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72 Cards in this Set

  • Front
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What is Personal Jurisdiction?

Personal jurisdiction determines in what state can P sue Δ. For a state to have PJ, it must have power over the person or the rem (property).

1. In personam (jurisdiction over defendant because he lives or is present in the forum, or has “done something” in the forum);
2. In rem (jurisdiction over ownership of Δ's property as to the whole world);
3. Quasi-in-rem:
a. jurisdiction over ownership of Δ's property between the parties, OR
b. location of the property is the basis for unrelated suit (ex. you own a vacation home in SC and your dog commits a tort on the property)

General Personal Jurisdiction
Δ can be sued over any cause of action regardless of where the action arose, if he has continuous and systematic contacts (Helicopteros) with the state such as:

1. Domicile (physical presence + intent to remain indefinitely)
2. Organized under the law of SC (incorporated in SC)
3. Doing so much website business in SC that it approximates physical presence (LLBean)
4. Principal place of business in SC

Note that SC courts will not hear claims by non-residents against foreign corps that arose outside of SC, even if the foreign corp has its PPB in SC. Unregistered foreign corps also cannot sue in SC.
Specific Personal Jurisdiction
1. Long Arm Statute - LAS is only available to sue non-residents of SC. A non-resident is a person who (1) was not a resident when the cause of action arose, or (2) if a resident at that time, was not a resident when served with process. “SC long-arm statute for specific jurisdiction has been interpreted to reach to the limits of due process.” Mention LAS and then do the test below. Common examples include when non-resident transacts any business in state, commits/causes tort that has an effect in state, has/uses property in state, or insures something in state.

2. Due Process - “Δ has such minimum contacts with forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice” Intl Shoe. Need BOTH prongs and must have minimum contacts before we get into fair play analysis (Burger King). Minimum contacts factors - purposeful availment, relatedness of claim to forum (nexus), foreseeability of being hauled into forum. Fair Play factors - ext
Personal Jurisdiction via Service of Process
Personal service on non-resident or non-resident's agent while physically present in the state confers personal jurisdiction over Δ.
Personal Jurisdiction via Forum Selection Clauses
Valid under federal and SC law, either to uphold jurisdiction in SC or deny jurisdiction in SC.
Personal Jurisdiction via Consent
Δ can consent to jurisdiction in SC. Δ automatically consents to jurisdiction in the state if he shows up to answer the claim (Δ can get around this by making a "special appearance").

P automatically consents to jurisdiction by filing a claim in the state.
What is Subject Matter Jurisdiction?
Now that you know what state you can sue in (personal jurisdiction), you need to know which court in the state (federal court or state court) to file the claim.
South Carolina State Court Subject Matter Jurisdiction
States can hear anything, except exclusive federal questions (antitrust, admiralty, bankruptcy claims, patent & copyright infringement).

1. Supreme Court - Exclusive jurisdiction over cases involving death penalty, significant constitutional issues, public bond issues, election issues, orders limiting grand jury investigation, and orders restricting minor’s abortion.
2. Court of Appeals - Appellate jurisdiction over all cases arising from circuit or family courts, except where Sup Ct has jurisdiction.

3. Circuit Courts - Courts of general jurisdiction. Original jurisdiction in all civil and criminal cases unless lower court has exclusive jurisdiction. Appellate jurisdiction over administrative decisions and probate court.

4. Family Court - Exclusive, original jurisdiction over matters involving domestic relations.

5. Others courts - (1) Masters in Equity – equitable jdxn, appeal to COA, (2) Probate Court – jdxn over probate matters, trusts, and commitment hearings, (3) Magistrate
Federal Court Subject Matter Jurisdiction
***COMMONLY TESTED TOPIC***
1. Federal Question - If on the face of the complaint ("Well-Pleaded Complaint Rule"), the claim arises under the Constitution, district court has jurisdiction. Ex. securities, bankruptcy, Fed Tort Claims Act, copyright.

