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137 Cards in this Set

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What types of suits may a federal court hear?
Diversity of citizenship and federal question suits only (per Article III)
How can one satisfy diversity of citizenship to give fed courts SMJ?
case must be between "citizens of different states" and amount in controversy must EXCEED $75,000
Who are citizens of different states?
Ps and Ds with COMPLETE diversity (no P as citizen of same state as any D)
What is the litigant's citizenship where the litigant is a natural person?
state of domicile. Domicile = (1) presence in state and (2) intent to make it his permanent home.
Can a natural person have more than one state of citizenship?
No. You always have one and only one.
What is the litigant's citizenship where the litigant is a corporation?
(1) state of incorporation AND (2) the ONE state where the corporation has its principal place of business (apply both nerve center test and muscle center test)
Can a corporation have more than one state of citizenship?
Yes, corporation is always a citizen of the state where incorporated AND citizen of the ONE state with the principal place of business.
What is the litigant's citizenship where the litigant is an unincorporated association?
it is the citizenship of ALL members (including general and limited partners)
What is the litigant's citizenship where the litigant is a minor, decedent or incompetent with a representative who lives in a different state?
citizenship of the actual party (decedent, minor, incompetent, etc.) not the citizenship of the representative
When can claims be aggregated to meet the "exceeds $75,000" standard?
when 1 plaintiff versus 1 defendant
In a suit for injunctive relief, whose viewpoint matters in determining whether the amount in controversy exceeds $75,000?
If over 75k from either the plaintiff's viewpoint (defendant's actions cause more than 75k in damage) or defendant's viewpoint (would be more than 75k to fix), it is okay.
When will a court decline to hear a case even where diversity of citizenship and amount in controversy tests are met?
when the case involves the issuance of divorce, alimony or child custody decree or to probate an estate.
What must be true for a case to fall under "federal question" jurisdiction?
the claim "arises under" federal law...note that the PLAINTIFF's claim (not the defense) must arise under federal law. Think - is the plaintiff enforcing a federal right?
Must every claim in a case meet either the diversity or federal question tests?
every claim should be EVALUATED against these tests, but if some claims don't meet them, they may still get in under Supplemental Jurisdiction
When can a claim be brought in under supplemental jurisdiction?
when it shares a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction. i.e. same TRANSACTION or OCCURRENCE. UNLESS: 1. asserted by plaintiff 2. in diversity of citizenship case; and 3. would violate complete diversity
Must a court hear a supplemental claim which shares a common nucleus of operative facts?
No. The court has discretion to not hear the supplemental claim if: (1) the federal question is dismissed early on, (2) the state law claim is complex, or (3) state law issues would predominate
When, where and how can someone remove a case to federal court?
-only Defendant can remove -only if case invokes diversity or federal question -must remove no later than 30 days after SERVICE of the first removable document (but no more than a year after case was filed if diversity case) -can only remove to the federal district embracing the state court in which case originally filed
What happens when one D wants to remove and another does not?
not removable
When can a defendant NOT remove a case even though it meets the diversity test?
In a DIVERSITY case only, there is no removal if ANY defendant is a citizen of the forum.
what is it called if a case goes from federal court to state court? From state court to federal court?
Remand. Removal.
When must a federal court apply state substantive law?
In a diversity case; this is the Erie doctrine.
what is definitely state substantive law for the purposes of the Erie doctrine?
-elements of a claim or defense, -statute of limitations and tolling rules -conflict/choice of law rules
If we are in a diversity case, what substantive law applies?
State substantive law unless federal law is on point that directly conflicts with state law. If federal law on point, apply federal law so long as it is valid (FRCP is valid). If no federal law on point, must apply state law if it is outcome determinative, would avoid forum shopping, or state interests outweigh, otherwise can apply federal law
What is a local action and where must venue lie?
Local action = ownership, possession or injury to land; must be filed in the district where the land lies
If something isn't a local action, it is a __________ action. Where does venue lie?
Transitory; venue is any district where "all defendants reside" or a substantial part of the claim arose (but where all D's reside in different districts of the same state, plaintiff can lay venue where any of them resides)
Where does a defendant reside where the defendant is a natural person?
where domiciled; usually same place as citizenship for diversity of citizenship purposes
Where does a defendant reside where the defendant is a corporation or other business association?
in ALL districts where they are subject to personal jurisdiction when the case is filed
When and to where can you transfer venue?
If original venue is proper, can transfer to another federal district for convenience for parties/witnesses (private factors) and "the interests of justice" (public factors) If original venue is improper, court may transfer in interests of justice or dismiss. Can transfer to a district where the case could have been filed (i.e. which has personal jurisdiction over defendant).
What is forum non conveniens?
where there is a far more appropriate court elsewhere, to which transfer is impossible, and court may dismiss or stay to let the P sue D there.
What does service of process entail?
delivery of (1) a summons and (2) a copy of the complaint, to the D w/in 120 days of filing the case unless good cause for delay
Who can serve process in federal court?
any nonparty who is at least 18 years old
In what ways can process be served?
1. personal service anywhere in the forum state (not if there for civil case though)
2. substituted service to defendant's usual abode, served to someone of "suitable age and discretion" who actually resides there
3. service on D's agent
4. any process permitted by state law
5. waiver by mail -- OK if D executes and mails waiver form to P within 30 days (D must pay cost of service if not returned)
WASPS|Waiver, Agent, Substituted, Personal, State law
How must other docs be served?
okay to mail. If mailed, add 3 days for any required response
Can fed court serve process outside of MA?
Only if STATE law allows, see MA notes
What is notice pleading?
Only need enough detail to allow the other side to be on notice & make a reasonable response
What does rule 11 require for filings?
The attorney must sign all pleadings, written motions and papers, certifying that to the best of their knowledge and belief, after reasonable inquiry:
1. the paper is not for an improper purpose
2. the legal contentions are warranted by law (or nonfrivolous argument for law change)
3. that factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigations)
When is certification under rule 11 effective? Are sanctions available?
It’s effective every time position is “presented” to the court – so it’s a continuing certification.

