Federal Civil Procedure

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Personal Jurisdiction-Generally

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Court's power over the parties. B/c P filed case, court automatically has power of P. Big question is PJ over D. PJ involves one question: Can P sue D in this state?

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Personal Jurisdiction-General Jurisdiction

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If D is "at home" in forum (domiciled there-can only have one).

Corporations: Place of Incorporation and PPB

Parnterships: Where all partners are domiciled

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Personal Jurisdiction-Two-Step Analysis

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1. Satisfy a statute AND

2. Satisfy the Constitution (Due Process).

This analysis is the same in both federal and state court.

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Personal Jurisdiction-In Personam Jurisdiction

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P sues to impose personal obligation on D. Each state is free to have its own statutes for in personam jurisdiction. B/c they vary, content of such statute isn't testable on MBE.

Constitutional Analysis: Does D have "such minimum contacts w/ forum so jurisdiction doesn't offend traditional notions of fair play and substantial justice?" PJ is clearly constitutional if D is: 1) Domiciled in forum state, 2) Consents, or 3) Is voluntarily present in forum when served w/ process (if there b/c of court order, not voluntarily there).

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Personal Jurisdiction-In Rem Jurisdiction

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Exists when ct has power to adjudicate rights of all persons in world w/ respect to particular item of property.

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Personal Jurisdiction-Quasi In Rem Jurisdiction

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Exists when court has power to determine rights of particular individuals with respect to specific property within court's control. Unlike in rem jurisdiction, quasi in rem jurisdiction doesn't permit court to determine rights of all persons in the world. Quasi in rem judgment doesn't bind D personally and can't enforced against any other property belonging to D.

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Personal Jurisdiction Constitutional Factors-Contact

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Must be relevant contact b/w D and forum state. Contact must result from purposeful availment: D's voluntary act (e.g., made money in forum, used roads, there, marketed product there, or sent tortious e-mail to P there; can purposefully avail w/o setting foot in forum). Foreseeability: It must be foreseeable that D could get sued in forum.

Purposeful Availment and Foreseeability

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Personal Jurisdiction Constitutional Factors-Relatedness

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B/w this contact and P's claim. Ask: Does P's claim arise from D's contact w/ forum? If yes then specific PJ. For general PJ, D must be at home in the forum (where domiciled)

For corps:

1) where incorporated; and 2) principal place of business (nerve center/headquartered/where directors, officers and such direct, control and conduct business)

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Personal Jurisdiction Constitutional Factors-Fairness

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Exercise of jurisdiction must not offend traditional notions of fair play and substantial justice. Factors: Whether claim arises from D's contacts w/ forum; Convenience to D; Unless it is so gravely difficult and inconvenient that D is put at severe disadvantage; forum state must have legitimate interest in providing redress for its resident; P's interest in obtaining convenient and effective relief; interstate judicial system's interest in efficiency; shared interest of states in furthering social policies.

Assessed only in specific personal jurisdiction cases!

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Personal Jurisdiction Constitutional Factors-Notice

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DP requirement that reasonable method be used to notify D of pending lawsuit so that she may have an opportunity to appear and be heard.

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Personal Jurisdiction Constitutional Factors-Notice-Requirement that Agent Notify Defendant

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If P appointed D's agent for service of process under a k right for P's benefit or appointment is by operation of law, the agent's failure to notify D will prohibit jurisdiction.

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Personal Jurisdiction Constitutional Factors-Notice-Requirements for Cases Involving Multiple or Unknown Parties

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When there are multiple or unknown parties, best practical methods of notice available must be used. However, if certified mail is used, and mail is returned as unclaimed, P can't proceed in face of such knowledge when other practicable means to serve D exist.

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Subject Matter Jurisdiction

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Court's power over the case.

Fed Courts have limited SMJ, so they can only hear certain types of cases. Two main types: 1) Diversity of citizenship includes alienage); 2) Federal question

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SMJ-Diversity of Citizenship

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Requires:

1) Case is either b/w citizens of different states or (b) b/w a citizen of a state (DC is state) and a citizen of a foreign country (alienage) AND

2) Amount in controversy exceeds $75,000.

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SMJ-Diversity of Citizenship-Interpleader Exception

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Federal interpleader statute exception where "minimal diversity" and an amount in controversy of $500 or more are sufficient to confer jurisdiction.

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SMJ-Diversity of Citizenship-Alienage Jurisdiction

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Fed court has SMJ over disputes b/w citizen of U.S. state an an alien. However, jurisdiction is denied when alien has been admitted to US for permanent residence and is domiciled in same state as U.S. citizen-opponent. No fed jurisdiction over an action by alien against an alien, but aliens may appear as add'l parties as long as there are citizens of US on both sides of controversy.

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SMJ-Diversity of Citizenship-Diversity When Action Commenced

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Must exist as of time suit is instituted. Need not exist at time cause of action arose, and not defeated if, after commencement of action, a party later becomes citizen of same state as one of his opponents.

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SMJ-Questions of Citizenship-Individuals

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Depends on permanent home to which he intends to return. Takes two things: Physical presence AND intent to make that your permanent home.

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SMJ-Questions of Citizenship-Corporations

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Deemed a citizen of every U.S. state and foreign country in which it is incorporated and one U.S. state or foreign country in which it has its PPB. Corporation's PPB is U.S. state or foreign country from which its high level officers direct, control, and coordinate its activities, which will usually be U.S. state or foreign country in which its corporate headquarters are located.

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SMJ-Questions of Citizenship-Corporations-Incorporation or PPB in Foreign Country

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B/c of potential of multiple citizenships for corp, a corp might simultaneously be an alien and a citizen of U.S. state. Fact that corporation is an alien will defeat jurisdiction in suit against other alien, even though corp may also have U.S. state citizenship.

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SMJ-Questions of Citizenship-Unincorporated Associations and LLCs

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For diversity purposes, an unincorporated association, such as a partnership or labor union, is considered a citizen of which any member is a citizen. An LLC is treated like an unincorporated ass'n for citizenship purposes.

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SMJ-Questions of Citizenship-Legal Representatives

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Legal rep of estate of a decedent, an infant, or an incompetent is deemed to have same citizenship as decedent, infant, or incompetent.

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SMJ-Questions of Citizenship-Class Actions

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Diversity is determined on basis of citizenship of named members of class who are suing. Usually class representative.

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SMJ-Collusion and Devices to Create Diversity

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If party attempts to create diversity by sham transaction, such as assigning claim for collection purposes only to create diversity, courts look through transaction and declare that diversity doesn't exist.

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SMJ-Collusion and Devices to Create Diversity-Class Actions and Voluntary Changes of Citizenship

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In class action suits, diversity may be created by properly selecting named Ps to bring action on behalf of others. P can also create diversity by changing his state citizenship after cause of action accrued but before suit is commenced; however, change must be genuine and not temporary.

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SMJ-Shareholder Derivative Actions

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Ct will realign corporation as D to determine diversity.

Front 27

SMJ-Supplemental Jurisdiction

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Under its supplemental jurisdiction, court may entertain claims that could not, by themselves, invoke federal question jurisdiction or diversity jurisdiction of claims that arise from common nucleus of operative fact as claim that invoked original federal subject matter jurisdiction.

Limitation: In diversity cases, P can't use supplemental jurisdiction to overcome lack of diversity.

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SMJ-Joinder or Subsequent Addition of Parties

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A claim by or against an additional party must satisfy some basis of fed SMJ such as diversity or federal question jurisdiction. If claim doesn't satisfy either of these, it might invoke supplemental jurisdiction if common nucleus test can be satisfied. however, for cases that are in fed ct based solely on diversity, supplemental juris may not be used to support claims (i) by Ps against impleaded parties, compulsorily or permissivley joined parties, or intervening parties; (ii) by persons who are to be compulsorily joined as Ps; and (iii) by persons seeking to intervene as Ps.

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SMJ-Joinder or Subsequent Addition of Parties-Intervention

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Under supplemental jurisdiction statute, no supplemental jurisdiction for claims by or against intervenors in diversity cases, and such claim can proceed only if an independent basis for jurisdiction can be shown.

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SMJ-Joinder or Subsequent Addition of Parties-Substitution of Parties

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When party is substituted, citizenship of substituted party is disregarded and that of original party controls; thus, diversity jurisdiction isn't affected. Compare: If party is replaced (e.g., b/c P sued wrong party) rather than substituted, citizenship of replacement party controls, and diversity jurisdiction could be lost.

