Civil Procedure

Front 1

Subject Matter Jurisdiction

Back 1

Subject matter jurisdiction refers to the court's ability to exercise power over a particular type of case.

Front 2

Federal Question-Subject Matter Jurisdiction

Back 2

The federal Question must appear as a cause of action set out in well-pleaded complaint.

Front 3

Diversity of Citizenship Jurisdiction

Back 3

The federal courts have diversity of citizenship jurisdiction when the amount in controversy exceeds $75,000, and the lawsuit is between citizens of different states or a citizen of a state and a citizen of a foreign country.

Front 4

Complete Diversity

Back 4

Diversity of citizenship requires that every plaintiff be of diverse state from every defendant.

Front 5

Amount in Controversy for Diversity Jurisdiction

Back 5

Amount in controversy must be a good faith allegation exceeding $75,000 excluding interest and costs.

Front 6

Citizenship of Corporation for Diversity

Back 6

For diversity purposes, a corporation is deemed to be a citizen of every state in which it is incorporated and the one state in which it has its principal place of business.

Front 7

Supplemental Jurisdiction (Pendent Jurisdiction)

Back 7

The federal court has discretion to exercise pendent jurisdiction over a state law claim if the two claims derive from a common nucleus of operative fact and if a plaintiff would ordinarily be expected to try all issues in one proceeding.

Pendent claim involves a situation where a plaintiff has both federal and state claims.

Some courts consider the common nucleus test to mean that the claims must arise from the same transaction or occurrence.

Front 8

Personal Jurisdiction

Back 8

Personal jurisdiction refers to the court's ability to exercise power over a particular defendant.

Front 9

Traditional Personal Jurisdiction Requirement

Back 9

Traditionally, personal jurisdiction is based upon where the party is domiciled, presence in the state when served, and consent.

Front 10

Long Arm Statute

Back 10

A long arm statute gives the court personal jurisdiction over an out-of-state defendant.

California's long arm statute gives courts the power over any person over whom the state can constitutionally exercise jurisdiction.

Front 11

Constitutional Limitation on Personal Jurisdiction

Back 11

Even if a state arguably grants the state court personal jurisdiction over the defendant, such exercise must still be constitutional. To be constitutional, there must be sufficient contacts with the forum state so as not to offend the traditional notions of fair play and substantial justice.

Courts generally look at: i) minimum contacts; ii) relatedness of claim to contact; and iii) fairness.

Front 12

Minimum Contacts

Back 12

Minimum contacts requires a showing of purposeful availment and foreseeability.

Front 13

Purposeful Availment

Back 13

The courts must find that defendant purposefully availed himself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its laws.

Front 14

Foreseeability

Back 14

The defendant also must have known or reasonably anticipated that her activities in the forum rendered it foreseeable that she may be haled into court there.

Front 15

Relatedness of the Claim to the Contact

Back 15

The claim must arise from the defendant's contacts with the forum. This requires a showing of either specific or general jurisdiction.

Front 16

Specific Jurisdiction

Back 16

Specific jurisdiction can be exercised only over causes of action that arouse from the defendant's activity.

The claim must be related to the defendant's contacts with the forum.

Front 17

General Jurisdiction

Back 17

Under general jurisdiction, if the defendant is "at home" in the forum state, the court could exercise personal jurisdiction over the defendant for all causes of action.

To be "at home", the defendant must be domiciled in the state, or, if a corporate defendant, have its principal place of business or be incorporated in the state.

Front 18

Fairness

Back 18

The court, in determining whether exercising personal jurisdiction is fair, will look at the convenience to the defendant, the state's interest, and other factors.

Front 19

Convenience (full)

Back 19

A forum is constitutionally acceptable unless it is so gravely difficult and inconvenient for the defendant.

Front 20

State's Interest

Back 20

The forum state may have a legitimate interest in providing redress for its residents.

Front 21

Other Factors

Back 21

Other factors include the plaintiff's interest, the judicial system's interest, and the shared interests of the states.

Front 22

Res Judicata

Back 22

Once a final judgment on the merits has been rendered on a particular cause of action, the plaintiff is barred by res judicata from trying the same cause of action in a later lawsuit. The parties must be identical and in the same configuration as the first lawsuit. Res judicata cannot apply to a third party in privity with a party in the original case.

Front 23

On The Merit

Back 23

Any judgment entered is "on the merits" unless it was based on jurisdiction, venue, or indispensable parties.

Front 24

Same Claim

Back 24

Majority View: A claim is any right to relief arising from the same transaction or occurrence.

California: There are separate claims for property damages and for personal injuries because those are different "primary rights".

