Civil Procedure

Personal Jurisdiction

Involves the court’s ability to exercise authority over parties or their property.

• Core Idea = fairness (is it fair for the court to exercise jx over this defendant?)

  • Must balance state’s interest in protecting its citizens with due process rights protecting unfair exercise of jx.

  • Perform this analysis for each defendant separately.

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Analysis - Jx must be statutorily authorized and constitutional.

• Statutory - an applicable state law must authorize jx.

  • Usually a long-arm statute will apply.

• Constitutional - jx must satisfy due process.

  • Minimum contacts - parties must have minimum contacts with forum state.

  • Adequate notice - parties must receive adequate notice of the action and an opportunity to be heard.

Types of Personal Jurisdiction

1. In personam

2. In rem

3. Quasi in rem

In personam

Jx over persons.

• Court may render judgment (money or injunction) against an individual based on contacts with the forum state.

• Note - most likely to be tested

In rem

In rem jx enables a state court to determine the rights of parties to a piece of property within the state’s borders.

• Issues relating to ownership, possession, control or title to property situated in a state

• Notice must be given to all persons who may have an interest in the property.

• courts have in rem jx over a marriage (but if one spouse dies, the jx ends)

Quasi in rem

When a court does not have PJ over a D where the action is commenced, the court may assert quasi in rem over the D’s assets if they are related and connected to the P’s claim by seizing those assets.

• The mere presence of D’s property within the forum state standing alone will not be sufficient basis for a court to exercise quasi in rem jx.

Statutory Limitations on PJ

State laws often determine when courts may exercise jx.

• A federal court must analyze jx as would a state court in which it sits and must follow applicable state statutes.

• Must also satisfy constitutional requirements → the Defendant must have minimum contacts with the forum state that exercising jx does not offend traditional notions of fair play and substantial justice.

Most state statutes grant courts in personam jx if…

a) Service of process - D is personally served in forum state.

• Duration of D’s presence irrelevant.

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b) Domicile - D is domiciled in the forum state.

• Domicile = D maintains permanent home in forum state.

• Court can exercise jx over domiciled persons even if they are not physically present when served.

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c) Consent - D consents to jx (can be express or implied)

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d) Long-arm - D’s act fall within state’s long-arm statute

• most common

• General/unlimited long-arm statute - confers state’s courts with jx to the extent allowed by Const.

• Limited long-arm statute - specifies when state courts can exercise jx.

Constitutional Limits on PJ

To be subject to PJ, the Defendant must have minimum contacts with the forum state that exercising jx does not offend traditional notions of fair play and substantial justice.

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D must have sufficient minimum contacts with forum state.

Focus on:

• Purposeful availment - did Defendant purposefully conduct activity in forum, thus invoking benefits and protection of forum’s laws?

• Foreseeability - did D know of or anticipate being held accountable for her in-forum activities?

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Given D’s contacts, exercise of jx must not offend fair play and substantial justice.

Focus on:

• Convenience - would litigating in the forum severely disadvantage D?

• State’s interest - does forum state have an interest in providing redress for residents or an interest in the outcome?

Minimum Contacts

1) Purposeful availment - D must purposefully act in the forum.

• Eg - using roads, doing business in-state, creating a market for D’s products, etc.

2) Foreseeability - D must know or reasonably anticipate that she could be held accountable for her activities in the forum state.

Minimum Contacts → Websites

Interactive websites are more likely to have requisite minimum contacts; passive sites less likely.

• Interactive - two-way communication between user and operation (eg: information exchanged for the purpose of soliciting business; purchases allowed).

• Passive - site makes information available to interested viewers, but no business is transacted.

Minimum Contacts → Putting goods into stream of commerce

It’s unclear if manufacturer is subject to PJ if it knows or hopes product will wind up in a particular forum.

Look for intentional targeting.

• Mere awareness that component parts may reach forum as part of another product is insufficient.

Minimum Contacts → Targeting the forum state

The Supreme Court has equated minimum contacts with targeting of the forum state. This requires some deliberate activity within and cultivation of the state.

Fairness Factors

(Personal Jx)

Due process requires that the exercise of jx must be fair (ie: must not offend traditional notions of fair play and substantial justice).

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FACTORS

1) Relatedness of contacts and claim → does P’s claim arise from or relate to D’s contacts with the forum state?

• Specific jx - claims arise from or relate to D’s in-state contacts

  • Minimum contacts must be established

  • D can only be sued for claims arising from or relating to in-state contacts

  • Creating a market for its product may subject manufacturer to jx in the forum even though sale did not occur there.

• General jx - claims do not arise from or relate to D’s in-state contacts.

  • D has continuous and systematic contacts with forum state that’s so substantial the D is essentially “at home.”

  • If found, D can be sued for any claim arising in or outside of forum.

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2) Convenience → would jx in forum severely disadvantage D?

• Eg - distance to courthouse, inability to travel, or lack of familiarity with court system.

• Must be so inconvenient and difficult that D is inherently put at severe disadvantage compared to P.

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3) State’s interest → does forum state have an interest in allocating its limited resources to hearing this matter?

• The interest is less compelling when case involves non-resident actors and non-resident acts or when case involves complexity.

Consent

(Personal Jx)

Express or implied consent by the Defendant can also establish personal jx.

• A forum selection clause is the most common form of consent.

  • Courts enforce these clauses unless the selected forum is remote and alien to the parties/transaction.

• Defendant can also consent to jx by waiving the objection.

  • Defendant must raise the objection with their first appearance and litigate it promptly.

• If Defendant has appointed an agent in the state, this can satisfy consent (but state law must allow PJ on this basis).

Personal Service

(Personal Jx)

If D is personally served, they are likely subject to personal jx within the forum state.

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Exceptions

1) Fraud - a D who is served after being lured into the forum under false pretenses.

2) Force - a D who is served after being brought involuntarily into the forum by force.

3) Witness - a D who is served while responding to a court subpoena.

Notice Requirements

(Personal Jx)

Due process requires that D must be sufficiently notified of a pending lawsuit.

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Requirements

Notice must be reasonably calculated under the circumstances to apprise interested parties of the pendency of the action and afford an opportunity to be heard.

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Methods - traditional methods of notice satisfy due process.

• Eg - personal delivery, registered mail, delivery to an appointed agent.

• Plaintiff need not deliver notice personally; can be given by court-appointed agent or agent hired by Plaintiff.

• If Plaintiff knows that notice was not received by Defendant, Plaintiff cannot proceed if practical alternatives to giving notice exist.

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Note - the type of service used must also be authorized by rule or statute (eg - if no rule or statute authorizes service by registered mail, it cannot be used even though it would be constitutional).

Subject Matter Jurisdiction

Federal courts must have authority over the claim in question.

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SMJ refers to the court’s ability to exercise that authority.

• Constitution provides limits on types of cases that fed courts can hear.

• SMJ cannot be waived.

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Types of SMJ

1. Diversity jx

2. Federal question jx

3. Supplemental jx

4. Removal jx

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State courts are presumed to have SMJ.