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SMJ-Joinder or Subsequent Addition of Parties-Third-Party Practice-Impleader

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Generally, no diversity or specific amount in controversy is required in third party practice b/w 3rd party D and 3rd party P or original P unless P asserts claim against third-party D.

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SMJ-Joinder or Subsequent Addition of Parties-Cross Claims

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Cross-claim is claim by one co-party against another, and it may be asserted if claim arises from same transaction or occurrence as underlying dispute. If cross-claimant doesn't have independent subject matter basis (i.e., diversity of citizenship or federal question jurisdiction), cross claim may nonetheless be asserted in fed court through supplemental (ancillary) jurisdiction.

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SMJ-Jurisdiction Amount

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In EXCESS of $75,000. Amount is determined from P's good faith allegation. Complaint can be dismissed only if appears there is no legal possibility of recovery exceeding jurisdictional amount. Jurisdiction is not retroactively defeated by fact that amount actually recovered is less than jurisdictional amount.

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SMJ-Jurisdiction Amount-"In Controversy"

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Collateral consequences of judgment may not be considered. Interest and costs are also excluded. However, attorneys' fees that are recoverable by k or by statute are considered part of matter in controversy. Interest that constitutes a part of claim itself, as distinguished from interest payable by virtue of delay in payment, is also part of jurisdictional amount. Punitive damage claim permitted under state substantive law may be used in meeting dollar amount requirement.

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SMJ-Jurisdiction Amount-Aggregation of Separate Claims

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For purposes of meeting jurisdictional amount, P may aggregate all her claims against single D. P who has an action against several Ds cannot aggregate liabilities based on separate claims or concurrent liabilities. Several Ps can aggregate their claims only if they are seeking to enforce a single title or right in which they have a common or undivided interest.

Front 36

SMJ-Jurisdiction Amount-Supplemental Jurisdiction Over Claims Not Exceeding $75k in Diversity Cases

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Claims that don't meet amount in controversy requirement may invoke supplement jurisdiction if they arise from same nucleus of operative fact as claim that invoked diversity of citizenship jurisdiction. However, supplemental jurisdiction can't be used to override complete diversity requirement.

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SMJ-Jurisdiction Amount-Counterclaims

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-D's counterclaim can't be combined w/ P's claim to reach jurisdictional amount.

-Compulsory counterclaim need not meet jurisdictional amount requirement, as court may hear it under its supplemental jurisdiction.

-However, permissive counterclaim (one arising out of completely unrelated transaction) must have independent jurisdictional basis, and thus must meet jurisdictional amount requirement.

Front 38

SMJ-Jurisdiction Amount-Counterclaims-Removal from State Courts

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P who claims $75k or less in state ct action who is met w/ counterclaim for more than $75k may not remove suit to fed court, regardless of whether counterclaim is compulsory or permissive, b/c removal is permitted only by Ds. Also, P w/ small claim can require D w/ large claim to litigate it in state court simply by being first to file. Even though this is traditional rule, there is trend allowing removal.

Front 39

SMJ-Erie Doctrine

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Fed court in a diversity case will apply its own procedural law, but must apply substantive law of state in which it is sitting.

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SMJ-Erie Doctrine-Federal Statutes or FRCP

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First question: Is there a federal law on point? If so, it applies if valid.

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SMJ-Erie Doctrine-If No Federal Statute or Rule on Point, Is Issue Substantive or Procedural?

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If no federal statute or rule on point, federal judge may refuse to follow state law rule if matter is procedural rather than substantive. SOLs, rules for tolling SOLs, choice of law rules, and elements of a claim or defense are clearly substantive. Outside of these areas, the court will use an outcome determinative test (issue is substantive if it substantially affects outcome), a balance of interest (if state has greater interest, issue is substantive), or forum shopping deterrence (if failing to apply state law would increase litigation in fed court, issue is substantive) to decide whether an issue is substantive or procedural.

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SMJ-Erie Doctrine-If No Federal Statute or Rule on Point, Is Issue Substantive or Procedural?-Conflicts of Law Issues

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There can be 2 issues presented in conflicts of laws problem. First involves determining whether federal or state law applies. Second issue involves determining which state's laws apply. Both questions are often resolved using substantive and procedural language, but a determination that law is substantive for federal v. state question doesn't mean it has to be substantive for state v. state question.

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SMJ-Erie Doctrine-Statutes Involving Both Substance and Procedure

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Sometimes, state statute or rule may contain both substantive and procedural elements. In such case, fed court will apply state substantive provisions and federal procedural provisions.

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SMJ-Erie Doctrine-Interpreting State Law

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Fed court is bound to apply substantive state law that would be applied by highest court of state. On appeal, federal appellate court reviews federal trial's decision as to state law de novo. If highest state court renders a decision on an issue after fed court has made its determination, decision of trial court may be changed to conform to new decision up until disposition of final appeal.

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SMJ-Federal Common Law-Interpretation

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Fed courts create substantive rules of fed law when interpreting meaning of fed statutes or Fed Constitution.

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SMJ-Federal Common Law-Creating Rules to Fill Gaps in Fed Regulatory Schemes

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Fed courts can fill in rules based on determination that Congress has expressly or by implication authorized fed courts to do so for purpose of filling in gaps or silences in a fed regulatory statute. In doing so, court may borrow standard used by majority of states, or, if there is little need for federal uniformity and parties might expect state law to apply, it might borrow standard of individual state.

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SMJ-Federal Common Law-When Fed Courts Create Federal Implied Rights of Action

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In some decisions, federal courts have exercised authority to provide judicial recognition for implied remedies in form of causes of action that aren't specified in fed statutes or fed constitutional provisions that establish particular rights.

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SMJ-Federal Common Law-When Fed Courts Create Federal Implied Rights of Action-Implied Right of Action Based on Fed Statute

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More recently, fed courts have required showing of affirmative congressional intent for implied remedies in fed statutes, absence of which led to judicial rejection of an implied cause of action under nondiscrimination provisions of Title VI of Civil Rights Act.

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SMJ-Federal Common Law-When Fed Courts Create Federal Implied Rights of Action-Implied Right of Action Based on Constitution

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Fed courts have recognized several implied causes of action for damages against fed officials for violation of particular constitutional rights. These rights include 4th Amendment protection from unreasonable searches and seizures, EP right to nondiscrimination on basis of gender under 5th Amendment, and right of prisoner to not be denied medical treatment under 8th Amendment's prohibition on cruel/unusual punishment. In other cases, fed courts have declined to recognize add'l implied remedies based on existence of alternate fed statutory remedies.

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SMJ-Exceptions to Diversity of Citizenship Jurisdiction

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Federal court won't hear divorce, alimony, child custody, and probate cases. To fall w/i probate exception, claim asserted must involve actual probate or annulment of will, or seek to reach property in custody of a state probate court.

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SMJ-Multiparty, Multiforum Trial Jurisdiction Act

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Applies to accidents in which at least 75 people have died from single accident at discrete location. Min diversity required; i.e., 1 P must be of diverse citizenship of 1 D. 1 of 3 other conditions must be met: (i) D must reside in diff state from place where substantial part of accident took place; (ii) any 2 Ds must reside in diff states; or (iii) substantial parts of accidents must have taken place in diff states. Finally, anyone w/ claim arising from accident is permitted to intervene as P even if couldn't have maintained an action in district in which case is pending, and nationwide service of process is allowed.

Front 52

Federal Question Jurisdiction-Federal Question Must Appear in Complaint

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District courts have original juris over all civil actions arising under Constitution, laws, or treaties of US. Fed question must appear as part of P's cause of action as set out in well-pleaded complaint. Existence of defense based on fed law won't create fed question juris. A complaint doesn't raise fed question if it does so only in anticipation of some defense.

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Federal Question Jurisdiction-Implied Federal Right of Action

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It isn't essential that fed statute expressly provide for civil cause of action for a violation.

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Federal Question Jurisdiction-Federal Corporations

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Fed question jurisdiction doesn't arise merely from fact that corporate party was incorporated by act of Congress unless US owns more than 1/2 corporation's stock.

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Federal Question Jurisdiction-Supplemental Jurisdiction Over State Claims-Pendent Claims

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If P has both fed and state claims, fed court has discretion to exercise supplemental (pendent) jurisdiction over claim based on state law if 2 claims derive from common nucleus of operative fact and are such that P would ordinarily be expected to try them all in 1 judicial proceeding.

