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195 Cards in this Set
- Front
- Back
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Rule for Fed PJ?
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Fed ct has PJ over parties if state cts would have PJ
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Kinds of fed juris
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FQ, Diversity, Supplemental
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Diversity juris?
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(1) case must be “between citizens of different states” (aliens count) and (2) amount in controversy ≥$75,000.01
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Citizenship of natural persons
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i) Domicile = (1) physical presence, and (2) intent to make it a permanent home (mental requirement)
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Citizenship of corps
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(1) state where incorporated, and (2) the one state where the corp has a principal place of business (PPB)
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Principal place of business?
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i) PPB: Two tests:
a) “Nerve center” (where decisions are made; i.e. HQ) b) “Muscle center” (where the corp does the most stuff) c) Tiebreaker: go with nerve center unless all corp activity is in one state |
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Citizenship of unincorporated associations?
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i) These entities are citizens wherever ANY of its members are citizens (includes general and limited partners)
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Citizenship of decedents, minors, and incompetents?
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i) Look to their citizenship, not their representative
ii) E.g., the citizenship of the executrix of an estate is irrel; only the decedant’s. |
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Amount in controversy: how to determine if it's met?
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Whatever the pl claims is what matters, unless it is clear to a legal certainty that no recovery beyond $75k is possible (e.g., a statutory ceiling)
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Consequence of pl winning equal to or less than $75k, when the case was in fed ct on diversity?
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If the pl actually wins less than $75k, the judgment stands, but the pl must pay the def’s costs (even though pl won!)
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Calculating amount in controversy when there are multiple claims?
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Aggregation: Aggregate one pl’s claim against *one* def to determine the amt in contr.
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Amount in controversy: what if there are joint claims?
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Use total amount of claim (# of parties is irrel). E.g., a claim against 5 joint tortfeasors for $80k would pass
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Amount in controversy: how do you calculate this if the claim is for equitable relief?
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Two perspectives:
i) Plaintiff’s viewpoint: does the enjoinable action reduce pl’s value by $75k? (e.g., an injunction for def to tear down a wall blocking pl’s view that reduces the value of pl’s home by $75k) ii) Defendant’s viewpoint: would the injunction cost def $75k to comply? |
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What cases are EXCLUDED from diversity juris?
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Even if diversity requirements are met, the court will NOT hear the following cases: divorce, alimony, child custody, or probate.
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Federal question jurisdiction?
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Well-Pleaded Complaint rule: Pl’s claim, if properly pleaded, must “arise under” fed law.
1) Properly pleaded = compl would set forth a claim and nothing else 2) Strategy: FQ juris if and only if the pl is enforcing a *fed right* |
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Test for supplemental juris?
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The claim must share a “common nucleus of operative fact” (CNOF) with the claim that invoked SMJ. A case shares a CNOF if it arises from the same transaction or occurrence (T/O).
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Limitation on supplemental juris?
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In a diversity case, the pl cannot use supp juris to overcome lack of diversity. (I.e., if it’s a FQ case, then the pl can use supp juris to get a case in that lacks diversity.)
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Three reasons a court may use its discretion to deny a claim from supplemental juris?
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A court can refuse to take the supplemental claim if (1) the fed question is dismissed early in the proceedings, or (2) if the state law claim is complex, or (3) state law issues would predominate
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Federal court removal: general rule?
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Def can remove if the case could be heard in fed ct anyway (i.e., fed SMJ through diversity or FQ juris)
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Federal court removal: exception to the general rule?
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Exception: no def can remove on the basis of diversity if ANY def is a citizen of the forum
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When removal is possible: to which fed ct can the case be removed?
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Removal can only be made to the fed ct embracing the state ct where the suit was originally filed
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When removal is possible: timing for removal?
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Within 30 days of service of first removable document (E.g., if a claim is dismissed that had destroyed diversity, so diversity now exist, the 30 days starts on the day the dismissal was granted.)
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When removal is possible: Who can remove a case? What if there are multiple parties on each side?
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Only defs can remove, and ALL must agree
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When removal is possible: Procedure to remove?
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Steps: (1) Def files notice of removal in fed ct (2) stating grounds for removal (3) signed under Rule 11 (4) attaching all documents served on def in state action (5) and then copies all adverse parties. (6) Def then files notice in state ct.
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How does a pl remand a case that has been removed?
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1) If removal was procedurally improper, pl must move to remand to state ct within 30 days.