Diversity Jurisdiction

Requirements

1) Complete diversity - every P must be of diverse citizenship from every D.

• no P and no D can be from the same state.

• examined at the time of filing → diversity need not exist when claim arose.

2) Amount in controversy must exceed $75,000

• P must make good faith allegation that her claim exceeds 75k.

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Exceptions to Diversity jx

Federal courts will not hear actions involving divorce, alimony, child custody or probate, even if diversity requirements are satisfied.

Citizenship for Complete Diversity

(SMJ)

Every P must be diverse citizenship from every D.

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Natural Persons → citizens of the state where they are domiciled at the time the suit is filed.

• Domicile - where a person was last both 1) present and 2) intending to remain indefinitely.

  • A person always has one - and never more than one - domicile. You keep your domicile until you have a new one.

• Factors - for determining person’s domicile, look for simultaneous:

  • physical → actual presence in the state

  • mental → intent to make state permanent home (eg: where person votes, works, is licensed, etc.)

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Business

Corporations → citizens of every state where incorporated

Natural Persons

(Citizenship)

Citizens of the state where they are domiciled at the time the suit is filed.

• Domicile - where a person was last both 1) present and 2) intending to remain indefinitely.

  • A person always has one - and never more than one - domicile. You keep your domicile until you have a new one.

• Factors - for determining person’s domicile, look for simultaneous:

  • physical → actual presence in the state

  • mental → intent to make state permanent home (eg: where person votes, works, is licensed, etc.)

Corporations

(Citizenship)

Citizens of every state where incorporated and the one state where corporation maintains principal place of business (PPB).

• Corporation can have multiple states of citizenship.

• Determining PPB - look to where corporate decisions are made (ex: “nerve center” = corporation headquarters).

Unincorporated businesses (LLC, LLP, etc.)

(Citizenship)

Citizens of all states in which any partner or member is a citizen.

Amount in Controversy

(SMJ)

Plaintiff’s complaint must make a good faith allegation that the amount of damages or injury in controversy exceeds $75,000, excluding interest and costs.

• amount actually awarded is irrelevant

• lenient standard → to dismiss for insufficient amt., there must be no legal possibility that recovery will exceed $75k.

Equitable Relief Claims

(Amount in Controversy)

Court looks at value of the harm caused.

• Can look from either P or D perspective

  • Ex: Does act requiring injunctive relief harm P by more than $75k? or would it cost D more than $75k to comply with the injunction sought?

Aggregate Claims

(Amount in Controversy)

Aggregate claims may be permissible to meet $75k requirement.

• One P can aggregate all her claims against a single D.

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Multiple Ps or Ds

Aggregating only allowed if either:

• a) One P has joint liability claims against multiples Ds

  • Use total value of the claim

• b) Multiple Ps seek to enforce a single title or right in which they have a common, undivided interest (rare)

  • Eg: several Ps jointly own real estate and sue D to quiet title - undivided interest, so aggregation OK

Federal Question Jurisdiction

Federal courts have jx over properly-pleaded claims arising under federal law.

• No diversity or amount in controversy requirements.

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Requirements - claim must show a right or interest founded substantially on federal law.

• Federal question must appear on the face of the complaint.

  • FQJ cannot arise based on extraneous allegations or potential defenses.

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• Analysis → ask if P is enforcing a federal right (eg: from federal law, federal treaty, Constitution).

  • If not, no FQJ exists.

• Note - be careful of fact patterns that raise federal law or issue, but not enforcing a federal right.

Exclusive Federal Jurisdiction

Federal courts have exclusive jx over certain types of claims, which must be heard in federal court.

• Otherwise, federal claims can be heard in state court, which are courts of “general jx”

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Most common areas of exclusive federal jx:

1. Bankruptcy

2. Patent, copyright, trademark

3. Federal antitrust claims

4. Postal matters

Supplemental Jurisdiction

Allows a federal court to hear additional claims (ex: counterclaims and cross-claims) that do not, on their own, meet diversity or FQJ requirements.

• There must be one claim with original SMJ.

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Requirements - common nucleus of operative fact (CONF)

• Each additional claim must share a CNOF with an existing claim that invoked FQJ or diversity jx.

  • Same transaction or occurrence - supplemental claims that share a CNOF if they arise from the same transaction or occurrence as the underlying claim.

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Discretionary refusal - court may refuse a supplemental claim if:

• a) Original SMJ claims are dismissed early in the proceeding,

• b) Supplemental claim raises a novel or complex state law issue, or

• c) Supplemental claim substantially predominates over original SMJ claims.

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Limitation

In diversity cases, if adding P’s claim would destroy diversity then the court cannot exercise supplemental jx (this rule does not apply to claims by other parties).

• Exception - a co-P may use supplemental jx to have a below-limit claim heard in Fed. court. Even then, the co-P’s presence in the suit cannot override the complete diversity requirement.

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Eg - A Defendant can use supplemental jx to bring in a third party (by cross claim or implead), even if the original suit is based on diversity and the new third party Defendant should technically destroy diversity.

• HOWEVER, Plaintiff cannot use supplemental jx to bring in a third party if it would destroy diversity.

Removal Jurisdiction

Defendant can remove a case originally filed in state court to federal court if the federal court would have had SMJ (diversity or FQJ).

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Removal Rules

1) Can only remove if the case could have been filed in federal court.

2) Only D can remove and all Ds must agree to removal.

3) Can remove only to the fed district embracing the state court in which the case was originally filed.

4) D who files a permissive counterclaim in state court waives the right to remove.

• Timing - D must remove within 30 days of service of the first removable document (usually service)

• Procedure - D must file notice in federal court.

  • Notice must contain grounds for removal and copies of documents served in state court; must be signed.

  • All parties and state court must receive notice of removal.

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Diversity jx limitations - Defendant cannot remove if D is a citizen of the forum state.

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Remand - if removal is improper, court can remand to state court.

• Improper procedure → Plaintiff can move to remand within 30 days.

• Lack of SMJ → Plaintiff can move to remand at any time.

Erie Doctrine

In diversity cases, federal courts must apply state substantive laws and federal procedural law.

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Analysis

1) Is there a valid federal law (eg: Const., statute, fed. rule) that is on point and directly conflicts with state law?

• If yes, apply the fed. law.

2) If no fed. law is on point, analyze under these tests:

• a) Outcome determinative - would the state rule affect the outcome of the case?

  • If yes, state law is substantive and should be applied.

• b) Balance of interests - does either fed. or state system have a strong interest in applying its rule?

  • If one has clearly stronger interest, apply that law.

• c) Forum shopping avoidance - if fed. court ignores state law, would it encourage litigant to flock to fed. court?

  • If yes, state law is substantive and should be applied.

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The following will always be governed by state substantive law:

1. Elements of a claim or defense

2. Statute of Limitations and rules for tolling SOL

3. Conflict/choice of law rules

4. Standard for granting a new trial because the jury’s award was excessive or inadequate

Venue

Venue determines in which federal district the case may be brought.