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Federal Question Jurisdiction-Supplemental Jurisdiction Over State Claims-Pendent Claims-Effect of Dismissal of Fed Claim on Pendent Claim

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Court may exercise pendent juris over state claim even if fed claim is dismissed on merits. however, state claim should probably also be dismissed w/o prejudice if fed claim is dismissed before trial.

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Federal Question Jurisdiction-Supplemental Jurisdiction Over State Claims-Pendent Party

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Can arise in cases in which (i) P sues more than 1 D, (ii) there is fed juris over claim against 1 D, and (iii) claim against 2nd D doesn't invoke fed question or diversity of citizenship juris. Claim against 2nd D might invoke supplemental juris if it arises from some nucleus of common fact as claim against D. Pendent party juris can also arise when multiple Ps assert claims against 1 D. Here, assuming again 2nd P's claim is derived from common nucleus of operative fact, 2nd P might invoke supplemental juris to support state law claim in fed question case.

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Federal Question Jurisdiction-Specific Statutory Grants

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No amount in controversy requirement in fed question cases (w/ limited exception for cases brought against private parties under Consumer Product Safety Act). Juris of fed courts is exclusive of state courts in (i) bankruptcy proceedings; (ii) patent and copyright cases; (iii) many cases where US is involved; (iv) cases where consuls and vice-consuls are sued as Ds; (v) antitrust cases; (vi) actions against foreign states removed from state courts to fed court; (vii) postal matters; (viii) IRS cases; (ix) Securities Exchange Act cases; and (x) admiralty cases (only in lim of liability proceedings and maritime actions in rem)

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Venue-General Rules

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Venue in civil actions in fed courts is proper in:

1. Judicial district where any D resides, if all Ds reside in same state;

2. Judicial district in which substantial part of events or omissions giving rise to claim occurred, or substantial part of property that is subject of action is situated; OR

3. If there is no district anywhere in US that satisfies 1 or 2, judicial district in which any D is subject to personal juris w/ respect to such action.

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Venue-Residence-Individuals

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For venue purposes, an individual, including an alien lawfully admitted for perm residence in US, resides in judicial district in which he is domiciled.

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Venue-Residence-Business Entities

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Entity w/ capacity to sue and be sued in its common name under applicable law, whether or not incorporated, is deemed to reside in any judicial district in which it is subject to court's personal juris w/ respect to civil action in question.

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Venue-Residence-Nonresident of US

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Whether citizen or alien, may be sued in any judicial district. Joinder of such D, however, is disregarded in determining where action may be brought w/ respect to any other Ds.

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Venue-Improper Venue May be Waived

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Venue may be waived by parties. Venue is considered to be waived unless timely objection is made to improper venue.

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Venue-Transfer

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If venue is proper, court may nonetheless transfer case for convenience of parties or witnesses to any court where it could have originally been filed (meaning that transferee forum must have SMJ, PJ over Ds, and venue must be proper). Alternatively, all parties may consent to transfer to particular district. If original venue is improper, ct must dismiss, or, in interests of justice, transfer case to venue in which it could have been brought. Transfer is more appropriate than dismissal except in extraordinary circumstances. Ct doesn't have to have PJ to transfer.

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Venue-Transfer-Effect of Forum Selection Clauses

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Forum selection clause will be enforced by means of motion to transfer in interests of justice unless exceptional public interest factors dictate otherwise.

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Venue-Law Applicable Upon Transfer

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If original venue was proper, apply law of state in which transferor court sits. If original venue was improper, apply law of state in which transferee court sits.

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Removal Jurisdiction-Original Jurisdiction Necessary

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An action originally filed in state court may be removed by D to fed court if: (i) case could have originally been filed in fed court; and (ii) for cases removed on basis of diversity, no D is citizen of state where action is filed. Prevailing rule is that juris is tested as of date of removal.

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Removal Jurisdiction-Original Jurisdiction Necessary-Federal Defense Insufficient

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D can't remove on basis that he has a defense grounded in fed law, since existence of fed defense is insufficient to confer original fed question jurisdiction.

Front 69

Removal Jurisdiction-Original Jurisdiction Necessary-State Court Need Not Have Had Jurisdiction

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Even when state court has no juris b/c action is exclusively fed, fed court may hear and decide case under its removal juris.

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Removal Jurisdiction-Only Defendant May Remove

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Only Ds can exercise right of removal. If more than 1 D, all Ds who have been properly joined and served must join in petition for removal.

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Removal Jurisdiction-Venue

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Venue lies in fed district court embracing place where such state action is pending.

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Removal Jurisdiction-Defendant May Remove Separate and Independent Federal Question Claim

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If case filed in state court contains claim that would arise under fed law, and it's joined w/ state law claims that do not invoke diversity or supplemental juris, the entire case can be removed to fed court. Fed court, however, must then sever and remand state law claims to state court. Only those Ds against whom a federal claim is asserted must join in removal.

Front 73

Removal Jurisdiction-Dismissal of Nondiverse Party Allows Removal

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If no fed question is involved and diversity doesn't exist b/c party is co-citizen of opposing party, removal will be permitted if non diverse parties are thereafter dismissed from action and there's complete diversity b/w remaining parties, subject to some limitations.

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Removal Jurisdiction-Limitations on Removal in Diversity of Citizenship Cases

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When juris of fed ct is based on diversity and 1 of Ds is citizen of state in which state action was brought, action isn't removable. Also, case may not be removed on basis of diversity juris more than 1 yr after it was commenced in state ct unless district court has found that P has acted in bad faith (e.g., by intentionally failing to disclose true amount in controversy) in order to prevent D from removing action.

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Removal Jurisdiction-Procedure for Removal

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D seeking removal must file notice of removal in fed district court in district and division within which state action is pending. Copy of notice should be sent to other parties and to state court. Once this is done, state court can no longer deal with case.

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Removal Jurisdiction-Procedure for Removal-Allegation of Amount in Controversy

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If removal is based on diversity, and P is seeking non monetary relief or isn't required to state an amount in controversy, or recovery may be in excess of damages stated, D may state that amount in controversy exceeds $75k, and district court may keep case if it finds, by prep of ev, that amount does exceed $75k.

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Removal Jurisdiction-Procedure for Removal-Time

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Notice of removal must be file w/i 30 days after D receives notice, through service of summons, pleading, amended pleading, etc., that case is or has become removable. If Ds are served at diff times, and later served D initiates timely removal, earlier served D may join in removal even though his 30 day period for initating removal may have expired.

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Removal Jurisdiction-Procedure for Removal-Remand

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P can file motion to have case remanded to state court. A case will be remanded if no fed juris. Fed court has discretion to remand a case to state court once all federal claims have been resolved, leaving only state claims over which there is no diversity jurisdiction.

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Conflict of Jurisdiction b/w State and Federal Courts-Full Faith and Credit

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Fed statute provides that Full Faith and Credit Clause extends to fed courts. Therefore, recognition of judgment is required b/w state and fed courts and b/w fed courts.

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Conflict of Jurisdiction b/w State and Federal Courts-Injunctions Against State Court Proceedings-Pending State Proceedings

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Fed court generally is prohibited from enjoining a pending state court proceeding unless expressly authorized by statute or when necessary in aid of its juris, or to protect or effectuate its judgments. If state action isn't enjoined, case coming to final decision first will have preclusive effect on the other.

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Conflict of Jurisdiction b/w State and Federal Courts-Injunctions Against State Court Proceedings-Threatened State Proceedings

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Fed courts may not enjoin a threatened state crim proceeding unless irreparable harm is clear and imminent (usually limited to showing of serious interference w/ FA rights) and appellate remedy is clearly inadequate to provide relief.

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Federal Rules of Civil Procedure-Commencement of Action

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Action is commenced by filling complaint w/ ct. This filing will satisfy SOL in fed question cases and in diversity cases where state rule is similar. If state rule is that action is commenced, for SOL purposes, only upon service of process, that rule must be applied in a diversity case.

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Federal Rules of Civil Procedure-Service of Process-How Service is Made

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Any person who is at least 18 yrs old and not party to action may serve process. Personal service, service left at D's usual place of abode w/ one of suitable age and discretion residing therein, or service upon an authorized agent of D are valid forms of SOP. Alternatively, service may be made as provided by state rules. Finally, P may request D to waive service by mailing him request to do so. U.S.-based D who doesn't waive service on such request will become liable for costs of service unless he had good cause for failing to waive service.