Sanctions may be levied, but only to deter, not punish.
What do you do when the other side has violated Rule 11?
Motion for violation of Rule 11 is served on the other parties but is not immediately filed with court.

The party allegedly violating Rule 11 has 21 days “safe harbor” to withdraw the document or fix the problem. If does – no sanctions, if not – motion can be filed.
Can the court raise Rule 11 problems on its own?
Yes – can raise sua sponte. Will issue an order to show cause why court shouldn’t hit with sanctions
What is a complaint? How is it filed?
Complaint is the principal pleading by plaintiff. Filing commences an action.

1. Statement of subject matter jurisdiction
2. Short and plain statement of the claim, showing entitled to relief.
3. Demand for judgment

(Court more lenient w/ pro se litigants – these requirements must be met)
What do you normally have to plead?
What matters have to be pleaded with specificity?
Normally “state facts supporting a plausible claim”

Specificity-Fraud, Mistake, Special Damages Special Damages do not normally flow from an event (permanent erection)
How might a defendant respond to a complaint?
One of two ways under Rule 12:
1. By motion
2. By answer

Either must be w/in 20 days after service of process – or risk default
What are motions and how are they filed? What motions are generally filed for issues of form?
Motions are not pleadings, they are requests for a court order. Two main types for FORM:
1. 12(e) motion for more definite statement – pleading so vague D can’t frame response (rare)
2. 12(f) motion to strike, aimed at immaterial things, e.g. demand for jury when no right exists.
What motions are generally filed for defenses under 12(b)?
12(b) defenses:
1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insuff. of process (prob w/ papers)
5. Insuff. of service
6. Failure to state claim
7. Failure to join indispensable party

Some PVPS i Can't Play (Subject-matter, Personal, Venue, Process, Service, Claim, Party)
Some PVPS i Can't Play
What defenses are waivable? What does it mean to be waivable?
2, 3, 4, 5

2. Lack of PJ
3. Improper Venue
4. Insuff. of process (prob w/ papers)
5. Insuff. of service The waivable defenses must be in the first rule 12 response or they’re waived.

PVPS - Personal J, Venue, Process, Service
What 12(b) motion(s) can be asserted any time through trial?
12(b)(6) failure to state a claim
12(b)(7) failure to join an indespensible party
What 12(b) motion(s) can be asserted even after trial for the first time?
12(b)(1) lack of SMJ
Can even be raised for first time on appeal
What is the answer? When is it due?
It’s a pleading. It must be served w/in 20 days after service of process if D makes no motions;

if D does make a Rule 12 motion and it is denied, she must serve her answer w/in 10 days after court rules on motion.

If D waives service, has 60 days from P’s mailing of waiver form in which to answer. (Waiver of service does not waive personal J or venue)
Answer - How does one respond to the allegations of a complaint?
1) Admit
2) Deny
3) State lack info to admit or deny

#3 acts as a denial, but can’t be used if info is public knowledge or is in D’s control
Answer - What happens if you fail to deny an allegation?
Constitutes an ADMISSION on any matter except damages.

