|
|
|
Discovery enforcement sanctions: court can generally do ___ to require compliance with discovery requests.
|
anything necessary
|
|
|
immediate sanctions for 3 discovery response failures:
|
fail to attend own deposition; fail to respond to interrogatories; fail to respond to request for documents or things
|
|
|
For most discovery response failures, the court must issue an ___
|
order compelling discovery; this usu involves paying court costs too
|
|
|
informal sanction for resisting discovery requests (dilatory motions etc)
|
imposition of attorney fees.
|
|
|
TF interrogatories can be served on any person with information about a case
|
False -- only on parties
|
|
|
D asks to see P's records pertaining to the sale of the house whose ownership is in question. P gives D access to his file warehouse. Is this a valid discovery response?
|
no, because the cost of finding the relevant documents is likely much higher for D than for P. This kind of response is only ok when the cost to either party to locate needed documents is roughly the same.
|
|
|
T/F. If an incompetent's guardian brings suit against her trustee, with at issue whether or not she she requires additional rehabilitative therapy, trustee cannot require mental examination of the alleged incompetent as part of discovery because she is not a party
|
False -- such exams can be required of a person in the legal custody or control of a party if the mental health of the person is at issue
|
|
|
a party generally has __ days to respond to a request for admissions
|
30
|
|
|
Pre trial conference
|
Pre-Trial Conference: Must be attended by attorneys who will conduct trial. They must file a pre-trial statement detailing claims and defense, itemization of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc.
Failure to comply usually means that the attorney pays the costs occasioned by the default. |
|
|
Failure to comply with requirements of the pretrial statement and conference can result in
|
attorney having to pay costs occasioned by the defualt
|
|
|
Attorneys must file a ___ at the time of the pre-trial conference
|
pre-trial statement
|
|
|
T/F an attorney can send a representative to the pre-trial hearing
|
False
|
|
|
Types of termination without trial:
|
1) judgment on the pleadings (rare - if no facts in dispute); 2) default judgment (usu D defaults, doesn't show up); 3)voluntary dismissal / dismissal without prejudice; 4) involuntary dismissal 5) summary judgment
|
|
|
Plaintiff has a one-time right to a ___ dismissal prior to D filing answer or motion to dismiss
|
voluntary
|
|
|
Voluntary dismissal
|
where the P withdraws case without prejudice (can refile later) before the D has answered or filed for summary judgment. AKA taking a nonsuit.
|
|
|
withdrawal "without prejudice" means that ___
|
P can refile at a later time
|
|
|
Involuntary dismissal
|
dismissal with prejudice which is an adjudication on the merits, P's can't refile --UNLESS if for jurisdiction, venue, or failure to join a necessary party who can't be joined (or if state is lax on ability to refile). May be imposed on P for failure to prosecute/comply with rules (rare, extreme)
|
|
|
+summary judgment
|
Rule 56, rewritten in 2010 to better reflect practice.
|
|
|
Rule 56
|
Summary judgment -- case dismissed due to questions as to legal sufficiency and/or factual support of one party
|
|
|
Rule 56 Distinguished from 12(b)(6)
|
12b6 failure to state a claim on which relief can be granted -- as to legal sufficiency
56 summary judgment -- not only legal sufficiency BUT factual deficiency as well |
|
|
The defendant’s motion to dismiss for lack of jurisdiction or improper
venue (does /does not) cut off right to voluntary dismissal. |
does not
|
|
|
res judicata
|
doctrine preventing readjudication of a claim that has already been settled
|
|
|
typically, involuntary dismissal (does/ does not) have res judicata effect
|
Does -- can't refile case unless dismissal was for lack of venue, wrong jurisdiction or failure to join a necessary party. (also, some states more lax)
|
|
|
common law demurrer and modern day corollary
|
even if you prove every fact you've alleged, there is no legal basis for recovery. Today falls under 12(b)(6)
|
|
|
T/F Summary judgment cannot be granted for part of a case
|
false
|
|
|
T/F Summary judgement can be granted for one issue against one party but not against a co-party
|
True
|
|
|
Summary judgment can be granted only as to a particular defense
|
true
|
|
|
standard for summary judgment
|
no genuine dispute as to any material fact so that the moving party is entitled to judgment as a matter of law
|
|
|
What is the standard of proof for summary judgment?