Front 25

Collateral Estoppel

Back 25

A judgment for the plaintiff or defendant is conclusive in a subsequent action on a different cause of action between them or their privities, as to issues actually litigated and essential to the judgment in the first action.

A defendant will generally not be able to successfully invoke issue preclusion against a plaintiff in a civil trial based on findings made in a criminal trial, as the burden of proof in a criminal trial is typically higher.

Front 26

Against Whom Issue Preclusion Asserted

Back 26

Issue preclusion can only be used against somebody who was a party to the first case or in "privity" with a party.

Front 27

By Whom Issue Preclusion Asserted

Back 27

Under the traditional "mutuality rule", only someone who was a party or in privity with a party in the first case can use issue preclusion.

Front 28

Exception to Mutuality When Defensively Used

Back 28

When a nonparty wishes to utilize a prior judgment defensively, most states allow the use as long as the other party had a full opportunity to litigate the issue in the first action.

Front 29

Exception to Mutuality When Offensively Used

Back 29

Recent trends will allow nonparty to use collateral estoppel offensively if the court determines that it is fair and equitable, considering: i) the defendant had a full and fair opportunity to litigate in the first case; ii) the defendant had an incentive to litigate strongly in the first case; iii) the plaintiff could not have joined easily in the first case; and iv) there are no inconsistent findings on that issue.

Front 30

Venue

Back 30

While jurisdiction refers to the power of the court over the defendant or the subject matter of the action, venue relates to the proper district in which the matter will be decided.

Venue is proper in a judicial district in which: i) any defendant resides, if all defendants are residents of the same state; ii) a substantial part of the events or omissions giving rise to the claim occurred; or iii) if there is no district anywhere that satisfies i) or ii), in a judicial district in which any defendant is subject to personal jurisdiction.

Front 31

Residence for Venue

Back 31

Individuals: An individual, including an alien lawfully admitted for permanent residence, resides in the judicial district in which he is domiciled.

Business Entities: An entity is deemed to reside in any judicial district in which it is subject to the court's personal jurisdiction with respect to the civil action in question. In a state that has more than one judicial district, a corporation is deemed to reside in any district in that state within which the corporation's contacts would be sufficient to subject it to personal jurisdiction if that district were a state.

Nonresident: A defendant who is not a resident of the Untied States-whether a U.S. citizen or alien- may be sued in any judicial district.

Front 32

Doctrine of Forum Non Conveniences

Back 32

The discretionary doctrine of forum non conveniences allows a federal court, for the convenience of the parties and witnesses and in the interest of justice, to transfer a civil action to any other district where it might have been brought, or, if transfer is not possible, to dismiss the civil action.

Front 33

Public Factors for Forum Non Conveniences

Back 33

Important public factors for the court to consider are the availability of an alternative forum, the plaintiff's choice of forum, and the forum state's interest in providing a forum for its residents.

Front 34

Private Factors for Forum Non Conveniences

Back 34

Important private factors for the court to consider are the convenience of the parties and the witnesses, location of the evidence, and where the cause of action arose.

Front 35

Requirements of Complaint

Back 35

Each claim should contain: i) statement of grounds of the subject matter jurisdiction; ii) short and plain statement of the claim showing entitlement to relief; and iii) demand for the relief sought.

Recent trends require plaintiff to state facts supporting a plausible claim in a pleading (i.e., require facts and legal conclusions). To determine plausibility, the judge uses her own experience and common sense.

Claims of fraud are special pleadings that require a party to state with particularity the circumstances constituting the fraud.

Plaintiff does not need to allege the ground of the personal jurisdiction or venue.

Front 36

Scope of Matter Subject to Discovery & Timing of Discovery

Back 36

A party may obtain discovery regarding any matter that is proportional to the needs of the case and that is relevant to any party's claim or defense, provided the matter is not subject to a privilege or to the exception of work product.

Even if a matter would not be admissible at the trail, such matter may be discoverable.

Discovery may not be sought before initial conference of the parties.

Front 37

Work Product Doctrine

Back 37

Documents or oral communications (!!) prepared in anticipation of litigation by a party or its representative (including agent, insurer, etc.) are not discoverable.

Front 38

Exception to Work Product Doctrine

Back 38

Work product is discoverable if the party seeking it has substantial need of the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

However, "opinion work product" such as mental impressions, opinions, conclusions, and legal theories is absolute and cannot be discovered in any event.

Front 39

Impleader

Back 39

A defending party may implead a nonparty who is or may be liable to the defendant for any part of a judgment that the plaintiff may recover against the defendant. Usually, such an impleader claim will be for indemnity or contribution.

Front 40

Erie Doctrine

Back 40

Under the Erie doctrine, a federal court in a diversity case (or in a supplemental jurisdiction case) will apply its own procedural law, but must apply the substantive law of the state in which it is sitting.