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Determining the proper venue - for most actions venue is proper where:

a) Any D resides - in any fed. district in which any D resides (provided all Ds also reside in the same state)

b) Location of claim or property - in any fed. district in which a substantial part of the claim arose or in which a substantial part of property that is subjected to the action is situated, or

c) D subject to PJ (fallback) - if no fed. district can satisfy a) or b) above, venue is proper in any fed. district in which any D is subject to PJ.

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Residency for Venue purposes:

• People - determined by domicile

• Entity with the capacity to sue or be sued in its common name, whether or not incorporated - resides in any state in which it is subject to PJ.

  • In a state with more than one fed. district, it is occasionally also necessary to determine in which fed. district(s) a corporation resides; a corporation resides in a fed. district if its contacts would be sufficient to subject it to PJ if that district were a state.

Venue Transfer

A case may be transferred from one fed. district to another in which the case could have been filed or one to which all parties consent.

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Venue in original district is proper - court may order transfer to another fed. district court based on interest of justice, convenience of parties and witnesses.

• Transfer is to a fed. district in which the case could have been filed or to which all parties consent.

• Court may refuse transfer.

• Court’s discretion based on:

  • Public factors - what law applies, which community should be burdened with jury service..

  • Private factors - convenience (eg: location of evidence, witnesses)

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Venue in original district is improper - court may transfer to a proper venue in the interest of justice or dismiss the case.

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Choice of law - transferee court applies choice of law rules of the original court, regardless of which party sought transfer.

• Exception - transferee court will apply its own laws if original venue was improper or if transfer was to enforce a forum selection clause.

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Forum Selection Clauses - case must be transferred to the indicated fed. district unless the public factors present a compelling reason not to transfer.

Forum Non Conveniens

When there is a more appropriate forum for the litigation, but the case cannot be transferred there, a court may dismiss the action pursuant to the doctrine of forum non conveniens.

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Adequacy of the Alternative - because a dismissal is consequential, court will not grant FNC without finding that there is an adequate alternative forum.

• When adequacy is in doubt, a court may stay the proceeding rather than dismiss, so that it can resume litigation if necessary.

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Factors - court evaluates based on same public and private factors as for venue transfer

• Requires strong showing of public and private interests to dismiss or stay.

Service of Process

Service of process is the delivery to D by P of the summons and complaint, which satisfies notice requirements for PJ. Subsequent papers filed with the court (eg: motions, answers) do not require formal service.

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Service Requirements

• D must be served with:

  • 1) Summons - formal notice of the suit

    • Must be signed by court clerk, tell D when/where to appear, and identify the court, parties, P’s attorney

  • 2) Copy of complaint

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• Timing - service must be within 90 days of filing of the case.

  • If not satisfied, case dismissed without prejudice, unless P shows good cause for delay.

• Who may serve - any non-party aged 18 or older.

Methods of Service

Most common methods of service of process:

1) Personal Service

2) Substituted service - left with third party at D’s dwelling.

• Third party must be “of suitable age and discretion” and must reside at abode.

3) Service upon D’s authorized agent

• Receipt of service must be within scope of agency

• Party registering to do business in a state may be required by state to appoint agent

4) Any method permitted under state law - allowed if state is:

• a) where the fed. court sits, or

• b) where service is effected (ie: where service occurs)

  • However, a minor or incompetent person must be served using the rules of the state where service is to be made (not where the fed. court sits).

Waiver of Service

P may request that D waives service by mailing D the complaint and a formal request to waive service.

• If D denies request or fails to respond, P must serve through another acceptable method; D is then obliged to pay for the cost of that service.

• If D agrees to waive service, D extends her time to answer complaint to 60 days from the date the waiver request was sent (as opposed to normal 21 days).

• Waiving service does not waive the right to object to venue or jx.

Interlocutory Injunctions

Interlocutory injunctions are court orders requiring a person to do or cease doing a specific action before trial, while case is pending.

• Purpose is to prevent irreparable injury that will occur before there is a final judgment.

• Order given before final judgment.

• Generally, not appealable until entire case is done.

Preliminary Injunction

A preliminary injunction is a specific type of interlocutory order.

Traditional 4-part test:

1. Irreparable injury (aka no adequate remedy at law)

2. Reasonable likelihood of success on the merits

3. Harm to moving party outweighs harm to other party.

4. Notice and hearing - required for the adverse party

Appealable

Temporary Restraining Orders (TRO)

Issued by the court when necessary to prevent immediate, irreparable injury to a party.

• Not immediately appealable.

• Expiration - no more than 14 days from issuance.

  • Court may extend for good cause or with adverse party consent.

    • If extended beyond 28 days without adverse party’s consent, TRO is treated as preliminary injunction (and becomes appealable).

• Notice to adverse party - not required if moving party:

  • 1) Provides specific facts showing immediate and irreparable injury will result before adverse party can be heard; and

  • 2) Certifies in writing all efforts to give adverse party notice.

• Actual notice - adverse party must have actual notice before they can be held in contempt for violation.

Complaint

The initial pleading in a lawsuit, filed by P, which begins an action and gives notice to opposing parties.

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Requirements - complaint in federal court must contain:

1) Statement of jx - short and plain statement of grounds upon which the court’s jx depends (ie: why court has SMJ)

2) Statement of the claim - short and plaint statement of P’s claim, showing entitlement to relief.

• Plausibility pleading standard

  • Complaint must contain sufficient factual matter to state a claim that is plausible on its face.

  • Allegations are accepted as true, but conclusory allegations are ignored.

  • Plausibility means factual content that allows the court to draw the reasonable inference that defendant is liable.

  • Plausible is more than possibility but less than probability.

  • Judges are encouraged to use their judicial experience and common sense.

3) Demand for judgment - description of relief sought (eg: money damages, injunction, etc.)

Answer

Response to the complaint, in which D states defenses to each claim asserted and admits or denies each count of P’s complaint.

• Timing - must be filed within 21 days of service of process, or 14 days after a Rule 12 motion is denied or postponed until trial.

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Requirements - answer must:

1) Response to allegations of complaint - available responses:

• a) Admit allegations

• b) Deny allegations

• c) Lack sufficient information to admit or deny allegations

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2) Raise affirmative defenses - certain defenses are waived if not explicitly pleaded in the answer; these may include:

i. Contributory negligence

ii. Claim preclusion

iii. Statute of Frauds

iv. Fraud

v. Statute of Limitations

vi. Self-defense

vii. Res judicata

Affirmative defenses are typically waived if not pleaded in the answer.

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Counterclaims - Ds claims against P may be required in D’s answer (compulsory) or may be brought separately (permissive).

Rule 12 Motion

D is attacking the complaint.

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Rule 12(b) Defenses:

1. Lack of SMJ

2. Lack of PJ*

3. Improper venue*

4. Insufficiency of process*

5. Insufficiency of service of process*

6. Failure to state a claim

7. Failure to join a necessary party

• May be raised by motion or in the answer.

• *Waiver - these defenses are waived if not included in D’s first response (answer or 12(b) motion to dismiss), whichever is first provided they were available.