2) But if there is no SMJ, pl can move to remand anytime (no limit on challenge to SMJ). |
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Erie doctrine generally?
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In diversity cases, fed cts must apply substantive state law
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Erie doctrine: 3 part framework?
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1) Easy: the following are substantive
2) Is there a fed law (const, statute, FRCP, or FRE) on point that directly conflicts with state law? If so apply fed law if it is valid 3) Otherwise: analyze the facts to determine if the issue is substantive. |
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Erie doctrine: What are the 4 "easy" substantive law examples?
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i) Elements of a claim or defense
ii) Statute of limitations iii) Rules for tolling S/L iv) Conflict (or choice) of law rules |
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Erie doctrine step 1?
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Look for easy cases... the following are substantive:
i) Elements of a claim or defense ii) Statute of limitations iii) Rules for tolling S/L iv) Conflict (or choice) of law rules |
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Erie doctrine step 2?
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Is there a fed law (const, statute, FRCP, or FRE) on point that directly conflicts with state law? If so --> apply fed law if it is vald (Supremacy Clause)
i) Note: A FRCP is “valid” if it is “arguably procedural.” (All are.) |
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Erie doctrine step 3?
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Analyze the facts to determine if the issue is substantive, based on the following three lenses:
i) Outcome determinative: would applying/ignoring the state rule affect the outcome? If so, it’s probably substantive. ii) Balance of interests: does either the federal or the state system have a strong interest in having its rule applied? iii) Avoiding forum shopping: if the fed ct ignores the state law, will it cause parties to flock to fed ct? |
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What are the 2 kinds of actions to consider for venue?
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Local actions and transitory actions.
Local: Actions regarding (1) ownership, (2) possession, or (4) injury (including trespass) to land must be filed in the district where the land lies. Transitory: Plaintiff may lay venue in any district where (1) all defendants reside (might not be one) OR (2) a substantive part of the claim arose. |
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What are "local actions"? Where must venue be laid for such actions?
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Actions regarding (1) ownership, (2) possession, or (4) injury (including trespass) to land must be filed in the district where the land lies.
(Important for VENUE) |
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What are "transitory actions"? Where must venue be laid for such actions?
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Plaintiff may lay venue in any district where:
1) All defendants reside (might not be one) 2) OR a substantive part of the claim arose Special rule: if all defs reside in diff districts of the same state, pl can lay venue in the district in which any of them resides |
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What is the special rule for transitory actions?
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If all defs reside in diff districts of the same state, pl can lay venue in the district in which any of them resides
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How do you determine residence for venue?
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Natural persons: residence basically equal domicile (i.e., same as citizenship for diversity)
Corporations and other associations: they reside in ALL districts in which they are subject to PJ when the case is filed. (E.g., Ford is a citizen of Delaware (inc) and Michigan (PPB), but it resides everywhere.) |
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Transfer of venue: where can you transfer to?
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Transfer can only occur to a venue where the case could have been filed. Two part rule: new venue must have (1) proper venue and (2) PJ over defs
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Transfer of venue: what is the standard?
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Court MAY (discretion) grant transfer based on (1) “public factors” (what law applies, what community should be burdened with jury service) and (2) “private factors” (convenience—e.g, where witnesses and evidence are)
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Transfer of venue: whose law applies after transfer?
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The new court applies the choice of law rules of the original court.
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Describe forum non convienens.
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If there is a far more appropriate cour elsewhere, a court may stay or dismiss (usually w/o prej) a case to let pl sue def in the other venue.
Note: High standard (since dismissal is involved). It's almost never granted if pl is a resident of the present forum |
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What is process?
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Process = (1) summons (formal court notice of suit and timing for response) and (2) copy of the complaint
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Who can serve process?
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Any nonparty who is at least 18 years old
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What are the 4 methods of service?
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Personal service, substituted service, service on an agent, and state law.
a. Personal service: papers can be given to def personally anywhere in forum state b. Substituted service: process can be left (1) at the def’s “usual abode” and (2) with someone of “suitable age and discretion” who resides there c. Service on an agent: Process can be delivered on def’s agent if received within the scope of agency (i.e. by contract, by law, or by corp’s officer/registered agent/managing agent). d. State law: a fed cts also accept methods of service permitted by the state cts where the fed ct sits or where service would be accepted |
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What is personal service?
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Papers can be given to def personally anywhere in forum state
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What is substituted service?