Front 41

Fitst Question of Erie Doctrine

Back 41

The first question to ask is whether there is a federal procedural law on point. Where a federal law or rule is on point, the court must apply federal procedural law.

Transfer of venue is a federal procedural issue.

Pleading requirements are federal procedural issue.

Front 42

Second Question of Erie Doctrine

Back 42

If there is no federal law on point, a federal judge may refuse to follow the state law if the matter is procedural rather than substantive.

Statutes of limitations, rule for tolling statutes of limitations, choice of law rules, and elements of a claim or defense are clearly substantive.

Front 43

Final Question of Erie Doctrine

Back 43

Outside of the above areas, the court will use i) an outcome determinative test, ii) a balance of interest test, or iii) forum shopping deterrence to decide whether an issue is substantive or procedural.

Under the outcome determinative test, an issue is substantive if it substantially affects the outcome of the case.

Under the forum shopping deterrence, the federal judge should follow state law on the issue if failing to do so would cause litigants to flock to federal court.

Front 44

Initial Disclosures

Back 44

Without waiting for a discovery request, a party must provide to other parties:

i) the identities of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses;

ii) Documents, electronically stored information, and tangible things that are in the disclosing party's possession or control and that the disclosing party may use to support its claims or defenses;

iii) A computation of damages claimed by the disclosing party; and

iv) Copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

(*) A party must reveal the identity of the eyewitnesses if either the party may call the witness or the other party requests the eyewitness's identity.

Front 45

Failure to Disclose

Back 45

If a party fails to provide information or identify a witness, the party is not allowed to use that information unless the failure was substantially justified or harmless.

Front 46

Service under Federal Rule

Back 46

Rule 4 allows for: i) personal service; ii) service left at the defendant's usual place of adobe with one of suitable age and discretion residing therein; iii) service upon an authorized agent of the defendant; iv) service pursuant to state rules; or v) service by mail under the waiver rule.

Service may be made pursuant to the rules of the state in which federal court sits or the state in which service is to be effected, regardless of the basis of subject matter jurisdiction (even federal question jurisdiction). However, the state provision must be constitutional, i.e., it must be reasonably calculated to give the defendant notice of the action.

If defendant's presence in the forum state is solely due to force, fraud, or participation in another judicial proceeding, service may not establish personal jurisdiction.

Front 47

Waiver of Service

Back 47

To request a waiver of service, the plaintiff must mail the defendant certain items including a formal request to waive service, two copies of the wavier form, and a copy of the complaint.

A defendant who waives formal service of process has 60 days (90 days if outside the US) from the date the request was sent, instead of 21 days, to answer the complaint.

A defendant who fails to waive formal service of process without a good cause will be liable for the cost for additional service.

Front 48

Cross-Claim

Back 48

A party may assert a cross-claim against a co-party only if the cross-claim arises from the same transaction or occurrence as that of the original action. The cross-claim is never compulsory.

A cross-claim must also satisfy SMJ or SJ.

A cross-claim may be filed anytime before the court has set a trial date.

Front 49

Amendment to Complaint (& Answer)

Back 49

As a matter of course, a party may amend a pleading to which a responsive pleading is required if the party does so within 21 days after the responsive pleading or other response is served. Thus, a complaint may be amended "once" as a matter of law within 21 days of serving it or 21 days after service of a responsive pleading or pre-answer motion.

Thereafter, a pleading may be amended only by the written consent of the adverse party or by leave of the court upon motion.

An amendment to a complaint to add a claim "relates back" to the date the complaint was filed when the new claim arises from the same transaction or occurrence as the original claim.

An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties' express or implied consent. In such a case, a party may move, at any time, even after judgment, to amend the pleadings to raise the unpleaded issue.

Front 50

Relation Back of Amendment to Change Defendant

Back 50

An amendment changing the defendant relates back if:

i) it concerns the same transaction or occurrence as the original;

ii) the new party knew of this case within the period provided for serving the summons and complaint; and

iii) she also knew that, but for a mistake, she would have been named originally.

Front 51

Amendment to Conform to Evidence

Back 51

A pleading may be amended to conform to the evidence at trial.

Front 52

Immunity from Service of Process

Back 52

The federal courts recognize the immunity from service of process of parties who enter a state to appear in another action.

Front 53

Defendant's Response

Back 53

To avoid default, defendant must respond by motion or answer within 21 days after service of process.

If defendant waived service, he obtains 60 days from when plaintiff mailed him the waiver form (90 days if waived outside the US).