In his complaint, P alleges X. In his answer, D says, “P cannot prove X.” D has failed to deny X and thus has admitted that X is true.

You must say “Deny” – if you argue you haven’t denied therefore you’ve admitted!
What else must be in an answer or its waived?
Any affirmative defenses
P sues D for breach. D answers, denying material allegations. At trial, D introduces evidence that the K was procured by P’s fraud and is therefore unenforceable. P objects, what result?
The evidence is inadmissible because it relates to an affirmative defense that D failed to plead. You must plead affirmative defenses – if you fail to plead an affirmative defense you waive that defense.
Andy and Barney, each driving his own car, collide and each is injured. Andy sues Barney to recover for his injuries. Barney files and serves his answer and defends that case, which is litigated to judgment. Now Barney sues Andy to recover for his injuries from the same wreck. Barney’s case is dismissed. Why?
B’s claim was a compulsory counterclaim and must have been filed in the first case. A Compulsory Counterclaim arises from the same T/O as P’s claim. Counterclaim is an offensive claim against an opposing party. Filed with defendant’s answer.
What is a permissive counterclaim?
It’s a claim that does not arise from the same T/O as plaintiff’s claim. It does not have to be asserted in pending case; can sue in separate action. If a counterclaim is procedurally OK, then assess whether it has subject matter jurisdiction (diversity or FQ). If so, it’s OK in federal court.
What is a cross-claim?
An offensive claim against a co-party. It MUST arise from the same T/O as the underlying action. Not compulsory
If you see that a counterclaim is procedurally OK, what should be your next question?
Does it invoke diversity or FQ jurisdiction. If so, OK in Fed court.

If not, try supplemental jurisdiction.
Andy (NC) sues Barney (SC) and Aunt Bee (SC) for personal injuries of $500k arising from a car crash (B was driving AB’s car). No federal law is involved. So it’s a diversity case. AB doesn’t know who’s at fault, but knows her car ($85k) is shot. She wants to recover the property damage. What does she do?
1. File a compulsory counterclaim against A. It’s an opposing party and arises from the same T/O as P’s claim, so compulsory. Obviously, there’s no FQ J, but is there diversity? Yes – counter claim invokes diversity b/c AB is from a state diverse to A and it is for an amount > $75k. 2. AB may cross-claim against B. It’s against a co-party and arises from the same T/O as the underlying case, so it’s a cross-claim. What about subject matter jurisdiction? No FQ. What about diversity? Does not invoke diversity b/c not from diverse states. (Barney (SC) A (NC) ----( ) (Aunt Bee (SC) So, is there SJ over cross? Yes, b/c it (1) meets the test – same T/O and 2) not a claim by a plaintiff, so limitation on claims by plaintiffs in div cases does not apply.
Can a party amend a case?
Yes, a plaintiff has a right to amend once before D serves her answer. A defendant has a right to amend once w/in 20 days of serving his answer.
What if there’s no right to amend left?
The parties may seek the leave of the court, it will be granted if “justice so requires.”

Courts usually allow unless delay or prejudice.

If a claimaint amends, D must respond w/in 10 days or remaining 20 days, whichever longer.
What is a variance? What happens when there is a variance?
It’s where the evidence presented at trial does not match what was pleaded.

If the evidence is not objected to, the variant party may amend the complaint to conform to the evidence presented.

If D does object, evidence is inadmissible because it is at “variance with the pleadings”
E sues for breach of K. Wilbur answers. At trial, E introduces evidence that Wilbur assaulted him. Wilber doesn’t object. Okay? What if Wilbur does object?
If Wilbur doesn’t object, the evidence is okay. It’s admitted b/c Wilber doesn’t object. After trial, Mr. Ed can move to amend the complaint to conform to the evidence to show the assault claim. We want the pleadings to reflect what was tried. If Wilbur does object, evidence of assault inadmissible b/c it is at “variance with the pleadings.”
Mr. Ed files his complaint and has process served on July 1. The statute of limitations runs on July 15. In August, Mr. Ed seeks leave to amend to add a new claim. Is the new claim time-barred because the statute ran on July 15?
No – amended pleadings “related back” if they concern the same conduct, transaction or occurrence as the original pleading. Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid SOL problem. Treat it as though filed on 7/1 before statute ran on 7/15.
When do amended pleadings “relate back”?
When they concern the same conduct, transaction or occurrence a the original pleading.
What are the required disclosures in Fed court? (Unlike to be tested)
1. Initial disclosures – w/in 14 days of rule 26f conference must ID parties/docs “likely to have discoverable info” & give copy or description

