Civ Pro

Timing quick hits

• Rule 11—21 days for correction

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• Answer—21 days (60 if D has waived service)

• Amendments—21 days after service and 21 days after responsive pleading

—

• Jury demand—14 days after P files or D is served

—

• Removal—30 days after receipt of complaint or service of process

• Remand—30 days after removal if procedural defect, otherwise at any time

—

• Initial disclosures—14 days after 26(f) planning conference

• Expert testimony—90 days before trial

• Pre-trial disclosures—30 days before trial

• Objections to pre-trial disclosures—14 days after disclosure

—

• Motion for summary judgment—30 days after close of discovery

• Motion for JMOL—anytime prior to submission of the case to the jury, but after the nonmoving part has been “full heard” on the matter, i.e., has finished presenting all of its evidence

• Motion for renewed JMOL (JNOV)—28 days after judgment entered

• Motion for new trial—28 days after judgment entered

• Motion to amend prior order—28 days after order issued

• Notice of appeal—30 days (60 if US is a party) after judgment entered

• Motion for relief from judgment—reasonable time not to exceed one year, unless judgment is void or has been satisfied, then no time limit

Types of jurisdiction

• Personal

  • Jx over a particular defendant or piece of property

• Subject matter (SJM)

  • Jx over a particular type of case

Personal jurisdiction—overview

Basic requirements:

1. State statute must grant the court jx

2. State statute must comply with Constitution

Three types:

1. In personam: power over person of a particular defendant. Most states have four statutes governing in personam jx:

   • Presence [general]

     • Exception for force/fraud and immunity if presence in state is for or on the way to a judicial proceeding

   • Domiciliary [general]

   • Consent [general]

     • By contract

     • In some states, by appointing an agent for service of process as a condition of doing business in the state

     • Implied consent where state has substantial reason to regulate in-state activity—e.g., driver (resident of state X) has accident in state Y; driver will be deemed to have impliedly consented to jx by state Y courts

     • Voluntary

       • Typically any appearance suffices, but some states allow “special appearances” for the sole purpose of contesting jx

   • Long-arm statutes [specific]

     • Some of these are “unlimited” (as much as constitutionally permitted), others restrict themselves in various ways

2. In rem: power to adjudicate rights of all persons with respect to a particular piece of property

3. Quasi in rem: power to determine whether a particular D owns a particular piece of property in court’s control

Personal jurisdiction—in personam, constitutional limitations

Key limitations from DPC:

• D must have sufficient contact with the state such that exercise of jx is fair and reasonable. Courts look to a series of factors:

  • Contacts

    • Purposeful availment of the state

      • Advertising in the state, selecting the state’s law as the governing law, maintaining an office in the state, etc.

      • Stream of commerce cases: putting an item in the stream of commerce, by itself, is not sufficient; there needs to be some kind of extra intentional targeting

    • Foreseeability—it should be foreseeable to D that he could be “haled into court” in the forum state

  • Relatedness of claim to contact

    • If cause of action does not arise from or is unrelated to D’s activities, to exercise jx there must be general personal jx

    • Specific vs. general:

      • General = jurisdiction available regardless of whether D had contacts with the state

        • Registering to do business where consent to jx is a requirement of registration

        • Being “at home” in the state

          • For people, this is domiciliary; for corps, it’s state of incorporation + state where principal place of business is located

      • Specific = jurisdiction available because of contact with the state

  • Fairness (“traditional notions of fair play and substantial justice”) (applies only to specific jx)

    • Convenience—hard to win on this one; inconvenience must put party at a severe disadvantage

    • Forum state’s interest

    • Various others

• D must be given notice and an opportunity to be heard

  • Traditional methods: personal delivery, registered mail w/ return receipt, delivery to agent, etc.

  • General principle: notice must be the best practical

  • Agents…

    • If agent appoint by law, failure of agent to deliver to D kills notice

    • If D selects agent, failure of agent to deliver to D does not kill notice

Personal jurisdiction—in rem and quasi in rem

• In rem: property must be located in the forum state

  • Cannot have been brought into the forum state by force or fraud

• Quasi in rem—proceeds against the person but using their property as a jurisdictional hook (useful when you can’t get personal jx over a D but you can reach his property)

  • Type I: If the dispute is over ownership, presence of property in the state is sufficient

  • Type II: If the dispute is unrelated to ownership, jurisdiction cannot be based solely on presence of property in the state and instead there need to be some minimal contacts

    • B/c minimum contacts would likely give a court in personam jx, Type II quasi in rem will be rare

Subject matter jurisdiction

Core:

1. Federal question

2. Diversity

Secondary:

1. Removal

2. Supplemental

Exceptions—meaning no SJM jx even if yes personal jx:

• Domestic relations (divorce, alimony, child custody)

• Probate proceedings (wills)

Subject matter jurisdiction—diversity jx, overview

Requirements:

• Complete diversity across the “v”

• Amount in controversy over 75k

Subject matter jurisdiction—diversity jx, amount in controversy

• Good faith allegation that damages exceed 75k

• Value is attached to what’s actually “in controversy”

  • E.g., if seeking specific performance on a contract to transfer 5M of land, 5M is the amount in controversy

• Interests and costs excluded, except for attorneys’ fees recoverable by contract or statute are included

• Compulsory counterclaims do not need to meet requirements, but permissive counterclaims do

• For purposes of removing to federal court, it’s the original amount that matters, not the amount D counterclaims

• Aggregating

  • Ok for one plaintiff to do against a single defendant

  • Ok for several plaintiffs to do against a single defendant if seeking to enforce a single right

    • Note: this is actually fairly limited; doesn’t apply if, e.g., two passengers injured in the same bus accident and have claims for 40k each

  • Not ok for single plaintiff to do against multiple defendants that aren’t jointly liable

  • Counterclaims do not stack with P’s original claim

Subject matter jurisdiction—diversity jx, complete diversity

• Diversity requirement = complete diversity across the “v” at the time the action is commenced

• Caveats

  • At least one party must be a US citizen

  • In direct-action insurance cases, insurer deemed to be citizen of state where it’s incorporated, citizen of state where it has principal place of business, citizen of state where insured is a citizen

  • LLCs and partnerships are citizens of each and every state of which their members are citizens

  • Non-resident citizens who are not citizens of the foreign country they reside in are neither aliens nor citizens of any US state

  • Legal representatives have citizenship matching that of their principal

  • In shareholder derivative actions, corporation is treated as a defendant

  • Realignment by the court may create or destroy diversity

  • If parties are substituted, citizenship of substituted party is irrelevant and the original party’s citizenship controls

  • If case is between US citizen and an alien, no diversity jx if the alien is a permanent resident and domiciled in the same state as the citizen

    • This doesn’t apply if aliens are additional parties—i.e., if there are non-aliens on both sides, foreign parties are disregarded

• Abuse

  • Assignment: assignment, e.g., for collection only will be ignored; but complete assignment is honored

  • Class actions: fine to manipulate named parties

  • Voluntary change of citizenship: change must be actual, but motive is irrelevant

• Where “home” is

  • Natural persons: physical presence + intent to remain there

  • Corporations: every state where it’s incorporated and the one state where it has its principal place of business

Subject matter jurisdiction—diversity jx, limitations re supplemental jx

• Joinders and subsequent additional parties

  • There must be a “common nucleus of operative fact”

  • If original jurisdiction is based on only diversity…

    • D’s related claims can sail in on supplemental jx, so no diversity or low amount are not obstacles

    • P cannot move against the new parties if doing so destroys complete diversity—technically, this is only for persons made parties under 14 (impleader), 19 (compulsory joinder), 20 (permissive joinder), and 24 (intervention)

      • But it’s fine if the case against the new party falls below 75k, because supplement jx forgives a shortfall in amount, even if not a shortfall in diversity

  • If original jurisdiction is based on federal question…

    • No issues; fine to have joinders, cross claims, counter claims

• Remedy for misjoinder = severance (not dismissal)

Subject matter jurisdiction—supplemental jurisdiction

• Ancillary

  • Typically where the defendant adds claims via either counterclaiming, cross-claiming, or impleading

• Pendent

  • Where the plaintiff adds additional claims under state-law to a complaint that gets into federal court on its own already (via either diversity of federal question)

  • Court has discretion as to whether to exercise jx over the supplemental claim

Erie doctrine

• Applies to diversity jurisdiction only

• Federal courts apply substantive state law and procedural federal law

• Decision tree

  • If there’s a federal rule or statute on point, apply it

  • If there’s no federal rule on point…

    • Is the issue substantive? Statutes of limitations, rules on tolling, choice/conflicts of law, elements of claims and defenses, remittitur standards

      • Follow state law

    • Is the issue procedural? E.g., process for ordering parties to submit to mental or physical exams

      • Follow federal (i.e., fine to ignore state law)

    • Is it not clearly one or the other? Three approaches

      • Outcome determinativeness: substantive if outcome determinative

      • State interest: substantive if interest of state in having its rule applied outweighs interests of feds in having their rule applied