Front 54

Rule 12(b) Defenses- Pre-Answer Motion

Back 54

1. Lack of subject matter jurisdiction

2. Lack of personal jurisdiction

3. Improper venue

4. Improper process

5. Improper service of process

6. Failure to state a claim

7. Failure to join indispensable party

In a pre-answer motion, a party may provide the court with facts from outside the pleadings to enable the court to decide.

Front 55

Unwaivable Defenses

Back 55

1. Lack of subject matter jurisdiction (can be raised anytime)

6. Failure to state a claim (can be raise at any time prior to trial or "at trial")

7. Failure to join indispensable party (can be raised at any time prior to trial or "at trial")

Waivable defenses must be put in the first response (motion or answer).

Front 56

Answer

Back 56

If no Rule 12 motion is made, defendant must file an answer within 21 days after service or 60 days after the request for waiver was mailed.

If Rule 12 motion is made, defendant must file an answer within 14 days of the court's denial of the motion.

Front 57

Failure to Raise Affirmative Defenses in Answer

Back 57

If defendant fails to assert an affirmative defense in the answer, he could be deemed to wave it. If it is waived, the defendant cannot put on evidence regarding the affirmative defense.

Front 58

When Counter Claim Is Pleaded

Back 58

A counterclaim must be pleaded in the answer.

Thus, even if he was able to file a compulsory counterclaim but the case was dismissed by pre-answer motion, he will be able to file a new claim (i.e., he was not required to answer in the first action).

Front 59

Additional Claims

Back 59

Once the party has filed a counterclaim or cross-claim, he also may join with it any other claim that he has against the same party as long as the subject matter or supplemental jurisdiction is satisfied.

Front 60

Supplemental Pleadings

Back 60

Supplemental pleadings are matters occurring after the date of the original pleading. A party seeking supplemental pleadings must file a motion under discretion of the court.

Front 61

Rule 11

Back 61

When the lawyer signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:

i) the paper is not for an improper purpose;

ii) the legal contentions are warranted by law; and

iii) the factual contentions and denials of factual contentions have evidentiary support.

The Rule 11 imposes a continuing certification requirement, applicable any time a matter is presented to the court.

Front 62

Party's Motion for Rule 11

Back 62

A party may serve a motion for sanctions on the opponent party. If the other party does not correct the matter within 21 days, the moving party may then file the motion with the court.

Front 63

Sanction in Violation of Rule 11

Back 63

Before imposing a sanction on the lawyer, the court must give him chance to be heard (21 days to withdraw or correct the documents).

Often, courts impose non-monetary sanctions. If monetary sanctions are imposed, the lawyer must pay to the court not to the opponent party.

Front 64

Disclosure of Expert Witness

Back 64

A party must disclose to other parties the identities of expert witness expected to be used at trial. If he is retained to provide expert testimony, a report by the expert witness must be disclosed as well. If the party fails to disclose the identity, the party cannot use the expert witness unless the failure was substantially justified or harmless.

Thereafter, a party may take the deposition of the expert witness by subpoenaing him to compel his attendance. That party must pay the expert witness a reasonable fee.

However, a party is not entitled to depose consulting experts who are retained in anticipation of litigation but who are not expected to testify at trial (discoverable only when upon showing of exceptional circumstances under which it would be impracticable for the other party to obtain the facts by other means).

Front 65

Compulsory Appearance at Depositions

Back 65

It is not necessary to serve a subpoena on a party. The notice of deposition is sufficient to compel attendance.

A non-party witness should be subpoenaed.

When a corporation is named as a deponent, it must designate an individual who will testify about facts reasonably known to the organization.

Front 66

Interrogatories

Back 66

Interrogatories are written questions which are to be answered in writing under oath. The party only can send interrogatories.

A party must respond to interrogatories not only with facts which he himself knows but also with fats that are available to him.

The responding party must respond with answers or objections within 30 days from service.

Where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served it is a sufficient answer to provide the serving party reasonable opportunity to examine the records.

The maximum number of interrogatories is 25.

Front 67

Medical Examinations

Back 67

Physical or mental examinations are available when a party's physical or mental condition is in controversy, and only if ordered by the court, on showing of good cause.

A showing of good cause will require a moving party to show that there is no other means to obtain the information that the examination would provide and establish the reasons to do so.

Only a party or someone in the party's custody or legal control (e.g., parent) can be ordered to undergo a medical examination. For example, a witness may not be compelled to subject to a medical examination.

Front 68

Report of Findings

Back 68

The person examined may request the examiner's report, but if so requests, she waives any privilege and must produce, upon demand, her own doctor's reports.

Front 69

Request for Admission

Back 69

Any party may serve on other parities a written request for admission.

If the responding party fails to deny specifically, he is deemed to admit.