2. Experts – must Id experts who may be used

3. Pretrial – no later than 30 days before trial, give detailed info about trial evidence, including docs and ID of wits to testify live or by depo.
What are the basic discovery tools?
1. Depositions 2. Interrogatories 3. Requests to produce 4. Physical or mental examination 5. Request for admission
PAID-E (Produce, Admission, Interrogatories, Depositions, Examination)
What discovery tools can be used for NON-parties?
Depositions, requests to produce
What are the rules for depositions
Parties (w/ notice) or nonparties (w/ a subpoena)

Duces Tecum – w/ documents.

- No more than 10 depos, can’t depose same person twice & no more than 1 day of 7 hours w/o court approval or party stipulation, nonparty cannot be required (unless she agrees) to travel more than 100 miles from home or work for the depo
How can I use a deposition at trial?
1) Impeach the deponent
2) any purpose if deponent is adverse party
3) any purpose if deponent is absent, unless absence was procured by party to use deposition
Rules for interrogatories?
25 in 30 days

Cannot serve more than 25 interrogatories (inc subparts). Must respond w/in 30 days.

Can say you don’t know answer, but only after reasonable investigation; if answer could be found in business records but burdensome to find, can allow propounder access to those records. At trial, cannot use own answers, others may be used per regular rules of evidence. Cannot be used on nonparties.
What is a request to produce? Rules for request to produce?
Request to party or nonparty (w/ sub.) to make available (thing, land, etc.) for inspection Respond in 30 days - will produce or objection
Rules for physical or mental examination?
1. Court order
2. Parties (or person in party's control) only
3. health is in actual controversy
4. Good faith

CPAG (Court order, Party, Actual controversy, Good faith)

Person examined may obtain copy of report w/o making this showing, but by doing so waives Dr/Pat privilege re reports by his doctors re that condition.
Rules for request for admission?
A request by one party to another party to admit the truth of any discoverable matters. Often used to authenticate documents; the propounding party will send copies of the documents to the authenticated with the request. Must respond w/in 30 days of service. The response is to admit or deny; can indicate lack of information only if you’ve made reasonably inquiry. Failure to deny = admission. Can amend if failure is not in bad faith.
What discovery tools are usable against third parties?
1. Depositions.
2. Request to produce (w/ subpoena)
What are lawyers required to do with discovery answers? What is the lawyer’s duty after disclosures, etc. are made?
Substantive answers are signed by parties under oath. Every discovery request and response is signed by counsel certifying (1) warranted, (2) not interposed for improper purpose and (3) not unduly burdensome.

There is a duty to supplement. If a party learns that its response to required disclosure, interrogatory, request for production or request for admission is incomplete or incorrect, it must supplement its response.
What are the rules about scope of discovery?
1. Generally – anything relevant to a claim or defense – something relevant to the pleadings (narrower than in past – “to case” – Court can order broader discovery)

2. Privileged material not discoverable (see evidence)

3. Work product (material prepared in anticipation of litigation) generally protected

4. Expert witnesses – required to produce info about experts who may be used at trial w/o request from party – in add. Party may take depo of any expert whose opinions may be presented at trial
Howell sues Skipper for losses sustained when a vessel sank. Skipper, fearing the suit, had hired Shore, an attorney, who interviewed Gilligan, a witness to the sinking. Shore (a) had Gilligan write a statement regarding the incident; (b) made a note that based on what Gilligan says, assumption of risk would be a viable defense; and (c) made a note that Gilligan is stupid and would make a lousy witness at trial. What, if anything is discoverable?
All three items are work product, because each was generated in anticipation of litigation. So, start w/ assumption that NOT discoverable.

But, item (a) is discoverable if Howell shows:
1. Substantial need
2. Not otherwise available

So, if Gilligan is marooned on an island and therefore not available for deposition, it might be discoverable.

(b) and (c) are absolutely protected b/c they are (1) mental impressions, (2) opinions, (3) conclusions and (4) legel theories.
Does work product have to be generated by a lawyer?
No – it can be prepared by party or any representative of a party, not just the lawyer.
How might a discovery problem present itself to the court?
1. Protective order – Receiving party seeks protective order FRCP 26(c) b/c request overburdensome, not reasonably accessible electronic info (deleted) or involves trade secrets and need order limiting use to litigation

2. Partial violation – receiving party answers some and objects to others. If the objections are not upheld, this is a partial violation and sanctions will be light.

