Barbri - Civil Procedure

Front 1

personal jurisdiction:

1. California’s long-arm statute claims jurisdiction is proper as long as the exercise of jurisdiction meets federal constitutional requirements
2. some LAS – commit tort, transacting business, or using car in state

Back 1

personal jurisdcition satisfy the long arm statute

Front 2

personal jurisdiction:

a. Is domiciled in the state;
b. Is present and personally served with process in the state (not through trickery or force);
c. Consents to suit in the state;
d. Enters a general appearance in the suit

Back 2

personal jurisdiction - traditional

Front 3

personal jurisdiction:

1. Jurisdiction is constitutional when the defendant has “such minimum contacts with the forum state so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice” (two hurdles: minimum contacts & reasonableness). also look at convenience, the itnerst of hte forum state in protecting citizens

Back 3

personal jursidiction: satisfy the constitution, due process test

Front 4

subject matter:

i. Diversity of Citizenship Cases (complete diversity is required) exceeds 75 + total diversity
ii. Federal question (found on federal law)

Back 4

subject matter jurisdcition requirements

Front 5

subject matter:

(which law applies, federal or state?) (an issue only in diversity cases)
a. A federal court in a diversity case must apply the substantive law of the state in which it is sitting, but must apply federal procedural rules, (1) fed law on point.

Back 5

erie doctrine

Front 6

subject matter:

allows a fed court to entertain claims over which it would have no independent basis for SMJx. Key: Discretionary!

Back 6

supplemental jurisdiction

Front 7

subject matter:

a. Requirements:
i. Claim is asserted by the plaintiff in a federal question case; AND
ii. Claim arises from a common “nucleus of operative fact” (from the same transaction or occurrence of underlying claim)

Back 7

supplemental jurisdcition - pendant

Front 8

subject matter:

a. Requirements:
i. Claim is asserted by anyone but the plaintiff in a diversity or federal question case;
ii. Claim arises from a common “nucleus of operative fact” as the underlying case (from the same T/O of underlying claim)

Back 8

supplemental jurisidction:

ancillary

Front 9

subject matter:

(allows defendants to have a case filed in state court “removed” to federal court) – one way street, if improper, remand back to state court!
i. A defendant may remove an action that could have originally been brought by the plaintiff in federal coursat

Back 9

removal

Front 10

subject matter:

1. It invokes federal question jurisdiction or diversity of citizenship jurisdiction (i.e. could have been originally filed in Fed Court)
2. All defendants agree (plaintiffs cannot remove, even if they are defendants in a counterclaim)
3. Removal is made within 30 days of service of the first document that makes the case removable (e.g., the complaint, dismissal of a defendant who prevented removal, etc.)

Back 10

removal requirements

Front 11

subject matter:

1. Defendant files a notice of removal in federal court, stating grounds for removal, is signed under Rule 11, and contains all documents served on the defendant in state court
2. A copy is given to all adverse parties
3. File copy of notice in state court
4. If removal is improper based on defect, the plaintiff has 30 days to move to “remand” the case back to state court; if based on lack of SMJx –  can remove ANYTIME
a. And, the federal court must remand the case to state court whenever it determines there is no federal subject matter jurisdiction

Back 11

prcedure for removal

Front 12

subject matter:

iv. A case can only be removed to the federal district embracing the state court in which the case was originally filed
v.  cannot remove, even if becomes a  on a counter claim!
vi. Waiver of the Right to Remove
1. A defendant who files a permissive counterclaim in state court waives the right to remove.
2. But filing a compulsory counterclaim in state court does not waive the right to remove

Back 12

removal

Front 13

venue:

i. A civil action where jurisdiction is founded on a federal question or on diversity can be brought in any judicial district:
1. where any defendant resides (is domiciled), if all defendants reside in the same state; or
2. in which a substantial part of the transaction or occurrence giving rise to the claim occurred;

Back 13

venue generally

Front 14

venue:

ii. If there is no district in which the action may otherwise be brought (i.e., all the defendants reside in different states and the claim arose overseas), the action may be brought in:
1. Diversity case: a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced; or
2. Federal Question case :a judicial district where any defendant is “found”

Back 14

venue generally

Front 15

venue:

iii. defendant = corporation is deemed to reside, for venue purposes, in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced
1. Don’t confuse diversity citizenship w/ venue citizenship
a. Ex: Ford Motors is a citizen of DE (inc.) and MI (ppb); but resides in EVERY district in US b/c subject to PJx everywhere!