      • Forum shopping: substantive if not following state law would encourage forum shopping

Diversity jx—multi-party, multi-forum

Multiparty, Multiforum Trial Jurisdiction Act

• Applies where:

  • Single accident

  • At least 75 natural persons have died

  • At a discrete location

• Provided that:

  • Either:

    • A D resides in a state different from where the substantial part of the accident took place

    • Any two Ds reside in different states

    • Substantial parts of the accident took place in different states

  • If substantial majority of plaintiffs are from state X and claims asserted by plaintiffs will be governed by state X, then federal court should abstain

• Effects

  • Only minimal diversity required (one P diff from one D)

  • Anyone with a claim arising from the accident can intervene, even if they couldn’t maintain the action on its own

Federal question jx

Requirements:

• Federal question must appear in the complaint

  • D’s answers and defenses are irrelevant

  • Mere anticipation of federal defense is irrelevant

Exclusive statutory grants

• Bankruptcy

• Patent and copyright

• Postal matters

• IRS

• Securities Exchange Act

• Many cases where the US is the defendant

Venue—general rule and exceptions

General rule—venue is proper in:

• Federal court where any D resides, if all Ds are residents of state where court is located

• Federal court where substantial part of events took place or where substantial part of property subject to the action is located

• If no court satisfies (1) and (2), any federal court in a district where D is subject to the court’s personal jx

Special rule:

• If US is a D, same rules are above except for if (1) and (2) fail then the action can be brought in a federal court where P resides so long as no real property is involved

Residence:

• Natural persons: domiciliary

• Business entities: wherever the entity is subject to the court’s personal jx

  • When there is more than one district in a state, any district where, if the district were a state, contacts would be sufficient for personal jx, otherwise where it has the most significant contacts

Non-residents:

• May be sued in any federal court

Remedy:

• Transfer to proper venue, or dismiss (rare)

Venue—waiver and transfer

Waiver:

• Improper venue may be waiver, and is considered waived unless timely objected

Transfer:

• If original venue proper, court may transfer

  • Law of original forum used in new forum (unless the transfer is to enforce a forum selection clause)

• If original venue improper and not waiver, court must transfer (rare cases: dismiss)

  • Law of new forum used

• Courts will use transfer to enforce forum selection clauses

• Lack of personal jx over D does not affect the court’s power to transfer

Removal jx

Requirements:

• Always

  • Removal is to the district court whose territory encompasses the state court

• If getting under diversity

  • Complete diversity when original case filed and when case is removed

• If getting under federal question

  • Existence of federal defense is insufficient

Limitations:

• When federal jx based solely on diversity, D cannot remove to state X federal court if D is a resident of state X

  • If jx is based on federal question, D’s citizenship does not matter

• Case must be removed within 30 days of D receiving service of pleading or summons; if an amendment makes clear that a case is now removable, the 30 days tacks to the filing of the amendment

  • Informal notice does not start the clock

• For diversity jx only, case cannot be removed more than 1 year after it was brought in state court

  • One-year limit can be defeated if P acted in bad faith

• Removal not available for worker’s comp, railroad, and VAWA claims

Other notes:

• Federal court can hear the case even if state court lacked jurisdiction

• Venue is proper in the removed-to federal court in state X if it was proper while pending in the state court of state X, even if venue would have been improper in the federal court in state X

• If a case contains federal law elements and state elements, the whole case can get removed, but then the federal court will remand the state elements back to the state court

• If a lack of diversity blocks diversity jx, removal will be permitted if non-diverse parties are dismissed

• If no demand for jury trial has been made before removal, parties have 14 days (from filing of notice, for D, and service of notice, for P)

• If one case filed in state court and another in federal court, federal typically should not enjoin pending state case

Remand:

• P has 30 days to move for remand based on procedural defect

• P may move to remand based on SJM jx at any time

• If all federal claims are adjudicated, court may remand

• If P voluntarily dismisses all federal claims, court must remand

• Appellate review of remand generally not allowed

Who:

• Only Ds can remove, and if there are multiple, all must consent

Service of process—time limit and periods, waiver

• Time limit: 90 days from filing of complaint

• Time periods:

  • First day doesn’t count, last day does

  • Weekends and legal holidays count

  • Add three days when service is by mail or leaving paper with clerk

• Methods:

  • Individuals: personal service, leave at place of abode with someone of age (14+ y/o) who resides there, serve on authorized agent

  • Corporations, etc.: serve an officer, managing agent, authorized agent

  • Any additional methods authorized by state rules

• Waiver

  • P may request that D waive service

  • D has 30 days to return waiver form

  • If D waives service, D gets 60 days to answer complaint (instead of 21)

  • If D doesn’t waive, P must serve D in usual fashion but D is liable for the costs if D has no good cause for rejecting waiver

• 100-mile exception for rule 14 and 19

  • Scope

    • 14 = impleader

    • 19 = compulsory joinder

  • For parties joined via either of these rules, service is valid if within 100 miles of courthouse, even if the state’s long-arm statute wouldn’t reach these parties

Service of process—parties outside the state

[Fill in as necessary.]