3. Total violation – receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production. Total violation – heavy sanctions
What are the sanctions against a party for violations of discovery rules?
The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement. <– this should be in essay answer

Partial violation –
1) Court order compelling party to answer unanswered questions, plus costs of bringing motion 2) IF party violates order compelling answer, RAMBO sanctions plus costs and contempt (no contempt for failing to submit to med exam)

Total violation – RAMBO plus costs – no need to get order compelling answers
What are some other things that can get sanctions?
False Denial, Failure to make required disclosure False denial of request to admit: only costs of proving issue Failure to make required disclosure: Other side can treat as either partial or total violation. Party failing to make disclosure cannot use the info at trial, unless failure was justified or harmless.
What are the RAMBO sanctions?
These sanctions are choices available to judge:
- Establishment order (establishes facts as true)
- Strike pleadings of the disobedient party (as to issues re discovery)
- Disallow evidence from the disobedient party (as to issues re discovery)
- Dismiss plaintiff’s case (if bad faith shown)
- Enter default judgment against defendant (if bad faith shown) ESDDD (Establishment, Strike, Disallow, Dismiss P, Default D)
What sanctions are available against a nonparty? Against an attorney?
Nonparty – contempt (for violating subpoena or court order)

Attorney – liable for all expenses (incl. atty fees) incurred by other side if she counseled one of these bad acts.
Who are proper parties? (i.e. who MAY be joined as co-parties?)
If claims:
1) arise from same transaction or occurrence &
2) raise at least one common question
What is a necessary party?
An absentee (A) who meets any of these tests:

1. Without A, court cannot accord complete relief (worried about multiple suits)

2. A’s interest may be harmed if he isn’t joined (practical harm)

3. A claims an interest which subjects a party (usu D) to mult obligations JT aren’t necessary.

Mnemonic: HIM (Harmed, Inadequte, Multiple)
BB holds 1000 shares of stock in Priceline.com. Will Shatner claims he and Bob agreed to buy stock jointly and that he paid for half the stock. Will sues PL.com, seeking to have B’s shared canceled and stock reissued in their joint names. Is BB a necessary party?
Yes. He probably meets all three tests, but at the minimum, (2) his interest will be harmed if he isn’t joined. In fact, they will be canceled.
What do we do next if we’ve found a party that is necessary?
We now see if joinder is feasible.

It’s feasible if:
1. There is PJ over him
2. Joining him would not make diversity impossible

If Joinder is possible, A brought into case, and court decides whether he is D or P.
What if we can’t join the necessary party?
If joinder is not feasible, the court has two options.
1. Proceed w/o him
2. Dismiss case
a) is there an alternative forum available? (esp. state court)
b) what is the actual likelihood of prejudice?
c) can the court shape relief to avoid that prejudice? PD - ALR (Proceed, Dismiss, Alternative, Likelihood, Relief)

If the court decides to dismiss (rather than proceed w/o Bob), then Bob is “indispensable.”
How do I remember these different third party thingies?
Joinder rules that start with C (counterclaim, cross claim) are claims involving present parties. Claims that start with “I” involve joining someone new to the case.
What is impleader?
A defending party wants to bring in someone new for one reason: the third party defendant (TPD) may owe indemnity or contribution to the defending party on the underlying claim.
When can one implead?
W/in 10 days after serving answer; after that, need court permission.
Pam sues Doris to recover for personal injuries from car wreck. Doris has a right to indemnity from Insco (or a right of contribution from a joint tortfeasors) what are the steps of impleading?
1. File third-party complaint naming Insco as TPD; and
2. Serve process on the TPD (So must have personal jurisdiction over TPD)
After the TPD is joined, can plaintiff assert a claim against TPD? Can TPD assert a claim against plaintiff?
Yes – if the claims arise from the same T/O as underlying case.
Impleader – assuming there is no FQ and all claims > $75k, P is a citizen of PA, D is citizen of NV, TPD is citizen of PA. Analyze.

