Civil Procedure

Jurisdiction

Subject Matter Jurisdiction: Does the federal court have the power to hear this case? The Federal Court can hear 2 types: Diversity Jurisdiction & Federal Question (+ Supplemental Jurisdiction)

• Federal Courts have limited jurisdiction.

• State Courts have general subject matter jurisdiction. They can hear nearly all cases, including most cases involving federal law. (except bankruptcy, patent infringement, some federal securities, and antitrust claims)

Personal Jurisdiction: Can P sue D in the state? Depends on whether there is sufficient contact between D’s and where the suit is filed.

Removal Jurisdiction (State Court → Federal Court)

Venue: Which court may hear the case?

Diversity Jurisdiction

2 Requirements

1. Complete Diversity → Every P citizen of different state than every D

   • If Complete Diversity is broken, can you / should you drop someone from the lawsuit?

     • Alienage: US Citizen vs. Citizen of Foreign Country

   • Citizenship

     • Individuals: state in which they are domiciled

       • Move? Physically present & intent to remain permanently

       • Citizenship of Descendants, Minors, and Incompetents used NOT representative's citizenship

       • Class Actions: Citizenships of named Representatives

     • Corporation: state of every place incorporated in and principal place of business

       • Principal: high level officers direct and operate from

       • Unincorporated: Citizenship of all its members

         Limited Partnership: Citizenship of general and limited partners

   • Determined at the time suit filed, not when action occurred

2. Amount in controversy must exceed $75k (excluding interest - unless suing for interest - and cost)

   • Don’t worry about potential defenses or counterclaims that could reduce the recovery amount.

   • If the jury awards less, it doesn't destroy jurisdiction.

   • Aggregation

     • P can aggregate claims against a single D even if claims aren’t related

     • P can aggregate against multiple Ds if they are jointly liable

   • Equitable Relief → Two Tests to determine if Amount in Controversy is satisfied (if either satisfied, then usually met)

     • P’s Viewpoint: If granted, does the relief requested have a value of more than $75k to P?

     • D’s Viewpoint: If granted, will the relief requested by P cost D more than $75k?

Excluded Cases: Divorce, Aliminoy, Child Custody, and Actions to Probate an Estate

Federal Question Jurisdiction

“Arising under” the constitution, law, or treaties

• Federal question must be present in P’s complaint as part of their well-pleaded cause of action

  • Is P enforcing a federal right given to them?

  • If federal law is brought in as a result of a defense, it is insufficient to create federal question jurisdiction.

Supplemental Jurisdiction

If there are federal claim and state law claims, the federal court may exercise discretion and hear the state law claims (or counterclaim) if:

• They arise out of a common nucleus of operative fact as the federal question

  • Claim that arose from the same transaction or occurrence as the claim that got P into federal court

  • Such that the claims would be tried in one proceeding

Original P’s in a pure diversity case generally can’t use supplemental jurisdiction.

• Except when there are multiple Ps, and the claim by one of them doesn’t meet the amount in controversy requirement.

The court may continue to exercise supplemental (pendent) jurisdiction over the state claim even though the federal claim is dismissed on the merits.

Personal Jurisdiction

2 Requirements

1. Must be statutorily authorized.

   • Satisfied by:

     • D is present in forum state and is properly served.

     • D is domicile in forum state.

     • D consents to PJ.

     • Forum state’s long arm statute grabs D. (Limited vs. Unlimited)

   • Need notice.

2. Must be constitutional. Minimum Contacts Analysis: Does D have sufficient contact with the state such that exercise of jurisdiction would be fair? 3 main issues.

   • Contacts → must be sufficient minimum contacts between D and the forum state

     • D must have purposefully availed herself to the benefits and protection of the forum state

     • D must have reasonably anticipated that her activities would render it foreseeable that she would be dragged into court of the forum state.

   • Relatedness → P’s claim must be related to D’s contact with the forum

     • PJ is specific or general.

     • Specific: Court may exercise jurisdiction for the complained cause of action based on Ds purposeful activities in the forum state

     • General (if the state allows it)

       • D’s domicile is the forum state.

         • Corporations is at home in any state in which it is incorporated and the state its principle place of business is located

       • D is present in forum state and is properly served.

