New York Bar Exam: Federal Jurisdiction

Front 1

Personal Jurisdiction: Do federal courts need PJ over Ds?

Back 1

Yes.

Front 2

Personal Jurisdiction: How is PJ assessed?

Back 2

The same as in state court. "we assess it the same way in state court," and then assess

Front 3

SMJ: What's the idea of SMJ?

Back 3

To determine whether P will sue D in federal court or state court

Front 4

SMJ: What are the 2 main types of cases that can be filed in federal court?

Back 4

1.Diversity of citizenship

2. Federal Question

Front 5

SMJ: What does diversity of citizenship include?

Back 5

Alienage jurisdiction

Front 6

SMJ: ***What are the requirements for diversity and alienage (D/A) cases?***

Back 6

***1. the action must be b/t "citizens of different states" or b/t "a citizen of a state and a citizen of a foreign country (alien)" and

2. the amount in controversy must be >75k.

Front 7

SMJ: Who are the right kind of litigants for a D/A case?

Back 7

Complete diversity rule: There is no diversity of citizenship jurisdiction if any P is a citizen of the same state as any D.

An alien admitted to US for permanent residence is treated as a citizen of the state in which she is domiciled

A US citizen is a citizen of the the US state in which she is domiciled.

Front 8

SMJ: For a natural person who is a US citizen, what is her state of citizenship?

Back 8

Natural person = human being

The US State in which she is domiciled.

Front 9

SMJ: Can a person have more than 1 domicile at a time?

Back 9

No, and you always have a domicile. No such thing as someone w/o domicile, but only have one.

Front 10

SMJ: How do you establish a new domicile?

Back 10

2 things:

1. Presence in the state (phsyically there) AND

2. The intent to make that your permanent home.

Front 11

SMJ: P (DC) sues D (NY). After filing, P becomes a citizen of NY. Is that OK even though both litigants are now citizens of NY?

Back 11

Yes. Why:

1. We treat DC as a State

2. We test for diversity when the case is filed

A subsequent change in a party's citizenship is irrelevant. Also irrelvant what their citizenships were when claim arose. Care only about their citizenship when action is filed

Front 12

SMJ: What does corporate citizenship mean?

Back 12

Corp citizenship =

1. State where incorporated AND

2. The one state where the corp has its principal place of business (PPB)

Corps can have more than one citizenship at a time

Front 13

SMJ: What 2 tests to throw in to determine PPB if they don't tell you what it is?

Back 13

1. HQ (nerve center -- where decisions are made) OR

2. Where corp does more production or service than anywhere else (muscle center)

Usually, use nerve center unless all corp activity is in same state

Front 14

SMJ: What's the most important thing to remember about PPB?

Back 14

There is only one PPB. Corp can't have more than one. But can have more than one citizenship.

Front 15

SMJ: How is unincoporated association's citizenship determined?

Back 15

Rarely tested. For an unincorp assoc, use the citizenship of all members (that includes general and limited partners) XYZ partnership, where citizens of all 50 states, can never sue on basis of diversity of citizenship

Front 16

SMJ: How to determine citizenship of decedents, minors, and incompetents?

Back 16

Look to their citizenship, not the citizenship of their representative.

Front 17

SMJ: In addition to having the right kind of litigants, a diversity of citizenship or an alienage case must also meet the amt in controversy req. What is it?

Back 17

There must be a good faith allegation that the claim in the complaint alone > 75k, exclusive of interest and costs. Whatever P claims in good faith OK, unless it's "clear to a legal certainty" that P can't recover more than 75k.

But what P actually recovers is irrelevant, can be less than 75k. Throw this in: But if P recovers less than 75k, she might have to pay D's litigation costs (not atty fees), even though she won. Usually, loser pays winner's costs, but this is different.

Front 18

SMJ: What is aggregation?

Back 18

Where P must add 2 or more claims to meet the amount in controversy req.

Applies if case is one P vs one D. If case is one P vs more than one D, can't aggregate amounts to get to 75k+.

For JOINT claims, though, use the total value of the claim. The # of parties is irrelevant here.