Back 15

venue generally

Front 16

venue:

iv. defendant = individual, resides where domiciled
1. If s are from same state, but different districts, can lay venue in the district in which ANY of the s resides.
v. Local Actions
1. Actions concerning ownership, possession, or injury to land (including trespassing) must be filed in the district where the land lies

Back 16

venue generally

Front 17

venue:

i. A case can only be transferred to a federal district where the case could have been filed originally (a 1) proper venue with 2) personal jurisdiction over the defendant independent of any waiver by the defendant)

Back 17

transfer of venue

Front 18

venue:

1. If venue in the original forum is proper, the case may be transferred to another federal district court if needed for the convenience of the parties, the convenience of the witnesses, or the “interests of justice”
a. The court to which a case is transferred under this statute must apply the choice of law rules of the original court, even if the plaintiff initiates the transfer
b. Note: this is TRANSFER, not FNC (where case is dismissed)
2. If venue in the original forum is improper, the court may transfer in the interests of justice or may dismiss the case

Back 18

tranfer of venue: two statutes

Front 19

venue:

i. The discretionary doctrine of forum non conveniens allows a federal court for the convenience of the parties and witnesses, in the interest of justice, to dismiss (w/o prejudice) where transfer would be impossible because it is a different judicial system (e.g. foreign country).
1. Federal courts cannot transfer cases to a foreign judicial system or a different state court system, so dismissal may be proper.

Back 19

forum non conveniens

Front 20

venue:

1. Public factors
a. Availability of an alternative forum;
b. the plaintiff’s choice of forum;
c. the interest the forum state has in providing a forum for its residents;
d. what law applies; and
e. what community should be burdened with jury service
2. Private factors
a. Convenience of the parties and witnesses;
b. location of the evidence; and
c. where the accident or event took place

Back 20

forum non conveniens: court must evaluate both private and public factors in making its decision

Front 21

service:

a. Plaintiff must arrange to have someone deliver to the defendant process:
i. A summons (formal court notice of a suit and time for response); and
ii. A copy of the complaint
b. Plaintiff must serve process within 120 days of filing the complaint or else the case will be dismissed without prejudice (unless plaintiff shows good cause for the delay)

Back 21

service of process - notice to Def

Front 22

service:

1. Papers are given to defendant personally anywhere you find the defendant in the forum state (unless defendant is present only to be a witness or party in another civil case, then immune from service)

Back 22

service by nonparty: personal service

Front 23

service:

1. Process can be left with someone other than the defendant if:
a. It is the defendant’s usual abode;
b. The person being left with process is of suitable age and discretion; and
c. The person being left with process resides there (i.e. babysitterok)

Back 23

service by nonparty: substituted service

Front 24

service:

1. Process can be delivered agent, if w/in scope of agency (authorized to receive service, e.g., a corporation’s registered agent or any officer or a state officer appointed by operation of law (nonresident motorist, etc.).

Back 24

service by nonparty: agent

Front 25

service:

1. Process can be mailed to the defendant by first class mail, postage prepaid, as long as:
a. Defendant returns the waiver form waiving formal service within 30 days
b. Only waiving formal personal service, NOT PJx!
c. If he does not return the waiver form, he must be served personally or by substituted service -- AND at ’s cost

Back 25

service by nonparty: waiver by mail

Front 26

service:

vi. Process can be delivered to a defendant in another state as long as fourm state law allows for it (with a long-arm statute, for example).
1. Exceptions (2):
a. Federal court can serve a defendant outside the forum state regardless of state law under the 1) Bulge rule and/or 2) statutory interpleader (see below)

Back 26

service of process on defendant

Front 27

pleadings:

documents setting forth the lcaims and defenses

Back 27

pleadings

Front 28

pleadings:

i. Pleadings must convey enough contentions to put others on notice and allow a meaningful response (do not require great detail, just enough to put the other side on notice)

Back 28

notice pleading: FRCP

Front 29

pleading:

i. Requires attorneys (or pro se litigants) to sign all pleadings, written motions, and papers (except discovery documents) certifying that (to the best of the attorney’s knowledge and belief, after reasonable inquiry):
1. The paper is not for an improper purpose;
2. The legal contentions are warranted by law (or a nonfrivolous argument for change of the law); and
3. The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)