Front 70

Motion for Order Compelling Disclosure or Discovery

Back 70

A party may seek an order compelling discovery from the court. The movant must certify that he has, in good faith, tried to obtain the information without court involvement.

If the motion is granted, the court must require the non-moving party (i.e., issue a cort order) to pay the expenses for the motion including attorney's fees (regardless of whether the non-moving party fails to comply with the order).

Front 71

Failure to Comply with Court Order

Back 71

A party may be held in contempt of court. The court may i) establish facts as true; ii) strike pleadings; iii) prohibit the nondisclosing party from supporting claims or defense; iv) dismiss the plaintiff's action; or v) enter default judgment against defendant.

Sanctions may not be imposed until the nonmoving party violates a court order on discovery.

Front 72

Destruction of Electronically Stored Information

Back 72

When litigation is reasonably foreseeable, parties must preserve discoverable information. If the disclosing party acted with intent to deprive the discovering party of the information, the court may i) presume the information was unfavorable to the party; ii) instruct the jury so; or iii) dismiss the action or enter a default judgment.

Front 73

Necessary and Indispensable Parties- Compulsory Joinder

Back 73

An absentee is necessary when he meets any of the following tests:

i) without the absentee, the court cannot accord complete relief among existing parties;

ii) the absentee's interest may be harmed if he is not joined; or

iii) the any other parties will be subject to a risk of multiple obligations.

Joint tortfeasors have never been held as necessary parties.

Front 74

When Absentee Can Be Joined

Back 74

If the absentee is feasible (i.e., there is PJ and SMJ), the court must order the absentee to join.

Front 75

When Absentee Cannot Be Joined

Back 75

In situations where an indispensable party cannot be joined, federal rules require that the court determine whether "in equity and good conscience" the action should proceed.

The court must i) proceed without the absentee or ii) dismiss the entire case with consideration of (a) availability of an alternative forum; (b) the actual likelihood of harm to the absentee; and (c) whether the court can shape relief to avoid that harm to the absentee.

If the party that cannot be joined is necessary, meaning that their interests will be impaired, a court may still continue. However, if the party that cannot be joined is indispensable, meaning that their interests would be prejudiced, the court must dismiss the original claim.

Front 76

Permissive Joinder

Back 76

Persons may be joined as parties whenever: i) they assert any claim or any claim is asserted against them relating to or arising out of the same transactions or occurrence; and ii) there is a question of fact or law common to all the parties.

Front 77

Intervention of Right

Back 77

Intervention of right is available whenever the applicant's interest may be harmed if she is not joined and is not adequately represented.

Intervention does not invoke supplemental jurisdiction.

Front 78

Permissive Intervention

Back 78

An applicant's claim or defense and the pending case have a common question of fact or law. The court has discretion, but usually the intervention is allowed unless it will cause delay or prejudice to someone.

Front 79

Initial Requirements for Class Actions

Back 79

1. Numerosity: The class is so numerous that joinder of all members is impracticable.

2. Commonality: There are questions of law or fact common to the class.

3. Typicality: the named parties' interests are typical of the class.

4. Representative Adequate: the named representatives will ensure the fair and adequate representation of the interests of absent members of the class.

Front 80

Notice in Common Question Suits

Back 80

Notice to all members of the class is required only in common question suits so that class members can opt out.

Front 81

Judgment in Class Action

Back 81

All members of a class will be bound by the judgment except those in a common question action who opt out.

Front 82

Court Approval in Class Action

Back 82

The court must approve the dismissal or settlement of a class action.

In all types of class actions, the court gives notice to class members to allow them to object to the proposed dismissal or settlement. But if the dismissal would not bind any class members (i.e., without prejudice), notice is not required (court approval is always required!).

Furthermore, in a common question action only, the court may give members a second opportunity to opt out.

Front 83

Voluntary Dismissal

Back 83

If the defendant has not answered or filed a motion for summary judgment, the plaintiff may dismiss her case by filing a notice of dismissal. A dismissal by notice is without prejudice unless the plaintiff has previously dismissed an action.

If the defendant has answered or filed a motion for summary judgment, an action may be dismissed only by consent by all parties or an order of the court. The court has discretion to grant. The dismissal is without prejudice unless the court specifies otherwise. If there is a counterclaim in the action, no dismissal is allowed over the defendant's objection unless the counterclaim remains pending.

Front 84

Involuntary Dismissal

Back 84

A court may order an involuntary dismissal against a plaintiff for failure to: i) prosecute; ii) comply with the rules; or iii) comply with a court order. An involuntary dismissal is with prejudice unless the order says otherwise.

Front 85

Default

Back 85

Default is a notation by the court clerk on the docket sheet of the case.