2. Diversity - District courts have jurisdiction if amount in controversy is over $75k and the parties are citizens of different states. ALWAYS DISCUSS BOTH PRONGS!!
a.) Can aggregate amount in controversy if there are multiple claims. One P can aggregate any claim against 1 Δ. If there are multiple Ps or Δs, can only aggregate related claims.
b.) If injunctive relief sought, look at value of relief or cost of compliance to determine amount in controversy.
c.) Actual recovery amount is irrelevant, though if for $75k or less P may have to pay Δ's legal fees.
d.) Must have complete diversity (no P can be citizen of same state as any Δ). Individual is a citizen where domiciled (presence + intent to remain). Corp is citizen where incorporated and principal place
Exclusions to Federal Court Subject Matter Jurisdiction
Even if Diversity requirements are properly met, federal courts will not hear actions involving divorce, alimony or child custody, or probate.
Supplemental Federal Subject Matter Jurisdiction
If a case if already in federal court, P or Δ can add an additional claim that is not a federal question or lacks diversity if the claim arises out of a common nucleus of operative fact. Test is always met if claim arises from same transaction or occurrence.

Exceptions:
1. For cases founded solely on diversity, P or someone joined as P cannot file the additional claim if it would defeat diversity. (Ex. P from Florida sues Δ1 from Georgia for a car accident. P wants to add additional claim against Δ2 from Florida. No dice. However, Δ1 can add a claim against Δ2 even though it would defeat diversity.)

2. Court has discretion not to hear supplemental claim if original federal question claim is dismissed early in the case, state law claim is complex, or state law issues would dominate.

NOTE: Always go through analysis of whether there was common nucleus of operative fact, then if so, is supplemental jurisdiction taken away by the first exception, then if not, is supplemental jurisdictio
Removal
Removal allows Δ to have a case filed in state court “removed” to federal court if there is federal subject matter jurisdiction (Fed Q or Diversity). It is a one-way street – it goes ONLY from state court to federal court. If removal was improper, the Federal court can remand case back to state court or P can file motion to remand. P must file motion to remand within 30 days unless removal was improper for lack of subject matter jurisdiction (no limit on challenging SMJ).

Only a Δ can remove a case and it is a RIGHT (not discretionary). If more than one Δ, all must agree. Δ who files a permissive (not compulsory) counter claim in state court can't remove.

Must remove within 30 days of service of first removable document (generally service of process). Case can becomes removable (ex. Δ2 dismissed and now there is diversity). If a case becomes removable, Δ has 30 days to remove. Overall ONE YEAR limit on removal no matter what happens.
Removal Procedure
Δ files notice of removal in federal court, stating grounds for removal, signed under Rule 11; attaches all documents served on Δ in the state action; sends copies to all adverse parties and files them in state court.
Removal Venue
Venue would be the federal district where the state court case was filed.
Erie Doctrine
*Rarely Tested*
In Diversity cases, federal court must apply state substantive law.

1. Automatically “Substantive” Law: (1) elements of a claim or defense, (2) statutes of limitations, (3) rules for tolling statutes of limitations, (4) conflict of law rules. Automatically apply state law in these categories.

2. Federal Law on Point? If it is unclear whether the law is substantive, ask “is there a federal law (e.g. fed constitution, FRCP, Fed Rule of Evidence) on point that directly conflicts with state law?” If so, apply federal law→Supremacy Clause.

3. Last-Ditch: If there is no federal law on point (perhaps it’s a custom or common practice), run through these three tests:
a.) Outcome Determinative: would applying or ignoring the state rule affect the outcome of the case? If yes, it’s probably substantive, apply state law.
b.) Balance of Interests: which system has a strong interest in having its rule applied? Apply whichever does.
c.) Avoid Forum Shopping: if will cause it, apply other one
*Proper Venue in Federal Court
SMJ determines whether a case can be heard in federal court. Venue tells us exactly which federal court.

Local Actions (those regarding the ownership, possession, or injury to land) must be filed in the district in which the land lies.

Transitory Actions (all others) can be filed in any district where ALL Δs reside* or a substantial part of the claim arose. Corps reside in any district where they would be subject to PJ

*EXCEPTION: in cases where all Δs reside in different districts of the same state, a plaintiff can lay venue in the district in which any of them resides.
*Transfer of Venue in Federal Court
This is where you send a case from one federal district to another in the interest of justice or efficiency. You can only transfer to a district where the case could have been filed (e.g. proper venue + personal jurisdiction).