Back 29

pleading RULE 11

Front 30

pleading:

ii. Continuing Certification
1. Certification is effective every time the paper is “presented” to the court (filing, later advocating a position, etc.)
iii. A motion for a violation of Rule 11 is served, but not immediately filed w/ct.
1. The party allegedly violating the rule has 21 days (“safe harbor”) to fix the offending document. If he doesn’t fix, then the motion can be filed.
2. Sanctions may be levied (they are discretionary) against the attorney, the firm, or the party.
3. Sanctions to deter (not punish) repeat of bad conduct
a. can be non-monetary.
4. The court can also order a party to show cause of why sanctions should not be levied – i.e. court can raise Rule 11 on own!!

Back 30

pleading rule 11

Front 31

pleading:

i. Must include: (lenient w/pro se )
1. Statement of subject matter jurisdiction;
2. Short and plain statement of the claim showing entitlement to relief; and
3. Demand for judgment
ii. Three matters must be pleaded with particularity or specificity:
1. Fraud; Mistake; Special Damages (damages that don’t normally flow from an event)

Back 31

pleading - complaint

Front 32

pleading:

i. Defendant must respond to a complaint in one of two ways (motion or answer) no later than 20 days after service of process (or else he risks default)

Back 32

pleading - defendant response

Front 33

pleading:

i. Responses to the Allegations of the Complaint
1. Admit;
2. Deny; or
3. State that he lacks sufficient information to admit or deny (which has the effect of a denial)
a. Cannot be used if the issue is a matter of public knowledge or is in defendant’s control
b. Failure to deny can constitute an admission, except as to damages
ii. Raise Affirmative Defenses (statute of limitations, res judicata, contract isn’t enforceable due to SOF, self defense etc.) “even if I did all the terrible things,  still cannot win”

Back 33

pleading - answer

Front 34

counterclaim:

a. An offensive claim against an opposing party (e.g., defendant vs. plaintiff) that is filed with defendant’s responsive pleading (i.e. answer).

Back 34

counterclaim

Front 35

counterclaim:

1. A defendant’s claim against the plaintiff that arises from the same transaction or occurrence as the plaintiff’s claim;
2. Must be filed with the defendant’s answer in the pending case (or else defendant waives the right to sue on the claim)
a. Exceptions
i. If the claim had already been asserted before plaintiff sued defendant, then it is not compulsory
ii. If the defendant never had to answer (because he asserted a pre-trial motion and it was granted) he never had to assert the compulsory counterclaim, so he can bring the claim in a separate case
3. If there is no independent basis of subject matter jurisdiction for the counterclaim, the court may still hear the claim under ancillary supplemental jurisdiction (asserted by anyone but  and same T/O)

Back 35

compulsory counterclaim

Front 36

conterclaim:

1. Requirements:
a. A claim that does not arise from the same transaction or occurrence as the plaintiff’s claim;
b. Claim does not have to be asserted in a pending case (can sue in a separate action);
c. Claim must meet the requirements for subject matter jurisdiction (diversity or federal question)
i. Claim can never meet the requirements for ancillary supplemental jurisdiction because the claim does not arise out of the same transaction or occurrence

Back 36

permissive counterclaim

Front 37

cross claim:

a. Requirements
i. Claim must arise out of the same transaction or occurrence as the underlying action; and
ii. Meet the requirements for subject matter jurisdiction (diversity or federal question) or supplemental jurisdiction (don’t forget supplemental!!)

Back 37

cross claim

Front 38

amend pleadings:

a. A plaintiff has a right to amend a complaint one time prior to when the defendant serves an answer (not motion, but answer)
i. If  amends,  has 10 days or remaining 20 days (whichever is longer) to respond

Back 38

amend pleadings

Front 39

amend pleadings:

i. Amended pleadings relate back to the date of the original pleading if they concern the same conduct, transaction, or occurrence as the original pleading (i.e. treat amended pleading as though it was filed when the original was filed, so it can avoid SOL problems)

Back 39

amend pleadings: relation back doctrine

Front 40

amend pleadings:

ii. New parties may be added (e.g., changing the defendant) (and the amended complaint will relate back) if:
1. Concerns the same conduct, transaction, or occurrence as original;
2. The new party knew that but for a mistake, he would have been named originally; and
3. This all occurs within 120 days after the filing of the original complaint (so that he will not be prejudiced in maintaining his defense on the merits)
**occurs when  sued wrong , but the right  knew about it! (i.e. sues child company, when should have sued parent company, parent company knew!)