   • Fairness → must not violate traditional notions of fair play and substantial justice (only applies in specific pj)

     • 3 Fairness Factors

       • Burden on the D and witness

         • It just has to be fair: it should not put the D at a severe or grave disadvantage in the litigation.

         • Travel is not enough.

         • High Burden because relative wealth of the parties is not determinative.

       • State Interest

         • Providing a courtroom for its citizens who are allegedly harmed by out of state Ds?

       • P’s Interest

         • P injured in forum state? P wants to sue at home?

Removal Jurisdiction

(State Court → Federal Court)

Basic Rules

1. Only D can remove a case.

   • No later than 30 days after service of the first paper that shows the case is removable

   • Notice of Removal

     • Grounds for removal stated

     • Court permission not required

     • Served on adverse parties

     • File in federal court, copy in state court

2. If there’s more than one D, all the Ds who have been served with process must join in the removal.

   • Earlier-served D may join later-served D’s removal even if 30 day period expired

3. There must be federal subject matter jurisdiction over the case.

   • State court need not have had subject matter jurisdiction over the case. A federal court may decide a claim in a removed civil action even if the state court had no subject matter jurisdiction

   • Limitation on Removal based solely on Diversity Jurisdiction

     • Case should not be removed if any D is a citizen of the forum state AND

       • If the in-state D is voluntarily dismissed from the case, the Case can be removed within the year.

     • Case should not be removed more than 1 year after the case was filed in state court

4. Case must be removed to federal district court embracing the state court

   • Doesn’t matter if not proper venue under venue statutes

P can move to have a case that was improperly removed remanded back to state court.

• No later than 30 days or waived

• If removal was improper because the federal court lacked subject matter jurisdiction, there is no time limit

Venue

Venue is considered to be waived unless a timely objection is made.

Federal Court

1. P may lay venue in 2 situations (Initially filed in Federal Court, doesn’t apply if the case was removed)

   • Residential Venue → Venue is proper in a judicial district court where any one D resides, if all defendants reside in the state in which the district is located

     • Residence for venue purposes is his domicile.

     • A corporation or other business resides in any district in which it is subject to personal jurisdiction.

   • Transactional Venue → Venue is proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, OR a substantial part of property that is the subject of the action is situated.

   • Neither → If there is no district in the entire US where the venue is proper, then a district where any D is subject to personal jurisdiction is a proper venue.

2. Removal: Doesn’t apply if case was removed (State to Federal Court)

   • Venue is in the federal district embracing the state court where the action is filed

State Courts

1. State courts → venue is based on where the defendants reside or where the cause of action arose.

   • Most states will allow venue to be placed in any county in which any defendant resides.

     • Different from the federal court that requires the same state.

Transfer (Federal → Federal)

1. Transfer to a different district court may be had when the plaintiff filed in an

   • Improper venue → Proper Venue (They could also dismiss the case.) OR

     • Generally, the court uses the law of the state to which the case was transferred.

   • Proper venue → Proper Venue

     • Court will consider public and private factors:

       • Public: what law applies, what community should be burdened with jury service, desire to keep a local controversy in a local court

       • Private: Convenience, where Ds and evidence are found

     • Generally, the original forum law goes along with the case.

       • Exception: Where transfer is made pursuant to a valid forum selection clause (Agreement by the parties that if they have a dispute they will litigate it in a particular place.)

     • No strict time limit.

       • Transfer where the venue is initially proper does not fall under the Rule 12 timing requirements.

   • Forum non conveniens: inconvenient meeting place

     • Transfer is not possible because it is in a different judicial system

       • Court dismisses or stays, and may impose conditions on the party requesting transfer.

     • Same public and private factors

       • The court will consider whether the other court is adequate: Found to be adequate unless P doesn’t have an available remedy there.

2. Transferee must be a proper venue and have Personal Jurisdiction over D

   • Generally those must be true without waiver by D

   • Exception: Transfer form a Proper Venue

     • The Court can transfer to any district (even an improper venue) if all parties consent, and the court finds cause for the transfer.

Erie Doctrine

In Federal Court, what law applies?

Only applies to Diversity Cases (Why? If you have a cause of action arising under federal question, federal law applies under the supremacy clause.)

1. Federal procedure law applies

2. State substantive law applies

Erie principle applies when there is no conflict between the state law and the federal law on a particular matter. If there is conflict, then specific Erie Doctrine Approach.