TROs

• Last 14 days, unless restrained party consents to extension or good cause for extension

• May proceed without notice if

  • Specific facts showing immediate irreparable harm

  • Efforts to give notice

  • Bond as security, to pay for any costs adverse party incurs if wrongly enjoined

Preliminary injunctions

• Sought prior to trial and on the merits

• Requires formal notice to adverse party

• Test

  • Irreparable harm

  • Harm to P of not granting outweighs harm to D of granting

  • P likely to succeed on merits

  • Public interest favors it

Pre-answer motions

• 12(b)

  • Anytime (even on appeal)

    • Lack of subject matter jurisdiction

  • Upon filing a Rule 12(b) motion, or if not filing a Rule 12(b) motion, then at the time of filing your answer or any amendment to the answer made as a matter of course (i.e., within 21 days of serving the answer)

    • Lack of personal jurisdiction

    • Improper venue

    • Insufficient process

    • Insufficient service of process

  • Any time prior to or at trial (but not on appeal):

    • Failure to state a claim upon which relief can be granted

    • Failure to join a party needed for a just adjudication

• Motion for more definite statement

  • Moving party makes this before responding

  • Opposing party has 14 days after court order compliance

• Motion to strike

Answer

Requirements:

• Must have denials and admissions

  • General

    • Specific denial or admission of each averment, or

    • General denial with specific admissions

  • Failure to deny = admissions

  • Lack of knowledge = denial

• Must state all affirmative defenses

• Time

  • No Rule 12 motions

    • Response due 21 days after service

    • Response due 60 days after receiving complaint by mail and waiving formal service

  • Yes Rule 12 motions

    • Responsive pleading due within 14 days

    • Answer due within 14 days

• Counterclaims

  • Compulsory must be pleaded in the answer

Pleadings

Basic requirements—note that after Twombly/Iqbal, the facts must make it plausible not just possible

• Short statement of grounds for court’s jurisdiction

• Short statement of claim showing P entitled to relief

• Demand for judgment or relief

Special requirements:

• Circumstances establishing fraud or mistake must be stated with particularity

• Denial of performance or occurrence must be made specifically and with particularity

• Malice, intent, knowledge, etc. may be averred generally

Amendments and supplements

Amendments

• Pleadings may be amended once no later than 21 days after serving; after that, consent of party or leave of court required. However, leave to amend is usually granted unless there will be actual prejudice to the other party

• To have the amendment “relate back” to the date of the initial filing

  • It must arise out of the same transaction or occurrence (narrowly construed)

• Changing parties

  • Amendment concerns same transaction or occurrence

  • Party to be brought in has received notice sufficient to keep them from being prejudiced

  • Party to be brought in knew or should have know that, but for a mistake, the complaint would have been brought against her initially

  • Change is made within period for filing complaint and serving process (90 days)

Supplemental pleadings—relate to matter that occur after the date of the original pleading…

• These may be filed with permission from the court, upon motion

Rule 11 requirements

Every pleading, motion, etc. certifies:

• No improper purpose

• Contentions warranted by law or nonfrivolous argument to modify law

• Allegations have factual support

• Denials are warranted by the evidence or a reasonable lack of information

For pre-trial conferences:

• Attorneys must be prepared to make stipulations and admissions about all matters that can be reasonably anticipated as subjects of discussion

• Attorneys must participate in the conference in good faith

Rule 11 sanctions

Options:

• Court can issue

• Adverse party can move

  • Opponent has 21 days to withdraw or correct

Note: Rule 11 applies only to pleadings, not to discovery requests, responses, or motions

Joinder, remedy for misjoinder

• The remedy for misjoinder is severance, not dismissal

Joinder, compulsory

Three steps:

1. Necessary: should absent party be joined?

   • Complete relief can’t be accorded without him, or

   • He has such an interest that deciding the case in his absence will either impair his ability to protect that interest or leave other parties at risk of incurring multiple or inconsistent obligations

2. Feasible: can absent party be joined?

   • Will court have personal jx over absentee? Will joining the party destroy SJM jx?