Back 40

relation back doctrine

Front 41

amend pleadings:

c. A defendant has right to amend an answer one time within 20 days after serving the answer

Back 41

amend pleadings

Front 42

joinder:

1. Some claim is made by each plaintiff against each defendant relating to or arising out of the same series of transactions or occurrences;
2. There is at least one question of fact or law common to all the parties; AND
3. The requirements for subject matter jurisdiction (federal question or diversity) or supplemental jurisdiction are met for each claim

Back 42

Parties may join whenever

Front 43

joinder:

1. There is an independent basis for subject matter jurisdiction; or
2. The additional claims arise out of the same transaction or occurrence as the underlying claim, the original claim’s jurisdiction is not based on diversity, and the court, in its discretion, decides to hear the claim
a. Reasons the court would not hear the claim
i. The claim is novel or complex;
ii. The state claim predominates over the federal claim; or
iii. The federal claim has been dismissed

Back 43

if the plainotiff wants to join an additional defendant, joinder will be allowed if:

Front 44

joinder:

when necessary and indispensable parties must be jioned

Back 44

compulsary joinder

Front 45

joinder:

a. Without absentee, court cannot accord complete relief (worried about multiple suits);
b. Absentee’s interest may be harmed if she isn’t joined (practical harm - worried about harm to the absentee); OR
c. Absentee claims an interest which subjects a party (usually ) to double or inconsistent obligations; AND
d. Joinder is “feasible”
i. amenable to process (there is personal jurisdiction over him) and his joinder will not destroy diversity or venue is proper

Back 45

a party is needed for just adjudication and must be jioned by the court if:

Front 46

jionder:

(no personal jurisdiction or joinder will destroy diversity or venue)  then court must either 1) proceed w/o absentee; or 2) dismiss the whole case (Absentee = indispensable)
a. The court will use factors to decide whether to proceed in the party’s absence or dismiss:
i. Alternative forum? (watch for state court!!)
ii. What is the likelihood of prejudice?
iii. Whether the prejudice can be reduced by shaping the judgment
iv. Whether a judgment in the party’s absence would be adequate
v. Whether the plaintiff will be deprived of an adequate remedy if the action is dismissed

Back 46

if joinder is impossible

Front 47

joinder:
3. Joint tortfeasors subject to joint and several liability are not necessary parties
4. Bulge Rule → An absentee joined as a necessary party for impleader may be served out of state, within 100 miles of the federal courthouse, regardless of state law.

Back 47

joinder of parties

Front 48

joinder:

i. A plaintiff can join any number and type of claims against a defendant.
ii. When multiple plaintiffs or multiple defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved
iii. A plaintiff may join two claims if success on the first is a prerequisite to the second

Back 48

joinder of claims

Front 49

joinder:

iv. When jurisdiction is based on diversity of citizenship between the plaintiff and the defendant, the plaintiff may aggregate all claims that he has against the defendant to satisfy the jurisdictional amount
v. When jurisdiction is based on federal question, a nonfederal claim can be joined only if it is regarded as part of the same case or controversy as the federal claim
vi. Whenever claims are joined, the requirements of subject matter jurisdiction must be met

Back 49

joinder of claims

Front 50

jionder:

(when defendant wants to bring in another third-party defendant for indemnity or contribution) – promotes judicial economy  favored by courts

Back 50

impleader

Front 51

joinder:

i. Defendant (who becomes a third-party plaintiff) has the right to implead a third party defendant within 10 days of serving his answer (after that, he needs court permission)
ii. Process: 1) file Third-Party Complaint naming TPD; and 2) Serve process on TPD (i.e. must have PJx over TPD)
iii. In an underlying diversity case, diversity not required (or existing diversity may be destroyed) for the third party defendant to be joined if there is ancillary supplemental jurisdiction for the claim

Back 51

impleader

Front 52

intervention:

(where an absentee wants to join a pending suit and bring herself in as a plaintiff or defendant)