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Motion for more definitive statement - if complaint is so vague or ambiguous that D cannot reasonably prepare a response, D may move for a more definitive statement from P.

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Motion to strike - D may move to strike from the complaint (or court may strike on its own) any redundant, immaterial, impertinent or scandalous material. Within 21 days of service.

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Motion for judgment on the pleadings - P or D may move for judgment on the pleadings when the complaint plus the answer reveal that one party must win.

• Eg: D’s answer admits all allegations in P’s complaint; P must win.

Counterclaim

An offensive claim, either compulsory or permissive, usually raised by D against P, which may be pleaded in D’s answer to the complaint.

• Jurisdictional requirement - D must ensure the court has jx to hear any counterclaim.

  • Note - compulsory counterclaims will always have supplemental jx, but permissive counterclaims rarely have supplemental jx.

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Compulsory counterclaim - same transaction or occurrence

• Claim by D against P that arises from the same transaction or occurrence as one of P’s claims.

• Required in answer - must be filed in D’s answer or it will be waived.

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Permissive counterclaim - different transaction or occurrence.

• Claim by D against P that does not arise from the same transaction or occurrence as any of P’s claims.

• Not required in answer - may be filed with D’s answer to P’s complaint, but does not have to be (ie: can be asserted in a separate action filed by D).

Cross-Claims

Offensive claims asserted by a co-party against another co-party.

• Ex - P sues D1 and D2. D1 may assert a cross-claim against D2

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Requirements - same transaction or occurrence

Cross-claims must arise from the same transaction or occurrence as the underlying action.

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Jurisdiction - must have independent basis for SMJ

• Cross-claims will almost always satisfy supplemental jx b/c they must arise from the same T/O.

Amending Pleadings

Parties may amend their pleadings once as a matter of course.

• Additional amendments may be granted with consent of other parties or court permission (amendment without right).

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Amendment as a matter of course - may occur either:

a) within 21 days after service, or

b) if the pleading is one which requires a response, within 21 days of service of the responsive pleadings or pre-answer motion (eg: Rule 12 motion).

• eg: if D answers P’s complaint, P has 21 days from service of the answer to amend complaint.

• Party has 14 days or time remaining on initial 21-day deadline (whichever is longer) to respond to an amended pleading.

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Amendment without right - party may only amend with either:

a) written consent of the adverse party, or

b) leave of court (ie: court’s permission) - sought by motion

• Leave will be granted freely when justice requires (lenient standard); court looks to:

  • i. Length of and reasons for movant’s delay;

  • ii. Potential prejudices to parties; and

  • iii. Futility of amendment

Amending Pleadings: Relation Back

The relation back doctrine applies when a party amends a pleading to add a new claim or D after the statute of limitations has run.

• Effect - if allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was filed.

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Requirements

• New Claim - amendment will relate back if the new claim concerns the same transaction or occurrence as the original pleading.

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• New or substituted D - amendment will relate back if:

  • 1) Amendment concerns the same transaction, or occurrence as original pleading, and

  • 2) Within 90 days of filing of the original pleading:

    • i. New D knew of or received notice of action; and

    • ii. New D knew or should have known that, but for a mistake, she would have been named originally.

• Applies when P sued the wrong D at first, but the right D was aware of the mistake.

Rule 11 Certification

Rule 11 requires the attorney or pro se party to sign all pleadings, written motions and other papers.

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Certification - signature acts as certification that, to the best of the signor’s knowledge, after all reasonable inquiry taken:

1. Filing is not for an improper purpose (eg: harassment, delay);

2. Non-frivolous legal contentions made are warranted by law or non-frivolous argument to change law; and

3. Factual contentions have evidentiary support.

Rule 11 Sanctions

Court may issue sanctions for violations, either on the court’s own initiative or an opponent party’s motion.

• Court may not impose monetary sanctions on represented parties for frivolous legal contentions (sanctions on attorney are OK)

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• Safe Harbor - Before seeking sanctions, a party must give the opposing party 21 days' notice. The Rule 11 motion is served but may not be filed with the court for 21 days, creating a safe harbor.

  • Party may withdraw the offending document or otherwise remedy the problem.

  • If not remedied or withdrawn, motion can be filed.

  • The judge need not provide safe harbor.

• Hearing required - court must give attorneys or party a chance to be heard before imposing sanctions.

Permissive Joinder

Plaintiff seeks to join non-parties as co-Ps or co-Ds.

• Joining additional Ps - relies on their willingness to join.

  • ie - non-party that P seeks to join as co-P must agree to join.

• Joining additional Ds - lies in the hands of the P.

  • ie - non-party that P seeks to join as co-D cannot refuse.

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Requirements - permissive joinder is allowed where both:

1) Same transaction or occurrence - joined parties assert a right to relief arising from the same T/O as P’s claim.

• Ds may be joined if right to relief asserted against them arises from same T/O.

2) Common question of law or fact - there is a common question of law or fact in the joined parties’ claims or claims against them.

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Jurisdiction - court must have jx over joined parties and claims.

Compulsory Joinder

Absent parties may be forced to join a case if they are deemed required parties; if a person is required to be joined but cannot join, then this threatens dismissal of the case for failure to join a Rule 19 party.

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An absentee must be joined, if feasible, when either:

a) Without absentee, court cannot grant complete relief,

• Consider whether multiple suits might follow if absentee is not made a party.

b) Absentee has a legal interest that may be impaired or impeded, or

c) Absentee has an interest that creates a risk of multiple or inconsistent rulings and obligations.

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Meaning of feasible - joinder is feasible if:

1. There is PJ over the absentee; and

2. Joining the absentee will not destroy diversity.

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Required parties - if a required absentee cannot be joined, ask whether the case can proceed without the absentee or should be dismissed; the court looks at these factors:

1. Is an alternative forum available?

2. What is the likelihood of prejudice to the parties or others if the case goes forward?

3. Can the court shape potential relief to avoid prejudice?

4. Would P have an adequate remedy if the case is dismissed?

Impleader

Allows Defendant to join a non-party who may be liable to D for all or part of the claim brought by P against the original D.

• Allows D to assert claims for indemnity, contribution, etc. against another party for the claim is D is defending.

• Contracts and laws can create these rights of reimbursement.

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Terms

The original Defendant becomes a Plaintiff:

• Newly joined party is third-party Defendant (“TPD”)

• Original Defendant becomes third-party Plaintiff (“TPP”)

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Requirements - D may implead a TPD by filing a third-party complaint within 14 days after serving her answer.

• AFTER 14 days, D must get permission from court.

• D’s claim under impleader must be derivative - D/TPP cannot claim that TPD is solely liable to P.

• Jurisdiction - court must have PJ over impleaded party; court must also have SMJ, and will have supplemental jx.

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Additional claims involving TPD:

• Once TPD is joined, TPD may make claims of her own against other parties as long as SMJ exists over each claim.

• Original P may assert claims against TPD arising from the same T/O as P’s original claims against D/TPP as long as SMJ exists over each claim.