Once the default has been entered, it cuts off answers by the defendant.

Front 86

Default Judgment by Clerk

Back 86

The clerk of court can enter default judgment if i) the defendant failed to appear; ii) the claim itself is for a sum certain; iii) the damages amount is not greater than the amount in the complaint; and iv) the defendant is not an infant or incompetent.

Front 87

Default Judgment by Judge

Back 87

The judge will hold a hearing and has discretion to enter judgement. The defendant will be given notice of the hearing 7 days before only if he appeared in the case.

Front 88

Motion to Set Aside Default or Default Judgement

Back 88

A defendant may move to have the court set aside a default or default judgment by showing good cause and a viable defense on the merits.

Front 89

Motion to Dismiss under Rule 12(b)(6)

Back 89

If plaintiff's complaint fails to state a claim, the case can be dismissed under the rule 12(b)(6).

Dismissal of a complaint under Rule 12(b)(6) is with prejudice unless the court states otherwise. If there is a defect in the pleading that the court deems rectifiable, the court may: i) dismiss the complaint without prejudice; or (b) grant the plaintiff leave to amend the complaint.

The court looks only at plaintiff's allegations of fact in the complaint and asks, if these facts were true, whether the allegations state a plausible claim using judge's experience and common sense.

In ruling on this motion, the court will not look at evidence.

Front 90

Summary Judgment

Back 90

To grant summary judgment, the moving party must show: i) there is no genuine dispute on a material fact; and ii) she is entitled to judgment as a matter of law.

Any party can move for summary judgement no later than 30 days after close of discovery of the non-moving party. A party opposing a motion for summary judgement must file a response within 21 days after the motion is served or 21 days after a responsive pleading is due.

The court has discretion to grant summary judgment.

Summary judgement may be partial as well as complete.

Front 91

Support for Motion for Summary Judgment

Back 91

The motion may be supported with affidavits or other declarations made under penalty, depositions, sworn pleadings, answers to interrogatories, or other material.

The affidavit must be based on personal knowledge, setting out facts that are admissible into evidence, and show that the affiant is competent to testify on such matters.

In ruling on summary judgment, the court look to only evidence and does not look to pleadings. The court treats a pleading as evidence only if it is verified under oath (i.e., sworn pleadings).

Front 92

Rule 26(f) Conference

Back 92

At least 21 days before a scheduling order, parties must meet and confer initial disclosures, claims and defenses, settlement, preservation of discoverable information, and a discovery plan. The parties must submit to the court a proposed discovery plan after the conference.

Front 93

Scheduling Order

Back 93

The court must hold a scheduling conference and will enter a scheduling order which limits the time for joinder, motions, and discovery. The order also includes dates for pretrial conference and a trail date, which cannot be modified except by leave of court upon showing of good cause.

Front 94

Pretrial Conferences

Back 94

The court may also hold pretrial conferences as necessary to expedite trial and foster settlement. The final pretrial conference determines the issues to be tried and evidence to be proffered at trial.

Noncompliance with the order without good reason can bring sanctions including payment of any expenses another party had to pay due to the noncompliance.

Front 95

Right to Jury Trial in Federal Court

Back 95

The Seventh Amendment preserves the right to jury trial for legal relief. The Seventh Amendment applies in federal courts only.

A party who desires a jury trial must file a written demand with the court within 14 days after the last pleading from the other party is served on the party or will waiver the right.

A jury demand can be withdrawn, but only with the consent of both parties.

If a party expressly demanded a jury trial in accordance with state law prior to the case being removed to federal court, the demand need not be renewed after removal. Where a case is removed to federal court, and the state did not require demand, then no demand is generally required in federal court.

The federal court must permit a jury trial in any diversity suit at common law even though the state court would deny a jury (the Seventh Amendment prevails over state law in Erie situations).

Front 96

July Selection

Back 96

1. For Cause: A potential juror will not be impartial. No limitations on the number of motions to strike for cause.

2. Peremptory: A potential juror may be peremptory stricken without cause. Peremptory strikes may only be used in a race and gender-neutral manner.

Front 97

Jury Verdicts

Back 97

Generally, all jurors participate in the verdict unless excused for good cause, so long as at least six jurors participate in reaching the verdict (except an extraordinary circumstances and consent of both parties).

The jury verdict must be unanimous unless the parties agree otherwise.

Front 98

Jury Instructions

Back 98

The jury decides facts, but is instructed on the law by the judge.

Parties submit proposed jury instructions to the judge. Before instruction, the court will inform the parties of i) what instructions will be given; and ii) what proposed jury instructions are rejected.

A party may object an instruction when given the opportunity to review purported instructions.

If the parties fail to make objections before the jury is charged, the party cannot raise a problem with jury instructions on appeal.