/ ^
1. Is there SMJ over D’s claim against TPD?
Yes – it meets diversity (NV v. PA and > $75k) P is irrelevant to D v. TPD 2. Is there SMJ over TPD’s claim against P? No diversity and no FQ, but supp. J is OK b/c meets test (T/O) and special limitation on P’s adding D’s to defeat div doesn’t apply to claims by non-Ps 3. Is there SMJ over P’s claim against TPD? No diversity and no FQ and NO Supplemental! Meets test, but violates limitation (A P cannot use Supp J to avoid lack of diversity in div case – this can only go to state court)
What is intervention?
An absentee wants to join a pending suit. She chooses to come in either as P or as D. Court may realign her if it thinks she came in on “wrong” side. Application to intervene must be timely.
What is intervention of right? What is permissive intervention?
Intervention of right - A’s interest may be harmed if she is not joined and her intervention is not adequately represented now.

Permissive intervention - A’s claim or defense and the pending case have at least one common question. Discretionary w/ court. OK unless delay or prejudice
What happens if we have a diversity case and the plaintiff intervener is not diverse from the defendant (or the defendant-intervener is not diverse from the plaintiff). Is there supplemental jurisdiction over a claim by or against an intervenor?
Generally no – the court won’t allow in a non-diverse intervenor.
What is interpleader?
One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency.
Who are the different players in interpleader?
The person with property is called the stakeholder. The folks with the claims are called claimants.
What are the two types of interpleader in federal court? What are the rules of interpleader?
Rule (FRCP 22) and statutory. Rule interpleader is a diversity case. 1) Stakeholder must be diverse from all claimants. 2) Amt. > $75k, 3) Service of process like a normal suit, 4) Venue – like a regular case Statutory interpleader – 1) one claimant must be diverse from one other claimant 2) Amt. > $500, 3) Service – nationwide (no PJ probs over claimants in US) 4) Venue – any dist where any claimant resides.
Insco (inc. in DE, ppb NY) holds a fund of $100k under a life insurance policy. After the insured dies, potential claimants to the fund are Bonzo (NJ), Gonzo (MN) and Nonzo (NY). Insco wants to avoid being sued on the policy in three different actions. What can it do? How?
It will interplead There’s no rule interpleader because it’s not diverse from all claimants. There is statutory interpleader b/c one claimant is diverse from at least one other claimant. All other requirements met
What are the initial requirements for class action?
Numerosity – too many class members for practical joinder
Commonality – there are some questions of law and fact common to class
Typicality – representative’s claims/defenses typical of those in the class
Adequate representation – the class representative will fairly and adequately represent class.
Besides Numerosity, Common Question, Typicality, and Adequate Representation, what else must is required for class action?
Case must fit w/in one of three areas:
1. Prejudice – class treatment necessary to avoid harm to class members or party opposing class – Example: many claimants to fund
2. Injunction or declaratory judgment – sought because class was treated alike by other party – employment discrimination
3. Damages – 1) Common questions predominate over individual questions AND 2) class action is the superior method to handle dispute. EX: Bus crash
What is certification?
At an early practicable time, the court must determine whether to certify case to class action. If court certifies class, must “define the class and class claims, issues or defenses,” and appoint a class counsel who must fairly and adequately represent the interests of the class.
Does the court notify the class of pendency of the class action? Who pays for notification? Is notification required in all types of class action?
In the Type 3 class the court must notify the class members, including individual notice to all reasonably identifiable members. Notice tells them 1) they can opt out,
2) they’ll be bound if they don’t and
3) they can enter a separate appearance through counsel.

The class representative pays for notification. It is not required for types 1 & 2
Who is bound by the judgment in a class action?
All members of the class except those who opt out of a type 3 class.
What happens when there’s a settlement or dismissal of class claims in a certified class action?
The court must approve all settlements or dismissals.

Also, in all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed. If it’s a type 3 class, the court MUST give members a second chance to opt out.
What about a class action brought under diversity of citizenship?
You look only at the representative’s citizenship and amount. If his claim meets diversity, then okay.
What is the Class Action Fairness Act of 2005?
This act contains a grant of SMJ separate from regular diversity of citizenship J.

It allows Fed Courts to hear class action if any class member is of diverse citizenship from any defendant and if aggregated claims of the class exceed $5M.
Summarize the Class action thought process.
1. Initial requirements (N, C, T, A)
2. Type
3. Certification
4. Notification
5. Who’s bound
6. Settlement & approval
7. Subject matter J
8. Class Action fairness Act of 2005
What is voluntary dismissal? How many times can a claim be voluntarily dismissed? What is the effect?
P files written notice of dismissal – P sues D, but (before D answers) dismissed the action by filing written notice of dismissal.

This is okay, P may voluntarily dismiss w/o prejudice once before D serves her answer or a motion for summary judgment. Means P can refile.