|
Whatever the actual standard would be at proof, so that no reasonable jury could find against the moving party under the relevant standard
|
|
|
How to defend against a motion for summary judgment?
|
have to point to particular points in the record that support that there is a genuine dispute on an issue of a material fact
|
|
|
T/F arguments in pleadings can be used to support/oppose a motion for summary judgment
|
False -- must be based on evidence admissible in court, e.g. sworn statements
|
|
|
T/F affidavits are statements by a witness that are not under oath
|
False -- they are sworn by a notary public
|
|
|
interrogatory answer (are / are not) under oath
|
Are
|
|
|
T/F admissibility of evidence may be relevant to a decision on summary judgment
|
true -- because only admissible evidence should be considered in deciding such a motion
|
|
|
A has brought a motion for dismissal against B on the issue of whether B ran the stop sign in an auto accident case, based on a deposition of a forensics expert. B's responds that he will call a witness who will testify to seeing B come to a complete stop at the intersection. What is the probable outcome?
|
A will win motion because B failed to provide testimony under oath (admissible evidence) to support her argument. She should have provided an affidavit, deposition, etc of the witness, not just a report of what he would testify
|
|
|
A has brought a motion for dismissal against B on the issue of whether B ran the stop sign in an auto accident case, based on a deposition of a forensics expert. B's submits a deposition in which a witness states under oath that her friend was in B's car, and told her that he came to a complete stop at the intersection. What is the probable outcome?
|
A will win motion because though B provided testimony under oath, it is not based on the personal knowledge of the witness. (but what if it was admissible under a hearsay exception?)
|
|
|
T/F A D's answer made is under oath
|
False
|
|
|
T/F A D's answer can be used to dispute a motion for summary judgment
|
False -- it is not under oath
|
|
|
The 7th Amendment guarantees ____ in civil cases according to the division between law and equity
|
juries
|
|
|
If legal and equity issues overlap in a case the __ should be tried first. Why?
|
legal -- otherwise right to jury on legal issues could be foreclosed by the prior resolution (res judicata or collateral estoppel) of factual issues under both claims
|
|
|
T/F In admiralty civil cases, there is no right to a trial by jury
|
true
|
|
|
T/F in contract cases, there is sometimes a right to trial by jury
|
false
|
|
|
How do you determine if a case is an equity case, with no right to a jury trial?
|
o determine whether the action One must first look at the type of action and whether such an action was considered "legal" or "equitable" in 1791. Next, the relief being sought must be examined. Monetary damages alone were purely a legal remedy, and thus entitled to a jury. Non-monetary remedies such as injunctions, rescission, and specific performance were all equitable remedies, and thus up to the judge's discretion, not a jury
|
|
|
If P sues D for performance under a contract, and D sues P for money damages and release from the contract. What special situation is this, and how should it be resolved?
|
one claim is in law, the others are in equity. The money damage issue should be resolved first because there is a right to a jury, which may be foreclosed if the equity issues are combined, or decided first.
|
|
|
A demand for trial by jury must be made not later than _____ days after service of the answer or other pleading directed to the issue on which jury trial is sought.
|
14
|
|
|
A demand for trial by jury must be made not later than 14 days after ...
|
service of the answer (or other pleading directed to the issue on which jury trial is sought.)
|
|
|
peremptory challenges
|
jury member challenges without justification required.
|
|
|
Peremptory challenges, while unjustified, can not be based on ....
|
race or gender
|
|
|
How many peremptory challenges are usu allowed in fed ct?
|
3
|
|
|
In a bench trial, a judge must make findings as fact as well as state conclusions of law so as to ___
|
create a record for appeals
|
|
|
Objections to jury instructions must be made ___
|
before the jury retires so that the judge has the right to consider the argument. Otherwise, not preserved for appeal.
|
|
|
Difference between motion for judgment as a matter of law and summary judgment
|
Essentially the same, except for timing -- summ judgment is before trial, motion for judgment can be made at the end of P's case and again at the close of all evidence.
|
|
|
motion for judgment as a matter of law will be granted if...
