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84 Cards in this Set
- Front
- Back
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Personal Jurisdiction - USC
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Does D have such minimum contacts w/ the forum that exercise of jdxn d/n offend traditional notions of fair play and substantial justice?
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Personal Jurisdiction - USC Elements
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MPFFRC
- Minimum Contacts - Purposeful Availment - D voluntarily reached out to the forum - Foreseeability - subject to suit - Fair Play and Substantial Justice - Relatedness - quality of D's contact most necessary when small contact w/ forum - Convenience - only if puts D at severe disadvantage litigating in-state - State Interest in promoting forum/justice for its citizens |
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Personal Jurisdiction - State
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Consent
Service in-state Domicile |
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Personal Jurisdiction - State Long-Arm Statute
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PA's long-arm statute statute reaches to the full extent of the USC limit.
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Personal Jurisdiction Generally
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Must satisfy both USC due process requirements AND the state's long-arm statute
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Diversity of Citizenship Requirements
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a. Action M/b between citizens of different states (or a state citizen and foreign alien) AND
b. Amount in Controversy M/b greater than $75k |
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Diversity of Citizenship - Natural Persons
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1. Physical Presence in-state AND
2. Subjective intent to make it her permanent home (mental) Domicile set at time of filing |
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Diversity of Citizenship - Corporations
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i. State of incorporation AND
ii. Physical Place of Business (PPB) – can only be one! 1. Nerve center (HQ, where decisions are made) OR 2. Muscle center (where it does the most activity) Tip: use nerve center u/l all corporate activity is in one state |
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Diversity of Citizenship - Unincorporated Associations
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Members' citizenship - including GPs and LPs
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Diversity of Citizenship - Decedents, Minors, Incompetents
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Their domicile, not their representative's domicile
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Amount in Controversy
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M/exceed $75 w/o costs or interest
Take P's claim in GF u/l otherwise clear to legal certainty that she c/n recover more (statutory ceiling) EQUITABLE RELIEF TEST (P/D's viewpoint) |
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Amount in Controversy - Aggregation
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i. Can aggregate claims when case is a single P v. single D
ii. Joint claims – use total value of the claim; number of parties is irrelevant (i.e. any 1 of joint tortfeasors c/b liable) |
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Federal Question Cases
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Well-Pleaded Complaint Rule = M/show right or interest founded substantially on/arising under Federal Law
- Is P enforcing Federal right? |
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Supplemental Jurisdiction
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Claim M/b in Federal Court via FQ or Diversity
The Test = CNOOF a. Common Nucleus of Operative fact b/t claim that invoked federal SMJ and the one we’re trying to bring in b. Always met by claims arising from same T/O |
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Supplemental Jurisdiction - Limitations
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C/n/b asserted by P
C/n overcome lack of diversity in a diversity case, but can overcome lack of AIC (c/n violate complete diversity) |
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Supplemental Jurisdiction - Court's Discretion
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Can decline Supplemental Jurisdiction
- FQ is dismissed early in proceedings - State law claim is complex - State issues would predominate |
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Removal
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One way street to Federal Court
- D's option - if multiple, all must consent - M/g to federal district of state court in which case was originally filed - M/b w/in 30d of service of the first removable document AND no more than 1y total from filing Remanded if Improper |
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Removal - Diversity Cases
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No removal if any D is a citizen of the forum
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Removal - P's Motion to Remand
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M/move to remand w/in 30d of removal
Lack of Federal SMJ = move for remand at any time |
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Removal - Effect of Counterclaims
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Compulsory = if D files in state court, probably does not waive the right to remove
Permissive = if D files in state court, likely waives right to remove |
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Removal - Procedure
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D files notice in Federal Court citing grounds for removal, signed under FRCP 11
D attaches all documents served on her in state action and copies all adverse parties D files copy of notice in the state court |
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Erie Doctrine
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In Diversity Cases, Federal Court M/apply state substantive law
- EASY = M/apply for elements of claim/defense, SOL, conflict and choice of law rules - Not Easy = look for federal law, statute or FRCP/FRE on point that directly conflicts w/ state law / apply federal law (Supremacy Clause) - If No Federal Law on Point = if substantive, Federal judge M/follow state law - Outcome Determinative - Balance of interests - Avoid Forum Shopping |
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Venue - Local
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Actions re: ownership, possession, or injury (includes trespass) to land M/b filed in the district in which the land lies
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Venue - Transitory
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a. ), P may lay venue in any district where:
i. All Ds reside (Special Rule = if all Ds reside in different districts of the same state, P can lay venue in the district in which any D resides OR ii. Substantial part of the claim arose |
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Venue - D's Residence
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Natural Persons = Domicile
Corporations = districts in which they are subject to PJ at filing |