Back 52

intervention

Front 53

intervention:

i. Available whenever:
1. The absentee claims an interest in the property or transaction that is the subject matter of the action; and
2. The disposition of the action without him may impair his ability to protect that interest

Back 53

inervention of right

Front 54

intervention:

ii. There is no independent basis of subject matter jurisdiction required when one intervenes as a defendant (ancillary supplemental jurisdiction is satisfied)
1. However, under the supplemental jurisdiction statute, there is no ancillary supplemental jurisdiction over claims made by one seeking to intervene as a plaintiff (meaning there must be some independent basis of subject matter jurisdiction)

Back 54

intervention of right

Front 55

intervention:

i. Available when:
1. The applicant’s claim or defense and the main action have at least one common question of law or fact (no direct personal or pecuniary interest is required); and
2. The intervention must be supported by its own jurisdictional ground (and won’t destroy diversity);

Back 55

permissive intervention

Front 56

intervention:

i. Requirements (all must be met)
1. Parties are too numerous for practical joinder (for them all to be parties in the case);
2. Some questions of law or fact that are common to the class;
3. Representative’s claims/defenses are typical of those of the class; and
4. The representative and his lawyer will fairly and adequately represent the class;

Back 56

class actions

Front 57

intervention:

a. Class treatment is necessary to avoid harm either to class members or to the opposing party (e.g., there are many claimants to a fund and individual suits would deplete the fund leaving some without remedy)
b. No notice to potential class members is required and no right to opt out

Back 57

class action:

prejudice class action

Front 58

intervention:

2. Injunction or declaratory judgment (not damages) is sought because the class members were treated alike by the other party (e.g., discrimination in employment)
a. No notice to potential class members is required and no right to opt out

Back 58

class action

Front 59

intervention:

a. Requirements:
i. Common questions predominate; and
ii. A class action is the superior method to handle the dispute (e.g., mass tort case where the major common question is whether the tortfeasor was negligent)

Back 59

damages class action

Front 60

intervention:

iii. Who Is Bound by a Class Judgment
1. All class members are bound, except for those who opt out of a “Damages” type class action

Back 60

class action

Front 61

class action:

1. Class action can invoke a federal question; OR
2. Invoke diversity of citizenship
a. Only the citizenship of the class representative(s) matter
b. As to amount in controversy requirement:
i. Traditional Rule: Every class member’s claim must be in excess of $75,000
ii. Modern Trend (and followed by the 9th Circuit): Only the representative’s claim must exceed $75,000 regardless of other class members’ claims

Back 61

class action subject matter jurisidction

Front 62

intervention:

v. Settlement or dismissal of a class action must be approved by the court (and court, before approval, must notify the class members and get their feedback and if “Damages” Class Action – give second chance to opt out! (new))

Back 62

class action

Front 63

discovery:

1. Unless court order or stipulation of the parties provides otherwise, within 14 days of a Rule 26(f) conference, the parties must identify persons and documents “likely to have discoverable information that the disclosing party may use to support its claims or defenses,” as well computation of damages and insurance for all or part of judgment

Back 63

required disclosures: initial discolsures

Front 64

discovery:

1. As directed by the court, parties must identify experts “who may be used at trial” and produce a written report containing their opinions, data used, qualifications, compensation for the study, and etc.
a. Experts must be paid reasonable fees
b. If an expert retained in anticipation of litigation is not expected to testify, no discovery will be allowed absent exceptional need

Back 64

required disclosures: experts

Front 65

discovery:

1. No later than 30 days before trial, parties must produce detailed information about trial evidence, documents, and the identity of witnesses who will testify live or by deposition

Back 65

required disclosure: pre trial

Front 66

discovery:

1. If a party learns that its response to required disclosure is incomplete or incorrect, it must supplement its response

Back 66

required disclosure: duty to supplement

Front 67

discovery;

i. All substantive answers must be signed under oath
ii. Every discovery request and response must be signed by counsel certifying it is warranted, not interposed for improper purposes, and not unduly burdensome
iii. Duty to Supplement
1. If a party learns that its response to a discovery request is incomplete or incorrect, it must supplement its response

Back 67

discovery tools

Front 68

discovery:

a. Questions can be oral or written
b. Answers are oral, under oath, and in response to questions asked by each party or her counsel
c. If used on a non-party, the non-party should be subpoenaed (or else he is not compelled to attend)
d. Subpoena is “duces tecum” = deponent brings material (docs)
e. A party deponent does not have to be subpoenaed; notice of the deposition, properly served, is sufficient to compel attendance