Court has discretion to transfer based upon:
1. Public Factors (forum familiarity with law, what community should be burdened with jury service).
2. Private Factors (convenience for parties, access to sources of proof).
3. Improper Venue: If the original venue is improper, the court may transfer in the interests of justice, or simply dismiss the case.
*Forum Non Conveniens
Where transfer is impossible (e.g. State Court in A→Federal Court in B, State Court in A→State Court in B). Same factors considered as Transfer.

Only available to Δ!!

Case is dismissed. P may refile in another forum. Any Δ arguing Forum Non Conveniens must waive statute of limitations defense in alternate forum (can't use this to run the clock on a claim)
*Proper Venue in South Carolina Courts
Determines which state court in SC should hear the claim. Depends on the type of case and type of Δ.

1. If Δ is an individual, venue is county where Δ resides (if Δ is a resident), county where substantial part of claim occurred, or county where P resides (if Δ is a non-resident).
2. If Δ is a corporation, venue is county of principal place of business* (if Δ is a domestic corp or foreign corp licensed in SC), county where substantial part of claim occurred, or county where P resides (if Δ is foreign corp not licensed in SC).

*To determine principal place of business, we look to the home office location in SC, the location at which the majority of corp activity takes place. Look at # of employees, authority of those employees, and tangible assets in the county.
Transfer of Venue in State Court
Court can transfer venue to another county. Δ can transfer for convenience and for witnesses, etc.
Service of Process - Generally
Must give Δ notice of the proceedings and an opportunity to be heard. The summons and a copy of the complaint are called "process."
*Service of Process - Timeline
P must serve Δ within 120 days of filing suit, or the case will be dismissed without prejudice unless P can show good cause for delay of service. Δ has 20 days to respond, which is extended to 60 if they waive service (30 days to respond in SC state court)
*Service of Process - Logistics
Any nonparty who is at least 18 years old can serve process.

1. Personal Service: Given to Δ or Δ's agent personally within the state.
2. Substituted Service: Left at Δ’s usual abode if there is someone there of suitable age + discretion who also resides there.
3. State Law: Federal courts can use methods of service permitted by state law (e.g. long-arm statutes) of the state in which the federal court sits OR where service is effected.
4. Service by mail: Serve by registered or certified mail w/ return receipt.
5. (Federal) Waiver by Mail: P can notify Δ of process and include waiver form if mailed to Δ by first class mail, postage prepaid. If Δ executes and returns waiver to P within 30 days, formal service is waived (nothing else waived) and Δ gets 60 days to answer. P must file Δ’s waiver in court. If Δ doesn't waive must pay cost of service or show good cause.
6. Service by Publication: when a person cannot be found after due diligence within the state, court can enter an ord
Service of Process - Immunity from Service
Δ cannot be served for a federal case while in-state to be a witness or party in another civil case.
Service of Process - Subsequent Filings
After service, all other papers – e.g. answer, pleadings, motions, discovery requests – can be served by delivering or mailing the document to the other party’s attorney. If it is mailed, 3 days are added to the timeline for the response.
Notice Pleading v. Fact Pleading
“Notice Pleading” means you only need enough detail to allow the other side to be on notice and make a reasonable response. South Carolina has “fact pleading” which means the pleadings must state ultimate facts that establish each element of the cause(s) of action.
Rule 11
1. Certification - Filings require the signature of the attorney (or P, in pro se litigation). Signature certifies that, to the best of their knowledge and after reasonable inquiry: (a) no improper purpose, (b) legal contentions aren't frivolous, (c) contentions are or are likely to be supported by evidence. Certification applies to each and every pleading filed.

2. Sanctions - Court has discretion to impose sanctions “limited to what is sufficient to deter repetition of such conduct” sua sponte or on motion. If on motion, party must withdraw or correct the matter within 21 days (Safe Harbor Period) or face possible sanctions. Can be monetary or non-monetary. Before imposing sanctions, court must give party a chance to be heard.

Sanctions under rule 11 are only for signed papers, not conduct!
Complaint
Initial pleading by the Plaintiff.