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Process can be left (1) at the def’s “usual abode” and (2) with someone of “suitable age and discretion” who resides there
1) I.e. A butler at a summer home is okay, but not a babysitter. Note there is no age minimum. |
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What is service on an agent?
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Process can be delivered on def’s agent if received within the scope of agency (i.e. by contract, by law, or by corp’s officer/registered agent/managing agent).
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How is state law relevant to service?
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A fed cts also accept methods of service permitted by the state cts where the fed ct sits or where service would be accepted
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How does waiver of service work?
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Process is mailed to def by first class mail, postage prepaid. F def executes and mails back the waiver form to the pl within 30 days, then def waives formal service of process. If def fails to wave, then def pays costs of service.
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What are the consequences of choosing not to waive service?
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Def pays costs of service
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Can you service process out of state in FEDERAL court?
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Fed ct can serve process outside the state in which is sits only if state law would allow it (i.e. long-arm statute)
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When is a person immune from service in FEDERAL court?
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A person is immune from service of process when instate to be a witness or party in another civil case
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How do you serve other documents than process?
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For subsequent papers (answer, other pleadings, motions, discovery requests, responses, etc), service is accomplished by delivering or mailing the document to the party’s attorney.
-- If mailed, add 3 days for any required response (i.e., mailed i-rogs get 33 days for response) |
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What must be included in a complaint?
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1) Statement of SMJ
2) “Short and plain statement” of the claim, showing entitlement to relief 3) Demand for relief/judgment |
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What is the pleading standard in federal court?
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“Notice pleadings”: you only need to plead enough detail to allow the other side to be on notice and make a reasonable response
--But the Sup Ct has also said you must state the facts showing a “plausible” claim |
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What is the notice pleading standard?
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Required in federal court for complaints. Rule:you only need to plead enough detail to allow the other side to be on notice and make a reasonable response
--But the Sup Ct has also said you must state the facts showing a “plausible” claim |
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What are special matters?
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In federal court, "special matters" must be pled with particularity. Special matters include:
1) Fraud 2) Mistake 3) Special damages |
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How long does the defendant have to respond in federal court?
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Def must respond by motion or by answer within 20 days of service of process.
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What are the Rule 12(b) defenses? When must they be brought up?
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They must be brought up in the answer or first motion or they are waived. They are:
a) Lack of SMJ b) Lack of PJ c) Improper venue d) Insuff process (problem with papers themselves) e) Insuff service f) Failure to state a claim g) Failure to join an indispensable party |
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What motions can a defendant raise with respect to the FORM of the complaint?
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(1) Motion for a more definite statement (pleading is too vague for def to respond)
(2) Motion to strike (aimed at immaterial things, like a jury demand where no right exists) |
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If you don't raise [these] issues in the first responsive pleading, you waive them. What are they?
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PJ, venue, process, & service (issues 2-5 of the list of 12(b) defenses)
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When can lack of SMJ be raised in a federal suit?
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Lack of SMJ can be raised anytime, even on appeal
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When can you raise the 12(b) defense of failure to join an indispensable party?
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Failure to state a claim or join an indispensable party can be raised through and including trial time.
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When must you serve an answer in federal court?
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Within 20 days of service of process. BUT if def makes a Rule 12 motion and is denied, def has up until 10 days after denial.
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In fed ct, how can a def respond to pl's allegations in an answer?
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(1) admit, (2) deny, or (3) say ‘lack of suff information to admit or deny'. Failure to deny constitutes an admission on any matter except damages.
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In fed ct, what is the consequence of a failure to deny an allegation in a def's answer?
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Failure to deny constitutes an admission on any matter EXCEPT damages.
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Fed ct: what is the effect of a failure to plead an affirmative defense in an answer?
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If they are not pled, an objection may be sustained to evidence admitted regarding these defenses at trial.
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What is the first question to ask for every potential crossclaim or counterclaim?
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Check for SMJ!
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With what other document must you plead counterclaims?
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With the answer
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What are the 2 kinds of counterclaims?
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a) Compulsory counterclaim: arises from the same T/O as pl’s claim
b) Permissive counterclaim: does not arise from same T/I as the pl’s claim. You can file it in your answer or not. |
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What are the requirements for a crossclaim?
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It MUST be from te same T/O as the underlying action
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Are crossclaims compulsory?
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Never
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When do parties have a right to amend proceedings?