Back 68

discovery tools: deposition

Front 69

discovery:

f. A party cannot object at trial to any evidentiary question which could have been remedied at the deposition
g. A party cannot take more than 10 depositions or depose the same person more than once (unless court orders it or the parties stipulate to it)
h. Deposition is one day of seven hours (unless court order or the parties’ stipulation says otherwise)

Back 69

discovery tools: depositions

Front 70

discovery:

i. To impeach any deponent;
ii. For any purpose if the deponent is an adverse party;
iii. For any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence

Back 70

deposition

Front 71

discovery:
a. Questions are in writing
b. Answers are in writing, and under oath
c. Party receiving interrogatories must respond with answers or object within 30 days

Back 71

interrogatories

Front 72

discovery:
a. Only available:
i. Through court order upon a showing:
ii. That the party’s (or a person in the party’s control (e.g., parent litigating on behalf of her child)) health is in actual controversy;
iii. And a showing of good cause (i.e., you need it and cannot get it elsewhere)

Back 72

physical or mental examination

Front 73

discovery:

a. A request by one party to another party to admit the truth of any discoverable matters (often used to authenticate docs)
b. Party must respond to a request for admission within 30 days
i. The response must either admit or deny
1. Exception: It can indicate a lack of information if the party has indicated that he has made a reasonable inquiry
2. A failure to deny is tantamount to admission (but the party can amend if the failure is not made in bad faith)

Back 73

request for admission

Front 74

discovery:

i. A party can discover anything “relevant to a claim or defense.”
ii. For good cause, the court can allow discovery of anything “relevant to the subject matter of the case”
1. “Relevant”
a. Anything reasonably calculated to lead to admissible evidence (you can discover stuff that may end up being not admissible)

Back 74

substantive scope of discovery

Front 75

discovery:

iii. Privileged matter is not discoverable (evidentiary privileges)
iv. Work product (“trial preparation materials”; material prepared in anticipation of litigation) is not discoverable (whether it is prepared by the attorney, the party, or any representative of the party)
1. Exception:
a. It is discoverable if there is:
i. Substantial need; and
ii. The information is not otherwise available

Back 75

substantive scope of discovery

Front 76

discovery;

v. Mental impressions, opinions, conclusions, and legal theories are absolutely protected from discovery, regardless if exception above!

Back 76

substantive scope of discovery

Front 77

discovery:

i. Discovery is usually worked out among the parties, without court intervention. In problem cases, the court can get involved.
ii. When making any motion against a party, the party must certify that he tried in good faith to get the materials from the other side

Back 77

enforcement of discovery ruls and sanctions

Front 78

discovery:

a. Receiving party can seek a protective order under Rule 26(c) (e.g., because the request is over burdensome, trade secrets are involved and their use should be limited to this case, etc.)
b. Receiving party answers some discovery requests, but objects to others. If objections are not well taken, this is a partial violation (imposing a light sanction)

Back 78

enforcement of discovery rules and sanctions: how presentesd to the court

Front 79

discovery:

An order compelling answers, plus costs associated with seeking the order

Back 79

enforcement of discovery rules and sanctions: possible sanctions for parties

Front 80

discovery:

c. Receiving party fails completely to attend a disposition, respond to interrogatories, or to respond to requests for production. This is a total violation (heavy sanction).

Back 80

penalties and sanctions for discovery

Front 81

termination of case without trial:

i. Plaintiff may file one written notice of voluntary dismissal before the defendant answers or moves for summary judgment (and case will be dismissed without prejudice)
ii. HOWEVER, if  files a written notice of dismissal in the 2nd case, it is WITH prejudice (true even if 1st case was in state court!!)

Back 81

voluntary dismissal by plaintiff

Front 82

termination of case:

i. Entry of Default
1. Clerk is asked to enter a default on the docket (purely ministerial act).