Front 19

SMJ: How do we calculate the value of an injunction?

Back 19

Hypo: P sues for an injunction to force D to remove portion of D's house that encroaches on P's property.

If either of two tests is satisfied, amount requirement is deemed satisfied. DO BOTH SIDES.

P's viewpoint: Does the encroachment decrease the value of P's property by more than 75k?

D's viewpoint: Would it cost D more than 75k to comply w/ the injunction?

If either works, it's OK (usually will be based on D)

Front 20

SMJ: What cases will fed cts not hear even if reqs for div or alienage juris are met?

Back 20

Fed cts will not hear cases involving the issuance of a divorce, alimony or child custody decree

Also won't probate a decedent's estate

Very narrow, can hear family cases but not these.

Front 21

SMJ: What are federal Q cases?

Back 21

Complaint must show a right or interest founded substantially on a federal law (fed con/legislation). Claim must arise under fed law.

Federal Question (FQ)

Front 22

SMJ: With a FQ, is either citizenship of parties or amount in controversy relevant?

Back 22

Citizenship of parties is not relevant

Amount in controversy is not relevant

Front 23

SMJ: What FQ cases have exclusive fed juris?

Back 23

Patent infringement and some fed securities law cases. Most don’t, so they can be brought in state or fed court

Front 24

SMJ: ***What is the well-pleaded complaint rule?

Back 24

If were the complaint well pleaded, would it be federal?

To answer, ask: Is the P enforcing a federal right?

If answer is yes, FQ case.

If answer is no, not FQ case.

Front 25

SMJ: Does every individual claim asserted in a federal court case have to have federal SMJ?

Back 25

Yes. Test every individual claim for diversity or alienage or FQ.

If claim meets one of those, that claim can come into federal court.

Front 26

SMJ: What if an additional claim in the case doesn't meet div/alien/FQ reqs?

Back 26

Then, we try supplemental jurisdiction (SuppJ)

Freer thinks it's about time

Front 27

SMJ: What is supplemental jurisdiction?

Back 27

Allows fed ct to hear claims over which there is NO diversity, alienage, or FQ. It's an additional claim asserted in the case that doesn't meet diversity/alienage/FQ

Front 28

SMJ: What's The Test for exercising supp J?

Back 28

The Test

Ask: Does this claim share a common nucleus of operative fact w/ the underlying case?

Front 29

SMJ: Is this test always met if the claim arises from same X-action or occurrence (T/O) as the underlying case?

Back 29

Yes. T/O is narrower than common nucleus, so it always meets common nucleus.

Front 30

SMJ: What is the limitation to supp J?

Back 30

In a diversity case ONLY, P can't use supp J to overcome a lack of diversity

Front 31

SMJ: When can P use supp J?

Back 31

1. To overcome lack of diversity for a claim by a P in a FQ case AND

2. To overcome a lack of amount in controversy for claims by Ps in diversity cases

Front 32

SMJ: When can any other party use supp J?

Back 32

To overcome either a lack of complete diversity or amt in controversy in any case (diversity or FQ)

Front 33

SMJ: Overall rule on the test?

Back 33

A non-federal, non-diversity claim can be heard in federal court if it meets "the test" UNLESS it is:

1. Asserted by a P

2. In a diversity of citizenship (not FQ) case AND

3. Would violate complete diversity

Front 34

SMJ: When does ct have discretion NOT to hear a supp J claim?

Back 34

1. If FQ is dismissed early in the proceedings (b/f trial, usually), or

2. state law claim is complex or

3.state law issues predominate

Front 35

SMJ: ***What is removal?

Back 35

***Allows Ds (ONLY) to have case filed in state court "removed" (X-ferred) to fed ct.

Removal is a one-way street -- it goes ONLY from a state trial court to a fed trial ct.

If removal improper, fed ct remands to a state ct

Front 36

SMJ: Can P remove?

Back 36

NEVER

Front 37

SMJ: What's the general test for removal?

Back 37

D can remove if the case could be heard in federal court (Fed SMJ)

If it invokes diversity, or alienage, or FQ jurisdiction.

Front 38

SMJ: To where can case be removed?