     • If joining destroys diversity, and there’s no federal question, then absentee can’t be joined

3. If not, should action proceed in his absence? Consider:

   • Prejudice to absentee and available parties

   • Extent to which prejudice can be reduced by provisions in judgment

   • Adequacy of judgment without absentee

   • Whether P has another remedy in another court

Joinder, permissive

Parties may be joined as defendants when:

• Same series of occurrences or transactions, and

• Common question of law or fact

Shareholder derivative suits

Minority shareholder must assert:

• Shareholder at time of complained transaction

• The action is not collusive effort to confer jx where court would otherwise lack it

• Shareholder made demand on directors, or reason for not making demand, pleaded with particularity

Interpleader

Overview:

• Used to settle which of two or more parties has a valid claim, where separate actions might result in double liability on a single obligation

• E.g., an insurance company doesn’t know whether to pay proceeds to A or to B, so it brings an interpleader action and asks the court to figure out which of A or B gets the proceeds

Options:

• Rule 22

  • Party seeking interpleader concerned about facing liability in multiple actions

  • Proper venue

  • SJM (either federal or diversity)

  • » Diversity determined between P on one hand and claimants on the other (not among claimants)

• Interpleader statute

  • Amount in controversy of $500 or more

  • Diversity of citizenship between any two claimants

  • Nationwide personal jx authorized

  • Venue where any claimant resides

  • » Diversity determined between claimants

• Deciding between them

  • If P is disinterested and claimants from same state, no statutory interpleader (because there’s no minimal diversity between claimants)

  • If P is interested, statutory interpleader may be available (because now P might be from a different state, furnishing required minimum diversity)

Intervention

• Of right

  • Party claims an interest in the property and litigating the case without her may impair her ability to protect that interest

  • US has right to intervene in all cases where the constitutionality of a statute is in question

• Permissive

  • Available when party’s claim or defense and main action have a common question of law or fact

  • Must not destroy complete diversity and must be supported by its own jurisdictional ground

Third-party practice

There are two separate things here:

• Impleader a third-party claim for indemnity or contribution

  • D’s may assert these even if no diversity between D an third-party defendant and third-party defendant’s claim based on state law

• There are also third-party claims that are not for indemnity and not for contribution; these are not called impleaders and have their own rule, below

  • If these don’t meet diversity or federal Q jx on their own, they will need to come under supplemental jx, but it’s unlikely that they would meet the “common nucleus of operative fact” test

• The court can sever both types

Discovery—disclosure, three types

• Initial disclosure—without waiting for discovery request, disclose:

  • Contact info for parties that may have relevant info

  • Copies or descriptions of documents that may be relevant

  • Computation of damages

  • Copies of insurance agreements

• Expert testimony—at least 90 days before trial (if not stipulated otherwise)

  • Identity of expert

  • Depending on nature of expert, either a report prepared by the expert stating qualifications and opinions to be expressed, or overview of facts expert is expected to testify on

• Pre-trial disclosures—at least 30 days before trial

  • Witnesses expected to get called

  • Witnesses that might be called if needed

  • Witnesses whose testimony will be presented via deposition

  • Documents and exhibits that will be offered

  • » The adverse party may object to any evidence within 14 days of disclosure

If information will be used solely for impeach, it’s typically not subject to disclosure.

Discovery—scope

• In general: “any nonprivileged matter that is relevant to any party’s claim or defense” and proportional to needs of the case

  • Parties have a duty to update these if they learn they are incomplete or later become inaccurate; failure to update, absent a finding that the failure was “substantially justified” will mean that the party who failed to update will not be able to use the evidence or witness as evidence

• Trial preparation materials

  • Work product discoverable only upon showing of substantial need and undue hardship in obtaining alternative materials

  • Note: work product protects documents and materials prepared in anticipation of litigation, not the underlying facts

  • Note: notes of experts count as work product and notes, etc. do not need to be prepared by an attorney to fall under work product. So long as they’re prepared in anticipation of litigation and by or for a party of their representatives, it will be covered

• Experts

  • Testifying experts may be deposed, and information about their reports and opinions discovered

  • Consulting expert identities are generally shielded, and their opinions are discoverable only upon showing of exceptional circumstances that make it impracticable to obtain facts by other means

Discovery—abuses and compeling compliance

• If a party goes to the court to enforce discovery, it must certify that it conferred with or attempted to confer with opposing counsel before seeking court intervention

Discovery—types

• Pre-action depositions

  • Parties may request these in advance of a case being filed, to perpetuate testimony

  • The court may order the deposition if it finds that doing so will prevent failure or delay of justice

For the below—these cannot commence before the 26(f) conference.