Back 82

default and default judgment

Front 83

termination of case:

1. After the default is entered, plaintiff may seek a default judgment (which will be enforced so that plaintiff may recover money)
2. The clerk may enter a default judgment when:
a. There has been no response at all by the defendant within 20 days after service of process
b. The claim is for a certain sum (plus costs)
c. The plaintiff gives an affidavit that the sum is owed; AND
d. The defendant is not a minor or an incompetent

Back 83

default judgment

Front 84

termination of case:

3. The court (after a hearing on damages) may enter a default judgment when any of the four prior things have not been established
a. When the court is going to hold a hearing on damages, the defendant is entitled to notice only if he has made an appearance (e.g., filed a motion to dismiss that was denied, etc.)
4.  can move to set aside default by showing good cause and a viable defense
a. good cause = excusable neglect
5.  can move to set aside the judgment by showing of good cause & viable defense

Back 84

default judgment

Front 85

termination of case:

i.  can move to dismiss for failure to state a claim prior to filing an answer
ii. Court takes all of the allegations of the plaintiff’s complaint as true and asks: if plaintiff shows what she alleged, would she win a judgment?
1. This motion tests only the sufficiency of the plaintiff’s allegations, and does not address evidence – i.e. can only look to complaint!
2. 12(b)(6) only tests the sufficiency of the complaint
iii. If the court grants the defendant’s motion, it will probably allow the plaintiff to amend his complaint

Back 85

dismissal for failure to state a claim

Front 86

termination of case:

i. Does exactly the same thing as Rule 12(b)(6), but is filed after pleadings are closed (i.e. after defendant has filed an answer)

Back 86

motion for a judgment on the pleadings

Front 87

termination of case:

1. From the evidence (affidavits, discovery materials), there is no genuine issue of material fact; and
2. The moving party is entitled to judgment as a matter of law

Back 87

summary judgment

Front 88

conferences:

i. Unless a court order says otherwise, at least 21 days before scheduling a conference or order, the parties must meet to discuss claims, defenses, and settlement.
ii. A discovery plan must be presented by the parties to the court within 14 days
iii. Generally, parties cannot use discovery until after the Rule 26(f) meeting

Back 88

meetings

Front 89

conferences:

i. Unless local rules or a court order says otherwise, the court can hold a conference among counsel no more than 120 days after service of process on the defendant.
ii. The conference is for scheduling cut-offs for joinder, amendment, motions, and the scheduling order sets these out (blueprint for the litigation)

Back 89

scheduling order

Front 90

conferences:

i. Court may hold pretrial conferences as needed to expedite the case and foster settlement. Final pretrial conferences determine issues to be tried and evidence to be proffered (NO SURPRISES!)
ii. The final pretrial conference order basically supersedes the pleadings
1. However, it may be amended:
a. “To prevent manifest justice;” or
b. By conforming to the evidence, if the evidence beyond the pretrial conference order is proffered and not objected to

Back 90

pretrial conferences

Front 91

trial judgment etc:

i. Requirement of Demand
1. Party must demand a jury trial in writing (in a pleading or a separate document) no later than 10 days after service of the last pleading raising a jury-triable issue

Back 91

jury trial

Front 92

trial judgment etc:

ii. Right to a Jury Trial in Civil Cases (Federal Court)
1. The Seventh Amendment preserves the right to a jury trial in federal courts in all suits of “law” (actions at law where there is a claim for damages), but not in suits in equity (seeking an injunction).
2. If a case arises that involves both law and equity, the jury will decide the facts underlying the law issues first, and the judge will then decided the equity issues
a. Judge is bound by the jury’s findings on the factual issues

Back 92

jury trial

Front 93

trial judgment etc:

iii. Jury Selection (Voir Dire)
1. Each side has unlimited strikes of potential jurors for cause (bias, prejudice, related to party, etc.)
2. Each side has three peremptory strikes
a. Must be used in a race and gender neutral manner
i. Jury selection is “state action” – cannot violate Const.