Back 38

Only to the fed district ct embracing the state ct in which the case was originally filed

Front 39

SMJ: When can case be removed?

Back 39

Must remove no later than 30 days after **service** of the first removable document.

Usually, this means 30 days after initial service of process.

Front 40

SMJ: If P suing more than one D, can D1 remove if D2 does not want to remove?

Back 40

NO. All Ds must agree

Front 41

SMJ: P (PA) sues D1 (AL) and D2 (NY) in NY state court for 500k. Can D1 and D2 remove?

Back 41

No. Special rule for diversity cases only: No removal if any D is citizen of forum.

Can never remove on basis of diversity if true.

Front 42

Does the "instate D" rule ever apply in FQ cases?

Back 42

No. Only in diversity cases

Front 43

SMJ: What cases are not removable w/in 30 days after service of 1st removable doc, but become removable later?

Back 43

If P dismisses a claim against the only D who is a citizen of a forum, the case then becomes removable b/c now no D who is a citizen of the forum. The remaining D has 30 days from service of the dismissal of the other D in which to remove (b/c it first became removable).

But, in a diversity case, no removal more than 1yr after the case was filed in state court. Always watch dates.

Front 44

SMJ: What is the procedure for removal?

Back 44

Rarely tested, but easy.

D files notice of removal in fed ct, stating grounds for removal,

Signed under rule 11

Attach all documents served on D in state action

Copy to all adverse parties.

Then file copy of notice in state court.

Front 45

SMJ: If D files for removal, and it was procedurally improper, what can P do?

Back 45

P moves to remand to state court

Must do wo w/in 30 days of removal

But if no fed SMJ, P can move to remand anytime (or the fed ct can remand anytime)

In other words, no time limit on raising lack of SMJ

Front 46

SMJ: What effect does filing a permissive counterclaim in state court have on the right to remove?

Back 46

A D who files a permissive counterclaim in state court probably waives the right to remove.

Filing a compulsory CC in state court, though, probably doesn’t waive the right to remove

Front 47

SMJ: What is Erie doctrine?

Back 47

In diversity cases, fed ct must apply st substantive law

Front 48

SMJ: What is substantive law?

Back 48

1. Easy ones.

These are clearly substantive, so st law governs in a diversity case on the following issues:

(1) elements of a claim or defense

(2) S/L

(3) Rules for tolling S/L, and

(4) choice of law

2. Hard ones: If it's not an easy one, ask: Is there a fed law (like fed con/statute/FRCP/FRE) on point that directly conflicts with the state law? If so, apply fed law, as long as it is valid. Base this on Supremacy Clause of US Cons

Front 49

SMJ: When is FRCP valid?

Back 49

If it is "arguably procedural" None have ever been held invalid.

Front 50

SMJ: What if it's not an easy issue and there is no federal law on point, but fed judge wants to do something other than apply state law?

Back 50

Unlikely to get

If issue is substantive, fedjudge must follow state law. Analyze the facts per the following 3 tests, and come to a reasonable conc:

1. outcome determinative: would applying the state rule affect outcome of case? If so, probably a substantive rule, so should use state law

2. Balance of interests: does either fed or st system have strong interest in having its rule applied? [would have to tell you the interest]

3. Avoid forum shopping: if the fed ct ignores st law on this issue, will it cause parties to flock to fed ct? If so, should probably apply st law

Front 51

Venue: Basic idea?

Back 51

After deciding to sue in fed court in particular state, next issue is where in that state? SMJ tells us we can go to fed ct, V tells us which fed ct(s)

Front 52

Venue: 1st Q to ask in determining V?

Back 52

Local action?: cases re: ownership, possession, or injury to land (inc trespass) must be filed in district ct where land lies. If it is not a local action, it's caused a transitory action.

Front 53

Venue: What are the rules on transitory cases?

Back 53

In any case (FQ or diversity), P may lay V in any district where:

1. All Ds reside OR

2. A substantial part of the claim arose

SPECIAL RULE: In cases where all Ds reside in different districts of the same state, P can lay V in the district in which any of them resides

Front 54

Venue: How is residence determined?