Intervention

A non-party absentee may seek to join (ie, intervene) in an already pending suit, either as a P or D.

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Intervention as a right - must be allowed if either:

a) Absentee’s interest will be harmed if not joined and no existing party will adequately represent that interest, OR

b) Absentee has an unconditional statutory right.

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Permissive intervention - allowed in court’s discretion if either:

a) Absentee has a claim or defense that shares a common question of law with the underlying action,

b) Absentee has a conditional statutory right, OR

c) Absentee is a govt. officer or agency and an existing claim or defense relates to the officer/agency or a statute, regulation, etc.

• Court must also consider whether intervention will unduly delay or prejudice adjudication of original parties’ rights.

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Jurisdiction

• In diversity cases, interveners must establish independent SMJ

• Supplemental jx will not cover diversity intervention.

Intervention vs. Compulsory Joinder

Compulsory joinder forces absentee into suit; narrow; must be very necessary for the court to force an absentee into a case.

Intervention lets absentee join suit voluntarily; more lenient.

Interpleader

Allows a property holder to initiate a suit to compel multiple claimants to that property to litigate that dispute.

• 1 party owes something to 2 or more people

• Interpleader is allowed under both federal statute and Rule 22

• Property holder = stakeholder

• Other parties who want the property = claimant

• Stakeholder plaintiff may also make a claim to the stake

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Rule 22 Interpleader

• Complete diversity required - complete diversity between claimant and ALL opponents; and amount in controversy must exceed $75k.

• SMJ, PJ, and Venue requirements are the same as for any other fed. case.

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Statutory Interpleader

• Only minimal diversity required - one claimant must be diverse from at least one other claimant.

  • Amount in controversy must be $500 or more.

• Nationwide jx - service is proper on anyone in the U.S.

• Venue is proper in any district where any claimant resides.

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Ex - deceased had life insurance policy with DE corp. having PPB in CA; claimants from NJ and CA all claim interests.

• Rule 22 interpleader - improper b/c lack of diversity

• Statutory interpleader - proper b/c NJ claimant is diverse from CA claimants

Class Actions Overview

Under Rule 23, an individual or small group can represent a larger group (class) sharing a common interest in a lawsuit.

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Requirements - to certify a class, court must find:

1) Numerosity - class size must be so numerous that joinder is impracticable.

• No exact threshold to class size requirement, depends on context of case and claims.

2) Commonality - there must exist questions of law or fact are typical of those of the class

3) Typicality - claims or defenses of the class representatives are typical of those of the class

4) Adequacy - class reps will fairly and adequately protect interests of the entire class

• Eg - representatives must not have conflicts of interest w/ class members, class counsel must be competent.

5) Type - action must fit into 1 of 3 types of class actions

Rule 23(b)(1) - anti-prejudice device

(Types of Class Actions)

Used where actions by or against class members would create a risk of inconsistent decisions or impairment of class interests

(not common, unlikely to be tested)

Rule 23(b)(2) - injunction or declaratory judgment

(Types of Class Actions)

Allows class where suit requests injunctive or declaratory relief as the primary relief sought (ie, not damages).

Ex - employment discrimination, civil rights cases

Rule 23(b)(3) - damages

(Types of Class Actions)

Most common class action type; used where primary relief sought is damages.

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Requirements

1) Predominance - common questions of law or fact predominate over individual questions, and

2) Superiority - class action is superior to other procedures to resolve the dispute.

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• Class members have opt-out rights - judgment only binds class members who do not opt-out

• Notification required - all reasonably identifiable class members must be notified of the pending action, including opt-out rights and right to appear via separate counsel.

Class Actions & Jurisdictions

Personal Jurisdiction - absent class members are not required to meet minimum contacts requirements.

• PJ due process requirements satisfied by reasonable and adequate notice to class members, opportunity to opt out (if applicable), and adequate representation.

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Subject Matter Jurisdiction

• Federal question jx - same rules as in individual cases

• Diversity jx - in determining amount in controversy and citizenship, court looks only to class reps.

  • Diversity requirements satisfied if:

    • 1) Class reps are diverse from all opposing parties; and

    • 2) Class reps’ individual claims exceed $75k.

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Class Action Fairness Act (CAFA)

• Separate means of getting SMJ in class action; jx exists if:

  • 1) any class member is diverse of any opposing party, and

  • 2) aggregated claims of the class exceed $5 million

  • 3) Any D, even an in-state D, may remove

  • 4) Generally, when most class members and primary D’s are citizens of the same state, the cases will get remanded or dismissed (that is, local actions stay local)

• Does not apply to:

  • Class actions with fewer than 100 members

  • Shareholder claims against corporate management

  • Certain state securities law fraud claims

Class Action Certification , Judgment and Settlement

Certification - court must determine at an early practicable time whether to allow the case to proceed as a class action.

• If a class is certified, court must:

  • 1) Define the class (ie: who can be a class member), the class claims, issues and defenses

  • 2) Appoint class counsel - class counsel must fairly and adequately represent interests of the class as whole.

• Certification can be appealed via interlocutory appeal before final judgment on the merits.

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Judgment - binding as to all absent class members, unless they opt out, if applicable.

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Settlement - court must approve any settlement reached between class representatives and opposing party.

• Settlement must be fair, reasonable and adequate.

• Court will seek feedback from absent class members in deciding whether to approve or reject the settlement.

• In Type 3 action, court may refuse to approve settlement unless members are given second chance to opt out.

Discovery Overview

Discovery involves a court-mandated process of acquiring and producing information from parties and non-party witnesses.

• Conducted by parties - court helps the process move forward, but does not actively participate in the exchange of information.

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What is discoverable? - two overarching queries:

1) What is the scope of discovery?

2) Is relevant information privileged?

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Process of Discovery

1) Initiating discovery - parties must:

1. Meet and confer - discuss claims and develop proposed discovery plan.

2. Initial disclosures - disclose discoverable information, insurance and damages information.

3. Scheduling - court and parties will develop scheduling order with deadlines for completing discovery.

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2) Conducting discovery - depositions, requests for production, interrogatories, requests for admission, etc.

• Followed by expert testimony and pretrial disclosures.

Conferences

Party representatives must meet and confer with each other and/or the court at various times throughout the proceeding.

• Most of these conferences are for discovery purposes.

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Mandatory meet and confer - parties must meet at least 21 days before the scheduling conference to:

1) Discuss claims, defenses, and settlement, and

2) Develop a plan for discovery

• Must present written discovery plan to court within 14 days of the meet and confer.

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Scheduling conference - conference at or after which judge issues scheduling order setting deadlines for filings of pleadings, joinder, amendments and discovery deadlines.

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Pretrial conference - conference before the court; held as needed to move case forward and encourage settlement.

• Final pretrial conference - may be set to finalize issues to be resolved at trial and evidence to be presented.

  • Memorialized in pretrial conference order

  • Issues not included in the pretrial conference order are generally excluded at trial.

  • Order may only be modified to prevent manifest injustice.