But, if the 2nd case is dismissed by written notice, it is with prejudice, so claim cannot be re-asserted. This is true even if the 1st case was in state court
What is entry of default? What happens next?
1. An entry of default is merely ministerial, shown as an entry on the docket sheet. You need a default judgment to enforce and recover.

2. Entry of default is prerequisite to entry of default judgment. Default is entered by the clerk after P shows that D failed to respond w/in required time. D can respond anytime until default is entered on docket.
When can a default judgment be entered by the clerk?
ONLY if four things are true:
1. D has made no response at all
2. P’s claim is for a sum certain (or calculable) + costs
3. P gives an affidavit that the sum is owed AND
4. D is not a minor or incompetent
What happens if the clerk of the court can’t enter the default judgment?
P must go to the court to get default judgment. Judge can hold a hearing on damages or other issues if she feels it’s necessary. D gets notice of this hearing only if he made some appearance in the case.
How much can P recover in default judgment?
No more than what she asked for. (If tried, P can recover more)
Can the D get relief from default or default judgment?
Yes – D can move to set aside the default or default judgment. Generally must show good cause for default + viable defense.
What’s a 12(b)(6)? What's the standard the court uses? What can the court look at?
Failure to state a claim. D moves to dismiss for failure to state a claim. It tests only the sufficiency of P’s allegations.

Standard: Court assumes all allegations are true and asks: If P proved all she has alleged, would she win a judgment? Court cannot look at evidence, only face of the complaint.

If this is done after D has answered it is called Motion for judgment on the pleadings (still 12b6)
How does one get summary judgment?
Moving party must show
(1) there’s no genuine dispute as to material issue of fact and
(2) that she is entitled to judgment as a matter of law.

Court views evidence in light most favorable to nonmoving party.
Can you move for partial summary judgment? What’s that?
Yes – it’s summary judgment on one of the claims. It weeds out those claims that don’t need trial.
Larry sues Daryl for damages, alleging that Daryl slugged him in the nose. Daryl answers and alleges the affirmative defense of self-defense. Then Daryl moves for summary judgment, attaching affidavits of a priest, a rabbi, and a nun, all of whom swear they saw the incident, and that Larry attacked Daryl first w/o provocation or warning. In response, Larry files no affidavits, but relies on the allegations in his complaint. If Daryl moves for summary judgment, what result?
Motion for summary judgment granted. Larry gave no evidence, pleadings are not evidence. That means the only evidence before the court are the affidavits offered by Daryl. Based on that evidence, there is no dispute of fact and Daryl is entitled to judgment as a matter of law. Look at evidence and ask is there a dispute on a material issue of fact?
Larry sues Daryl for damages, alleging that Daryl slugged him in the nose. Daryl answers and alleges the affirmative defense of self-defense. Then Daryl moves for summary judgment, attaching affidavits of a priest, a rabbi, and a nun, all of whom swear they saw the incident, and that Larry attacked Daryl first w/o provocation or warning. Larry responds with an affidavit from Dick, who swears he heard about the fight and was told that Daryl started it. Motion for summary judgment?
Probably granted – Dick’s affidavit is inadmissible hearsay, so we’re in the same situation as before, no evidence for Larry, so no facts in issue.
Larry sues Daryl for damages, alleging that Daryl slugged him in the nose. Daryl answers and alleges the affirmative defense of self-defense. Then Daryl moves for summary judgment, attaching affidavits of a priest, a rabbi, and a nun, all of whom swear they saw the incident, and that Larry attacked Daryl first w/o provocation or warning. Larry responds with deposition testimony from an alcoholic, drug addicted, convicted swindler who swears he saw the incident and that Daryl attacked Larry without provocation. Motion for summary judgment?
Denied – The evidence for Larry is admissible and creates a dispute on a material issue of fact. The court looks at evidence in the light most favorable to the non-moving party.
What’s a 26(f) conference?
Unless ct order says otherwise, at least 21 days before scheduling conference or scheduling order is due, parties discuss claims, defenses & settlement.

Must form discovery plan & present it to court in writing w/in 14 days.
What is a scheduling order?
Unless local rule or court order says different, court enters an order scheduling cut-offs for joinder, amdmt, motions, etc.
What are the pretrial conferences?
Court may hold “pretrial conferences” as needed to expedite the case and foster settlement.

Final pretrial conference determines issues to be tried and evidence to be proffered.