Back 54

1. Individuals: Residence usually equals domicile. So it is usually the same as an individual's citizenship for diversity of citizenship jurisdiction purposes.

2. Corps and other associations (P-ship, LLC) "reside" in all districts where subject to PJ when case is filed.

NOTE: Don't confuse #2 w/ corp's citizenship for diversity of jurisdiction. Ex: Ford is citizen of DE (inc) and of MI (PPB). But it's a resident of every district where subject to PJ

Front 55

Venue: What is X-fer of V?

Back 55

From one fed district ct to another.

Case can only be X-ferred to another fed district that

(1)has PJ over D and

(2) is a proper V.

Front 56

Venue: If V in original forum is proper, is it still possible to X-fer to another fed dist ct?

Back 56

Yes. Factors:

(1) Convenvience of parties

(2) convenience of Ws

(3) "interests in justice"

Ruling is in court's discretion

Front 57

Venue: If a case is X-ferred under this statute, what choice-of-law rules does the court to which case is X-ferred apply?

Back 57

Those fo the original court

Front 58

Venue: What if V in original forum is improper?

Back 58

Court may X-fer in interests of justice or dismiss

Front 59

Service of Process: Basic idea?

Back 59

Deliver to D

(1) a summons (formal court notice of a suit and time for response) and

(2) a copy of the complaint

Together, these are called "process"

Front 60

Service of Process: What is the time limit for serving process after complaint has been filed?

Back 60

Must serve process w/in 120 days of filing complaint or else case will be dismissed w/o prejudice (not dismissed if P shows good cause for delay in service)

Front 61

Service of Process: Who may serve process?

Back 61

Any non-party who is at least 18 Y.O.

Front 62

Service of Process: What method of service is fed district ct permitted to use?

Back 62

FDC may use any method of service permitted by

(1) FRC or P

(2) the law of the state in which it sits or

(3) the law of the state in which service is effected

Front 63

Service of Process: What is personal service and where can it be served?

Back 63

Papers given to D personally. Can be served anywhere in the forum state

Front 64

Service of Process: What is substituted service and when is it OK?

Back 64

Process is left w/ D's butler at D's summer home: OK if:

1. It's D's usual abode AND

2. Service is made to someone of suitable age and discretion who resides there

Front 65

Service of Process: May process be delivered to D's agent?

Back 65

Yes if D's agent is authorized to receive service. Ex: When serving corp, can serve registered A or a managing A or an O.

Front 66

Service of Process: What is waiver by mail?

Back 66

Process mailed to D by 1st class mail, postage prepaid. OK if D returns waiver form w/in 30 days. By doing so, she waives service but nothing else (e.g., PJ, V). If D doesn't return waiver form in that time, P must have D served either personally or by substituted service

Front 67

Service of Process: Any penalty to D if she doesn't waive service?

Back 67

She may be required to pay for the cost of service

Front 68

Service of Process: What is the geographic limitation on service of process?

Back 68

Can a fed ct in NY serve process outside NY? Only if a NY st ct could.

Front 69

Joinder of Parties and Claims: When may Ps join their claims and sue together?

Back 69

When their claims:

1. Arise from same T/O AND

2. Raise at least one common Q

Front 70

Joinder of Parties and Claims: May the parties sue two or more parties as Co-Ds?

Back 70

Yes if the claims against those parties:

1. arise from the same T/O AND

2. raise at least one common Q.

Front 71

Joinder of Parties and Claims: What is the next thing to assess with the parties?

Back 71

SMJ. See if you can get case in fed ct.

Front 72

Joinder of Parties and Claims: What are "necessary" or "required" parties?

Back 72

These are absentees (persons not originally in the suit) who should be forced into the pending case, b/c they are necessary to the case

Front 73

What's the 3 step test in on joining necessary parties?

Back 73

1.Is the absentee necessary?

2. Can the necessary party be joined?

3. If parties can't be joined, what are the choices?

Front 74

Joinder of Parties and Claims: How to determine if the absentee is necessary?