|
if the evidence, viewed in the light most favorable to the opposing party and under the burden of proof imposed by the substantive law, could not support a contrary verdict and the moving party is therefore entitled to judgment as a matter of law.
|
|
|
Directed verdict is the old name for ...
|
motion for judgment as a matter of law
|
|
|
renewed motion for judgment as a matter of law after verdict
|
AKA judgment not withstanding the verdict -- motion that has been properly been made at the close of evidence can be renewed if jury made a contrary verdict
|
|
|
a motion for judgment as a matter of law at the close of evidence is a ___ for a renewed motion for judgment as a matter of law
|
condition precedent (if you fail to ask at the close of evidence, foreclosed from asking after the verdict)
|
|
|
You can't ask for a renewed motion for judgment of law unless...
|
you made a motion for judgment at close of evidence.
|
|
|
Why would a judge deny initial motion for judgement as a matter of law, and grant renewed motion?
|
To avoid having a retrial if appeals court disagrees with judge's ruling on motion. This way, there's a verdict that can be reinstated if appeals court disagrees.
|
|
|
T/F Failure by an attorney to participate in a pre-trial conference typically results in dismissal of the case.
|
False
|
|
|
In what cases is an involuntary dismissal without prejudice?
|
lack of jurisdiction, improper venue, failure to join a necessary party
|
|
|
T/F in grant of summary judgment, the evidence must be viewed in the light most favorable to the opposing party.
|
True
|
|
|
TRUE OR FALSE. A motion for judgment as a matter of law that is made at the close of all the evidence may be renewed if the jury reaches a contrary verdict.
|
True
|
|
|
in grant of a motion for judgment as a matter of law, or summary judgment, the evidence must be viewed ...
|
in the light most favorable to the opposing party.
|
|
|
Motions made any time before the verdict in order to avoid a full trial (motions for summary judgment, directed verdict etc) are waived as a basis for appeal if....
|
there has been a full trial.
|
|
|
A renewed motion for judgement as a matter of law is almost always made in conjunction with an alternative motion...
|
for a new trial.
|
|
|
considerable discretion in grant of a new trial. Possible reasons include :
Error that made judgment ____________; o ___________________ evidence; o _____________________ misconduct by lawyer, party, or juror; o __________damages and the winning party refused to accept _____________. |
unfair, newly discovered, prejudicial misconduct, excessive, reduced verdict (remitittur)
|
|
|
A judge can sometimes threaten parties with a new trial unless they accept a ___
|
reduced verdict (remitittur) if judge finds jury verdict excessive
|
|
|
ordinarily, an appeal can lie only from a ___
|
final judgment
|
|
|
A final judgment ordinarily resolves ...
|
all claims of all parties on the merits
|
|
|
A court can choose to issue a ___ to resolve some of the claims while leaving others open.
|
partial final judgment
|
|
|
If a judge decides to enter a partial final judgment, she must do so ___
|
expressly
|
|
|
A judgment does not become final until...
|
it is entered by the clerk on the docket.
|
|
|
losing party generally has _ days after ____ to file a notice of appeal
|
30, a final judgment is entered by the clerk on the docket
|
|
|
post judgment motions -- effect on appeal deadlines
|
time limit is tolled (the clock is suspended) until rulings have been made
|
|
|
TF the attorney can wait longer to file an appeal if he asks for a new trial
|
True -- though it depends on how quickly the judge rules on the motion. 30 day time limit from entry of judgement is tolled (suspended) until there's a ruling on the post verdict motion.
|
|
|
define interlocutory order
|
a non-final order
|
|
|
some interlocutory orders are immediately appealable (interlocutory appeal as of right). These are
|
those regarding injunctions, and those involving property
|
|
|
interlocutory appeal as of right
|
imm appeal is allowed on interlocutory orders if they involve property or injunctions
|
|
|
interlocutory appeal generally requires...
|
leave of both the trial court and appellate court
|
|
|
The process for discretionary interlocutory appeals:
|
trial court must issue a certificate for interlocutory appeal stating that the order involves a controlling question of law and that immediate appeal may materially advance termination of the litigation. The appellate court must then agree to accept the appeal.