• Depositions

  • Limits

    • 10 depositions, and no more than once per person—unless stipulation or with leave of court

    • Each deposition may not exceed 7 hours without stipulation or leave of court

  • Compelling appearance

    • No subpoena necessary for parties

    • If deposing non-party, should use subpoena

  • Use at trial as evidence

    • Only if the deponent is more than 100 miles from the place of trial

• Interrogatories

  • Limit: 25, including subparts, without stipulation or leave of court

  • These may only be addressed to parties, not non-parties

  • Time allowed: opposing party must respond within 30 days

  • If objecting, ground for objection must be stated with specificity

  • Must respond not only with facts you know, but also with facts available to you—or by producing business records that contain the information, if burden of ascertaining the answer will be essentially the same for parties

  • Parties are under a duty to amend prior responses if they know that such responses, while true at the time they were made, are no longer accurate and under the circumstances failing to amend is a knowing concealment

• Production of physical material

  • Applies to parties and non-parties

• Physical and mental examinations

  • Available only when the mental or physical condition is in controversy and on a showing of good cause

  • If you submit to a medical examination, you may request the examination report, but you then waive any privilege you have over similar reports and examinations of the same condition

Discovery—conferences

1. 26(f) conference to plan for discovery: parties must meet to consider claims, defenses, discovery, and a discovery plan and submit a proposed plan within 14 days of meeting

2. 16(b) scheduling conference: sets dates for trial, other conferences, etc.

3. Pre-trial conferences: not mandatory, but may be held to formulate plan for trial

Alternative dispute resolution

• Very deferential standard—fraud or bias, refusal to delay proceedings for good cause, failure to follow arbitration agreement, etc.

• Unlikely to get over-turned

Jury trials, basics

• 7A protects jury trial right for all civil trials on claims that would have been deemed legal (rather than equitable) in 1791

  • If a case involves both legal and equitable claims, legal should be tried first and then equitable

  • If the claim didn’t exist at common law, but there’s a close analog, that’s fine

• Federal civil juries consist of 6 to 12 members, and there are no alternate jurors—all of them must participate in the verdict

  • Parties may stipulate to fewer than 6

• Unless parties stipulate otherwise, the verdict must be unanimous

• Unless the parties stipulate otherwise, the verdict must be returned by at least six members

Jury trials, diversity cases

• Federal court must permit a jury trial in any diversity “suit at common law,” even if the state court would deny a jury

Jury trials, how and when to demand them

• Party that wants jury trial must serve the other party with a written demand—which may be in a pleading—no later than 14 days after the last pleading is served

• Then, the demanding party must file the demand with the court within a reasonable time after serving it on the other party

• If you miss the 14-day window, you can ask the court to still provide a jury trial on any matter on which you could have requested a jury trial to begin with

Jury trials, challenging juror selection

• For cause—each party may make an unlimited number of these objections. Legitimate causes…

  • Impartiality

  • Financial interest

• Peremptory—each party gets 3 of these challenges. For these, you don’t need to give any reasons, except…

  • Dismissal can’t be on the basis of race or gender. When challenged, party doing the striking has the burden of providing a facially neutral reason, and then the burden shifts to the other party, to demonstrate pretext

Motions, summary judgment [Rule 56]

Requirements:

• No genuine dispute as to any material fact

  • Pleadings don’t count; to establish a genuine issue of fact the non-movant will have to point to admissible evidence that, if believed, would be enough to create a genuine issue

• The movant is entitled to judgment as a matter of law

• Filed up until 30 days after the close of discovery

• Note: partial grants are possible—e.g., grant as to liability but send the question of damages to a jury

In practice, granted when either:

• Both parties agree as to all material facts

• The parties disagree as to at least one immaterial fact, but the non-movant does not have admissible evidence sufficient to allow a jury to find for the party on that fact

What typically doesn’t qualify:

• When case turns on whether one party was negligent or behaved with a given state of mind

• Credibility

Note:

• Appeals from denials of these are typically not allowed

Note: no such thing as summary judgment “by default,” so even if the non-movant doesn’t object, if there’s anything in the record that indicates genuine issue of material fact, then court should deny the motion

Motions, judgment as a matter of law [Rule 50(a)]

• Standard

  • The court should grant the motion if it “finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-moving] party on that issue”

  • Note: the court must construe evidence in favor of the non-moving party

• Timing

  • Motion must be made before case is submitted to the jury, but after the nonmoving party “had been fully heard,” i.e., has finished presenting all of their evidence

To get this to work as a JNOV: the movant must file the motion before the case gets submitted; then if the judge denies it and the movant loses before the jury, the movant has 28 days after the entry of judgment to file a renewed motion

Motions, relief from judgment [60(b)]

Important grounds:

• Time limit = reasonable time, not to exceed one year

  • Mistake

  • Excusable neglect

  • Newly discovered evidence, provided that evidence couldn’t have reasonably been discovered in time for movant to move for a new trial, i.e., 28 days after judgment

• No time limit

  • Judgment is void (e.g., court had no personal jx)

  • Judgement has been discharged or satisfied, is no longer equitable, etc.