Requires:
1. Statement of subject matter jurisdiction
2. Short and plain statement of the claim, showing entitlement to relief
3. Demand for judgment.
4. In SC – must demand a jury trial specifically.

Note: Special Matters are matters that must be pleaded with particularity - fraud, mistake, and special damages.
Motions in Response to Complaint
Rule 12 requires Δ to respond to Complaint with a motion or with an answer within 20 days of service of process. Motions are not pleadings, they are requests for a court order.

1. Issues of Form: (1) motion for a more definite statement – pleading so vague Δ can’t frame a response; (2) motion to strike, which is aimed at immaterial things like a demand for jury when no right exists.
2. Rule 12(b) Defenses: (l) lack of SMJ, (2) lack of PJ, (3) improper venue, (4) insufficiency of process (problem with the papers), (5) insufficient service of process, (6) failure to state a claim, (7) failure to join an indispensable party. These can all be raised either by motion OR in the answer.
a.) Waivable Defenses: 2, 3, 4, 5 (PJ, venue, process, service) – these MUST be put in the first Rule 12 response or they are permanently waived.
b.) Non-Waivable Defenses: 6, 7 (claim, Fail to Join) These can be raised at any time through the trial and are waived once trial concludes.
c.)NEVER WAIVE SMJ
Answer
Rule 12 requires Δ to respond to Complaint with a motion or with an answer within 20 days of service of process. If Δ makes Rule 12 motion and is denied, 10 days after that to answer.

Requires:
1. Response to Allegations: either (1) admit, (2) deny, or (3) state that you lack sufficient info to admit or deny. (note: failure to deny can constitute an admission on any matter except damages)
2. Raise Affirmative Defenses: Even if everything is true, P still can’t win. E.g. statute of limitations, res judicata, self defense. You MUST plead affirmative defenses or you risk waiver.
Counterclaims
Claims against the opposing part (D→P). They should be filed with the Answer. Can be compulsory (arises from same transaction/occurrence as P's claim) or permissive (not from same transaction/occurrence). If compulsory counterclaim is not filed, it is waived.

Be sure to discuss whether the counterclaim invokes FQ or Diversity jurisdiction. If it doesn’t, try supplemental jurisdiction.
Crossclaim
Claims against a co-party. They must arise out of the same transaction/occurrence as P’s claim. These claims are permissive, not compulsory.

Hypo Analysis: P→Δ1+Δ2. If Δ1 has claims against Δ2 and P arising out of same incident: counterclaim against P is compulsory, crossclaim against Δ2 is permissive.

Be sure to check jurisdiction – if crossclaim against Δ2 lacks diversity or FQ, discuss supplemental jurisdiction.
Right to Amend Pleadings
1. Right to Amend - P has the right to amend once before Δ serves her answer (Δ filing motion doesn’t count). Δ has the right to amend once within 20 days after serving her answer. If there is no right to amend, seek leave of the court – they may grant it if “justice so requires” (factors = delay + prejudice).

2. Response to Amended Pleadings: Fed court requires response to amended pleading within 10 days (or, tacks 10 extra days onto your deadline if still awaiting your response).

3. South Carolina - Can amend any time before or within 30 days after pleading is filed, opposing party has 15 days to respond. All other amendments require court approval or consent by other party.
Variance
This occurs where evidence at trial does not match what was pleaded. Opposing party can object to evidence offered that isn’t relevant to anything in pleadings. If they fail to do so, other party might be able to move to amend pleadings to reflect additional evidence presented at trial.
Relations Back of Amended Pleadings
An amendment of a pleading relates back to date of the original pleading if it concerns the same conduct, transaction, or occurrence as the original pleading, even if the Statute of Limitations has already run.

Test for whether amendment relates back to the same conduct or occurrence as the original pleading is whether it puts the other party on notice of the claim now being asserted.