|
|
|
Collateral order doctrine
|
authorizes immediate appeal of orders separable from and collateral to the main suit and too important to deny immediate review. Common examples are orders denying qualified immunity in constitutional tort cases and orders denying dismissal for forum non conveniens.
|
|
|
forum non conveniens
|
all parties agree to transfer the case for convenience, even though the current court has both jurisdiction and is a proper venue; appeals of a denial of this can be appealed imm under the collateral order doctrine.
|
|
|
mandamus
|
immediate appellate correction of a judge's abuse of authority
|
|
|
T/F mandamus can be used when a party believes that a judge's order is in error
|
false -- mandamus is only for abuses of authority, not error
|
|
|
Class actions: Appellate courts have discretion to hear interlocutory appeals from orders ____________________ or refusing to _______________ a class action.
|
certifying, certify
|
|
|
standard of review on appeal, for matters of law
|
de novo
|
|
|
+the appellate standard of review for findings of fact
|
Jury verdicts: must be affirmed if supported by substantial evidence.
Judge findings must be affirmed unless clearly erroneous. |
|
|
+the appellate standard of review for matters within the trial court's discretion
|
any reasonable decision upheld (These are cases such as limiting scope of discovery, or sanctioning an abuse of discovery, denying a new trial)
|
|
|
Full faith and credit
|
Courts in the United States, whether state or federal, must give full faith and credit to judgments rendered by other courts, provided that the rendering court had jurisdiction
|
|
|
Unless __, Courts in the United States, whether state or federal, must give full faith and credit to judgments rendered by other courts
|
jurisdiction is not proper
|
|
|
harmless error rule
|
in determining whether a party should be granted a new trial / appeal, errors and defects that do not affect any party's substantial rights should be disregarded
|
|
|
T/F a court may grant a new trial for reasons not stated in the motion for new trial
|
True, as long as the court specifies the reasons in its order
|
|
|
TF a court must hear an interlocutory appeal from an orders certifying a class action.
|
False -- discretionary
|
|
|
T/F An appellate court must hear the appeal of an interlocutory order that the lower court certifies involves a controlling question of law regarding which there is substantial disagreement.
|
False
|
|
|
T/F The standard for setting aside judicial decisions regarding the law is “abuse of discretion.”
|
False
|
|
|
T/F In reviewing a jury verdict, the verdict must be affirmed by the appellate court unless it is supported by substantial evidence.
|
False (unless it is NOT supported by substantial evidence)
|
|
|
T/F The standard for setting aside judicial findings of fact is “clearly erroneous.”
|
True
|
|
|
+Preclusion is not __ doctrine but __
|
one, two
|
|
|
claim preclusion
|
if 1) there has been a final judgment on the merits in suit 1; 2) suit 2 involves the same parties or their successors in interest; and 3) suit 2 involves the same claim, there is a bar on re-litigation on the claim even if a party has new legal theories
|
|
|
Final judgment does not necessarily involve a trial, but can be accomplished through...
|
default judgment, summary judgment, dismissal with prejudice
|
|
|
T/F After criminal litigation against Frank for battery of Harry, a subsequent tort trial is precluded by Harry against Frank under claim preclusion
|
False -- both parties must be the same, and in a criminal action, the state is the party, not the victim
|
|
|
Father is criminally prosecuted for failing to provide child support and is acquitted. Mother then brings a civil action for child support against the same defendant. Is the second suit barred by claim preclusion?
|
No -- The first action was brought by the government, and the second by the mother. No re-litigation between the same parties.
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A person injured by a defective vehicle sues the dealer and loses. Subsequently, the injured person sues the vehicle manufacturer for the same defect. Is the second suit barred by claim preclusion?
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No. The first suit was against the dealer, and the second was against the manufacturer. No re-litigation between the same parties.
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The only exception is when re-litigation occurs between those in privity with the original parties, in other words, their _______________________________.
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successors in interest
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what is a succesessor in interest/ when are to parties "in privity"
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when one stands in the shoe of the other , e.g. the mortgage company that bought your mortgage
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T/F The assignee of a claim is a successor in interest of the assignee.
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True
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T/F person who claims under a will is a succssor in interest of the executor
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True
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What does the same claim requirement barring re-litigation mean re. various legal theories?