Front 99

Types of Verdict

Back 99

1. General: In a general verdict, the jury finds who wins and what the relief is.

2. Special: In a special verdict, the jury answers in writing specific written questions about the facts in dispute, but does not find who wins or loses. The judge then reaches legal conclusions based on the facts found.

3. General Verdict with Special Interrogatories: Here, the jury gives a general verdict but must also answer specific questions submitted to it.

When a jury returns a general verdict with answers, but the answers are inconsistent with the verdict, the judge has three options: i) approve an appropriate judgment consistent with the answers, notwithstanding the general verdict; ii) direct the jury to further consider its answer and verdict; or iii) order a new trial.

Front 100

Juror Misconduct

Back 100

The court can set aside the verdict and order a new trial.

A new trial is appropriate if a juror gave false testimony or concealed material facts relating to his qualification to serve.

Generally, jurors may not testify about things occurring or statements made during jury deliberations.

Front 101

Motion for Judgement As Matter of Law (JMOL)

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The motion may be made by any party any time before submission of the case to the jury. The motion may be granted only after the nonmoving party has been fully heard on the matter. To grant the motion, the court must find that a reasonable jury would not have a legal sufficient basis to find for the nonmoving party on that issue, even when the evidence is viewed in the light most favorable to the nonmoving party.

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Renewed Motion for Judgement As Matter of Law

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The motion must be filed no later than 28 days after entry of judgment and the party making the motion must have moved for JMOL at some time during the trial.

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Motion for New Trial

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A motion for a new trial must be filed within no later than 28 days after judgement is entered.

The court may grant a new trial because of an error during the trial, because the verdict is against the weight of the evidence, because of juror misconduct, or because the verdict is excessive or inadequate.

The judge is also authorized to order a new trial on its own for any reason that would justify granting one on party's motion.

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Remittitur

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If the trial judge believes the jury's damages award is so excessive as to shock the conscience, the judge may order a new trial or may offer remittitur.

In a diversity case, the federal court applies state remittitur rules under the Erie doctrine (i.e., this is a substantive issue).

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Additur

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If the trial judge believes that the jury's damages award is inadequate, she may not offer the defendant the choice of accepting a higher award or submitting to a new trial, because additur has been held to violate the Seventh Amendment.

Thus, even if a state in which the federal court is sitting adopts additur rules, the federal court cannot apply the state additur rules in a diversity case.

However, state courts may recognize additur.

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Offer of Judgment

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At least 14 days before trial, a defendant may offer to have a judgment against him to settle the case. If the plaintiff rejects the offer, and wins a judgment that is not more favorable than the offer, the plaintiff is liable to the defendant for his costs incurred after the offer was made.

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Grounds for Relief from Judgment

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1. Clerical Error: no time limit
2. Mistake or excusable neglect (including viable defense): reasonable time but no more than one year

3. New Evidence: could not have been discovered with due diligence for a new trial motion; reasonable time but no more than one year
4. Judgment is void: reasonable time without maximum

5. Fraud, misrepresentation, or misconduct by an opposing party: reasonable time but no more than one year

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Final Judgment Rule

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An appeal may be filed on final orders which is ones that dispose of all the claims and parties on its merits.

A party must give the trial court the chance to consider and rule on issues raised at trial. If the party fails to object at trial, he cannot raise that issue on a later appeal.

A grant of a summary judgment as to all parties and all claims would be a final judgment that could be appealed.

Example of final judgment:

Denial of a motion for new trial;

Dismissal with prejudice

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Judgement on Multiple Claims or Parties- Exception to Final Judgment Rule

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When more than one claim is presented in a case, or when there are multiple parties, the district court may expressly direct entry of a final judgment as to one or more of them (to be appealable) if it makes an express determination that there is no justifiable reason for delay.

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Class Action- Exception to Final Judgment Rule

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A district court's order granting or denying certification of a class action can be appealed within 14 days of entry of the order. The court of appeals has complete discretion in deciding whether to hear the appeal.

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Standard of Review

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1. Question of law: On appeal, when the trial judge erred on a pure matter of law, the appellate court may substitute ist judgement for that of the trial judge. This is called a de novo review.

2. Question of fact: When the district judge determined questions of fact in a bench trial, the court of appeals will affirm it unless they were clearly erroneous. When the jury decided questions of fact in a jury trial, the court of appeals will affirm unless a reasonable jury could not reach the finding.

3. Discretionary matter: On discretionary matters, the court of appeals will affirm unless the district court abused its discretion.

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Choice of Law in Preclusion Questions

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1. First Case Decided in State Court: When the first case has been decided in state court, the second case court generally will apply the preclusion law of jurisdiction that decided the first case.