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Service of Process-Parties Served Outside State

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Court will also acquire PJ over parties served outside state: (i) under state's statutes and rules for extraterritorial service; (ii) if they are 3rd party Ds or required to be joined for just adjudication, if served w/i 100 miles from place where action is pending; (iii) if out of state service is permitted by fed statute (e.g., interpleader); and (iv) for cases that involve fed question, if D is served w/ process, provided that he isn't subject to general juris in any state, that he has sufficient contacts w/ US and that jurisdiction isn't prohibited by statute.

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Service of Process-Parties Served in Foreign Country

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Party may be served in foreign country: (i) as provided in an int'l ag; (ii) in absence of an ag, as provided by foreign country's law or as directed by foreign official; (iii) by personal service or mail (return receipt requested), unless prohibited by foreign country's laws; or (iv) by any method court orders that isn't prohibited by international ag.

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Service of Process-Immunity from Process

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Fed courts recognize immunity from SOP of parties, witnesses, and attorneys who enter state to appear in another action. In addition, if party was induced by P's fraud or deceit to enter state so that he could be served, service is invalid to confer PJ.

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Federal Rules of Civil Procedure-Extension of Time Periods

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District ct may extend time periods. Certain time periods may never be extended: renewed motion for JMOL, motion to amend judgment, and motion for new trial, all of which must be filed w/i 28 days of entry of judgment, and motions for relief from judgment.

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Federal Rules of Civil Procedure-Provisional Remedies

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Provide for pretrial seizure of property for purpose of securing satisfaction of judgment that may be entered in case. Some of more common remedies are: garnishment (i.e., court order directing that money or property in hands of third party to be seized); attachment (i.e., process by which another's property is seized in accordance w/ writ or judicial order for purpose of securing judgment yet to be entered); and replevin (i.e., process by which P takes possession of and holds disputed prop during lawsuit). Procedure is governed by state law and thus will vary. Generally, party seeking remedy must make out prima facie case on underlying claim and show that prop will likely not be available after trial if relief isn't granted.

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Federal Rules of Civil Procedure-Pleadings-Complaint

Back 89

Must state: grounds of fed juris; short statement of claim showing that pleader is entitled to relief; and a demand for judgment for relief, which may be in alternative. Supreme Court, in recent years, has required that P state facts supporting a plausible, not just possible, claim. Fraud or mistake must be stated w/ particularity, and time and place averments and special damages must be stated w/ specificity.

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Pleadings-Pre-Answer Motion-Motion to Dismiss

Back 90

D may file motion and raise any or all of following defenses: (i) Lack of SMJ; (ii) Lack of PJ; (iii) Improper venue; (iv) Insufficiency of process; (v) Insufficiency of SOP; (vi) Failure to state claim upon which relief can be granted; (vii) Failure to join indispensable party. D must raise defenses (ii)-(v) first time he files a motion or his answer--whichever is first. If he doesn't D waives these defenses. Defenses (vi) and (vii) can be made at any time prior to trial or at trial. Defense (i) can be raised at any time until all appeals have been exhausted. Motion to dismiss for failure to state case of action that raises issues outside of pleadings will be treated as Motion for SJ.

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Pleadings-Pre-Answer Motion-Motion for More Definite Statement

Back 91

Party may move for more definite statement before responding to pleading that's vague.

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Pleadings-Pre-Answer Motion-Motion to Strike

Back 92

Before responding to pleading, party may move to have stricken any insufficient defense for any redundant, immaterial, or scandalous matter.

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Pleadings-Answer

Back 93

Answer must contain specific denial or admission of each averment of complaint, or general denial w/ specific admissions of averments admitted may be made. If D is w/o knowledge or info sufficient to form a belief, statement to that effect constitutes a denial. Failure to deny constitutes an admission. Answer must also state any affirmative defenses D may have.

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Pleadings-Answer-Time

Back 94

If no pre-answer motion is made, D who was formally served must present an answer w/i 21 days after service; D who waives formal service must answer w/i 60 days after request for waiver was mailed to her. If pre-answer motion is made and ct doesn't fix another time, responsive pleading must be served w/i 14 days after service of more definite statement if court grants motion for one.

Front 95

Pleadings-Answer-Effect of Failure to Answer-Default and Default Judgment

Back 95

Default is notation in case filed by court clerk that there has been no answer filed w/i time permitted by rules. Default can be set aside by court. Clerk is also required to send all parties, and defaulting party, notice that default has been entered. Default judgment is judgment that is entered against D b/c he didn't oppose case. If defaulting D has appeared, he's entitled to at least 7 days prior to hearing on application for default judgment. Once default judgment has been entered, D loses ability to contest liability. However, he can appear at hearing for damages and contest amount of damages.

If default judgment is entered, D can argue judgment should be set aside for purposes of equity (e.g., in a case where P wins a default judgment of a significant amount of money, and a year later, the D inherits $3 million and is afraid that P will enforce the judgment).

Front 96

Pleadings-Counterclaims-Compulsory

Back 96

If claim arises from same t/o as P's claim, it must be pleaded as counterclaim or it will be thereafter barred. Note: Fed ct has ancillary (supplemental) juris over compulsory counterclaim that otherwise doesn't meet requirements for diversity of citizenship or fed question jurisdiction.

Front 97

Pleadings-Counterclaims-Permissive

Back 97

Any other claims D has against P may be asserted as permissive counterclaim if it meets jurisdictional requirements for filing claim in fed court.

Front 98

Pleadings-Reply

Back 98

Reply by P to D's answer is required if court orders P to file one. A p need not reply to an affirmative defense; he is deemed to deny or avoid allegation in defense.

Front 99

Pleadings-Inconsistent Claims or Defenses

Back 99

Party may set out as many alternative claims or defenses as he may have regardless of consistency.

Front 100

Pleadings-Amendments and Supplemental Pleadings

Back 100

Pleading may be amended once w/i 21 days of its service, or, if pleading is one to which responsive pleading is required, 21 days after service of responsive pleading or pre-answer motion. Thereafter, leave to amend is by consent or by leave of court, which must be freely given.

Front 101

Pleadings-Amendments and Supplemental Pleadings-Relation Back

Back 101

For SOL purposes, amendment to pleading that arises from same conduct, t/o that was set forth (or was attempted to be set forth) in original pleading generally is deemed filed on date that original pleading was filed.

Front 102

Pleadings-Amendments and Supplemental Pleadings-Changing Party

Back 102

Amendment naming new adverse party relates back if, w/i time for SOP, new party had sufficient notice of action to avoid prejudice and knew (or should have known) that, but for mistake concerning her identity, she would have been named originally.

Front 103

Pleadings-Amendments and Supplemental Pleadings-Supplemental Pleadings

Back 103

Which relate to matters occurring after original pleading was filed, require permission of court.

Front 104

Pleadings-Rule 11-Certification upon Presenting Paper to Court

Back 104

In fed civil cases, attorney (or unrepresented party), by presenting to ct a pleading, written motion, or other paper, certifies that to best of her knowledge, info, and belief formed after inquiry reasonable under circumstances: (i) paper isn't presented for any improper purpose (harassment, delay, etc.); (ii) legal contentions therein are warranted by existing law or non frivolous arg for modification of existing law or establishment of new law; (iii) allegations and factual contentions either have, or upon further investigation or discover, are likely to have, evidentiary support; and (iv) denials of factual contentions are warranted on ev or, if specified, are reasonably based on lack of info and belief.

Front 105

Pleadings-Rule 11-Sanctions

Back 105

Ct has discretion to impose sanctions against party who presents a paper to ct in violation of above requirements. Matter may be raised in either of 2 ways: (i) ct, on its own initiative, may enter order describing matter that appears to violate eR. 11 and direct proponent to show cause why sanctions shouldn't be imposed, or (ii) opposing party may serve motion of sanctions on proponent, and if proponent doesn't withdraw or correct matter w/i 21 days, opposing party may then file motion for sanctions w/ ct. Sanctions may consist of either non monetary directives or monetary penalties, including payment of expenses or attorneys' fees incurred b/c of improper paper. However, monetary sanction may not be imposed on represented party for violation of legal contains therein are warranted by existing law or non frivolous argument for modification of existing law or establishment of new law.

Front 106

Joinder of Parties-Compulsory Joinder (Indispensable Parties)

Back 106

In certain situations, P must joint all interested parties or face dismissal of lawsuit. Essentially has 3 questions:

1) Should absentee be joined?

2) Can absentee be joined? AND

3) If absent can't be joined, should the action proceed?

Front 107

Joinder of Parties-Compulsory Joinder (Indispensable Parties)-Question 1: Should Absentee be Joined?