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All legal theories to recover from one defendant for harm arising out of a single transaction or occurrence are one claim. There is a separate claim against each defendant, but there is not a separate claim for each theory (UNLESS statutes provide otherwise)
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T/F a claim against three manufacturer's for polluting my pond is a single claim
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False -- it is three separate claims
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In installment contracts, the creditor must sue for all that is due at the time of the suit. All accrued debt or obligation is one claim. Future debts or obligations are ___, unless the contract provides that the entire debt becomes due upon default of any payment.
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future claims
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True / False. for an installment K, future debt is combined with accrued obligations, so that there is only one claim
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False -- accrued/current debt is one claim; future debt will create new claims
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A landlord sues a tenant in December for January rent and wins. He then sues for February's rent. What is the likely outcome?
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claim preclusion -- all debts / obligations accrued at the time of the action are one claim
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If a landlord wins a default judgment as to January's rent on Feb 1, then on March 1 sues tenant for Feb rent, can he argue claim preclusion to support a summary judgment or similar?
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No -- feb rent is a new claim.
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If a K says missing a single payment results in the balance being due, is the entire amt of K a single claim?
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yes
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Issue Preclusion:
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aka collateral estoppel. 3 requirements: The same issue of fact must arise in two suits; that issue must have been actually and necessarily decided in the first suit; and the party to be precluded must have been a party to the first suit.
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If two suits state different claims, but have a single factual issue in common, that issue may be subject to...
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issue preclusion
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Assume that the person injured by a defective motor vehicle sues the dealer and loses. The jury found that the vehicle was not defective. Then the injured person sues the manufacturer for the same defect. Is there claim preclusion?Issue preclusion?
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Issue preclusion, but not claim preclusion because the Ds are different (it is the P being precluded by the mfr in the second suit)
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For determining if there is claim or issue preclusion, first consider __ preclusion, and then __
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claim, issue
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Do any parties need to be common between two suits for one to have issue preclusion over the other?
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Yes -- the precluded party must be in both suits (or successor in interest).
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All legal theories deriving out of a single transaction or occurrence between the same P and D is ___
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one claim
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Default judgment cannot be used to support __ preclusion
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no. Because no issue was actually decided.
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T/F Party asserting preclusion is the one who must have been a party in the prior case.
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False -- it is the precluded party who must be common to both
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T/F often it is the plaintiff who will be barred by issue preclusion
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True. The plaintiff trying to get at various Ds will run into it. A D who is being sued by multiple Ps can't argue issue preclusion because it is the P who is being precluded, and the Ps are all different.
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Fred and Ethel are involved in an auto accident with Mort and Myrtle. Fred sues Mort, the driver of the other car, and loses. The jury found that Mort’s vehicle was not operated negligently. Fred then sues Myrtle, the passenger in Mort’s car, claiming that she distracted the driver and caused him to drive negligently. Can Myrtle preclude re-litigation of the negligence issue in the second suit?
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Yes. No claim preclusion because suit against a different defendant is a different claim. But there is issue preclusion. Fred was a party to the first suit and had his day in court. Issue preclusion can be invoked against him.
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Fred and Ethel are involved in an auto accident with Mort and Myrtle. Fred sues Mort, the driver of the other car, and loses. The jury found that Mort’s vehicle was not operated negligently. Ethel, the passenger in Fred’s car, then sues Mort, claiming that he operated his vehicle negligently. Can Mort, who has already litigated and won this issue, preclude Ethel from re-litigating it in the second suit?
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No. No claim preclusion because suit by a different plaintiff is a different claim. And no issue preclusion, because Ethel was not a party to the prior action. She has not had her day in court. Issue preclusion cannot be invoked against her.
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T/F Res judicata is the same as claim preclusion
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true
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T/F to have claim litigation, the claim must have been completely litigated in the previous suit.
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False -- could have been a default judgment , e.g. -- the judgment must have been on the merits, but need not have had a verdict
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T/F Res judicata provides that a final judgment on the merits of an action precludes the same parties from re-litigating identical claims that could have been raised in that action, but were not.
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True
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TF collateral estoppel is the same as claim preclusion
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False -- it's issue preclusion
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