3 Steps

1. Is there a federal law or directive on point that directly conflicts with state law?

   • If so, apply the federal law.

2. If not, state law for substantive matters.

   • Areas that are deemed substantive

     • Statute of limitations

     • Rules for tolling statutes of limitation

     • Choice of law rules

     • Elements of a claim or defense

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

3. If not, determine whether the issue is substantive.

   • 3 Supreme Court Tests

     • If the application of any of these tests results in substantive, then state law applies

   • Outcome determinative - does it substantially affect outcome?

     • If yes, the issue is substantive.

   • Balance of interest test - does the state have greater interest?

     • If the state has greater interest, then the issue is substantive.

   • Forum shopping deterrence - increase litigation in federal court

     • If failing to apply state law would increase litigation in federal court, then the issue is substantive.

Complaint

1. Complaint Requirements 

   1. Short and plain statement of claim showing that the pleader is entitled to relief

      1. Pleading must set forth sufficient facts to make the claim “plausible” 

      2. Some claims (such as those based on fraud, mistake, and special damages) must be stated with “particularity”

   2. Grounds for the court’s subject matter jurisdiction also must be stated

   3. Must be a demand for relief

2. Rule 11 Certification (P usually does it)

   1. All pleadings and papers must include a certification that the paper:

      1. Isn’t being presented for an improper purpose

      2. Warranted by current law or a reasonable extension of current law

      3. Facts alleged are true

   2. Continuing Certification (including advocating) 

   3. Safe harbour provision

      1. Opposing party serves motion to violating party.

         1. But cannot file for 21 days (safe harbour) 

   4. Sanctions if not completed (to deter)

   5. Required for Complaint, Counterclaim, or Any Other Filing (Except discovery)

3. Joinder (Can we add multiple Ps or Ds?)

   1. Permissive Joinder

      1. Two Requirements

         1. Joinder must be authorized by rule

            1. Claim arises from the same transaction or occurrence, or the same series of transaction or occurrences AND

            2. Claim raises at least one common question of law or fact with the main claim

         2. There must be subject matter jurisdiction over the claim

   2. Compulsory Joinder (Rule 19): Asks whether all parties that are absolutely needed have been made a part of the case.

      1. 3 Step Process to determine whether a party must be joined

         1. Determine whether the absentee is actually a “necessary” or "required” party.

            1. An absentee should be joined when 

               1. complete relief cannot be granted without the absentee being made a party; or 

               2. the absentee has such an interest in the subject matter of the lawsuit that will go unprotected if he’s not a party; or 

               3. His absence will leave other parties subject to multiple or inconsistent obligations.

            2. Joint tortfeasors generally aren’t considered to be such a party. 

               1. Because any of the tortfeasors are “jointly and severally” liable, meaning that any one of them can be required to pay the full amount.

         2. If the absentee is necessary, they must be included if it is feasible.

            1. Feasible if:

               1. Court has personal jurisdiction over the absentee AND

                  1. If absentee is served no more than 100 miles from where the simmons was issued, there is PJ regardless of contacts with the forum. 

               2. Federal Subject matter jurisdiction over claim by or against absentee

         3. If the absentee can’t be joined, can the action proceed without him?

            1. Courts consider whether

               1. Alternative forum available somewhere else that has subject matter jurisdiction and personal jurisdiction over all parties

               2. Actual harm to absentee is likely

               3. Court can shape relief to avoid any harm

            2. A court may proceed without an absent “necessary party” if it determines, in equity and good conscience, it can do so.

               1. If it is dismissed rather than proceeding without the absentee, they are now “indispensable.”

   3. Other Types of Joinder

      1. Claim joinder: a claiming party may join other claims he has against the defending party

      2. Class actions: multiple parties are joined together either as plaintiffs or defendants, with one party (or maybe more) representing the entire class