The motion must be made within a “reasonable time,” and for the first three above, within one year.

Motion for a new trial

• Timing: no later than 28 days after judgment is entered

• Reasons to grant

  • Error during trial, eg as to admissibility of evidence

  • Verdict is against the weight of evidence

  • Juror misconduct

  • Verdict is excessive or inadequate

    • Remittitur (award too high): give P the option between accepting a lower award and a new trial

    • Additur (award too low): only thing to do is a new trial

Default judgments

Two separate things:

• Entry of default: the clerk will enter a default of the party against whom default is sought has failed to plead or defend

• Default judgment

  • A clerk may enter a default judgment if:

    • For “a sum certain”

    • Default entered because defendant failed to appear

    • Defaulted defendant is not an infant or incompetent

    • Damages amount is not greater than amount requested in complaint

Note requirement:

• If D has appeared, even if he hasn’t answered, he must be notified of the request for a default judgment at least seven days before the hearing on the application for a default judgment

Entry by judge, otherwise. (Judge can hold evidentiary hearing to determine amount; if D appeared in the case, D is entitled to 7 days notice before such a hearing.)

Voluntary dismissal

The first one is without prejudice, and the second one is with prejudice. If across court systems: if first in state, second in federal, can’t sue again on the claim; if first in federal, second in state, P can still sue on the claim in federal.

Judicial findings (bench trials)

• In support of a final judgment at a bench trial, the judge must make specific factual findings and state conclusions of law separately

Claim preclusion (aka res judicata)

Requirements:

• Earlier judgment is a valid, final judgment on the merits

  • On the merits: final judgments, default judgments and involuntary dismissals closely related to merits (like failure to state a claim)

  • Not on the merits: lack of jx, improper venue, failure to join indispensable party, dismissals expressly “without prejudice”

• Cases are by same claimant against same defendant (or Ds are in privity)

  • Note: parties must be in the same roles; if case #1 was X v. Y and case #2 is Y v. X, claim preclusion does not apply! But the claim might nonetheless be barred (if it wasn’t asserted earlier) via requirements of compulsory counterclaims

• Same cause of action involved in the later suit

  • Treat all claims arising out of one transaction or occurrence together; e.g., can’t sue for neck injury in one action and leg injury in another

Language:

• “Merger”: If P wins Suit 1 (i.e., gets a favorable judgment against D), “merger” prevents P from bringing Suit 2 on the “same claim” against D

• “Bar”: If P loses Suit 1, “bar” prevents P from bringing Suit 2 on the “same claim” against D

• “Claim” defined: The guts of merger and bar turn on how “claim” is defined. P's “claim” in Suit 1 is deemed to include all rights of P to get any form of relief from D with respect to the transaction, or series of connected transactions, that gave rise to P's Suit 1 complaint.

Example: If P and D are involved in a single “accident” (e.g., car crash, plane crash, failure of a manufactured product), then P's claim vs. D in Suit 1 is deemed to include all relief that P either actually sough, or “might have sought” (taking into account procedural rules on joinder of claims), in Suit 1. This means that if in Suit 1 P seeks from D only, say, compensation for property damage suffered in an accident, Suit 1 will “use up” P's ability to obtain compensation for personal injuries or lost business profits caused by that same accident.

Issue preclusion (aka collateral estoppel)

Three requirements:

1. The issue must have been actually litigated in Suit 1 (no defaults) and determined;

2. There was a final judgment in Suit 1;

3. The determination of the issue must have been “essential to the judgment” in Suit 1

Who does issue preclusion block?

• May be asserted against someone only if they were a party in the previous case (constitutional requirement)

Who asserts issue preclusion?