Scope of Discovery

Material is discoverable if - non-privileged, relevant, and proportional:

1) Non-privileged

2) Relevant to a claim; and

3) Proportional to the needs of the case - factors:

• i. Amount in controversy

• ii. Importance of issues at stake in the action

• iii. Resource of parties involved

• iv. Importance of discovery in resolving issues at stake

• v. Whether burden or expense of proposed discovery outweighs is likely benefit

• vi. Parties’ relative access to the information

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Privileged material - undiscoverable

• Types of privileges recognized:

  • 1) Attorney-client

  • 2) Work product

  • 3) Physician-patient

  • 4) Clergy-penitent

  • 5) Marital

  • 6) Journalist-source

  • 7) 5th Amendment privilege against self-incrimination

• Work product may be discoverable upon showing of substantial need for material that is not otherwise available.

• Objections to discovery requests based on privilege must be stated with particularity.

Mandatory Disclosures

Parties must disclose certain information, irrespective of requests from the opposing party.

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Initial disclosures - parties must disclose:

1) Sources of discoverable information - parties must disclose witnesses and documents that they may use to support their claims or defenses.

2) Damages - computation of damages claimed

3) Insurance - any insurance agreement that may be used to satisfy all or part of a judgment.

• Timing - within 14 days of parties’ mandatory meet and confer.

  • Parties served or joined later must make initial disclosures within 30 days of being served or joined.

• Duty to supplement - parties must supplement their mandatory disclosures if the produced information becomes incomplete or incorrect.

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Expert disclosures - at least 90 days before trial, parties must identify experts who may be used at trial and produce a report containing experts’ opinion, data used, qualifications, etc.

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Pretrial disclosures - parties must give detailed information about evidence to be used at trial at least 30 days before trial.

• eg: documents to be used as evidence, identity of witnesses to testify, etc.

Interrogatories

Written Qs proposed by one party to an opposing party.

• Only to a PARTY

• Written/answered in writing

• Limit = 25

• Deadline for response is 30 days.

Request for Production (RFP)

Written requests to a party to make documents, electronic documents or other things within the party’s control available to review, inspect and/or copy.

• Deadline for response is 30 days after RFP is served.

• Non-party may be compelled to produce material under subpoena.

Requests for Admissions (RFA)

Requests to parties to admit the truth of discoverable information.

• If a party has admitted information, it does not have to be litigated at trial; opposing party can show jury the admission.

• Written response due within 30 days of service:

  • a) Fail to respond or Admit matter → Matter is conclusively established.

  • b) Deny matter, Explain lack of admission/denial or Object to request → Matter not conclusively established.

Physical or mental examinations

Only available through court order where a person’s physical or mental condition is an issue in the case.

• Must show that party’s health or condition is in controversy

• If allowed, doctor-patient confidentiality privilege disappears.

Depositions

Depositions are oral proceedings in which an attorney may examine any person under oath.

• Testimony is sworn and subject to penalties for perjury.

• Parties - notice of deposition will compel attendance.

• Non-parties - may be deposed, but must be subpoenaed.

• Documents - subpoena duces tecum used to compel a deponent to bring documents to the deposition.

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Scope - may cover any issue within the scope of discovery.

• Objections - deponent’s counsel may object to questions but deponent is still required to answer.

  • Exception - if an objection is based on privilege (ie: answering would reveal privileged info), counsel can instruct deponent not to answer.

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Length - limited to one day for 7hrs

• Must seek court approval to take more than 10 depositions or depose the same person twice.

Privileged Material

Otherwise discoverable info need not be disclosed if a privilege applies.

Attorney-client privilege - protects information exchanged confidentially between attorney and client.

• Requirement - to invoke the attorney-client privilege, a party must demonstrate the communication was:

  • 1) Made between client and counsel,

  • 2) Intended to be and was in fact, kept confidential, and

  • 3) Was made for the purpose of obtaining or providing legal advice.

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Work product privilege - protects material prepared by or for an attorney in anticipation of litigation.

• Rule - items prepared in anticipation of litigation or trial are not discoverable unless the opposing party shows:

  • 1) Substantial need for material, and

  • 2) Inability, without undue hardship, to obtain the substantial equivalent of materials by other means.

Protective Order

(Discovery)

A court order limiting discovery of material; sought by party seeking to prevent disclosure.

• Usually used to prevent disclosure of material that’s privileged, highly embarrassing, trade secret and/or clearly outside scope of appropriate discovery.

• The lack of proportionality of the discovery also may be raised.

• Moving party must certify they have or have attempted to meet and confer with affected parties to resolve dispute.

• Standard - court may issue protective order for good cause.

  • Order can limit, condition, delay or bar discovery of affected information.

Motion to Compel

(Discovery)

A party may move for an order compelling disclosure or discovery of requested material.

• Often arises when discoveree (ie: party holding information) claims withheld materials are privileged.

• Motion must certify that moving party has made a good faith attempt to obtain discovery absent court intervention.

• Judge will call hearing to confer with parties regarding dispute and make decision on whether material may be withheld.

Discovery Sanctions

A court may sanction parties for discovery violations, either on its own or upon motion of a party.

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Grounds for sanctions - court can sanction any type of failure to comply with discovery obligations or court order.

• The Rules impose a duty to supplement initial disclosures, interrogatory answers, responses to document requests, and requests for admission when the produced information is incomplete or incorrect.

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Types of Sanctions - depends on the type of violation:

• Partial violations - less serious discovery violation (ex: party makes frivolous objections in RFAs)

  • Court may issue order compelling discoveree to respond to discovery requests; can also award costs to party for bringing motion to compel (including attorneys’ fees).

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• Complete violations - wholesale violation of discovery rules (eg: violation of discovery order); court may:

  • Strike pleadings; disallow evidence; establish disputed or unanswered facts as true; issue monetary sanctions; dismiss P’s case (very serious, requires bad faith); enter default judgment (very serious, requires bad faith); hold disobedient party in contempt of court.

  • Motion to compel not required before moving for sanctions.

Voluntary Dismissal

Plaintiff may voluntarily dismiss her case, either with or without court approval (ie: leave of court).

• Dismissal will be without prejudice (ie: P can bring claims again), unless an exception applies.

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Dismissal without leave of court - allowed before Defendant serves an answer or motion for summary judgment (MSJ).

• Plaintiff voluntarily dismisses by filing written notice of dismissal or stipulation signed by all parties who have appeared.

• Dismissal is without prejudice provided this is the first time that P has dismissed her case; otherwise it is with prejudice.

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Dismissal with leave of court - required if there has been an answer, motion or prior dismissal.

• Court has discretion to grant dismissal on terms and conditions it deems proper.

• Dismissal is without prejudice unless court states otherwise; the second voluntary dismissal is “with prejudice”

• Pending counterclaim - if D has filed a counterclaim, P cannot voluntarily dismiss without D’s consent.

Default and Default Judgment

Default judgment against D may be entered when D fails to plead or otherwise defend a properly served complaint.

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Procedure - P files motion for default judgment against D.