2. First Case Decided in Federal Court: When the first case has been decided in federal court, the second case court will apply the federal preclusion law.

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Removal

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Removal refers to a defendant's ability to remove a case brought initially in state court to federal court. A defendant may remove an action that could have originally been brought in the federal courts.

To determine whether removal is proper, the court will consider whether i) the federal court has jurisdiction (not PJ!) and ii) removal process was proper.

(District) Removal is proper to the federal district encompassing the location where the original action was filed in state court (e.g., when an action was filed originally in a Northern district state court, the case can be removed to the Northern district federal court).

(Notice) The notice of removal should be filed in the federal district court and it must join all defendants currently in the matter.

(Timing) Generally, a defendant has 30 days from the date of the last pleading giving rise to a removal action. However, for cases based on diversity, removal may not take place more than one year after the case was filed.

(Defendant) In a diversity case, removal is not proper when a defendant is a resident of the state in which the action was filed.

If removal is not proper, the plaintiff can file a motion to remand the case back to state court.

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Remand

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A plaintiff can file a motion to have the case remanded (sent back) to the state court if the removal was not proper. If the plaintiff bases this motion on a defect other than subject matter jurisdiction (e.g., a defect in removal procedures), the motion must be brought within 30 days of removal. The court must remand, however, whenever it is shown that there was not federal subject matter jurisdiction.

Examples of a defect in removal procedures:

i) Failure to join or consent to the removal by all defendant

ii) Failure to file within 30 days after the defendant received the pleading (or one year in diversity jurisdiction)

iii) Removal to a forum state where a defendant resides in a diversity case

iv) the federal court has no jurisdiction (SMJ)

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Inconsistent Pleading

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The federal rules expressly permit inconsistent pleadings in the alternative or hypothetically, reasoning that the discovery process will operate to sort out the viable pleadings.

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Discovery to Compel Nonparty to Produce Evidence

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A party must subpoena evidence from a person who is not a party.

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Transfer of Venue

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To have venue transferred, a defendant must show either that venue is improper in the plaintiff's chosen venue or that venue, even if it is proper, should be transferred, in the interests of justice, for the convenience of the parties and witnesses.

If original venue is proper, transfer may be made to another district in which the action might have been brought (PJ, SMJ, and Venue exist) or to which all the parties have consented (even if PJ and Venue do not exist). The original court has discretion to transfer the action.

If original venue is improper, transfer may be made to another district in which the action could have been brought (PJ, SMJ, and Venue exist). The court must dismiss or transfer but transfer is more appropriate than dismissal except in extraordinary circumstances.

Transfer venue must be from a federal district court to another federal district court (a state court is not involved in transfer of venue).

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Aggregation of Claims by Plaintiff against Single Defendant

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A single plaintiff may aggregate all of his claims against a single defendant.

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Supplemental Jurisdiction over Claims Not Exceeding $75,000

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Claims by a party that do not meet the amount in controversy requirement for diversity of citizenship jurisdiction may invoke supplemental jurisdiction if they arise from a common nucleus of operative fact as a claim by another party that invoked diversity of citizenship.However, the supplemental jurisdiction cannot be used to override the complete diversity rule.

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Compulsory Counterclaim

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A compulsory counterclaim is one that arise out of the same transaction or occurrence as one of the plaintiff's claims, and it must pleaded in the answer in the current litigation or lost.

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Permissive Counterclaim

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A permissive counterclaim is one that does not arise out of the same transaction or occurrence as the plaintiff's claim.

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Supplemental Jurisdiction (ancillary jurisdiction)

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A claim may be joined under supplemental jurisdiction, even if it could not, by itself, invoke federal question jurisdiction or diversity jurisdiction, when the supplemental claim arise from a common nucleus of operative fact as the claim that invoked the original federal subject matter jurisdiction.

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When Renewed Motion of Judgment as a Matter of Law & Motion for Net Trial Are Filed and Renewed Motion is Granted

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If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed.

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Joinder of Claims

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Single Defendant: A plaintiff can join any number and type of claims against a single defendant.

Multiple Defendants: If multiple defendants are involved, at least one of claims arise out of the same transaction or occurrence in which all were involved.

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Preclusion Rules Applied to Second Case

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When the first case is a diversity case, the state preclusion rules apply to the second case.

When the first case is a federal question case, the federal preclusion rules apply to the second case.

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State Remedy

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Federal Rule 64 provides that every remedy is available, under the law of the state where the federal court is located, provides for seizing property to secure satisfaction of a potential judgement.

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Peremptory Challenge

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The Supreme Court has held that lawyers may not use peremptory strikes on the basis of religion, race or sex.