Courts more likely to let you amend toward beginning rather than when it looks like other side is on verge of winning (surprise factor). Also when the amendment is alleging something specific carved out of a more general original pleading (ex. general negligence to negligent management).
Amending Pleadings to Add Parties
Conduct will only relate back if: (1) amendment concerns the same transaction or occurrence (2) new party received notice before the SOL ran (or within 120 days after complaint in Fed Court) and (3) party knew or should have known that but for the mistake, he would have been named as a defendant originally.
Statutes of Limitations
Generally, SOL begins running at “accrual” of the claim. If SOL has run, you allege it as an affirmative defense in your answer.
Required Discovery Disclosures
1. Initial Disclosures: Within 14 days of Rule 26(f) conference, must give (a) the names of people likely to have discoverable info and what that info might be, (b) copy of or description of all documents that support your claim or defenses, (c) computation of damages, and (d) any insurance agreement.

2. Experts: As directed by court, must identify experts “who may be used at trial,” written report containing opinions, data used, qualifications, compensation, etc.

3. Pretrial: No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition.
Depositions
Sworn oral testimony in response to questions by counsel. Can depose nonparties or parties. Nonparty should be subpoenaed, or he/she is not compelled to attend. Parties need not be subpoenaed – notice properly served is sufficient to compel attendance.

Special Deposition Rules:
1. No more than 10 depositions without court approval or stipulation
2. Deposition cannot exceed one day of seven hours unless court orders or stipulation.
3.Use at trial: Depositions can be used (1) to impeach at trial, (2) for all purposes if deponent is a party opponent, (3) any purpose if the deponent is unavailable at trial, unless absence was procured by party seeking to introduce. (All of these are subject to the applicable rules of Evidence).
4. Unless she agrees, nonparty cannot be required to travel more than 100 miles from her residence or place where she regularly transacts business.
5. Notice of deposition to a business may require it to designate the right person to be deposed (e.g. designer)
Interrogatories
Questions put in writing to another party, to be answered in writing under oath. Recipient has 30 days to answer or object. It is permissible to answer “I don’t know after reasonable investigation.” It is also permissible, if burdensome to find answer, to allow asker to access records where answer can be found in lieu of answering the question.

At trial, cannot use your own answers, but others can use your answers per the rules of evidence.

Cannot serve more than 25 interrogatories without court order or stipulation.

Cannot serve interrogatories on nonparties.
Requests to Produce
Requests to another party or to a non-party w/ a subpoena requesting that she make available for review and copying documents, electronic data, etc.

Recipient must respond within 30 days.
Physical or Mental Examination
Only available through court order, on showing that the party’s health is in actual controversy and “good cause.”
Requests for Admission
Request by one party to another party to admit the truth of any discoverable matters.

Timeline: Recipient must respond within 30 days.

Response is to admit or deny, can also indicate lack of knowledge if you indicate that you’ve made reasonable inquiry.

FAILURE TO DENY = ADMISSION, can amend later if not in bad faith.
Certification of Discovery
When you send a discovery request or response, it is signed by counsel, which certifies that (1) it is warranted, (2) not interposed for an improper purpose, (3) not unduly burdensome.
Duty to Supplement Discovery Responses
If a party learns that its response is incomplete or incorrect, she must supplement her response.
Scope of Discovery
Can discover anything “relevant to a claim or defense” (in pleadings). “Relevant” means reasonably calculated to lead to the discovery of admissible evidence (note: broader than “admissible” so some inadmissible evidence can be discoverable)

Privileged stuff is NOT discoverable. Work product or trial preparation materials (any material prepared in preparation for litigation) is generally protected from discovery. This can be produced by a lawyer or the party or the party’s representative. Exception: work product other than mental impressions/opinions/conclusions/legal theories may be discoverable if opponent shows: (1) substantial need AND (2) that the material is otherwise unavailable. (e.g. witness statement for witness who died or is no longer available)
Experts: parties are required to produce information about experts. Additionally, any party may take a deposition of any expert “whose opinion may be presented at trial.”
Enforcement of Discovery Rules
Three main ways discovery problems come to court:

1. Protective Order – receiving party seeks Rule 26(c) protective order (e.g. request is over-burdensome, involves data not reasonably accessible, or involves trade secrets)

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

3. Total Violation – receiving party fails to completely attend a deposition, respond to interrogatories, or respond to requests for production. This is a total violation and leads to heavy sanctions.
Discovery Sanctions
1. Partial Violation – two step process: (a) Can get an order compelling the part to comply with discovery plus pay costs for brining the motion; (b) IF the party violates the order from #1, RAMBO* sanctions plus costs and could be held in contempt of court.