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i) Pl has the right to amend once before def has served an answer
ii) Def has the right to amend once within 20 days of serving the answer |
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If the parties wish to amend but cannot do so by right, under what circumstances may they amend?
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If no right to amend, the party must seek leave of court to amend
--Leave shall be granted if “justice so requires.” Factors: (1) delay and (2) prejudice |
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What happens if evidence at trial does not match what was pleaded?
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Called a "vairance."
i) If def objects when pl introduces evidence of a new claim at trial, then the evidence is inadmissible because it is “at variance with the pleadings” ii) If def doesn’t object, then the pl can move to amend the compl after trial to conform to the evidence. |
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If a plaintiff makes a change to the pleadings, will the amendment need to be done within the S/L?
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Rule: Amended pleadings “relate back” to the original filing date if they concern the same conduct, transition, or occurrence as the original pleading.
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To what documents does the Rule 11 certification requirement apply to?
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All pleading, written motions, and papers (except discovery documents)
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What does the Rule 11 signature of the attorney certify?
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The signature certifies that (a) to the best of the atty’s knowledge and belief, and (b) after reasonable inquiry:
1) The paper is not for an improper purpose 2) The legal contentions are warranted by law (or nonfrivolous argument for law change) 3) The factual contentions and denials have evidentiary support (or are likely to after further investigation) |
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Is the Rule 11 certification renewed every time the position is “presented” to the court (e.g., at signing, at filing, and later when advocating a position)?
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Yes. This is called "Continuing certification"
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What is the procedure for a party wishing to move for Rule 11 sanctions?
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Motion for sanctions must be served on a party, but filing is delayed until 21 days later (safe harbor period). If opposing party withdraws the document or corrects, then no sanctions.
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Can a judge impose Rule 11 sanctions sua sponte? What must the judge do before issuing such sanctions?
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Yes, but party must be given a chance to be heard
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To whom are monetary sanctions paid?
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The court
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What is the purpose of Rule 11 sanctions: deterrence or punishment?
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Deterrence
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Can Rule 11 sanctions be nonmentary?
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Yes
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What are the require initial disclosure of a federal civil case?
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Must identify persons and five copies (or description) of documents or electronically stored info “likely to have discoverable info that the disclosing party may use to support its claims or defenses,” computation of damages, and insurance for judgment.
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When must a party make the required initial disclosures in a fed civil case? What is the procedure for making such disclosures?
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Within 14 days of the Rule 16(f) conference, must identify persons and five copies (or description) of documents or electronically stored info
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To what extent are expert witnesses a part of the required disclosures in a fed case?
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As directed by court, parties must identify: experts “who may be used at trial” and written report containing opinions, data used, qualifications, compensation, etc.
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What is a pretrial conference? Is it required in a fed case?
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No later than 30 days before trial parties must give detailed info about trial evidence, including documents and identity of witnesses to testify live or by deposition.
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After what point can traditional discovery tools be used?
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Only after the 26(f) pretrial conference
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What certification is made by parties when employing a discovery tool?
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Parties sign substantive answers to discovery under oath certifying (1) it is warranted, (2) not interposed for an improper purpose, and (3) not unduly burdensome.
--Remember that Rule 11 doesn’t apply for discovery docs, so this is a separate certification for them. |
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If a response to a discovery request has changed since submitting answers, must the parties supplement?
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Duty to supplement: if a party learns that its response to a require disclosure, i-rog, request for production, or admission is incomplete or incorrect, is MUST supplement.
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What is the standard for what information is discoverable?
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Standard: can discover anything “relevant to a claim or defense” (i.e. something in the pleadings)
--Relevant = “reasonably calculated to lead to the discovery of admissible evidence” --I.e., privileged info is not admissible |
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What is the work product privilege, generally?
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Work product = “materials prepared in anticipation of litigation”
--Note that it need not be prepared by counsel (it’s not called ‘attorney work product’; it’s just ‘work product’) |
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How can a party get around the work-product privilege to discover otherwise protected material?
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Work product can be discovered if party shows (1) a substantial need and (2) that it is not otherwise available
--But the following are absolutely protected: (1) mental impressions, (2) opinions, (3) conclusions, and (4) legal theories |
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What is the distinction between experts who can be deposed and those who cannot?
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Parties are required to produce info about experts who may be used at trial without require from party. In addition, party may take deposition of any expert “whose opinions may be presented at trial”
--Consulting expert (retained in anticipation of litigation but wont’ testify): no discovery absent “exceptional need” |
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Under what circumstances can a party get a court to block a discovery request? What is this called?