• By a non-party (plaintiff), seeking to use the issue offensively: this is when D lost on the issue in a prior case, and now P wants to keep D from re-litigating that issue in the current case

  • Key is: is this fair and equitable, i.e., if party had a change to litigate the issue fairly and fully in the prior case

• By a non-party (defendant), seeking to use the issue defensively: this is when P lost on the issue in a prior case, and now D wants to keep P from re-litigating that issue in the current case

  • Often there are compelling reasons to allow this

• Heuristic » a non-party can use issue preclusion unless there’s a clear unfairness in allowing them to do so.

Appeals

• Timing: 30 days from entry of judgment (60 days where US is a party)

• Filing of JNOV, motion for new trial, or motion to set aside stops the clock

Interlocutory appeals

Generally not allowed, except for:

• Injunctions (not TROs)

• Situations covered by “collateral order” doctrine—most common with grants and denials of immunity.

  • The court has made its final decision as to a particular matter on which immediate appeal is sought (even though there has been no final decision or judgment as to the rest of the case)

  • The matter is separate from (i.e., “collateral to”) the merits of the underlying claim;

  • The matter is too important to be denied appellate review entirely; and

  • Deferring appeal until entry of a final judgment in the whole case would prevent the eventual review from being “effective” under the circumstances.

Final judgment rule

General rule—no appeals except for from final judgments/orders.

• A final order is one that renders judgment as to all parties and all causes of action

• An order for a new trial means there is no appealable final judgment

What does the appellate court consider?

• Typically, issues may not be raised for the first time on appeal

• However, appellate courts have the discretion to make exception and consider pure questions of law even when they weren’t raised below

Exceptions:

• Interlocutory orders as of right

  • Any order to do with an injunction—but TROs are not injunctions for these purposes

• Appeals under the Interlocutory Appeals Act

  • Review is discretionary

  • Trial judge must certify that there’s a controlling question of law, as to which there’s substantial ground for difference of opinion, and that resolving it may materially advance the litigation

  • Once a party gets the trial judge’s certification, they have 10 days to file the appeal

• Appeal from orders certifying class action classes

  • May be appealed within 14 days

  • Appellate court has total discretion over whether to hear the appeal

When more than on party:

• Default rule: if any claims are outstanding, the order is not yet “final”

• But… the judge can certify otherwise, allowing any covered orders to be appealed

Standards of review

• Issue of law » de novo

• Issue of fact (where no jury) » clear error

• Issue of fact (decided by jury) » even more deferential (affirmed if a reasonable jury could have reached the same conclusion, viewing evidence in light most favorable to affirming)

• Mixed issue of fact and fact » de novo

• Decisions committed to trial court’s discretion » abuse of discretion

  • Most deferential

  • Commonly used for decisions about whether to admit a piece of evidence

  • Also used to review trial court’s decision of whether to set aside a verdict

Note: harmless error doctrine says that, if the lower court made an error but that error was harmless, the appeals court will not reverse the lower court

Affidavits

• Must be supported by personal knowledge

• Must set forth such facts as would be admissible in evidence (i.e., under evidence rules)

• Show that the affiant is competent to testify

Counterclaims

• Compulsory: those that arise out of the same transaction or occurrence

  • These must be pleaded or they will be barred

• Permissive: any non-compulsory counterclaim (i.e., fine for these to be totally unrelated to the complaint)

Choice of law in preclusion cases

Two possible cases:

1. Case 1 filed in state court: court in case 2 should apply claim/issue preclusion law of the state where case 1 was heard

2. Case 1 filed in federal court under diversity: court in case 2 should apply federal law, but usually federal law will say to apply the law of the state where the federal court sat

Types of jury verdicts, and what to do about inconsistencies

• General

• Special

• General with written questions/interrogatories

In case of inconsistency among interrogatories, two options:

1. Ask the jury to reconsider its verdict

2. Order a new trial

In case of inconsistency between interrogatories and verdict, but where interrogatories are internally consistent, three options:

1. Enter judgment according to interrogatories

2. Ask the jury to reconsider its verdict

3. Order a new trial

Class Action Fairness Act (CAFA)—key points

• SJM exists if any class member (not just the class representative) is diverse in citizenship from any defendant

• Aggregated amount in controversy is more than $5M

• Class consists of at least 100 members

• Any D may remove, so consent of all Ds is not required

• D is not barred from removing to the federal court in the state of which D is a citizen

Cross claims

• These must arise out of the same T/O

Class actions—basic requirements

Requirements for all class actions:

• Numerosity

• Commonality

• Typicality

• Adequate representation

Three types of class actions:

• Prejudice, 23(b)(1)

  • Notice to absent members not required

• Injunctive, 23(b)(2)

  • Notice to absent members not required

• Damages, 23(b)(3)

  • Requires common questions to predominate over individual issues

  • Notice to absent members required