Back 107

Absentee should be joined if:

(i) Complete relief can't be accorded among other parties to lawsuit in party's absence; OR

(ii) The absentee has such an interest in subject matter that decision in his absence will either impair or impede his ability to protect interest or leave any of other parties subject to substantial risk of incurring multiple or inconsistent obligations.

Front 108

Joinder of Parties-Compulsory Joinder (Indispensable Parties)-Question 2: Can the Absentee Be Joined?

Back 108

If court has PJ over absentee, and absentee's present wouldn't destroy SMJ (diversity juris) or venue, absentee can and must be joined.

Front 109

Joinder of Parties-Compulsory Joinder (Indispensable Parties)-Question 3: Should Action Proceed w/o the Absentee?

Back 109

If absentee can't be joined, court should look to: (i) extend of prejudice to absentee or available parties; (ii) extent to which such prejudice can be reduced or avoided (e.g., by shaping relief); (iii) the adequacy of a judgment rendered w/o absentee; and (iv) whether party will have an adequate remedy (e.g., in another form) if case is dismissed for nonjoinder.

Front 110

Joinder of Parties-Permissive Joinder

Back 110

Parties may join as Ps or be joined as Ds whenever: (i) some claim is made by each P and against each D relating to or arising out of same series of occurrences or transactions; and (ii) there is question of fact or law common to all parties. Rule permitting broad joinder doesn't alter requirements of jurisdiction; there must be complete diversity and each claim must satisfy jurisdictional amount, except that Ps w/ common undivided interest in claim exceeding $75k may join in asserting it even if there individual share in interest is $75k or less. However, there may be supplemental juris over claims by permissively joined Ps.

Front 111

Joinder of Claims

Back 111

P can join any number and type of claims against D; when multiple Ps or multiple Ds are involved, it is essential only that at least 1 of claims arise out of transaction in which all were involved. P may join 2 claims if success on 1st is prerequisite to 2nd. When juris is based on div of citizenship b/w P and D, P may aggregate all claims that he has against D to satisfy juris amount. When juris is based on fed question claim, nonfed claim can be joined only if regarded as part of same case or controversy as fed claim.

Front 112

Joinder of Claims-Class Actions-Requirements

Back 112

Under R. 23, class action is proper if: 1) class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact common to class; 3) named parties' interests are typical of class; 4) named parties will adequately represent interests of absent members of class; and 5) ONE of following situations is present: a) Sep actions would create risk of inconsistent results or impair interests of unnamed parties; b) D has acted or refused to act on grounds applicable to class and injunctive or declaratory relief is appropriate for class as whole; or c) Common questions of law or fact predominate over individual issues and class action is superior to alternate methods of adjudication.

Front 113

Joinder of Claims-Class Actions-Considerations in Treating the Case as Class Action

Back 113

Court should determine at an early practicable time whether to certify the class, but it can determine that class action isn't appropriate at any time. Considerations for whether to certify class: (i) interest of individual control; (ii) extent and nature of litigation elsewhere on same subject; (iii) desirability of joint trial; and (iv) difficulties in managing class action. When certifying class, court must define class and class claims, issues, or defenses. Court must also appoint class counsel, who must fairly and adequately rep interests of class.

Front 114

Joinder of Claims-Class Actions-Effect of Judgment

Back 114

All members of class will be bound by judgment rendered in class action except those in common question class action who notify court that they don't wish to be bound. If substantive claim of individual representing class is mooted, this doesn't render class action moot.

Front 115

Joinder of Claims-Class Actions-Notice

Back 115

Notice to all members of class is required only in common question suits so that class members can opt out. Notice to members of class action in other class suits is discretionary w/ court. Notice must state: (i) nature of action; (ii) definition of class; (iii) class claims, issues, or defenses; and (iv) binding effect of class judgment.

Front 116

Joinder of Claims-Class Actions-Jurisdiction

Back 116

In class actions founded on diversity, only citizenship of named representatives of class is taken into account to establish diversity. Any need class representative's claim generally must exceed $75k, as amount in controversy may aggregated only in rare situation in which claims of parties are joint or common. However, class members w/ claims not exceeding $75k may invoke supplemental juris as long as complete diversity isn't destroyed.

Front 117

Joinder of Claims-Class Actions-Court Approval

Back 117

Court must approve dismissal or settlement of class action. Class must satisfy requirements of certification before court can approve settlement. Notice of settlement also must be given. IN common question lass action, court may provide parties w/ 2nd opportunity to opt out. Fairness hearing also must be held.

Front 118

Joinder of Claims-Class Actions-Class Action Fairness Act

Back 118

SMJ is established if: (i) any class member (not just rep, but anyone in P class) is of diverse citizenship from any D; (ii) amount in controversy in aggregate (i.e., adding all class claims together) exceeds $5 million; and (iii) there are at least 100 members in proposed class or classes. Additionally, any D, rather than all Ds, may remove case from state to fed court. Moreover, case may be removed under CAFA even if D is citizen of forum.

Front 119

Joinder of Claims-Class Actions-CAFA-Excluded Actions

Back 119

No fed court juris under CAFA if primary Ds are states, state officials, or other gov entities against whom court may be foreclosed from ordering relief, or over class action that solely involves claim under fed securities laws or that relates to internal affairs of corp and is based on laws of state of incorporation.

Front 120

Joinder of Claims-Class Actions-CAFA-Local Considerations

Back 120

CAFA has some provisions designed to defeat juris in class actions that are relatively local in nature.

Front 121

Joinder of Claims-Class Actions-CAFA-Local Considerations-Mandatory Decline of Jurisdiction

Back 121

District ct must decline juris provided by CAFA if: (i) more than 2/3 of members of proposed P class are citizens of state in which action was filed; (ii) D from whom significant relief is sought as citizen of that state; (iii) principal injuries were incurred in state in which action was filed; and (iv) no similar class action has been filed w/i prior 3 years.

Front 122

Joinder of Claims-Class Actions-CAFA-Local Considerations-Discretionary Decline of Jurisdiction

Back 122

District court may decline jurisdiction provided by CAFA if more than 1/3 but less than 2/3 of proposed P class are citizens of state in which action was filed and primary Ds are also citizens of that state. In that case, ct considers whether (i) claims involve matters of national interest; (ii) claims will be governed by law of state in which it was filed; and (iii) state has a distinct nexus w/ class members, alleged harm, or Ds.

Front 123

Joinder of Claims-Shareholder Derivative Suits-Requirements

Back 123

Under R. 23.1, shareholder can sue to enforce right of corp that those in control of corp refuse to assert if she can allege and prove that: (i) she was shareholder at time of transaction complained of (or received her shares thereafter by operation of law); (ii) action is not collusive effort to confer juris on court that would otherwise lack; (iii) she made demand on directors and, if required by state law, on shareholders; or reasons why she didn't make such demands. For this requirement, facts must be pleaded w/ particularity. This rule, like Rule 23, requires that class representative be able to fairly and adequately represent class.

Front 124

Joinder of Claims-Shareholder Derivative Suits-Jurisdictional Amount and Venue

Back 124

Judgment in derivative action runs to corporation, and therefore jurisdictional amount looks to damages allegedly suffered by corp. Venue is proper wherever corporation could have sued same Ds (i.e., usually in state of incorporation).

Front 125

Joinder of Claims-Interpleader-Nature

Back 125

Interpleader suit is instituted by person in position of stakeholder to require adverse claimants to determine which has valid claim to stake. It applies if sep actions might result in double liability against stakeholder. Fed law has abolished common law requirements that stakeholder must admit liability to proper claimant and that claims have common origin.

Front 126

Joinder of Claims-Interpleader-Grounds

Back 126

2 Interpleader Procedures in fed courts: R. 22 interpleader and section 1335 interpleader. a) R. 22 interpleader requires (i) complete diversity b/w stakeholder and all adverse claimants and in excess of $75k in issue, or (ii) a federal question claim. Normal service and venue rules apply. b) Sec. 1335 interpleader requires only that 1 claimant must be diverse from one other and $500 be in issue. service may be nationwide and venue is proper where any claimant resides.

Front 127

Joinder of Claims-Intervention

Back 127

May be granted to party of right or permissively. Intervention of right is available whenever applicant claims an interest in prop or transaction that is subject matter of action, and disposition of action w/o him may impair his ability to protect that interest. W/ limited exceptions, there is no supplemental juris over claims by or against one seeking to intervene in diversity action. Permissive intervention is available when applicant's claim or defense and main action have question of fact or law in common; no direct personal or pecuniary interest is required. Permissive intervention must be supported by its own jurisdictional ground and is discretionary w/ court.