2. Total Violation – one step process: RAMBO sanctions plus costs. No need to get an order compelling compliance.

*RAMBO Sanctions - Establishment order (establishes facts as true); Strike pleadings of disobedient party (as to issues re: the discovery); Disallow evidence from the disobedient party (as to issues re: discovery); Dismiss plaintiff’s case (if bad faith is shown); and Enter default judgment against defendant (if bad faith is shown).
Joinder
1. Permissive - Parties whose claims (1) arise out of the same transaction or occurrence, AND (2) raise at least one common question may be joined. Remember to evaluate Subject Matter Jurisdiction

2. Mandatory - When without A, the court cannot accord complete relief (worried about multiple suits); or A’s interest may be harmed if he isn’t joined (practical harm)*; or A claims an interest which subjects a party (usually Δ) to multiple obligations; A must be joined. A is an indispensable party. Usually joint property owners.

*most likely to be tested on bar

Note: Per SCOTUS, joint tortfeasors are NOT Indispensable Parties.

Δ can file R-12 motion to dismiss for failing to join all indispensable ppl.
Feasibility of Joinder
Once a party meets the joinder test, we have to see if joinder is “feasible.” Joinder is feasible if:
1. There is PJ over A and
2. Joining A will not destroy Diversity.

If joinder of party is NOT feasible, court must either proceed without A or dismiss the case. Factors that the court will consider:
a. Is there an alternative forum available? (watch for State courts)
b. What is the actual likelihood of prejudice?
c. Can the court shape relief to avoid that prejudice?

Remedy for permissive misjoinder is not usually dismissing the case because judge can drop parties from suit on motion or sua sponte.
Impleader
Δ wants to bring in someone new (“Third Party Defendant”) who may be liable for all or part of P’s claim (ex. subcontractor, an insurer, joint tortfeasor). Must do so within 10 days of filing answer or else you must get court permission.

After TPD is joined, P can assert claim against him, and TPD can also assert claim against P provided it arises out of the same transaction or occurrence.

Subject Matter Jurisdiction: For any of these claims, assess subject matter jurisdiction. If the new claims cannot satisfy FQ or Diversity, try Supplemental Jurisdiction.
Intervention
Third Party (A) wants to join a pending suit.

1. Intervention of Right: A’s interest may be harmed if he is not joined and his interest is not currently adequately represented, so he can intervene upon timely application to court.

2. Permissive Intervention: A’s claim or defense and the pending case have at least one common question. Discretionary – “delay and/or prejudice”

Still have to check Subject Matter Jurisdiction!
Interpleader
One holding property forces all potential claimants into a single lawsuit to avoid liability. If stakeholder gives item to the wrong person, they face liability, so Interpleader offers protection.

Federal Interpleader Act or FRCP 22 Interpleader

Only reason to use FRCP 22 Interpleader is if all claimants from same state.
Class Action Prerequisites
Must meet ALL:

1. Numerosity (too many class members for practical joinder)
2. Commonality (questions of law or fact common to the class)
3. Typicality (representative’s claims/defenses typical of all members)
4. Representativeness (the class representative will fairly and adequately represent the class)
Maintenance of Class Action Suits
Once class prerequisites are met, court will evaluate if class can be “maintained.” A class is maintained if it falls into one of the following:

1. Inconsistent Adjudication Class - Class treatment necessary to avoid (a) inconsistent standards or (b) people getting left out of future relief by things like limited funds. (Ex. P1-20 sue Acme for not paying them standard overtime. P21-40 sue Acme for not paying them time-and-a-half overtime. Want to join as a class because if allowed to proceed separately, Acme has no idea if it must pay standard or time-and-a-hal overtime). If (a) parties can’t be a class, use Joinder. If (b) parties can’t be a class, use Interpleader.

2. Injunction Class - Δ has treated all class members in the same general manner and appropriate remedy would be injunctive or declaratory relief (ex. employment discrimination, civil rights).