         1. Requirements

            1. Numerosity: too many class members

            2. Commonality: some issue in common that will generate answers to everybody

            3. Typicality: Class Rep’s claims are typical

            4. Representative Adequate: Class Rep will fairly and adequately represent the class

         2. Types

            1. Prejudice

               1. No notice required except for potential settlement

            2. Injunctive or Declaratory Relief

               1. No notice required except for potential settlement

            3. Common Question OR Damages (Commonly used for Mass Torts) 

               1. Common question must predominate over individual questions AND class action is superior method to handle the dispute

               2. Notice Required with option to opt out

                  1. Potential second chance to opt out for potential settlement

         3. Court must certify the class

            1. Define the class and the class claims, issues, or defenses

            2. Appoint class counsel, who must fairly and adequately represent the interest of the class

         4. Subject Matter Jurisdiction

            1. Diversity → Rep’s citizenship matters.

            2. CAFA → 

               1. Grants SMJ if

                  1. There are at least 100 members

                  2. Any class member is of diverse citizenship from any defendant

                  3. Aggregated claims exceed $5 million

               2. Any D may remove

               3. Local actions stay local 

4. Statute of Limitations

   1. Must be filed within the statute of limitations period

   2. Relation back doctrine: For statute of limitations purposes, an amendment to a pleading that arises from the same conduct, transaction, or occurrence that was set forth (or was attempted to be set forth) in the original pleading generally is deemed filed on the date that the original pleading was filed. 

      1. What if the amendment adds a new defendant? If within the period for filing a complaint and serving process: 

         1. amendment concerns the same conduct, transaction, or occurrence as the original pleading;

         2. the party has received such notice of the action that she will not be prejudiced in maintaining her defense on the merits; and

         3. the party knew or should have known that, but for a mistake concerning the proper party’s identity, the action would have been brought against her

      2. Knowledge must have come within the period for service of process (90 days after filing of the complaint).

Service of Process

Complaint + Summons

• Summons: tells the defendant that he has to respond to the complaint within the time specified and to the court specified, or risk what’s called a default judgment

1. Who serves?

   1. Federal Court 

      1. Any nonparty over the age of 18 years.

      2. You don’t have to ask the court for an order to allow him to serve process.

   2. State Courts

      1. County sheriff will make service of process

      2. If you want to have a private party to serve process, some states might require you to ask the court for permission beforehand.

2. When to serve?

   1. The time period for serving process is 90 days

      1. If the plaintiff can show good cause for the failure, the period must be extended by the court.

3. How to serve?

   1. In federal court, P can ask the D to waive service by mailing him the summons, a copy of the complaint, and a form that asks him to waive service and explains the ramifications of waiving (or not waiving) service. 

      1. P mails to D

         • Copy of complaint

         • 2 copies of waiver form

         • Prepaid return envelope

         D must return executed form

         • within 30 days

         • within 60 days (if outside US)

      2. Some states also have waiver provisions.

      3. If a D waives process, he gets extra time to answer the complaint.

         1. Unless D has a good reason for failing to return the waiver form, D has to pay P whatever it costs P to have D served. 

   2. If no waiver, then what?

      1. For an individual, process must be given to him in hand, or he may be served by substituted service by leaving the summons and a copy of the complaint at his “usual place of abode” (meaning where he lives) with someone of suitable age and discretion who also resides there. 

         1. Or you can serve an agent authorized by appointment or by law.

      2. For a business, served by serving an agent or officer of the corporation. 

   3. A federal court is allowed to follow state law methods when serving an individual or a business.

      1. Service on a minor or incompetent person may be made only here. 

   4. Service on Parties in a Foreign Country

      1. Method allowed by international agreement

         1. If none, options are:

            1. As directed by the American court; or

            2. Method allowed by the foreign country’s law; or

            3. Method directed by foreign official in response to a letter of request; or

            4. Personal service in the foreign country; or

            5. Mail sent by the clear of the American court, requiring signed receipt

   5. Geographic reach of service

      1. Within the state in which federal court sits

      2. Outside the state if law allows it 

   6. Exception: Immunity

      1. If D goes to State X to appear as a party, witness, or attorney in a different civil case in State X, D cannot be served with process for a civil case in State X.

4. What happens after service is made?

   1. If service was waived, P files the waiver with the Court.

      1. Process server files report with court

         1. If server is civilian, report is by affidavit

   2. If service wasn’t waived, the process server files a report with the court detailing how service was made. 

5. Service of Other Documents

   1. Can be done by delivering, mailing, or emailing

      1. Emailing: with party agreement

      2. Mailing: service complete when mailed

         1. 30 days + 3 days to respond

D’s response to P’s Complaint

D formally served with a summons and a complaint must respond either with a motion to dismiss or by filing an answer within 21 after service.