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Venue - Transfers
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Can ONLY transfer to district in which case c/h/b filed originally = PJ
Ct may do so based on parties' and Ws' convenience and the "interests of justice" - Public factors (jury, etc.) - Private factors (Ws, etc.) |
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Venue - When Improper
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Court may transfer in the interests of justice OR dismiss
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Service of Process - What and Who
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Includes summons and copy of Complaint
C/b done by anyone 18y or older and d/n/h to be court-appointed |
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Service of Process - Methods
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1. Personal Service = papers given personally to D anywhere in forum
a. Federal court can serve outside of its state only if state statute permits (i.e. long-arm) 2. Substituted Service = process left with another okay if: a. D’s usual abode b. Person served is of suitable age and discretion, and resides there 3. Service on D’s Agent = okay if in scope of agency (agent appointed by K, registered or managing agent or officer of a corporation) 4. Other methods permitted by state law in state where federal court sits, or where services is effected |
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Service of Process - Mail Waiver
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Mail to D by 1st Class, prepaid postage
D can execute and return w/in 30d - P can file in court If D does NOT return waiver, P M/h her served personally or by substituted service - and D M/pay expense of service u/l GC |
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FRCP 11 - Requirements
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Attorney or pro se party signs all pleadings, written motions and papers - except discovery documents - certifying that "to the best of knowledge and belief after reasonable inquiry:
- Paper is not for improper purpose - Non-frivolous legal contentions - Factual contentions and denials have E support or likely will have after further investigation NOTE: continuing certification! |
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FRCP 11 - Motion for Violation
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Can be served at time of violation, but not filed - SAFE HARBOR
OC has 21d to w/draw document or fix the problem NOTE: Court can raise sua sponte |
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FRCP 11 - Sanctions
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Ct M/g opportunity to be heard
Levied at court's discretion against attorney, firm or party - deterrence! Money paid to court - but can also be non-monetary |
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Complaint
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Statement of SMJ
Short and plain statement of claim showing entitlement to relief Demand for relief sought Notice Pleading - enough detail to put OC on notice and allow meaningful response - plead facts supporting a plausible claim Special claims M/b pleaded w/ particularity or specificity (i.e. fraud, mistake, special damages) |
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Motions - D's Response to C
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M/b filed w/in 20d of service of process
FRCP 12 - - more definite statement (D) - to strike (any party) Waived u/l in first response - lack of PJ - improper venue - insufficiency of process (paper) - insufficiency of service Not Waived if raised at any time through trial: - failure to state a claim - failure to join Never waived = lack of SMJ! |
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Answer
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M/b served w/in 20d of service OR 10d of motion ruling
Includes: - admit/deny to all C allegations (failure to deny = admission) - exception = damages - lack of sufficient information to admit or deny = denial, and c/n/b in public knowledge or D's control - raise ALL ADs (SOL, SOF, RJ, S-D, etc.) |
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Counterclaims (against OP)
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Compulsory
- arises from same T/O as P's claims - waived u/l filed in pending case Permissive - c/b filed w/ A or in separate case NOTE: M/invoke FQ or diversity to be in Federal Court - otherwise, seek Supplemental Jurisdiction |
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Cross-Claims (against co-party)
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M/arise from same T/O as underlying COA
Never compulsory |
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Pleadings - Amending
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P has right to amend once before D serves her answer
D has right to amend once w/in 20d of serving her answer No right = seek Court permission ("if justice so requires") - Delay AND prejudice |
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Pleadings - Variance
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E at trial d/n match what was pleaded
No requirement to amend to conform to E, but c/b excluded if D objects b/c "at variance w/ pleadings" |
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Pleadings - Amendments after SOL has run
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Relation Back Doctrine - if concerning same conduct, T/O as original pleading = amended pleading treated as filed when original was to avoid SOL problem
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Discovery - Required Disclosures
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Initial Disclosures
1. Usually w/in 14d of pre-trial conference 2. M/identify persons, electronically stored information, and documents “likely to have discoverable information that disclosing party may use to support its claims or defenses” 3. M/include computation of damages and insurance for any judgment Experts M/b identified if they may be used at trial, w/ written report containing data, opinions, qualifications, compensation for study, etc. Pretrial – 30d before trial M/g detailed information about trial E, including documents and ID of Ws |
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Discovery - Tools
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AFTER PTC
Depositions Interrogatories Requests to Produce Physical/Mental Exams Requests for Admission |
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Discovery - Parties' Certification
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Separate from FRCP 11 (d/n apply to discovery)
Warranted Not interposed for improper purpose AND Not unduly burdensome |
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Discovery - Duty to Supplement
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M/b done if party learns its response is incomplete or incorrect
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Discovery - Physical or Mental Exams
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Only available via court order
M/make showing that party’s health is in actual controversy AND GC Person examined can get a copy, but waives doctor/patient privilege w/r/t reports about that particular condition |
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Discovery - Requests to Produce