Back 74

Absentee necessary if:

1. w/o absentee, can't accord complete relief among those already joined (worried about multiple suits) or

2. Absentee's interest will be harmed if he isn't joined (practical harm) or

3. Absentee claims an interest which subjects a party (usually D) to possibility of any multiple obligations

If any of the these are met, court may order joinder of the absentee

Front 75

Joinder of Parties and Claims: Are joint tortfeasors necessary?

Back 75

No

Front 76

Joinder of Parties and Claims: How to assess if the absentee can be joined?

Back 76

1. Is there PJ over that party? And

2. can that party be joined w/o messing up diversity?

If party can be joined, join him.

Front 77

Joinder of Parties and Claims: What if party can't be joined?

Back 77

Less likely to get to this, 1 or 2 will work

2 choices:

1. proceed w/o party or

2. dismiss the entire case

Front 78

Joinder of Parties and Claims: How does court decide whether to proceed or dismiss?

Back 78

Balance these factors:

1. Is there an alternative forum available where everybody (including Ab) can may joined (maybe state court)?

2. What is the real likelihood of harm to anybody if we proceed w/o Ab?

3. Can the court do something to shape the order in the pending case to avoid any such harm?

Front 79

Joinder of Parties and Claims: If the court dismisses after balancing the factors, what does the absentee become?

Back 79

We call him indispensable (court can't proceed w/o him)

Front 80

Joinder of Parties and Claims:Claims by D: What is a counterclaim (CC)?

Back 80

An offensive claim against an opposing party. Ex: Claim by D against P. CC filed w/ D's answer

Front 81

Joinder of Parties and Claims:Claims by D: 2 types of CCs?

Back 81

1. Compulsory CC: one that arises from same T/O as P's claim. MUST BE FILED W/ ANSWER IN PENDING CASE OR ELSE IT'S WAIVED. It's the ONLY compulsory claim.

2. Permissive CC: Doesn't arise from the same T/O as P's claim. Does not have to be asserted in the pending case.

Front 82

Joinder of Parties and Claims:Claims by D: Exception to CCC rule?

Back 82

If case dismissed b/f D had to serve or file an answer. If you didn't have to answer, you didn't have to CC.

Front 83

Joinder of Parties and Claims:Claims by D: What must be remembered for every claim asserted in fed ct?

Back 83

***For every claim asserted in fed ct, msut assess whether there is fed SMJ. Start w/ diversity/alienage and FQ. If none of these works, then try supp J.

Front 84

Joinder of Parties and Claims:Claims by D: If a D files a CC that does not invoke diversity (less than 75k CC), can the CC invoke supp J?

Back 84

Yes, if it meets the T/O test.

The 75k diversity min doesn’t apply b/c this isn't a claim by P, it's a CC by D.

2nd circuit has even upheld supp J over a permissive CC if it has a "loose factual connection" w/ P's claim

Front 85

Joinder of Parties and Claims:Claims by D: What is a cross-claim (XC)?

Back 85

XC is an offensive claim against a co-party. It must arise from the same T/O as the underlying action.

Front 86

Joinder of Parties and Claims:Claims by D: If you have a XC, must you file it in the pending case?

Back 86

No. The only compulsory claim is the CC

Front 87

Joinder of Parties and Claims:Claims by D: If a D wants to file a XC against a co-D based on a claim arising from the same T/O as the underlying case, but can't invoke diversity jurisdiction for SMJ b/c both Ds from same state, can D invoke supp J over the XC?

Back 87

Yes. Because:

1. it meets "the test" b/c it arises out of the same T/O as the underlying case and

2. this is not a claim by P, so the limitation doesn't apply

Front 88

Joinder of Parties and Claims:Claims by D: Hint to remember claims against parties?

Back 88

If claim starts w/ "C" (CC, XC), it's between existing parties

If it starts w/ "I" (impleader, intervention), someone new is joining the case.

Front 89

Joinder of Parties and Claims:Claims by D: What is Impleader?

Back 89

Defending party joins TP D.

Front 90

Joinder of Parties and Claims:Claims by D: Why implead?