• D who waives formal service generally must respond within 60 days after the request was mailed to her by the P to answer.

Pre-Answer Motions

1. Motion for a more definite statement

   • Party may move for a more definite statement before responding (by filing an answer) to a pleading (like a complaint) that is so vague or ambiguous that a responsive pleading cannot reasonably be framed.

2. Motion to strike

   • Before responding to a pleading, a party also may move to have stricken any redundant, immaterial, impertinent, or scandalous matter.

Motion to Dismiss

Answer

Entry of Default

D’s response to P’s Complaint - Motion to Dismiss

1. Rule 12b defenses

   1. A defendant may raise the following Rule 12b defenses by motion or in the answer: 

      1. (1) lack of subject matter jurisdiction; 

      2. (2) lack of personal jurisdiction; 

      3. (3) improper venue; 

      4. (4) insufficient process; 

      5. (5) insufficient service of process; 

      6. (6) failure to state a claim upon which relief can be granted (in other words, even if plaintiff’s allegations are taken as true, relief could not be granted); or 

      7. (7) failure to join a needed party for a just adjudication.

   2. Certain defenses must be included or they are waived.

      1. The defendant will waive grounds (2) through (5) if he does not consolidate them into a Rule 12b motion or answer, whichever is filed first.

   3. If a Rule 12(b) motion to dismiss is made, then D’s responsive pleading (answer) is to be served within 14 days of the court’s denial of the motion.

2. Amendments to Complaint: P can amend complaint ONCE no later than 21 days after D serves her first Rule 12 response. 

   1. Amendment after the time has expired

      1. P must seek leave of court (or get written consent of the opposing party)

         1. Court will grant leave to amend if “just so requires”

            1. Factors: length of delay, prejudice to the other party, futility of amendment

      2. Variance: Evidence at trial doesn’t match what was pleaded

         1. If party does not object, the party introducing the evidence may move to amend complaint to conform to the evidence 

            1. Even after judgment

D’s response to P’s Complaint - Answer

1. Requirements

   1. Responses to the plaintiff’s allegations contained in the plaintiff’s complaint

      1. Admit

      2. Deny

         1. Failure to Deny is treated as an admission

            1. Except regarding the amount of damages

      3. Insufficient Knowledge 

         1. Can only use this if the answer to the allegation is actually out of their control

            1. Example: Extent of P’s injuries

   2. Any affirmative defenses (Any raised may be considered waived)

      1. P’s Claim is barred by:

         1. Statute of Limitations

         2. Statute of Frauds

         3. Res judicata

      2. D acted in self defense

      3. Defenses that can be made as motions can be pleaded as affirmative defenses

         1. Lack of personal jurisdiction

         2. Improper venue

         3. Something ‘s wrong with the process papers

         4. Service of process

         5. Failure to state a claim upon which relief can be granted

         6. Failure to join an indispensable party

         7. Court lacks subject matter jurisdiction

   3. Claim Joinder by D

      1. Counterclaim (Response to a Claim from P or Crossclaim from D)

         1. P must respond within 21 days of service. 

         2. SMJ still required.

         2. Must plead a compulsory counterclaim they have against the plaintiff

            1. Arises out of the same transaction or occurrence as the P’s claim

            2. Must be pleaded in the current action, or it is waived under the “compulsory counterclaim rule” 

               1. If you didn’t have to answer (because a motion to dismiss was granted), then it is not waived. 

         3. May plead any permissive counterclaim against the plaintiff 

            1. Doesn’t arise out of the same transaction or occurrence

      2. Cross-Claims (D v. D or P v. P.)

         1. May plead related cross-claims against other defendants

            1. Counterclaims always permissive

         2. See Impleader Motion Below

2. Amendments to Answer: D can amend answer ONCE no later than 21 days after serving it.

   1. D may include omitted Rule 12(b) waivable defenses in amendment

      1. Only works if the first response was an Answer not a Motion

   2. Amendment after the time has expired: D must seek leave of court (or get written consent of the opposing party)

      1. Court will grant leave to amend if “just so requires”

         1. Factors: length of delay, prejudice to the other party, futility of amendment

D’s response to P’s Complaint - Entry of Default

1. An entry of default judgement is made when the D does not oppose the case either by failing to plead or failing to otherwise defend. (21 days)

   1. 60 days if process was waived

   2. Entry of default cuts off Ds right to contest liability unless D has default set aside.

      1. However the entry of default does not entitle P to obtain the requested relief. After default, P must still obtain a judgment. D can still contest damages at default hearing.