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Protective order: discovery request must be (a) overburdensome, (b) involve electronically stored info not reasonably accessible, or (c) involves trade secrets (protective order can limit disclosure to the present litigation).
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If a party partially violates discovery, what will be the sanction?
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Parties violation: get a an order compelling the party to answer the questions, plus costs (incl AFs) of bringing the motion.
--If party still violates, ct may impose heavy sanctions AND contempt. |
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If a party completely blows off discovery, what will be the sanction?
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Heavy sanction options for judge:
(1) Establishment order (establishes facts as true) (2) Strike pleadings of the disobedient party (as to issues re: discovery) (3) Disallow evidence from the disobedient party (as to issue re: discovery) (4) Dismiss plaintiff’s case (if bad faith shown) (5) Enter default judgment against def (if bad faith shown) |
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If electronic data is lost in good faith, what will be the sanction?
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Electronic data lost through good faith, routine operation of an electronic information system will not result in ANY sanctions except in “extraordinary cases”
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Can both parties and nonparties be deposed?
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Both parties and nonparties can be deposed, but nonparties must be subpoenaed to be deposed involuntarily
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What do you have to do if you want to make sure a witness will be there for deposition?
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For parties, just give notice. For nonparties, must subpoena.
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What is a subpoena duces tecum?
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Requires deponent to bring material to deposition
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What are the limitations of depositions by each party allowed under the FRCP?
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a) No more than 10 deps and no repeat deps.
b) A dep cannot exceed one day of seven hours. |
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How can depositions be used at trial?
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Use at trial: (1) impeachment; (2) any purpose of deponent is an adverse party; (3) any purpose if deponent is unavailable for trial (unless absence was causes by proponent of evidence)
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What is the furthest that a nonparty may be required to testify for a deposition?
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Nonparties cannot be required to travel more than 100 miles from residence or regular place of business
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Are depositions and interrogatories answered under oath?
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Yes, always
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Can interrogatories be propounded on nonparties?
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No. Only parties.
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How long do parties have to respond to interrogatories?
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30 days
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What is the maximum number of interrogatories a party may propound?
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25 (including subparts)
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Under what circumstances can you respond in an interrogatory that you don't know the answer?
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Only after reasonable investigation
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In response to an interrogatory, can you direct the party to the answer without actually giving the answer yourself?
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Ys, you can also offer the other side access to records if it would be *burdensome* to go through the records to find it yourself.
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How many interrogatory responses be used at trial?
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Answers may only be used by the opposition as evidence in trial as 802-d-2-a
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How long does a party have to respond to an interrogatory?
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30 days
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Can you serve interrogatories on nonparties?
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Yes, rhey can be served on parties or nonparties (with subpoena)
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During discovery, how can you get a mental or physical examination of an individual?
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i) Requires a court order
ii) Must show that the health of the party (or a person in the party’s control, e.g. a child) is in actual controversy and “good cause” (i.e., you need it and can’t get at it elsewhere). |
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Can requests for admission be served on nonparties?
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No
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How long does a party have to respond to a request for admission?
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30 days
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What is the usual deadline for responding to a discovery request (federal)?
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30 days
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What are the proper responses to a request for admission?
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Admit, deny, or “lack of info” (only after reasonable inquiry)
--Failure to deny is tantamount to an admission |
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Can a party amend a response to a request for admission?
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Yes, if not in bad faith
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Under what circumstances can parties be joined together (as coparties)?
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May be joined if claims (1) arise from same T/O and (2) raise at least one common question
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Under what circumstances will a party be "necessary" in a federal case?
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An absentee is required in a case if ANY of the following are true:
i) Without the abs, the court cannot accord complete relief (prevent multiple litigation) ii) The abs’s interest will be harmed if not joined (harm to abs) iii) Abs claims an interest which subjects a party (usually the def) to multiple obligations (harm to party) |
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Are joint tortfeasors "necessary" parties in a fed case?
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No
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In a fed case, when is joinder of a necessary party "feasible"?
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If (1) there is PJ over him, and (2) joining him will not make it impossible to maintain diversity
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In a federal case, who decides whether a party that is brought in under joinder becomes a plaintiff or a defendant?
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The court
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In a fed case, if the court decides that joinder of a necessary party is NOT feasible, what will the court do?