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To parties or non-parties (w/ subpoena)
Request to make available for review and copying various documents or things – or to permit entry onto a designated property for inspection M/respond w/in 30d of service w/ either statement of production or objection |
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Discovery - Interrogatories
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Produced to other party (ONLY) in writing to be answered in writing under oath
M/respond w/in 30d C/n serve more than 25 (w/ subparts) u/l ct order or stipulation Can allow access to business records if burdensome and answer c/b found there Can say "d/n/k" after reasonable investigation C/n use your own answers at trial |
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Discovery - Deposition Limitations
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Cannot take more than 10
Cannot depose same person twice w/o court approval or stipulation Cannot exceed 1d of 7h u/l court order or stipulation Cannot require non-party to travel more than 100 miles from her residence/place of regularly transacted business |
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Discovery - Deposition Use at Trial
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Impeach deponent
Any purpose of deponent is adverse party Any purpose if deponent is unavailable for trail (includes non-party) u/l absence was procured by party seeking to introduce E |
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Discovery - Depositions Generally
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Parties'/Non-Parties' sworn oral testimony in response to counsel/pro se questions recorded by sounds, video, stenographically
Subpoena non-parties, otherwise they d/n/h to show up (duces tecum = documents) Notice of deposition properly served is sufficient to compel parties’ attendance Notice/subpoena to a business may require it to designate the right person for deposition |
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Discovery - Scope
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Relevant to claim or defense = reasonably calculated to lead to discovery of admissible E
Privileged matter NOT discoverable! |
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Discovery - Work Product
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Trial Prep Materials (in anticipation of litigation) = not discoverable u/l
- substantial need AND - not otherwise available Absolutely Protected - mental impressions - opinions - conclusions - legal theories |
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Discovery - Experts
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Consulting experts NOT discoverable u/l exceptional need (not available elsewhere)
M/produce information about experts who m/b used w/o party's request - can depose any whose opinions m/b used at trial. |
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Discovery - Enforcement
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Protective Order
a. Receiving party seeks b/c request is overburdensome or involves electronically stored information not reasonably accessible (i.e. deleted files), or trade secrets b. Seek order limiting disclosure to the litigation Partial Violation a. Receiving party answers some, objects to others = partial violation if objections not upheld b. Light sanction expected = order compelling answer; if order violated = sanctions, costs, fees and maybe contempt Total Violation a. Receiving party completely fails to attend deposition, respond b. Heavy sanction expected = RAMBO (establishment that facts are true, strike pleadings w/r/t issues of discovery, disallow their E w/r/t issues of discovery, dismissal if BF shown, default judgment if BF shown |
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Joinder - Permissive
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Assess whether claims against parties seeking joinder:
1. Arise from same T/O AND 2. Raise at least one common question Assess whether the case invokes SMJ |
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Joinder - Necessary and Indispensable Parties
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Absentee Necessary if:
- W/o her court c/n accord complete relief - A's interest m/b harmed w/o joinder - A claims interest which subjects a party to multiple obligations M/b Feasible - PJ over A AND - Joining A w/n destroy diversity |
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Joinder - Unfeasible to Join N & I Party
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Court may proceed w/o A or dismiss (indispensable!)
- Alternative forum available? - Actual likelihood of prejudice - Can court shape relief to avoid the prejudice? |
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Intervention
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M/b timely and court can realign her
Of Right - A's interest m/b harmed if not joined and her interest not currently adequately represented Permissive - A's claim/defense and pending case have at least one common question - discretionary - okay u/l delay or prejudice |
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Class Actions - Requirements
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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 typical of those of the class AND Representative is adequate = will fairly and adequately represent the class |
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Class Actions - Types
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Type 1 = Prejudice = class treatment necessary to avoid harm to either class members or party opposing class (rare)
Type 2 = Injunction or Declaratory Judgment sought b/c class was treated alike by other party (ET discrimination) Type 3 = Damages - Common questions predominate over individual questions AND - CA is the superior method to handle dispute (i.e. mass tort) |
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Class Actions - Certification
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Ct M/decide at "early, practicable time"
If Certified, Ct Must: - define class and claims, issues or defenses - appoint class counsel - give notice - Class 3 = can opt out, but bound if do not; can enter separate appearance through counsel - Not required for Types 1 or 2 |
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Class Actions - Settlement/Dismissal
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M/h court approval
All class M/b/g notice for feedback Type 3 get second opportunity to opt out |
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Class Actions - SMJ
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Representative's citizenship
AIC = d/n care about other members b/c representative's AIC M/b +$75k |
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Class Action Fairness Act of 2005
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Separate grant of SMJ from regular diversity = allowed if any member is of diverse citizenship from any D and the aggregated claims of the class exceed $5m
Make it easier for interstate CAs to go to federal court Includes complicated provisions for mostly local classes to stay out of federal court (dismissed or remanded to state) |
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Failure to State a Claim
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Sufficiency of P's allegations - assuming all are true (well pleaded complaint!)