      2. D can respond late until default on record.

2. P must move for entry of default. Clerk may enter default judgement when:

   1. The amount in dispute is for a sum certain; and

   2. The amount be asserted and proved in P’s affidavit; and

   3. The D has not appeared; and

      1. An appearance means any formal appearance or any action by the D indicating that he intends to contest on the merits. 

         1. Example: Filing a motion to dismiss the action based on some grounds.

         2. If D appears, notice must be given by first class mail at least 7 days before the hearing of the Ps request to enter a default judgment. (“Additional Notice”)

   4. D cannot be minor or incompetent. 

3. If any of the elements not met, P must apply to the court for the default judgement. 

   1. Recovery is limited to what was pleaded in complaint

4. Motion to set aside Default or Default Judgment

   1. D must show:

      1. Good cause (like excusable neglect) AND

      2. Viable defense 

Pre-trial Motions

1. Supplemental Pleadings

   • Set forth things that happened after the pleadings were filed

     • Different from amendment pleadings

2. Addition of Parties

   • Joinder (See above)

   • Counterclaim (See above)

   • Cross-Claim (See above)

   • Impleader

   • Intervention

   • Interpleader

3. Adjudication without a Trial

   • Temporary Restraining Order (TRO)

   • Preliminary Injunction (Discretionary)

   • Voluntary Dismissal

   • Entry of Default (see above)

   • Motion to Dismiss for Failure to state a Claim (12b6) (Motion for the Judgment on the Pleadings)

   • Summary Judgment (Discretionary)

Pre-trial Motions - Impleader

Addition of Parties

1. Where D under tort law wishes to seek indemnity or contribution against a third party, he may bring an impleader action subject to certain requirements.

   1. Indemnity → New party takes on all liability

   2. Contribution → New party takes on some liability 

2. Test for Impleader

   1. D may implead TPD only if TPD is or may be liable for all or part of D’s liability to P.

      1. SMJ is required. 

         1. Citizenship of parties only in the original claim matter. 

            • Example: P sues D, and D sues TPD.

      2. Personal Jurisdiction required.

         1. Unless served not more than 100 miles. 

      3. Supplemental jurisdiction will be available since a claim for indemnity arises from the same CNOF as the underlying claim.

         1. Restriction: A plaintiff may not use supplemental jurisdiction to support a claim against a third-party defendant when such use  would be inconsistent with the requirements of diversity jurisdiction.

            • Example: P sues D, and D sues TPD. TPD sues P. (This is okay.)

            • Example: P sues D, and D sues TPD. TPD sues P, and P sues TPD. (This is not okay.)

      4. The impleaded third party defendant may also assert defenses to P’s original claims as well as defenses to the TP liability asserted against him or her.

3. Impleader is permissive.

4. Process: 

   1. File a third party complaint and formally serve

   2. Right to implead within 14 days of serving the answer 

      1. After, court permission needed

Pre-trial Motions - Intervention

Addition of Parties

1. A non-party absentee can join the case, either as a P or as a D.

   1. Intervention of Right

      1. Absentee’s interest may be harmed and isn’t adequately represented

   2. Permissive Intervention

      1. Absentee’s claim or defense has at least one common issue of law or fact with the underlying case, then intervention is permissive. 

      2. Court’s discretion, and they will usually allow it unless it would cause delay or prejudice to someone. 

2. Subject Matter Jurisdiction

   1. Claim by intervenor P in a diversity case is a claim by P, so the limitation on supplemental jurisdiction may apply

Pre-trial Motions - Interpleader

Addition of Parties

1. Permits a person / stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it. 

   1. Rule 22 Interpleader

      1. Requires

         1. Complete diversity btw stakeholder and all adverse claimants and in excess of $75k OR 

         2. Federal Question Claim

      2. Normal service and venue rules apply. 

   2. Section 1335 Interpleader

      1. Requires

         1. Diversity only between any two contending claimants (the stakeholder counts) AND $500 to be in issue

      2. Service may be nationwide and the venue is proper where any claimant resides.

Pre-trial Motions - Temporary Restraining Order (TRO)