Back 90

b/c TPD is or might be liable to defending party for the claim against the defending party. Usually it's a claim for indemnity or contribution

Front 91

Joinder of Parties and Claims:Claims by D: Timing of I?

Back 91

D has a right to I w/in 10 days of serving answer: after that, need court permission to implead.

Front 92

Joinder of Parties and Claims:Claims by D: P sues D for injuries. D has right to indemnity from Insco. What are the steps for joining Insco in this case?

Back 92

1. File 3P complaint naming Insco as TPD, and

2. Serve process on TPD (so the court needs personal jurisdiction)

Front 93

Joinder of Parties and Claims:Claims by D: After TPD is joined, can P assert a claim against TPD?

Back 93

Yes, if it arises from the same T/O as the underlying case.

Front 94

Joinder of Parties and Claims:Claims by D: After determining what claims are asserted, what next?

Back 94

Remember that each claim has to be assessed for SMJ. Try div, alienage, FQ. If none are met, try supp J.

Front 95

Joinder of Parties and Claims:Claims by D: What is intervention?

Back 95

Absentee wants to join a pending suit. She choose whether to intervene as P or D. Ct can realign her if she came in on the "wrong" side. Application to intervene must be "timely."

Front 96

Joinder of Parties and Claims:Claims by D: When may A intervene as a matter of right?

Back 96

When:

1. A's interest may be harmed if she is not joined, AND

2. That interest is not adequately represented now.

This is basically the same test as #2 for Necessary Party

Front 97

Joinder of Parties and Claims:Claims by D: When may A use permissive intervention?

Back 97

A's claim or defense and the pending case have at least one common Q. Allowing PI is discretionary w/ the court.

Front 98

Joinder of Parties and Claims:Claims by D: After determining whether A can intervene as a matter of right or permissively, what's next?

Back 98

Assess whether the claim by the intervenor-P (or against the intervenor-D) invokes SMJ.

Try div, alien, FQ, if none met, try supp J.

Front 99

Joinder of Parties and Claims:Special Multiparty Situations: What is interpleader?

Back 99

When one holding money or property wants to force all potential claimants into a single case to avoid multiple litigation and the threat of inconsistent results.

Front 100

Joinder of Parties and Claims:Special Multiparty Situations: Who are the 2 main parties?

Back 100

Person holding the property = stakeholder.

Persons who want the property = claimants.

Front 101

Joinder of Parties and Claims:Special Multiparty Situations: What are the 2 types of interpleaders?

Back 101

Rule and statutory.

Front 102

Joinder of Parties and Claims:Special Multiparty Situations: What are the common characteristics of rule and statutory interpleader?

Back 102

In each, S not sure who owns the property (maybe he thinks it's his), and wants to avoid being sued several different times about it.

In each type, court may issue an injunction stopping parties from litigating the ownership in question in another court.

Front 103

Joinder of Parties and Claims:Special Multiparty Situations: What is different about rule as opposed to statutory interpleader?

Back 103

The 2 types have different standards for J, V, and service of process.

Hint: Rule interpleader is just treated as a regular diversity case.

Front 104

Joinder of Parties and Claims:Special Multiparty Situations: How to determine diversity of citizenship in both rule and statutory interpleader?

Back 104

Under the Rule, S must be diverse from every claimant.

Under the statute, one C must be diverse from one other C. Don't even look at S's citizenship.

Front 105

Joinder of Parties and Claims:Special Multiparty Situations: How to determine amount in controversy in both rule and statutory interpleader?

Back 105

Rule: Must exceed 75k.

Statutory: $500+

Front 106

Joinder of Parties and Claims:Special Multiparty Situations: How to determine service of process in both rule and statutory interpleader?

Back 106

Rule: regular service of process rules, like any case.

Statutory: nationwide service of process

Front 107

Joinder of Parties and Claims:Special Multiparty Situations: How to determine V in both rule and statutory interpleader?

Back 107

Rule: Regular V rules, like any case.

Statute: lay V in a district where any C resides.

Front 108

Joinder of Parties and Claims:Special Multiparty Situations: What is a class action suit?

Back 108

Representative sues on behalf of a group

Front 109

Joinder of Parties and Claims:Special Multiparty Situations: What are the initial requirements?