3. Efficiency Class - (1) common questions predominate over individual questions, AND (2) class action is superior method to handle dispute. (e.g. Mass Tort). In general, anyone suing for $$ is a Type Three Class. MOST LIKELY TO BE TESTED!
Class Action Certification
Court must determine at “an early predictable time” whether to certify the case to proceed as a class action. If it does, the court must:
1. “define the class and the class claims, issues, or defenses” and
2. appoint class counsel who “fairly and accurately represents the interests of the class.
Class Action Notification
Once class prereqs met, class is maintained, and class is certified, then must examine proper notice. Representative bears the cost of notice.

1. In Type 3 Class Actions (Efficiency), the court must direct that all reasonably identifiable class members are notified (usually by mail). The notice includes that: (1) they can opt out, (2) they’ll be bound if they don’t, (3) they can enter a separate appearance through counsel. Must be written in plain language.

2. In Type 3 Class Actions, court can refuse to approve a settlement unless class members get a second opportunity to opt out.
Class Action Settlements
Can only occur with court approval.
Class Action Jurisdiction
If it’s FQ Jurisdiction, citizenship of class members is irrelevant. If it’s based on Diversity, only look at the class representative’s citizenship, not at other members. Amount in controversy requirement remains the same.

Class Act Fairness Act of 2003: grants SMJ separate from Diversity or FQ. Allows Jdxn if claims are over $5,000,000 and any D is diverse from any class member. (never been tested)
Pretrial Adjudication
1. Voluntary Dismissal: may be allowed on court order, and P may have to pay D’s costs. Dismissed without prejudice if dismissed before D files answer or moves for summary judgment.

2. Default and Default Judgment: D fails to respond within 20 days of being served w/ process. Clerk can enter judgment in favor of P if (1) D made no response at all, (2) the claim is for a specific sum of money, (3) claimant gives an affidavit of sum owed, AND (4) D is not a minor or incompetent. If any of these 4 is not true, claimant must go to court, get a hearing, get a judgment. D may try to get default judgment set aside by showing good cause and a viable defense.

3. Failure to State a Claim: under Rule 12(b)(6). Standard: court assumes all of P’s allegations are true, and asks: “if P proves all that he alleges, would he win a judgment?” Court looks at the face of the complaint to determine this. The same motion can be made after D has answered, it is called motion for judgment on the pleadings.

4. Motion for Summary Judgment: Moving party must show that (1) there’s no genuine dispute as to material issue of fact, and (2) that he is entitled to judgment as a matter of law. Court looks at evidence in making this determination. Pleadings are not evidence (unless one party fails to deny something – this counts as an admission), so if you don’t back up your allegations with some evidence (e.g. affidavits) you will probably lose SJ. STANDARD: viewing evidence in light most favorable to the non-movant, could a reasonable jury find for the non-movant against the movant?
Conferences and Meetings
1. Rule 26(f) Conference: at least 21 days before scheduling conference, parties discuss claims, defenses, and settlement. Must form a discovery plan and present it to the court within 14 days (this is never on the bar).

2. Scheduling Order: Unless local rule says otherwise, the court enters an order scheduling cutoffs for joinder, amendment, motions, etc. (never on the bar).

3. Pretrial Conferences: the court may hold “pretrial conferences” as needed to expedite the case and foster settlement. Determines issues to be tried and evidence to be preferred. The final pretrial conference order is an important document – roadmap of issues to be tried, evidence, witnesses, etc – there are NO surprises at trial.
Termination of Case Without Trial
1. Voluntary Dismissal: Plaintiff can dismiss without prejudice once (1) before witnesses sworn in at trial, or (2) by stipulation of all parties. Plaintiff has 6 months to refile if SOL has run. If there is a counterclaim pending against Plaintiff, she cannot voluntarily dismiss unless defendant agrees counterclaim is capable of independent adjudication.

2. Involuntary Dismissal: Court can dismiss if Plaintiff has failed to prosecute the case with due diligence. Operates as an adjudication on the merits. CANNOT BRING AGAIN.