Back 93

jury trial

Front 94

trial judgment etc:

1. A motion to take the case away from the jury
2. Brought when other side has been heard:
a. Defendant can move for a JMOL twice (at the close of the plaintiff’s evidence and at the close of all evidence)
b. Plaintiff can move for a JMOL at the close of all evidence
3. Standard → Court will grant the motion when reasonable people could not disagree on the result
4. Court generally views the evidence in the light most favorable to nonmoving party

Back 94

jury trial: motion for judgment as a matter of law

Front 95

trial judgment etc:

i. If a party made a motion for a judgment as a matter of law at the close of all of the evidence, and then loses at trial, that party can file a renewed motion for judgment as a matter of law no later than 10 days after entry of judgment
1. If the party failed to make a motion for a judgment as a matter of law at the close of all evidence, he is deemed to have waived the right to make the renewed motion for judgment as a matter of law

Back 95

renewed motion for judgment as a matter of law

Front 96

trial judgment etc:

ii. Court will grant the motion when reasonable people could not disagree on the result
iii. Court generally views the evidence in the light most favorable to the nonmoving party

Back 96

renewed motion for judgment as a matter of law

Front 97

trial judgment etc:

i. If a judgment has been entered, but errors committed at trial require a new trial, a party can move for a new trial no later than 10 days after entry of judgment

Back 97

motion for a new trial

Front 98

trial judgment etc:

1. prejudicial error at trial makes the judgment unfair (e.g., wrong jury instructions or evidentiary ruling);
2. New evidence surfaces that could not have been obtained with due diligence for the original trial
3. Prejudicial misconduct of a party, attorney, third party, or juror (e.g., juror lied on voir dire or made independent investigation of the accident scene)
4. Judgment is against the weight of the evidence (serious error of judgment by the jury)
5. Inadequate or excessive verdict

Back 98

motino for new a trial: grounds for a new trial

Front 99

appeal:

i. A losing party can only appeal from a final judgment (an ultimate decision by the trial court on the merits of the entire case; when there is nothing else for the court to decide on the merits) by filing notice with trial court w/in 30 days
2. The grant or denial of a renewed motion for judgment as a matter of law is a final judgment

Back 99

final judgment rule

Front 100

appeal:

1. Orders granting, modifying, or refusing injunctions
2. Appointing or refusing to appoint receivers
3. Findings of patent infringement where only an accounting is left to be accomplished by the trial court
4. Orders affecting possession of property (e.g., attachments)

Back 100

interlocutory review: interlocutory orders reviewable as a matter of law

Front 101

appeal:

1. Allows an appeal of a nonfinal order if:
a. The trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion; and
b. The court of appeals agrees to hear it

Back 101

interlocutory review: interlocutory appeals act

Front 102

appeal:

1. The appellate court has discretion to hear and rule on an issue if:
a. It is distinct from the merits of the case;
b. Involves an important legal question; and
c. Is essentially unreviewable if we wait until final judgment (e.g., claim by a state that it has 11th Amendment immunity)

Back 102

collateral order rule

Front 103

res judicata:

i. Once a valid and final judgment on the merits has been rendered on a particular cause of action, the plaintiff is barred by res judicata from trying the same cause of action against the same defendant(s) in a later lawsuit

Back 103

res judicata

Front 104

a. General Rule: unless court said otherwise when it entered jmnt, any jmnt is “on the merits” unless based on Jx, venue, or indispensable parties.
i. dismissal under the statute of limitations (in some courts), or dismissal without prejudice (in some courts)

Back 104

resi judicata: final judgment on the mrits

Front 105

a. Most jurisdictions define “cause of action” or “claim” as including any rights to relief arising from a transaction or occurrence or a series of related transactions (transactionally)
i. Some jurisdictions say there is a separate cause of action or claim for property damage and for personal injury, even if they were caused in a single transaction (because personal injury and property rights are different primary rights) (“primary rights” theory)

Back 105

res judicata: same cause of action or claim

Front 106

res judicata:

ii. Res judicata bars subsequent causes of action arising out of the same transaction or occurrence which should have been asserted in the earlier lawsuit
1. This is true unless it would be unfair to apply res judicata under the circumstances (e.g., plaintiff didn’t become aware of the facts constituting the claim until after the first lawsuit)

Back 106

res judicata

Front 107

res judicata:

iii. “Merger” vs. “Bar”
1. When the one claiming res judicata in the second case won Case 1, and res judicata is applied, it is called “merger”
2. When the one claiming res judicata in the second case lost Case 1, and res judicata is applied, it is called a “bar” (he is barred from suing again)

Back 107

res judicata

Front 108

i. A final judgment on the merits of an issue for plaintiff or defendant is conclusive in a subsequent action involving a different cause of action between them or their privies, as to issues actually litigated & determined and essential and necessary to the judgment in the first action (that issue is deemed established in the second action)

Back 108

collateral estoppel