Adjudication without a Trial

1. To maintain status quo until the preliminary injunction hearing

   1. Applicant must post a bond

   2. If granted or denied, cannot be immediately appealed 

2. Contents of TRO

   1. Specifically describe in detail:

      1. What D must or must not do

      2. Why it was issued

      3. Why the threatened injury to P was irreparable

3. Can be issued ex parte (Court has done something without giving notice to the other party) only if:

   1. Applicant files under oath that she will suffer immediate and irreparable harm

   2. Applicant’s lawyer certifies her attempts to give oral or written notice to D or D’s lawyer

4. Length: No more than 14 days 

   1. Can be extended another 14 days if Applicant shows good cause

Pre-trial Motions - Preliminary Injunction

Adjudication without a Trial

Discretionary

1. Relief: Court order to do something or refrain from doing something

   1. If issued, Applicant must post a bond.

   2. Order can be appealed. 

2. Cannot be issued ex parte

3. Applicant must show: 

   1. Likely to suffer irreparable harm;

   2. Likely to win on the merits;

   3. Threatened harm to Applicant outweighs harm to the other party; and

   4. Public interest

4. Contents

   1. Specifically describe in detail:

      1. What D must or must not do

      2. Why it was issued

Pre-trial Motions - Voluntary Dismissal

Adjudication without a Trial

1. Without Court Approval

   1. Can be done before D serves an answer or motion for summary judgment

   2. Parties can also stipulate to voluntary dismissal

2. With Court Permission

   1. Required absent stipulation

   2. Without Prejudice

      1. First → without prejudice

      2. Second → with prejudice

Pre-trial Motions - Motion to Dismiss for Failure to state a Claim (12b6) (Motion for the Judgment on the Pleadings)

Adjudication without a Trial

1. Judge looks at P’s allegations of fact in the complaint: If these facts are true, do they state a plausible claim?

   1. Judge uses her experience and common sense 

2. Judge may allow amendments

Pre-trial Motions - Summary Judgment

Adjudication without a Trial

Discretionary

1. Used after the case has been filed and P has survived any Rule 12 motions.

   1. Weeds out cases in which no trial is necessary (no dispute of material fact)

2. Moving Party must show

   1. No genuine dispute on material fact AND

   2. Entitled to judgement as a matter of law

3. Matter Considered

   1. Evidence by Parties (under oath)

      1. Affidavits

      2. Declarations

      3. Deposition testimony

      4. Interrogatory answers

      5. What about pleadings?

         • Can be treated as evidence if it is made under oath (verified pleading)

         • Generally not under oath but might be relevant: if D failed to deny an allegation by P, it can be treated as a fact on summary judgment.

   2. Evidence viewed in light most favorable to the nonmoving party

      1. The judge cannot weigh the credibility of the witnesses or weigh the evidence.

      2. Authenticated videotape 

         1. Judge can ignore other sides evidence and grant summary judgment

   3. Court may delay ruling if the opposing party needs more time to find evidence

      1. Must file affidavit or declaration stating what that evidence would be

   4. If both parties can produce evidence to support his claim or defense during the motion for summary judgment, the court must deny the motion.

4. Timing: no later than 30 days after close of discovery

5. Judgment can be partial.

Discovery - Pretrial Conferences

1. Discovery Conference (Rule 26f)

   1. As soon as practicable and at least 21 days before the Rule 16(b) scheduling conference, the parties confer to consider their claims and defenses, the possibility of settlement, initial disclosures, any issues concerning the preservation of evidence, and a discovery plan. 

      1. Afterward, the parties will submit the discovery plan to the court (no later than 14 days)

         1. Discovery Plan

            1. Views and proposals on timing

            2. Issues about discovery of ESI

               1. How it will be produced

               2. Any problems retrieving it 

   2. Within 14 days → Initial Required Disclosures (Rule 26)

      1. Disclosure of certain types of information without a request being made:

         1. the names, addresses, and telephone numbers of people who likely have discoverable information that the disclosing party may use to support claims or defenses; 

         2. copies or a description of documents, electronic information, and things that are in the disclosing party’s control that the disclosing party may use to support claims or defenses; 

         3. the computation of damages claimed by the disclosing party and the supporting materials on which the computation is based; and 

         4. copies of insurance agreements under which an insurer might be liable for the injury