Front 128

Joinder of Claims-Third-Party Practice

Back 128

Defending party may implead nonparty who is or may be labile o him for any part of judgment that P may recover against him (e.g., claims based on indemnity). If fed question or div juris isn't available, supplemental juris probably would be available, b/c claim for indemnity will likely arise from common nucleus of fact as underlying claim. Additionally, venue need not be proper for 3rd party D. Defending party may also join any other claims she has against 3rd party D, and these claims would also need some juris basis. 3rd party D may assert defenses to P's original claim as well as defenses to 3rd party liability asserted against him. Ct may sever any 3rd party claim to be tried separately if that is just.

Front 129

Joinder of Claims-Cross-Claims

Back 129

Co-parties may assert claims against each other that arise out of same transaction or occurrence as main action by filing cross claims. Since cross-claim is related to existing action, it's commonly considered to come w/i court's supplemental juris.

Front 130

FRCP-Discovery-Duty of Disclosure

Back 130

R. 26 requires parties to disclose, w/o being asked, info to other parties about their case.

Front 131

Discovery-Duty of Disclosure-Types of Disclosure Required

Back 131

Before making her disclosures, a party has an obligation to make reasonable inquiry into facts of case. R. 26 requires parties to disclose all info "then reasonably available" that isn't privileged or protected as work product. Party isn't relieved from her obligation of disclosure merely b/c she has failed to complete her investigation or b/c another party hasn't made his disclosures or has made inadequate disclosures. 3 types are required: initial disclosures, disclosures of expert testimony, and pretrial disclosures.

Front 132

Discovery-Duty of Disclosure-Required Disclosures-Initial Disclosures

Back 132

W/o waiting for discovery request, party must prove to other parties: (i) names, addresses, and telephone numbers of individuals likely to have discoverable info that disclosing party may use to support its claims or defenses, unless use would be solely for impeachment; (ii) copies or descriptions of docs, electronically stored info, and tangible things that are in disclosing party's possession or control that disclosing party may use to support its claims or defenses, unless use would be solely for impeachment; (iii) computation of damages claimed by disclosing party and copies of materials upon which computation is based; and (iv) copies of insurance agreements under which insurer might be liable for all party of any judgment that might be entered.

These disclosures must be made w/i 14 days after conference of parties required by R. 26(f) unless diff time is set by court order or by stipulation.

Front 133

Discovery-Duty of Disclosure-Required Disclosures-Initial Disclosures-Exemptions from Initial Disclosure Requirement

Back 133

Initial disclosures aren't required in particular types of cases (e.g., actions to review an admin record, actions to enforce an arbitration award, pro se litigation brought by prisoners, actions to quash or enforce subpoenas, or habeas corpus petitions).

Front 134

Discovery-Duty of Disclosure-Disclosure of Expert Testimony

Back 134

Party must disclose to other parties identities of expert witnesses expected to be used at trial. This disclosure generally must be accompanied by report prepared/signed by each EW stating her qualifications, the options to be expressed, and basis for those opinions. Disclosure must be made at time directed by court or, in absence of any directions or any stipulations among parties, at least 90 days before trial. However, if evidence is intended solely to rebut another party's disclosure of expert testimony, it must be made w/i 30 days after disclosure of ev being rebutted.

Front 135

Discovery-Duty of Disclosure-Pretrial Disclosures

Back 135

At least 30 days before trial, party must disclose: (i) the Ws she expects to call at trial; (ii) Ws she will call if need arises; (iii) Ws whose testimony will be presented by means of deposition and transcript of pertinent portions of deposition; and (iv) list of docs or exhibits she expects to offer or might offer if needed. Ev or Ws that would be used solely for impeachment need not be disclosed. W/i 14 days after disclosure, party may serve objections to use of depositions and trial and to admissibility of disclosed docs and exhibits. Such objections are waived if not made at this point, except for objections that evidence is irrelevant, prejudicial, or confusing under FRE 402 and 403.

Front 136

Discovery-Discovery of Electronically Stored Data

Back 136

Rules require parties to discuss discovery and preservation of electronically stored data and to report ct on those docs. Requesting party may specify form for producing ESI, and responding party must use that form unless it objects. Ct will determine if objection is valid. If request doesn't specify form, responding party may use any form in which info is maintained or form that is reasonably usable by requesting party.

Front 137

Discovery-Discovery of Electronically Stored Data-Safe Harbor Provision

Back 137

Rules prohibit sanctions against parties who lost info in ordinary course of operation an electronic information system. To take advantage of safe harbor, however, party must have taken reasonable steps to save info after it became clear that it would be discoverable in litigation.

Front 138

Discovery-Scope of Disclosure and Discovery-Generally

Back 138

In general, discovery may be had of any non privileged matter that is relevant to any party's claim or defense. Any matter encompasses both doc ev and individuals w/ knowledge of any discoverable matter. Furthermore, as long as info sought is reasonably calculated to lead to discovery of admissible ev or claim or defense in case, it isn't required that info itself be admissible at trial.

Front 139

Discovery-Scope of Disclosure and Discovery-Trial Prep Matters

Back 139

Work product of party or her rep, made in anticipation of litigation, is discoverable only upon showing substantial need and to avoid undue hardship in obtaining materials in an alternative way. If court orders disclosure, it must take steps to avoid disclosure of mental impressions, opinions, and conclusions. However, party may obtain, w/o showing of need and hardship or court order, copy of any statement previously made by that party. Draft reports and disclosures of testifying experts are work product. Confidential communications b/w such experts and counsel for party are generally protected under work-product doctrine, except communications relating to expert's compensation or to facts or data attorney provided to expert.

Front 140

Discovery-Scope of Disclosure and Discovery-Experts

Back 140

Party may depose testifying experts. Opinions of consulting experts may be discovered through depositions or interrogatories only if party seeking discovery shows it's impracticable to obtain such facts or opinions by other means.

Front 141

Discovery-Scope of Disclosure and Discovery-Protective Orders

Back 141

May be obtained to limit nature and scope of examination or to terminate examination if discovery is abused.

Front 142

Discovery-Scope of Disclosure and Discovery-Privileged or Work Product Information

Back 142

When party withholds info she believes is privileged or work product, party must make claim expressly and describe nature of docs not disclosed in manner that will enable other parties to assess applicability of privilege or work product rule.

Front 143

Discovery-Scope of Disclosure and Discovery-Supplementation of Disclosures and Discovery Responses

Back 143

Party must supplement required disclosures and prior responses to interrogatories, requests for production, or requests for admission if she learns that info disclosed was materially incomplete or incorrect and new info hasn't been made known to other party in discovery or in writing. Duty to supplement also applies to experts' reports and info from any deposition of an expert.

Front 144

Discovery-Types of Discovery

Back 144

Following types are available: pre-action depositions (perpetuating one's own or another's testimony); oral deposition of W, including party-W; depositions of Ws, including a party-W upon written questions; interrogatories to parties; production of physical material; physical and mental examinations when party's physical or mental condition is in controversy; and requests for admission as to truth or genuineness of any matter or doc described in request.

Front 145

Discovery-Enforcing Disclosure and Discovery-Motion to Compel and for Sanctions

Back 145

If party fails to provide, or provides incomplete, disclosures or discovery, other party may move to compel discovery. Moving party must certify that he made gf effort to confer w/ his opponent to obtain discover w/o ct intervention. If party fails to comply w/ order to provide discovery, ct may: (i) order matters to be treated as admitted; (ii) prohibit party from supporting or opposing designated claims or defenses; (iii) strike pleadings, stay or dismiss action or ender default judgment; or (iv) hold delinquent party or witness in contempt. Ct must also assess reasonable expenses, including attorneys' fees, incurred b/c of failure, unless disobedient party's failure was substantially justified.

Front 146

Discovery-Enforcing Disclosure and Discovery-Immediate Sanction

Back 146

If party fails to attend own deposition or fails to provide any answer to interrogatories, a party may move for immediate sanctions. Court may make such orders in regard to failure are "just" including (i), (ii), and (iii) in previous flashcard.

Front 147

Discovery-Enforcing Disclosure and Discovery-Automatic Sanction

Back 147

Rules also provide for automatic sanctions against party who without substantial justification fails to disclose info as required under R. 26, or who fails to supplement or amend discovery responses under R. 26(e)(1) or (2). Party who fails to make required disclosures won't be permitted to use info withheld as ev, at hearing, or on motion, unless such failure was harmless. Other appropriate sanctions may be imposed including (i), (ii), and (iii) two flashcards above, as well as informing jury of failure to make disclosure. Court also may assess reasonable expenses incurred, including attorneys' fees.