Court looks at the face of C only If made after D's A = Motion for Judgment on the Pleadings Note = if matters outside pleading are presented and not excluded by court, treated as SJ motion |
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Summary Judgment
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No GI/MF and entitled to judgment as MOL
Ct looks at E (not pleadings, not hearsay) in light most favorable to non-movant |
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Conferences
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FRCP 26(f) Conference = at least 21d before scheduling conference where parties discuss claims, defenses and settlement, potential difficulties discovering electronically stored info
- M/form discovery plan and present to court in writing w/in 14d Pretrial Conferences - If necessary to expedite case and foster settlement - Final PTC determines issues to be tried and E to be proffered - Pretrial Conference order essentially supersedes the pleadings - C/b amended “to prevent manifest injustice” - Roadmap of issues to be tried, E to be presented at trial (no surprises!) |
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Scheduling Order
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Court enters an order scheduling cut offs for joinder, discovery, amendment, motions, etc., u/l local rule or court order says otherwise
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Jury Trials
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Right to one in Federal court - 7th A - for civil actions at law, not equity
- If joint, jury usually goes first Demand = M/b in writing 10d after service of last pleading raising a triable jury issue |
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Jury Selection
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Unlimited strikes for cause (bias, prejudice, relation to party)
Three peremptories - race and gender neutral (state action!) |
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Motion for Judgment as a Matter of Law
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Formerly DV
Takes case from jury - after other side h/b heard (D c/move twice) Granted if RPs c/n disagree on the result |
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Renewed Motion for Judgment as a Matter of Law
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Formerly JNOV
M/h moved for JMOL at trial Judge let case to jury, enters judgment based on verdict and losing party files to get an entry for her w/in 10d of entry Granted if RPs c/n disagree on the result |
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Motion for New Trial
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Errors at trial = anything making judge think parties should re-try
M/b made w/in 10d of judgment Grounds include - prejudicial (not harmless!) error making judgment unfair (jury instruction, E ruling, etc.) - new E that c/n/h/b obtained for original trial - prejudicial conduct of party, attorney, 3P or juror - judgment is against weight of E |
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Final Judgment Rule
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Appeal ONLY from final judgments (ultimate decision on merits)
Notice of Appeal M/b filed w/in 30d of entry of final judgment |
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Interlocutory Review - Interlocutory Orders as of Right
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Interlocutory Orders as of Right
- Granting, modifying, refusing, etc., injunctions - Appointing, refusing to appoint receivers - Findings of patent infringement where only an accounting is left to be accomplished by TC - Orders affecting possession of property (attachments) |
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Interlocutory Appeals Act
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Allows appeal of non-final order if Trial Judge certifies it involves controlling issue of law as to which there is substantial ground for difference of opinion AND CA agrees to hear it
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Interlocutory Review - Collateral Order Exception
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CA has discretion to hear ruling on issue if:
- It is distinct form the merits of the case - Involves an important legal question AND - Is essentially unreviewable if parties M/wait for final judgment (ex: claim of immunity from suit) |
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Interlocutory Review - Multiple Claims/Parties
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TC may expressly direct entry of final judgment as to one or more if it makes an express finding that there is no just reason for delay
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Interlocutory Review - Extraordinary Writ
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Not technically appeal = original proceeding in appellate court to compel trial judge to make or vacate a particular order
Not a substitute for appeal – available only to enforce a clear legal duty |
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Res Judicata - Claim Preclusion
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Same claimant against same D (not just same parties)
Case 1 ended in a valid final judgment on the merits - Except where based on: jdxn, venue, or indispensible parties Case 1 and Case 2 asserted the same claim - Majority and PA view = a claim is any right to relief arising from a T/O - Minority view = separate claims for property damage and for personal injuries b/c those are different “primary rights” |
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Collateral Estoppel - Issue Preclusion
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Precludes re-litigation of a particular issue litigated and determined earlier
Requirements - Case 1 ended in valid, final judgment on merits - Same issue actually litigated and determined - Issue essential to judgment in case 1 - Mutality = asserted only by someone who was party to case 1 (some courts reject) |
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Non-Mutual Defensive Issue Preclusion
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Not a party to Case 1 and now D
- Usually not allowed under mutuality rule - Most courts now allow (federal and PA) if the person against whom it is asserted had a full chance to litigate under case 1 |
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Non-Mutual Offensive Issue Preclusion
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Not a party in Case 1 and now P
Usually and most courts w/n allow - trend is to allow so long as not unfair - Full/fair opportunity of now-D to litigate in Case 1 - Now-D could foresee multiple suits - Now-P c/n/h easily joined Case 1 - No inconsistent judgments on record |