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The court must decide whether to proceed without the absentee or dismiss. Factors:
i) Is there an alternative forum available, such as state ct? ii) What is the actual likelihood of prejudice? iii) Can the ct shape relief to avoid prejudice? --If the court cannot proceed, the party is "indispensable" |
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In a federal case, how does the court decide whether a necessary but absent party is "indispensable"?
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Factors:
i) Is there an alternative forum available, such as state ct? ii) What is the actual likelihood of prejudice? iii) Can the ct shape relief to avoid prejudice? |
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In a federal case, what is it called when a defending party wants to bring in a third-party def (TPD) because the TPD may owe indemnity or contribution to the defending party on the underlying action?
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Impleader
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What is impleader?
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Occurs when a defending party wants to bring in a third-party def (TPD) because the TPD may owe indemnity or contribution to the defending party on the underlying action
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Timing: What are the timing rules for when a defendant can implead a third party?
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Right to implead within 10 days after serving answer (after that need leave of ct)
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What is the procedure for impleading a third party defendant?
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1) File third-party complaint naming the TPD
2) Serve process on the TPD |
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After joinder, under what circumstances can a pl assert claims against a third party (interpleaded) defendant (and vice verse)?
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As long as claim arises from same T/O as underlying case
--Remember: you still have to check for SMJ |
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In a fed case, what is intervention?
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Absentee wants to join a pending suit. Can intervene as pl or def (ct may realign her)
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In a fed case, what is it called when an absentee wants to join a pending suit?
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Intervention
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Timing: When is intervention permissible?
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Application to intervene must be “timely” (no day limitation)
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What are the 2 kinds of intervention? Describe them.
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1) Intervention of right: Absentee’s interest may be harmed if not joined, and her interest is not adequately represented now (like test #2 for ‘necessary parties’)
2) Permissive intervention: Absentee’s claim or defense and the pending case have at least one common question. Ct has discretion to allow it in light of (1) delay and (2) prejudice. |
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What is intervention of right?
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Absentee’s interest may be harmed if not joined, and her interest is not adequately represented now (like test #2 for ‘necessary parties’)
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What is permissive intervention?
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Absentee’s claim or defense and the pending case have at least one common question. Ct has discretion to allow it in light of (1) delay and (2) prejudice.
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What is interpleader?
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One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency
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What is it called in a federal case when one holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency?
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Interpleader
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In a fed interpleader action, what do you call the person holding the property? What do you call the people who might want the property?
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Stakeholder: person with the property
Claimants: people who want the property |
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What are the two kinds of federal interpleader actions? (Names only)
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“Rule” interpleader (FRCP 22)
“Statutory” interpleader |
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For "rule interpleader" under federal law, describe the requirements for citizenship, amount in controversy, service, and venue.
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i) Citizenship: stakeholder must be diverse from every claimant
ii) Amount in controversy: >$75k iii) Service: normal iv) Venue: normal |
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For "statutory interpleader" under federal law, describe the requirements for citizenship, amount in controversy, service, and venue.
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i) Citizenship: one claimant must be diverse from one other claimant (stakeholder’s c-ship is irrel)
ii) Amount in controversy: ≥$500 iii) Service: nationwide service (so no PJ problems over US claimants) iv) Venue: any district where any claimant resides |
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If there is a pending federal interpleader action, can the court enjoin claimants from suing elsewhere?
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Yes (that's the idea)
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Hypo: Insurance company (incorporated in Del; PPB in NY) has life insurance fund. Claimants are from NY, MN, and NY. Insurance Co. wants to avoid being sued on 3 diff actions What should it do?
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Statutory interpleader. (No "rule interpleader" because no complete diversity.)
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In federal law, what are the four prerequisites to class action certification? Briefly describe each.
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a. Numerosity: too many class members for practicable joinder
b. Commonality: class has common questions of law in fact c. Typicality: rep’s claims/defense are typical to those of the class d. Adequacy: class rep will fairly and adequately represent class |
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What are the 3 common types of class actions?
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a. “Prejudice”: class treatment necessary to avoid harm either to class members or opposing party. (E.g., many claimants to a single fund where individual suits might deplete the fund.)
b. Injunction or declaratory judgment (not damages) (e.g., employment discr) c. Damages: requires (1) common questions predominate over individual questions, and (2) class action is the superior method for handling the dispute (e.g. mass tort) |
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If a fed court certifies a class action, what must the court due in the certification?
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If it certifies, it must (1) “define the class and the class claims, issues, or defenses” and (2) appoint class counsel.