Front 148

Discovery-Enforcing Disclosure and Discovery-Use of Depositions at Trial or Hearing

Back 148

Subject to rules or ev, a deposition may be used: (i) to impeach testimony of deponent as W; (ii) for any purpose if court finds that deponent is dead or at distance greater than 100 miles from place of trial, or that the deponent is unable to testify b/c of age, sickness, etc.; or (iii) for any purpose if deponent is an adverse party.

Front 149

FRCP-Pretrial Conferences-R. 26(f) Conference of Parties-Planning for Discovery

Back 149

Parties must confer to consider their claims and defenses, possibility of settlement, initial disclosure,s and discovery plan. parties must submit to court proposed discovery plan addressing timing and form of required disclosures, subject on which discovery may be needed, timing of and limitations on discovery, and relevant orders that may be required of court.

Front 150

Pretrial Conferences-Rule 16(b) Scheduling Conference

Back 150

Ct must hold scheduling conference among parties or counsel. Conference may be held by telephone, mail, or other suitable means. Court must enter scheduling order limiting time for joinder, motions, and discovery. Order may also include dates for pretrial conferences, trial date, and any other appropriate matters. This schedule can't be modified except by leave of court upon showing of good cause.

Front 151

Pretrial Conferences-Pretrial Conferences

Back 151

Additional conferences may be held to expedite trial and foster settlement. Final pretrial conference may be held to formulate plan for trial, including program for admission of evidence. An order entered pursuant to final pretrial conference may be modified only for good cause.

Front 152

Pretrial Conferences-Sanctions

Back 152

Court may use broad range of sanctions against parties or counsel who fail to attend conferences, participate in gf, or obey orders entered pursuant to conference.

Front 153

FRCP-Trial-Jury Trial Problems-Right to Jury Trial

Back 153

Party who desires jury trial must file written demand w/ court and serve it on parties. Jury demand may be withdrawn only w/ consent of all parties. Failure to make demand w/i 14 days after filing of last pleading directed to jury-triable issue constitutes waiver by that party of any right to trial by jury.

Front 154

Trial-Jury Trial Problems-Right to Jury Trial-Special Notes

Back 154

1) If legal & equitable claims are joined in one action involving common fact issues, legal claim should be tried 1st to jury, and then equitable claim to court.

2) If procedure formerly available only in equity, such as class suit or interpleader, is now permitted under FRCP for determining legal claim, jury should try fact issues.

3) If damages are claimed as part of an action seeking an inj, D can't be denied a jury on damages issues on rounds they are incidental to equitable relief.

Front 155

Trial-Jury Trial Problems-Jury Trials in Diversity Cases

Back 155

Fed ct must permit jury trial in any diversity "suit at common law" even tho state ct would deny jury. In add'n, fed ct will generally follow fed practice of submitting issues of fact to jury even tho state law assigns issue to ct. State law is regarded in determining sufficiency of ev to create jury issue.

Front 156

Trial-Jury Trial Problems-Jury Size

Back 156

In fed civil cases, jury must have at least 6 jurors and not more than 23 jurors. No provision for alternate jurors.

Front 157

Trial-Jury Trial Problems-Jury Selection

Back 157

Begins w/ indiv potential jurors being summoned to appear in ct. Summoned jurors together are called "venire." Venire must be reasonable cross-section of community. Jurors then will be asked questions, either in questionnaire or in-person to discover if juror has some potential bias in case. Process is known as "void dire." If questioning of potential juror reveals that jurors an actual bias, that juror amy be excused for cause. Bias may also be implied. Implied bias arises when it's very unlikely that avg person in juror's shoes could be unbiased (e.g., juror is financially dependent on one of parties). Juror w/ implied bias must be excused for cause.

Front 158

Trial-Jury Trial Problems-Jury Instructions

Back 158

Objections to giving or failing to give instructions must be made before jury retires to consider verdict.

Front 159

Trial-Jury Trial Problems-Jury Deliberations

Back 159

Jurors may take into jury room only papers or exhibits in ev and their own notes. Jury may not engage in experiments in jury room. Jurors may not view property or places involved inc as, except by ct order. Communication w/ conjurers regarding trial is prohibited.

Front 160

Trial-Jury Trial Problems-Jury Verdicts

Back 160

Must be unanimous unless parties agree otherwise. Ct may instruct jury to decide by general verdict (by which jury finds for P or D), by special verdict (by which jury makes findings of fact and ct applies law), or by general verdict w/ special interrogatories (a combination of first two). Juror may be excused for good cause (e.g., illness) w/o causing mistrial, so long as at least 6 jurors participate in reaching verdict.

Front 161

Trial-Jury Trial Problems-Jury Verdicts-Erroneous Verdicts

Back 161

Inconsistent determinations are erroneous if they are irreconcilable . When verdict shows on its face that jury failed to follow ct's instructions, either jury will be asked to redeliberate or new trial will be ordered. Jury may completely change its verdict when redeliberation is ordered.

Front 162

Trial-Jury Trial Problems-Jury Verdicts-Juror Misconduct

Back 162

New trial is appropriate if juror gave false testimony during void dire or concealed material facts relating to his qualifications to serve. Conjurers may give ev of misconduct except as to declarations made by jurors to them. Juror may not testify as to matter occurring during deliberations, except as to outside influences on jury or on question of whether extraneous prejudicial info was improperly brought to jury's attention.

Front 163

Trial-Consolidation and Separate Trials

Back 163

Ct may consolidate actions then before it when actions have common question of law or fact, or order separate trials of any claim, cross-claim, counterclaim, or other issues when separation will foster judicial economy.

Front 164

Trial-Voluntary Dismissal by Plaintiff

Back 164

P may dismiss his action by notice w/o leave of court before D files answer or SJ motion. Dismissal is w/o prejudice unless P has previously dismissed fed or state ct action on same claim, in which case dismissal is w/ prejudice. Case may also be voluntarily dismissed by stipulation of all parties, which is w/o prejudice unless stipulation states otherwise. If D has filed answer or SJ motion, dismissal w/o prejudice can be taken only w/ leave of ct. If there is counterclaim pending in action, there can be no dismissal over D's objection unless counterclaim remains pending.

Front 165

Trial-Offer of Judgment

Back 165

Party defending against claim or counterclaim may serve formal offer to have judgment entered against it on specified terms w/ costs then accrued, thereby settling case. If claiming party rejects offer, and ultimate judgment is less favorable to him, he must pay costs incurred after offer was made. Ev of an unaccepted offer is not admissible except in a proceeding to determine costs.

Front 166

Trial-Summary Judgment

Back 166

Must be granted if, from pleadings, affidavits, and discovery materials on file, it appears no genuine issue of material fact exists and that moving party is entitled to JMOL. Unless local rule or court order dictates otherwise, party may file MSJ at any time until 30 days after close of discovery. If motion is premature, ct may defer ruling on it. SJ may be partial. Denial of MSJ isn't appealable. Motion to dismiss complaint or for judgment on pleadings (as opposed to MSJ) addresses only legal sufficiency of complaint.

Front 167

Trial-Judgment as Matter of Law (Formerly Directed Verdict)

Back 167

Allows judgment to be granted for either party if ct finds that reasonable jury wouldn't have legally sufficient basis to find for nonmoving party. Ev must be viewed in light most favorable to nonmoving party. Motion for JMOL is prerequisite for making of renewed motion for JMOL.

Front 168

Trial-Renewed Motion for Judgment as Matter of Law (Formerly Judgment Notwithstanding the Verdict)

Back 168

May be filed no later than 28 days after entry of judgment. Party generally is limited to those issues raise in JMOL.

Front 169

Trial-Motion for New Trial

Back 169

Must be filed no later than 28 days after judgment. Ct may grant new trial b/c of error during trial, or b/c verdict is against weight of ev. If verdict is excessive, ct may order new trial or offer P remittitur, which allows P to choose b/w lesser award or new trial. Adapter, by which D is allowed choice b/w higher award or new trial, isn't allowed in fed ct; rather, only option is new trial.

Front 170

Trial-Motion for New Trial-With Renewed JMOL

Back 170

When renewed motion for JMOL and motion for new trial are mae in alternative and renewed motion is granted, court must rule hypothetically on new trial motion so that no remand is required if judgment on merits ruling is subsequently reversed on appeal.