Back 109

A. 1. Too numerous for practicable joinder,

2. some questions of law and fact are common to the class,

3. rep's claims/defenses typical of those of the class, and

4. rep will adequately and fairly represent the class

Front 110

Joinder of Parties and Claims:Special Multiparty Situations: If the initial reqs are met, what's the next step?

Back 110

B. Must fit case w/in 3 types of class actions:

1. Prejudice: class treatment is necessary to avoid harm either to class members or the the party oppossing the class. Ex: numerous claimants to a fund, individual suits would deplete the fund [never seen on any state's bar]

2. Injunction or declaratory judgment (not damages) sought b/c the class members were treated alike by the other party. Ex: Employment discrimination

"Damages": (a) common questions predominate over individual questions AND (b) class action is superior method for resolving the dispute. Ex: Mass tort.

Front 111

Joinder of Parties and Claims:Special Multiparty Situations: After case is fit into type, what's next?

Back 111

C. Court must determine "at an early practicable time" whether to certify the case to proceed as a class action. If the court certifies the class, it must define the class and it must appoint class counsel. [Note that class counsel must faairly and adequately represent the interests of the class]

Front 112

Joinder of Parties and Claims:Special Multiparty Situations: ***Does the court notify the class of pendency of the class action?

Back 112

D. In the type 3 class, the court must notify (often by mail) all reasonably identifiable members, telling them:

(a) they can opt out,

(b) enter the binding effect of a class judgment on class members,

and (c) they can enter a separate appearance through counsel

This kind of notice is only required w/ type 3 class action, not w/ type 1 or type 2.

Front 113

Joinder of Parties and Claims:Special Multiparty Situations: Who pays to give notice?

Back 113

the representative

Front 114

Joinder of Parties and Claims:Special Multiparty Situations: who is bound by the class action judgment?

Back 114

All members except those who opt out of a type 3. There is no right to opt out of a type 1 or a tpe 2 class action

Front 115

Joinder of Parties and Claims:Special Multiparty Situations: In all 3 types, can there be settlement or dismissal of class claims?

Back 115

No, not w/o court approval.

Court gives notice to class members to get feedback on whether case should be settled/dismissed

In a type 3 class, must give members a 2nd chance to opt out

Front 116

Joinder of Parties and Claims:Special Multiparty Situations: If a class wishes to invoke diversity of citizenship jurisdiction, whose citizenship is relevant on the class side?

Back 116

The representative's only. Rep must diverse from all Ds

Front 117

Joinder of Parties and Claims:Special Multiparty Situations: How do we determin amt in controversy in a diversity class action?

Back 117

The rep's claim must >75k. Don't care about other class act.

Front 118

Trial, Judgment and Post-Trial Motions: What do juries do?

Back 118

Resolve disputes of fact.

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Trial, Judgment and Post-Trial Motions: What does judge do?

Back 119

Court instructs the jury on the law.

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Trial, Judgment and Post-Trial Motions: The 7A preserves the right to jury trial in federal court in actions at law, but not in suits at equity. What if a case involves both law and equity?

Back 120

Jury decides facts, the law claim, but not an equity claim. Ex: case involves claim for damages (legal) + calim for injunction (equitable). Jury decides the facts underlying the damages, and the judge will decide the facts underlying the equity claim. Generally, try the jury issues first.

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Trial, Judgment and Post-Trial Motions: Does 7A apply in state courts?

Back 121

No. Only for federal cases, 7A not incorporated to States.

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Trial, Judgment and Post-Trial Motions: How to make a demand for jury trial?

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Must demand jury trial in writing no later than 10 days after service of last plaeading raising a jury-triable issue.

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Trial, Judgment and Post-Trial Motions: What are the limits on each sides 3 peremptory juror strikes?

Back 123

The must be used in a race and gender neutral way b/c jury selection is state action

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Trial, Judgment and Post-Trial Motions: What is JMOL?

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Motion for judgment as a matter of law. An exceptional order, the effect of which is to take the case away from the jury.

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Trial, Judgment and Post-Trial Motions: When is JMOL brought?