• Clerk enters default on docket if P shows that D failed to respond within 21 days of being served (60 days if service waived).

  • Default does not automatically entitle P to recovery; clerk or judge must enter judgment of default.

• Default judgment by court clerk - may be entered if:

  • 1) D has not responded at all;

  • 2) Claim is for money damages;

  • 3) P gives an affidavit of sum owed; and

  • 4) D is not a minor or incompetent.

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• Default judgment by court - if elements above are not met, court must enter default judgment and court will hold a hearing on damages.

  • D may be entitled to hearing - if D has appeared at some point in response to P’s complaint, D must get 7 days notice of a hearing on default motion.

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Recovery - limited to amount demanded in complaint

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Setting aside entry of default - motion with court showing good cause, merit defense and no prejudice to P.

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Setting aside default judgment - a default judgment may be set aside like any other judgment.

Failure to State a Claim and Motion for Judgment on the Pleadings

Under Rule 12, Defendant may move to dismiss or failure to state a plausible claim or move for judgment on the pleadings due to P’s failure to bring a plausible claim.

• ie: D arguing that even assuming all allegations in P’s complaint or pleadings are true, P cannot win.

• If granted, P will usually be given leave to amend her complaint.

Failure to state a claim vs. motion for judgment on the pleadings

• Timing of filing:

  • Before D files answer = Rule 12(b)(6) motion to dismiss.

  • After D files answer = Rule 12(c) motion for judgment on the pleadings.

• Material reviewed be court:

  • Rule 12(b)(6) motion - court reviews sufficiency of P’s complaint alone.

  • Rule 12(c) motion - court reviews all pleadings

Summary Judgment

Either party may file a motion for summary judgment (MSJ) asking the court to enter judgment.

• Must be filed no later than 30 days after close of discovery.

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Burden for moving party - must show:

1. There is no genuine dispute of material fact, and

2. Moving party is entitled to judgment as a matter of law.

• ie: no reasonable person could find for non-moving party

• Motion is based on pleadings and evidence submitted.

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Burden-shifting - if party moves for summary judgment, burden shifts to non-moving party to show that a triable issue exists.

• Non-moving party may submit request for more time to take discovery (must specify discovery sought and how it will help).

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Evidence - examined in the light most favorable to non-moving party.

• Court can look at the whole record of admissible evidence.

  • Note - this distinguishes MSJ from Rule 12(b) or 12(c) motions, in which court may only look at the complaint or pleadings.

Partial Summary Judgment

Court can grant summary judgment on only certain claims or issues (eg: on liability but not damages).

Alternate Dispute Resolution

Federal courts must have an ADR program and the FRCP actively encourages settlement through various means, including mandatory settlement conferences.

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ADR - generally refers to any means of settling disputes outside the courtroom, including arbitration and mediation.

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Mandatory settlement conference - court-appointed advisor meets with parties privately and offers evaluation of the weaknesses of their respective cases.

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Formal “offer of judgment” - a party defending a claim may make a formal settlement offer at least 14 days before the date set for trial.

• Settlement for less than offer - if claimant rejects settlement offer and obtains judgment less favorable than the unaccepted offer, claimant must pay costs incurred by the offering party after the offer was made.

  • Ordinarily costs do not include attorney fees. The exception involves litigation in situations where federal fee-shifting statutes define fees to be part of costs.

Right to a Jury Trial

7th Amendment provides the right to a jury trial in civil actions at law, but not at equity (ex: injunctions, specific performance).

• Demand for jury trial - may be included in any pleading.

  • Deadline - must be made within 14 days of service of the last pleading raising a triable issue; otherwise, waived.

• Number of jurors - minimum 6 jurors; maximum 12

• Verdict - unless the parties stipulate otherwise, the verdict must be returned by at least 6 members and be unanimous.

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Cases involving law and equity claims - jury will decide underlying facts on claim at law first; equity claims left for judge to decide.

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Non-jury trial - parties can elect for trial on documentary evidence alone or for a non-jury (bench) trial.

• Judge must make fact findings and state separate conclusions of law.

Voire Dire

Jury selection process; each party may strike jurors, either for cause or through peremptory challenges.

• For-cause strikes - used to strike potential jurors for cause.

  • Eg: bias, prejudice, relation to party.

  • Each side has unlimited for-cause strikes.

• Peremptory strikes/challenges - each side has 3, which can be used for any race-neutral and gender-neutral purpose.

Jury Instructions

Parties may file requested jury instructions to be given to the jury during deliberations.

• Usually given to jury at close of evidence.

• Proposed instructions - court gives parties its proposed jury instructions before final arguments.

• Objections - parties must have an opportunity to object before final arguments and before instructions are given to the jury.

  • Failure to object waives the issue for appeal except for plain error that affects a substantial right.

Jury verdicts

Court decides verdict to be used:

• General verdicts - jury finds for P or D and decides amount of damages or relief due.

• Special verdicts - jury asked to make factual findings only; court applies the law to those facts.

  • Court submits Qs to jury regarding each ultimate fact and makes legal conclusions based on jury findings.

  • Parties must object to proposed jury Qs before jury deliberates.

• General verdict with interrogatories - court can require a general verdict and ask jury to answer specific questions concerning ultimate facts.

  • Purpose is to ensure jury properly considered important issues.

Judgment as a Matter of Law

In extraordinary circumstances, a judge can take a case from the jury and render a decision on an issue.

• Can occur during trial (JMOL) or after jury verdict (RJMOL).

• Court views evidence in light most favorable to non-moving party.

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Judgment as a Matter of Law (JMOL) (aka directed verdict)

• Motion brought by either party before case submitted to jury.

  • Defendant can bring motion upon close of Plaintiff’s evidence or all evidence; P can file at close of all evidence.

• Standard - court can grant JMOL on an issue if a reasonable jury would not have a sufficient evidentiary basis to disagree as to the result (ie: reasonable person could not disagree).

• The Court must view evidence and inferences in nonmovant’s favor.

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Renewed motion for JMOL (RJMOL) (aka JNOV)

• After court enters judgment based on jury verdict, losing party can file RJMOL for entry of judgment in his favor.

  • Must be filed within 28 days after entry of judgment.

  • Can only be filed if JMOL was originally filed.

• Standard - whether the evidence is legally sufficient for a jury to find in the nonmovant’s favor.

• Note - occasionally referred to as “judgment notwithstanding the verdict”

Motion for a New Trial

Either party may file a motion for a new trial if judgment was entered but serious errors occurred at trial.

• Must be filed within 28 days after entry of judgment.

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Grounds for new trial - unlimited, but potential errors include:

• Prejudicial error - serious error that makes judgment unfair.

  • Ex: judge misstates law, gives wrong jury instructions.

• Prejudicial misconduct - of a party, attorney, juror, etc.

  • Ex: jury considers evidence excluded at trial.

• Judgment against weight of evidence - jury erred in reaching verdict given the evidence before it.

• Newly discovered evidence

• Excessive or inadequate damages - court cannot increase jury award (additur violates 7th Amend.); judge can order a new trial or offer remittur if convinced the award is too high.