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In a fed class action for damages, what are the notice requirements for class members? What must the notice say?
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a. The ct must notify class members by individual notice (by mail) to all reasonably identifiable members.
b. Notice says: (1) they can opt out, (2) they will be bound absent opt-out, and (3) they can make a separate appearance through counsel. |
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In a fed class action that is NOT for damages, what type of notice is required for class members?
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NONE. Only damages class actions require notice to members.
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In a fed class action that is NOT for damages, how can a person opt-out?
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There is NO opt-out allowed for such class actions. Only damages actions have an opt-out possibility.
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Who pays for notice in a class action?
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The class representatives
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If the parties to a class action reach a settlement or agree to dismiss, must they have court approval?
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Yes
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If the parties to a class action reach a settlement or agree to dismiss, must they give notice to class members?
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1) In all 3 types, the ct gives notice to class members to get feedback on settlement/dismissal.
2) In damages actions, the ct must give a 2nd chance to opt out |
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In a federal class action, how can the action qualify for diversity jurisdiction?
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For diversity juris, look only to class representatives, not the class members.
1) As long as reps are diverse from the def and amt >$75k, it’s okay --BUT: the Class Action Fairness Act of 2005 allows for SMJ of class actions so long as any class members (not just reps!) is diverse from any def and amt in controversy exceeds $5M. |
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What is the Class Action Fairness Act of 2005?
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Federal law allowing for diversity SMJ of class actions so long as any class members (not just reps!) is diverse from any def and amt in controversy exceeds $5M. The idea is to make it easier for interstate actions to get into fed ct.
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In a fed case, when can a pl dismiss a case by right?
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Pl may file written notice of dismissal before def’s answer or motion for SJ.
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If a pl in a fed case dismisses a suit by right, will the dismissal be without prejudice?
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Yes, unless pl dismissed the case a 2nd time.
--This is true even if 1st filing was in state ct |
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Is a default the same thing as a default judgment?
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No.
a. Default is a notation by the court clerk on the docket sheet of the case b. Getting the default does NOT entitle pl to relief. Pl still needs a judgment. |
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Timing and Procedure: When and how can a pl in a fed case get a default?
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A claimant gets a default by showing the clerk that def has failed to respond with 20 days of service of process. Def can respond anytime before the default is entered.
--Note: A "default" is not the same as a "default judgment." |
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In a fed suit, when can a plaintiff get a default judgment from the CLERK?
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Clerk can enter judgment if ALL of following are true:
i) Def made no response at all ii) Claim itself is for a certain amount iii) Claimant fives an affidavit (sworn statement) of money owed iv) Def is not a minor or incompetent --Otherwise, pl must go to the judge for a judgment. |
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In a federal suit, can a plaintiff get more in a judgment than that which was in the complaint? What about on a default judgment?
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At trial, yes it can be more. But on default judgment, the award cannot exceed what the claimant demanded in complaint, nor can it be diff kind of relief.
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In a federal suit, how can a defendant have a default/default judgment set aside?
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By showing good cause and a viable defense.
--Good cause usually means excusable neglect. |
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In a federal suit, what is the difference between a dismissal for "failure to state a claim" and a "motion for judgment on the pleadings"?
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Timing. It's called failure to state a claim if the defendant has not answered. If this motion is made after a def answers, it’s called motion for judgment on the pleadings.
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In a federal suit, if a pl’s complaint shows a complete defense on its face, can a def win on a motion to dismiss for failure to state a claim?
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YES. But the complaint--not the answer--must show a complete defense.
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What must a party show to win on a motion for summary judgment?
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Moving party must show (1) no general dispute on a material issue of fact and (2) entitled to judgment as a matter of law
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In a federal suit, what evidence may the court consider for a motion for summary judgment?
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1) Sworn statements (affidavits), depositions, admissions, etc., if they involve first-hand knowledge
2) NOT pleadings (unless “verified pleadings”) --Exception: Court can consider pl's allegations that def did not deny (i.e., admissions) |
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Timing: What is a Rule 26(f) conference, and when must it be held?
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Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties must discuss claims, defenses, and settlement
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Timing: Within how many days of a Rule 26(f) conference must parties present a discovery plan to the court?
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14 days
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In a federal case, the final pretrial conference determines issues to be trial and evidence to be proffered. What standard is required to amend this order?