Back 125

After the other side has been heard. D can move at close of P's evidence and again at close of all evidence. P can move at close of all evidence (b/c other side has to be heard)

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Trial, Judgment and Post-Trial Motions: What is the standard for granting the JMOL motion?

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That reasonable ppl couldn’t disagree on the results

***In ruling on the motion, the court generally will view the evidence in the light most favorable to the nonmoving party*** (include this in answer)

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Trial, Judgment and Post-Trial Motions: What is RJMOL?

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Renewed motion for judgment as a matter of law. After jury returns verdict for one party, and the court enters judgment on the basis of that verdict. Now, the losing party files RJMOL. If granted, it results in entry of judgment for him.

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Trial, Judgment and Post-Trial Motions: When must losing party move for RJMOL?

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Not later than 10 days after entry of the judgment.

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Trial, Judgment and Post-Trial Motions: What is the standard for granting the RJMOL motion?

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That reasonable ppl couldn’t disagree on the results

***In ruling on the motion, the court generally will view the evidence in the light most favorable to the nonmoving party*** (include this in answer)

If granted, it means that the jury reached a conclusion reasonable ppl could not have reached.

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Trial, Judgment and Post-Trial Motions: What is a prereq to making RJMOL?

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You must move for JMOL at trial. If you don't, waiver of RJMOL

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Trial, Judgment and Post-Trial Motions: What is a motion for new trial?

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Judgment entered, but either on his own or after motion, judge concludes that errors at trial require new trial. Must move not later than 10 days after entry of judgment.

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Trial, Judgment and Post-Trial Motions: What are some grounds for granting a new trial?

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1. prejudicial (not harmless) error at trial makes judgment unfair (e.g., wrong jury instruction, erroneous evidentiary ruling),

2. new evidence that couldn't have been discovered in time for trial,

3. prejudicial misconduct of party or juror (e.g., juror made independent investigation of accident scene),

4. Judgment is against the weight of the evidence, showing serious error of judgment by the jury.

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Trial, Judgment and Post-Trial Motions: How does new trial compare to [R]JMOL?

Back 133

Granting a new trial is less radical b/c it only results in starting over.

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Pleadings: How may a defending party respond after service of process on her?

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Two ways, both no later than 20 days after service of process on her:

1. Answer: which is a pleading: In it D (1) responds to allegations of the complaint (admitting, denying, or, when appropriate, saying that D lacks sufficient info to admit or deny and (2) raises affirmative defenses.

2. Motions: are not technically pleadings: Motions ask the court to order something, such as to require P to make a more definite statement (R12(e)) or ordering that a pleading or a portion thereof be stricken (12(f)), or that case be dismissed for a variety of reasons.

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Pleadings: What seven defenses can be raised EITHER in answer or by motion?

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(1) lack of SMJ

(2) lack of PJ

(3) improper venue

(4) insufficient process (problem w/ documents)

(5) insufficient service of process

(6) failure to state a claim on which relief can be granted

(7) failure to join an indispensable party

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Pleadings: What is the timing of raising these defenses?

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(2),(3),(4), and (5): Must be put in FIRST response or else waived

(6) and (7): Anytime through trial

(1): Can be raised any time in case

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Pleadings: In Notice Pleading, what must complaint contain?

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Complaint must contain:

(1) statement of SMJ,

(2) short and plain statement of the claim, showing entitled to relief, and

(3) demand for judgment.

The demand for judgment does not limit what can be recovered except in default cases.

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Pleadings: In Notice Pleading, must the statement of claim be made with great specificity or particularity?

Back 138

No. Under the Federal Rules, notice pleading is sufficient if it puts the other side on notice.

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Pleadings: What is the standard by which Supreme Court requires P to plead her facts?

Back 139

Must plead facts supporting a "plausible claim."

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Pleadings: What 3 topics require the party to plead facts w/ specificity or particularity?

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1. Circumstances establishing fraud

2. Allegations of mistake

3. Special damages

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Pleadings: What are special damages?

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Those that don't reasonably flow from an event. P struck by car, permanent hard-on 24/7