3. Automatic Dismissal: If no written orders are made on a filed case in 5 years, it is automatically dismissed without prejudice.
Jury Trials
1. Right to Jury Trial: federal court grants right to jury trial for civil actions (damages) but not for equitable relief (e.g. injunctions). Requirement: Must demand trial in writing no later than 10 days after service of last pleading.

2. Jury Selection: each side has unlimited strikes for cause (e.g. bias, prejudice, related to party) and three “preemptory” strikes which must be used in a race/gender neutral way.
Motions for Judgment
1. Motion for Judgment as a Matter of Law: Standard: reasonable people could not disagree on the result. Takes decision away from the jury, court view evidence in light most favorable to non-moving party. D can move after P’s case and/or after their own. P can only move after close of evidence.

2. Renewed Motion for Judgment as a Matter of Law: same as JMOL, but it’s after the jury has returned a verdict and judgment has been entered. Must move for it within 10 days of judgment. Caution! You MUST have moved for JMOL at trial to preserve this motion.
Motions for New Trial
Errors at trial require a new one. Less “extreme” than JMOL, since there will be a new trial, rather than a final judgment. Grounds:
1. prejudicial error at trial makes judgment unfair
2. new evidence that could not have been obtained with due diligence for the original trial
3. prejudicial misconduct of party or attorney or third party or juror
4. judgment is against the weight of the evidence (SERIOUS error of judgment by jury).
5. Excessive or inadequate damages.
Motions to Set Aside Judgment
Grounds and Timing
1. Clerical Error (anytime)
2. Mistake, excusable neglect (reasonable time (never over 1 year))
3. New evidence (reasonable time (never over 1 year))
4. Judgment is void (reasonable time (no maximum))
5. Lack of SMJ
6. Fraud, Accident, Mistake
7. Defect on face of pleading
Appellate Review
1. Final Judgment Rule: As a general rule, you can only appeal final judgments. File notice in the trial court within 30 days after entry of final judgment.

2. Interlocutory (non-final) Review: may be appealable even though not final judgments. This is not available for denial of MSJ, since it is not final. Partial grant of SMJ is appealable before or after trial. Partial grant that removes one or more D’s entirely must be appealed immediately. Same thing with denial of motion to dismiss, or denial of motion to change venue.
Preclusion – In General
This will come up where you have 2 cases - one in which a judgment has been entered and the second which is still pending. Issue will be whether we are barred from litigating the second case.
Res Judicata (Claim Preclusion)
Get one case in which to vindicate your claim and seek all relief possible (one bite at the apple). GO THROUGH ALL 3 STEPS.

Step One - You must show that Case 1 and Case 2 were brought by the same P against the same Δ. Not just the same parties, but in the same configuration (P in case 2 has to be P in case 1, etc.)

Step Two - Case 1 must have ended in a valid final judgment on the merits. Any judgment in favor of P is considered “on the merits” for res judicata purposes.

Step Three - Case 1 and Case 2 must involve the same transaction or occurrence.
Collateral Estoppel (Issue Preclusion)
Here you are arguing that some issue has already been decided. GO THROUGH THE STEPS.

Step One - Show that Case 1 ended in a valid final judgment on the merits.

Step Two - Show that the same issue was actually litigated and determined in Case 1. Must have been litigated (no default judgment).

Step Three - Show that the issue on which we want collateral estoppel was essential to the judgment in Case 1. In other words, without that finding we would not have the same judgment (ex. car crash litigated and jury decides that P was contributorily negligent; doesn’t speak to Δ’s negligence AT ALL so not essential).
Against Whom Can You Use Collateral Estoppel
You can only use collateral estoppel against someone who was a party to Case 1 or in privity with a party to Case 1 (ex. representative, class member). This is a Due Process requirement.
Who Can Assert Collateral Estoppel
Mutuality (being a party in both cases) not required by Due Process here (because not being used against you), so rules vary.

Traditional Approach – Must be party in Case 1

Modern Approach:
1. Non-Mutual Defensive Estoppel – Person wasn’t in Case 1 and is Δ in Case 2. Can assert as long as parties in Case 1 had full and fair opportunity to litigate case.

2. Non-Mutual Offensive Estoppel – P in Case 2 was not in Case 1. Can assert if it would be fair under the circumstances. Most jurisdictions do NOT allow this.