  • Remittur - court can order a new trial or offer P a choice of taking a lesser figure set by the court.

  • Majority standard (fed and most states) - the jury’s award shocks the conscience; diversity cases must use state standard.

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Motion for new trial vs. JMOL or RJMOL - in granting a new trial, court is not directing judgment, but rather saying the process should restart (ie: there was some error necessitating a do-over).

Motion for New Trial - Newly Discovered Evidence

A court will grant a new trial based on newly discovered evidence if the movant shows that:

• the evidence was unknown to the movant at the time of the trial,

• the movant used due diligence to discover the evidence before the end of trial,

• the evidence is material and

• a new trial considering the evidence will likely result in a different outcome.

Motion to Set Aside Judgment or Order

A court may relieve a party from judgment or a court order if any of the following issues arise:

1) Mistake, inadvertence, or excusable neglect

• Ex: relief from default judgment that entered against D who did not receive actual notice.

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2) New evidence undiscoverable at time of trial

• Evidence existed at time of trial and moving party made diligent efforts to discover it.

• Evidence would likely have changed the result.

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3) Fraud, misrepresentation, or misconduct by opposing party

• The fraud must be established by clear and convincing evidence, and must have prevented the party from fully and fairly presenting her cause.

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4) Judgment is void

• Ex: relief from a judgment rendered by a court that lacked SMJ. A judgment is not void merely because it is erroneous.

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5) Judgment has been satisfied or discharged

• Includes judgments based on an earlier judgment that was later reversed or vacated.

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6) Any other reason that justifies relief

• Catchall used in extraordinary circumstances.

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Note

For issues 1-3, motion may be brought any reasonable time within one year of entry of judgment.

For issues 4-6, motion must be brought within a reasonable time.

Motion to Alter or Amend Final Judgment

A party can file a motion to alter or amend a final judgment (eg: summary judgment) within 28 days after entry of that judgment.

Can be based on the following:

• Judgment based on manifest error of law or fact (eg: court applied wrong law)

• Necessary to prevent manifest injustice (eg: attorney or juror misconduct)

• Discovery of new evidence that was unavailable during trial.

• Intervening change in controlling law.

Motion to Correct a Mistake

This motion is appropriate when a judgment has a clerical mistake or a mistake arising from an oversight or omission.

Appeals

Appellate court review potential errors on questions of law; highly deferential to questions of fact.

• Questions of law - de novo

• Questions of fact - will not be disturbed unless:

  • Non-jury decisions (eg: bench trial) - clearly erroneous.

  • Jury trials - reasonable jury could not have reached the same conclusion.

• Mixed Qs of law and fact - de novo

• Discretionary matters (eg: evidentiary rulings) - abuse of discretion.

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Timing - must file notice of appeal in trial court within 30 days of entry of final judgment.

Final Judgment Rule

Appeal may only be taken from a final judgment, meaning trial court has made an ultimate decision on the merits of the entire case; otherwise, appellate court lacks jx.

Exceptions - these orders are appealable without final judgment:

• Injunctions

• Certification of class action

• Orders involving debatable Qs of controlling law.

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Multiple claims and/or parties - trial court may enter final judgment as to fewer than all of the claims or parties only on an express determination that there is no just reason for delay.

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Timing - must file notice of appeal in trial court within 30 days of entry of final judgment.

Interlocutory Appeals

Though generally only final order are appealable, some interim (interlocutory) orders may be appealed before final judgment.

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Interlocutory orders reviewable as of right:

1. Injunctions - orders concerning an injunction

2. Receivers - orders concerning appointment of receivers

3. Patent - orders where only an accounting is left in the case

4. Property. - orders affecting property (eg: attachment)

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Interlocutory Appeals Act - appellate court may hear appeal of non-final order if trial judge certifies that the order involves a controlling issue of law with substantial ground for difference of opinion.

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Class action - appellate court may review an order granting or denying class certification.

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Collateral order exception - appellate court may hear an interlocutory appeal on an issue if it is:

1. Too distinct from the merits of the case (ie: collateral)

2. Too important to be denied review; and

3. Would essentially be unreviewable if parties waited for final judgment.

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Extraordinary writ - a party aggrieved by an unappealable order may seek a writ to compel or prohibit lower court action; must show irreparable harm will occur and normal route of appeal is inadequate.

Claim Preclusion (Res Judicata)

A party that has had an opportunity to litigate a claim cannot re-litigate the claim once final judgment has been rendered.

• Claim preclusion is an affirmative defense.

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Requirements - new claim will be precluded if:

1) Same parties - the second case was brought by the same party against the same party (ex: same P against same D)

• An entity in privity with a party is considered “same party” (ex: an employee and employer may be the same party for claim preclusion purposes)

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2) Same claim - same claims in the first and subsequent suit

• Claim refers to the transaction or series or transactions or occurrences giving rise to the action.

  • ie: even if not previously raised, claim can be precluded if it is sufficiently related to prior claims.

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3) Final judgment on the merits in original claim

• Judgment is final even if it is being appealed.

• Dismissal with prejudice operates as a judgment on the merits.

• Technical dismissals (SMJ, PJ, Venue) are not “on the merits” because they are not evaluating the substance of the plaintiff’s claim.

Issue Preclusion (Collateral Estoppel)

Prevents re-litigation of particular issues of fact or law that have been actually litigated and previously determined.

• Narrower than claim preclusion; does not preclude the whole claim necessarily, just the same issue.

• Issue must have been actually litigated - distinguish from claim preclusion, which only requires opportunity to litigate.

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Requirements

1) Final Judgment on the merits - first case ended with a valid, final judgment on the merits.

2) Same issue - same issue was actually litigated and determined in the first case.

3) Issue was essential to the judgment - ie: judgment would have been different in the first case absent litigation of this issue.

• Must be clear how the issue was decided by the original trier of fact.

4) Asserted against actual party to previous case

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Who may assert issue preclusion - two views:

• Mutuality (traditional view) - only parties to prior litigation can assert issue preclusion.

• Non-mutuality (modern view) - issue preclusion may be asserted by those who were not parties in the prior litigation.

Issue Preclusion: Defensive use of prior judgment

D seeks to prevent P from re-litigating an issue P lost in a prior suit against a different party.

• Allowed if the party against whom issue preclusion is asserted had a full chance to litigate the issue previously.

  • Ex: D in second case can preclude P from re-litigating an issue P lost to another D in a prior case; this is “non-mutual” because the party asserting IP was not a party in the prior litigation.

Issue Preclusion: Offensive use of prior judgment

P seeks to prevent D from re-litigating an issue that D previously lost in a prior suit against a different party.

• Court will allow only if deemed fair after balancing factors.

• Factors:

  • 1) Whether party against whom prior judgment is asserted had full and fair opportunity to litigate.

  • 2) Whether party could foresee multiple suits being filed

  • 3) Whether the party asserting IP controlled or could have joined the prior litigation.

  • 4) There are no inconsistent judgments on the record.