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This final order supersedes the pleadings and may only be amended “to prevent manifest injustice” (high standard)
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In what types of cases is a federal plaintiff entitled to a jury trial?
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On legal claims (not equitable claims)
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If a federal suit involves legal and equitable claims, which claims are tried first?
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Legal (with a jury)
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Timing: When must a federal plaintiff make a jury demand?
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Demand must be within 10 days after service of last pleading raising jury triable issue
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How many preemptory strikes do parties get in federal court?
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3
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What is the motion called in a federal case when a party thinks it has won after the opposing party had finished presenting its side at trial?
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Motion for Judgment as a Matter of Law (JMOL)
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When can a federal party bring a motion for judgment as a matter of law?
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This can be brought after the other side has been heard
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What is the standard for a motion for judgment as a matter of law?
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Reasonable people could not disagree on the result
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In a federal case, what is the modern name for the motion that used to be called a motion for "directed verdict"?
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Motion for Judgment as a Matter of Law (JMOL)
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What is a Renewed Motion for Judgment as a Matter of Law?
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Federal only: This is the same as a JMOL but occurs AFTER the jury returns with a verdict. Motion is made by the losing party.
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Timing: When can a party in a federal suit bring a renewed motion for judgment as a matter of law?
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--AFTER the jury returns with a verdict. Motion is made by losing party.
--Party has 10 days from entry of judgment to file the motion. --Prerequisite: movant must have moved for JMOL at trial |
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Timing: In a federal suit, when can a party make a motion for a new trial?
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Within 10 days of judgment
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In a federal case, what are the 5 grounds for a motion for a new trial?
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1) Prejudicial (not harmless) error at trial makes judgment unfair (e.g., wrong jury instruction, evidentiary ruling, etc)
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 (e.g., juror conducted indep investigation of accident) 4) Judgment is against the weight of the evidence (serious error of judgment by jury) 5) Excessive or inadequate damages |
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In a federal case, what must a party demonstrate to get a new trial on the basis of new evidence?
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New evidence that could not have been obtained with due diligence for the original trial
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In a federal case, what are the 4 grounds for a motion to set aside the judgment?
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a. Clerical error (timing = anytime)
b. Mistake, excusable neglect (timing= reas time not exceeding 1 yr) c. New evidence that could not have been discovered with due diligence for a new trial motion (timing= reas time not exceeding 1 yr) d. Judgment is void (timing = reas time, no cap) |
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What is the test for whether a federal case is at the proper point in its life that it can be appealed?
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Final Judgment Rule: Does the trial judge have anything left to do on the merits of the case? If so, it's NOT final.
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In a federal case, is a trial court's decision to remand to state court reviewable by a federal appeals court?
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No (by statute)
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If a federal case has a motion granted or denied on motion for JMOL or RJMOL, is the case "final" and thus reviewable?
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Yes
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Timing: In a federal case, how long does a party have to appeal a case? What must be filed, and where?
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File notice of appeal in trial court within 30 days of entry of final judgment
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In the federal system, what do the following 4 kinds of trial court orders have in common:
a. Orders granting, modifying, refusing (etc) injunctions b. Appointing or refusing to appoint receivers c. Finding of patent infringement where only an accounting is left to be done d. Orders affecting possession of property (e.g. attachments) |
From any of these orders, parties have an interlocutory appeal as a matter of <b>right</b>
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In a federal suit, is a decision on class certification appealable as a matter of right?
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No. It's discretionary.
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In a federal suit, if a decision on class certification is on appeal, must the trial court stay the case?
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No. Appeal does not stay proceedings unless the trial judge or app ct so orders.
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Timing: How long does a party have to file an interlocutory appeal on a decision to certify a class in a federal class action?
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10 days
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What does the Interlocutory Appeals Act do?
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Allows appeal of nonfinal order if (1) trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and (2) the app ct agrees to hear it.
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What is the "collateral order" exception in the context of federal interlocutory appeals?
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Appellate ct has discretion to hear ruling on an issue if all 3 are true: (1) it is distinct from the merits of the case; (2) it involves an important legal question; and (3) it is essentially unreviewable if parties must await a final judgment
--E.g., claim of immunity from suit, such as a state’s claim of 11th Am immunity from suit for damages |
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When more than one claim is presented in a federal case (e.g. claim and counterclaim), or where there are multiple parties, can the trial court expressly direct entry of a final judgment as to one or more of them?
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Yes, if it makes an <b>express</b> finding that there is no just reason for delay
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