Front 171

Trial-Effect of Failure to Move for Renewed JMOL or for New Trial

Back 171

If party fails to move for either renewed JMOL or for new trial, that party is precluded from rising question of evidentiary sufficiency on appeal.

Front 172

Trial-Judgment on Partial Findings

Back 172

In nonjury trial, once there is sufficient ev to make dispositive findings, judge may rule on issue as matter of law, provided all parties have been fully heard. Alternatively, judge may wait until all ev is presented before ruling. Ruling must be supported by findings of fact and conclusions of law.

Front 173

Attack on Judgment at Trial Court Level-Relief from Judgment or Order-Clerical Mistakes

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Clerical error may be corrected at any time on motion of court or any party.

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Attack on Judgment at Trial Court Level-Relief from Judgment or Order-Other Grounds for Relief from Judgment

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On motion and just terms, ct may relieve party from final judgment order on grounds of: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence couldn't have been discovered in time to move for new trial; (iii) fraud, misrepresentation, or other misconduct of adverse party; (iv) judgment being void; (v) judgment being satisfied, released, or discharged; a prior judgment on which is based having been reversed or otherwise vacated; or fact that it's no longer equitable that judgment should have prospective application; or (vi) any other reason justifying relief from operation of judgment.

For grounds (i), (ii), and (iii), motion must be made w/i reasonable time not to exceed 1 year (which can't be extended); for other grounds, motion must be made w/i reasonable time. Judgment isn't void simply b/c judgment was erroneous; rather, judgment is void if there was fundamental flaw such as lack of juris or deprivation of DP by failure to give notice or opportunity to be heard.

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Attack on Judgment at Trial Court Level-Independent Action in Equity to Set Aside Judgment

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Court, in its discretion, may entertain independent action to relieve party from judgment or order, to grant relief to D not actually personally notified of action, or to set aside judgment for fraud on ct. P must show that he's likely to win if new action is allowed. Only advantage of independent action is that it won't be barred by specific time limits outlined in previous flashcard. However, aggrieved party must act promptly once he knows or should know of ground for relief. Independent action will be rejected if motion to set aside judgment has been rejected on merits.

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Final Judgment on Appellate Review-Judgment-Relief that May Be Given

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Except in default cases, court isn't limited to demand for relief in pleadings and may give any relief that is appropriate based on ev.

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Final Judgment on Appellate Review-Judgment-Multiple Claims or Parties

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When multiple claims or parties are involved in action, ct may enter final judgment as to few than all of claims or parties only on express determination that there is no just reason for delay and entry of judgment. Unless trial judge makes such express determination, order determining merits of fewer than all of claims or dismissing fewer than all of parties isn't final judgment and isn't appealable.

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Final Judgment on Appellate Review-Judgment-Final Decision On Merits

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May be valid despite lack of SMJ. Occasionally, lack of SMJ isn't raise until decision is final and all appeals are completed. Question then is whether decision may be collaterally attacked, i.e., set aside in an independent proceeding or treated as invalid in later case. Factors that must be balanced in making this determination are: (i) lack of jurisdiction is clear; (ii) juris depends on question of law, not facts; (iii) court is of limited, not general, juris; (iv) question of juris wasn't litigated; and (v) strong policy exists against court acting beyond jurisdiction.

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Final Judgment on Appellate Review-Time for Appeals

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Appeal may be taken by filing notice of appeal w/ district ct w/i 30 days from entry of judgment appealed from. However, if timely renewed motion for JMOL, for new trial, or to set aside or amend judgment is made, running of 30 days is terminated. Upon entry of order based on such post-trial motions, new 30-day period begins to run. However, notice of appeal filed during pendency of post-trial motion will become effective on final disposition of motion by trial court.

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Final Judgment on Appellate Review-Reviewable Order

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Generally, only final orders are reviewable. However, certain interlocutory orders are also reviewable.

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Final Judgment on Appellate Review-Reviewable Order-Interlocutory Orders as of Right

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Include: injunctions; appointments of receivers; and certain admiralty, patent infringement, and property possession cases.

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Final Judgment on Appellate Review-Reviewable Order-Interlocutory Appeals Act

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Review is discretionary when: (i) trial judge certifies interlocutory order involves controlling question of law, as to which there is substantial ground for diff of opinion, and immediate appeal from order may materially advance ultimate termination of litigation; and (ii) court of appeals then agrees to allow appeal.

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Final Judgment on Appellate Review-Reviewable Order-Collateral Order Rule

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If claim or issue is separable from and collateral to main suit, and is claim too important to require deferring appellate review, it may be classified as judgment in separate proceeding and thus be appealable.

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Final Judgment on Appellate Review-Reviewable Order-Certification of Class Actions

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Order granting or denying certification of class may be reviewed at court's discretion w/i 14 days after entry of order.

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Final Judgment on Appellate Review-Reviewable Order-Orders Made Appealable (or Nonappealable) by Writ

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In exceptional cases, final order rule may be circumvented through appellate writs of mandamus (compelling judge to act) and prohibition (prohibiting judge from acting).

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Final Judgment on Appellate Review-Standards of Review-On Matters of Law

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On appeal, when it's alleged that trial judge erred on pure matter of law, appellate may substitute its judgment for that of trial judge. This is de novo review.

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Final Judgment on Appellate Review-Standards of Review-On Questions of Fact

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In bench trial, trial judge will make findings of fact, which won't be disturbed on appeal unless they were clearly erroneous. Findings of fact by jury will be affirmed on appeal if, while viewing ev in light most favorable to affirming jury's verdict, a reasonable jury could have reached same conclusion.

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Final Judgment on Appellate Review-Standards of Review-On Mixed Questions of Law and Fact

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Mixed questions of law and fact are reviewed de novo. It's often difficult to determine whether question is purely factual, purely one of law, or mixed. Generally speaking, whether set of facts meets legal definition (e.g., whether use of copyrighted material is fair use under copyright law) is considered to be mixed question of law and fact.

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Final Judgment on Appellate Review-Standards of Review-Discretionary Matters

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Many decisions a trial judge makes are left to her discretion (e.g., whether to consolidate or sever cases, whether to grant leave to amend pleading, etc.), which will be overturned on appeal only if judge "abused her discretion" in making the decision.

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Final Judgment on Appellate Review-Stay Pending Appeal

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No execution on judgments is allowed for 14 days after entry except injunctions or receiverships. Judgments are enforceable during pendency of post-trial motions unless court otherwise orders in its discretion and on such conditions for security of adverse party as are proper. A supersedeas bond is required in sufficient size to satisfy judgment, costs, interest, and damages for delay, should appeal be dismissed or affirmed.

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Final Judgment on Appellate Review-Supreme Court Jurisdiction

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SCOTUS has direct appeal juris from any order granting or denying an injunction in any proceeding required to be heard by 3 judge ct. SCOTUS may review any case in court of appeals by certiorari. SCOTUS may review cases from highest state ct having juris over case by certiorari when validity of fed law is called into question or validity of state law is called into question on ground that it violates Constitution or fed law.

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Effects of Judgment on Future Cases-Res Judicata (Claim Preclusion)

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Once a final judgment on merits has been rendered on particular cause of action, P is barred from trying same cause of action in later lawsuit. While various tests have been used to define "cause of action," modern approach is to require assertion of all claims arising out of same t/o that is subject matter of claim asserted by P.

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Effects of Judgment on Future Cases-Collateral Estoppel (Issue Preclusion)

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Final judgment for P or D is conclusive in subsequent action on diff cause of action b/w same parties, as to issues actually litigated and essential to judgment in first action. In jurisdictions where mutuality principle has been eroded, collateral estoppel may be applied if it isn't unfair or inequitable to do so.

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Effects of Judgment on Future Cases-Which persons are Bound By Judgment?

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Parties, privies to parties, and persons whose interests are represented are bound by judgment. Nonparties are normally bound.

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Effects of Judgment on Future Cases-Which Choice of Law Rules Apply to Preclusion Questions?

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Preclusion questions-whether claim preclusion or issue preclusion-always involve at least 2 cases. One case has gone to valid, final judgment on merits. Preclusion law determines whether that judgment (in "case one") precludes litigation of any matters in pending case ( "case two"). When case one has been decided in state court, court in case two (whether state or fed) generally ill apply claim or issue preclusion law of juris that decided case one. When case one was decided in fed ct under its diversity juris, SCOTUS held that court in case two should apply fed law (b/ fed court decided case one). However, SCOTUS has also indicated that usually fed law in such an instance would be law of state in which fed court sat.