Recorded in pretrial conference order that basically supersedes the pleadings; may be amended “to prevent manifest injustice” (tough standard).
What’s the importance of the final pretrial conference report?
Final pretrial conference order is important document – roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. So, no surprises at trial.
When is there a right to jury trial in federal court?
7th amendment preserves right to jury in “civil actions at law” but not suits at equity.
What if a case involves both law and equity? Is there a right to jury trial?
When there are both law and equity in a case, there is a jury for law issues, judge for equity issues.
What does one have to do to get a jury?
Demand jury in writing no later than 10 days after service of the last pleading raising jury triable issue.
What is voir dire?
Jury selection. Each side gets unlimited strikes for cause, and 3 peremptory strikes – must be used in race/gender neutral way. Jury selection is state action, even in civil action.
What can I do when the other side rests?
Motion for judgment as a matter of law (old name: directed verdict) Takes case away from jury.

Rule: Reasonable people could not disagree on the result (view evidence in light most favorable to non-moving party)

Note, defendant can generally do this twice—at end of P’s evidence & at close of all evidence.
Tell me about the renewed motion for judgment as a matter of law? When must it be filed?
Old name: Judgment notwithstanding the verdict (JNOV)

After jury comes back, file w/in 10 days after entry

Standard – same as judgment as matter of law

Prerequisite: At trial, must have moved for judgment as a matter of law
P presents her evidence at trial, after which D moves for a judgment as a matter of law. Denied. D puts on her evidence. At close of all evidence, D does not move for judgment as matter of law. Jury finds for P and judgment is entered for P. Can D make a renewed motion for judgment as a matter of law?
No – she waived it by failing to move for judgment as a matter of law at the close of all evidence.
Tell me about the motion for a new trial. What is it? When must it be filed? On what grounds?
Judgment entered, but errors at trial require new trial. Move w/in 10 days.

1) prejudicial error at trial makes judgment unfair;
2) new evidence that could not have been obtained w/ due diligence for original trial;
3) prejudicial misconduct of party or attorney or 3d party or juror;
4) judgment against weight of evidence.

New trial less radical than renewed motion for judgment as matter of law – court simply starts over.

Mnemonic: NEW-M (NEW Evidence, ERROR, against WEIGHT, MISCONDUCT)
Tell me about motion to set aside the judgment. What are the grounds and timing?
1. Clerical error / any time
2. Mistake, excusable neglect or surprise / reasonable time (<= 1 year)
3. new evidence not been found w/ due diligence for a new trial motion / reasonable time (<= 1 year)
4. Judgment void – reasonable time (no maximum)

Color ME Violet (Clerical, Mistake, Evidence, Void - Any time, 1 year, 1 year, reasonable time - respectively)
Color ME Violet Any 11 Reasons
Which are final judgments one can appeal from? Denial of a motion for summary judgment? Grant of a motion for a new trial? Denial of a motion for a new trial? Grant of a motion to remand to state court? Grant or denial or renewedmotion for judgment as a matter of law? When does notice of appeal have to be filed?
Denial of a motion for summary judgment – no Grant of a motion for new trial – no
Denial of a motion for new trial – yes
Denial of a motion to remand to state court – no
Grant of motion to remand to state court – no (by statute, even though federal work is done)
Grant or denial of renewed motion for judgment as matter of law – yes (either way a final judgment)

Notice of appeal must be filed in trial court w/in 30 days of entry of final judgment.
When can I get an interlocutory review?
Interlocutory (non-final) review:
1. Reviewable as of right: injunctions, receivers, patent infringement (when only damages left) attachments

2. Interlocutory appeals act – if Judge certifies that it involves a controlling issue of law

3. Collateral order exception – appellate court has discretion to hear ruling on an issue if it (a) is distinct from merits of case (b) involves an important legal question and (c) essentially unreviewable if parties await final judgment (ex: claim of immunity from suit)

4. When more than one claim is presented in ca case, or when there are multiple parties, trial court may expressly direct entry of final judgment as to one or more of parties if it makes an express finding no reason for delay

5. Extraordinary writ: Not technically an appeal, but an original proceeding in appellate court to compel judge to make or vacate a particular order – not substitute for appeal, only avail. To enforce clear legal duty

6. Class action – court of appeals has discretion to review orders granting or denying certification of class action. 10 days after decision.
What does the 11th amendment mean for Massachusetts?
It bars federal courts from hearing damages claims against the state – unless the state waives the immunity.

It is okay to sue an individual state actor for equitable relief. No 11th amendment problem there.