      2. Required disclosures cover information that supports the RESPONDING party’s case.

      3. Documents and tangible things not within the party’s control don't need to be disclosed. 

      4. Failure to Disclose

         1. Party can’t use the undisclosed material unless failure to disclose was substantially justified or harmless. 

2. Scheduling Conference (Rule 16b)

   1. The scheduling order will limit the time for joinder, motions, and discovery. 

      1. The order may also include dates for pretrial conferences, a trial date, and any other appropriate matters. 

   2. This schedule cannot be modified except by leave of court upon a showing of good cause.

3. Pretrial Conferences

   1. Final Pretrial Conference

      1. Determines the issues to be tried and evidence to proffered 

      2. Supersedes the pleadings

Discovery Tools

How do we get the info?

1. Depositions (present recollection)

   1. Out-of-court examination of a witness who is under oath and in the presence of a court reporter or recorded on video or sound equipment.

      1. Non-parties must be subpoenaed 

         1. Cannot be required to travel more than 100 miles from where they reside or are employed

   2. Can be used at trial:

      • impeach deponent

      • any purpose if deponent is an adverse party

      • any purpose if the deponent is unavailable for trial

   3. Subpoena duces tecum: requires deponent to bring requested materials with her to the deposition

   4. Deposition of an Organization: Describe the facts you want to uncover and organization will designate a proper person 

   5. Limitations (without court order or party stipulation):

      1. Can’t do more than 10 or depose same person twice 

      2. Can’t exceed one day of seven hours 

2. Interrogatories

   1. Written Questions to Another Party (not nonparties)

      1. Must be answered in writing, under oath within 30 days

         1. Party receiving the interrogatories will also conduct reasonable research or investigation

         2. If the burden of finding the answers would be about the same for either party, the responding party can allow the requesting party to have access to the records. 

      2. Maximum number: 25 including subpart

   2. Contention interrogatories (inquire about legal contentions) are permitted. 

3. Request for Admissions (not nonparties)

   1. Statements that the receiving party admits, denies, or objects to and states the reason for the objection

      1. A failure to deny a proper request is deemed an admission.

   2. Response within 30 days 

4. Request to Produce

   1. Ask to make available or to permit entry on designated property to inspect

      1. The party seeking items to be produced must specify what they wish to see with sufficient specificity that a person of ordinary intelligence would know what item is being requested.

   2. Only tool that can be served early (once 21 days has passed since service of process)

      1. Everything else has to wait until after 26f conference

   3. Response within 30 days 

5. Mental or Physical Examinations

   1. An examination is possible under the Federal Rules and probably in most, if not all, state courts

      1. Court order; health must be in controversy; “good cause” is required.

   2. Person undergoing the exam can get a copy of the report.

      1. If they get it, they must on request produce all medical reports by her own doctors of that condition.

         1. Also waver doctor-patient privilege about that condition.

6. Expert Witnesses

   1. Who

      1. Expert Final Report required. 

         1. What they will say, Basis for their opinions, Facts used to form the opinions, Expert’s qualifications, and What they are getting paid

   2. Consulting Experts (not intended to be called as an expert to testify)

      1. Facts and opinions generally not discoverable absent exceptional circumstances.

7. Supplementation of Discovery

   1. if she learns that the information disclosed was materially incomplete or incorrect and the new information has not been made known to the other party in discovery or in writing

8. Signature Requirement

   1. Every discovery request and response is signed by counsel certifying it is: warranted, not interposed for an improper purpose, and not unduly burdensome

Discovery: What info can we get?

1. A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case. 

   1. Protective Orders (ESI)

      1. D can move for PO or object to discovery of ESI

      2. Undue costs are considerations for ESI

      3. Court may allocate costs if P shows good cause to obtain despite costs

2. Protected Information 

   1. Have to be affirmatively claimed.

      1. When requested in discovery, attorney has to say it is privileged. Must prepare privilege log.

      2. If a party accidentally produces protected information, she should notify the other party promptly.

         • The other party must return, sequester, or destroy the material pending a decision.

   2. Confidential Attorney-Client Communications (Privilege)

   3. Work Product (Attorney or any other Representative of a Party)

      1. Prepared in anticipation of litigation

      2. Identity of witnesses not work product

      3. Party’s own statement is discoverable

      2. Two Types

         1. Opinion Work Product (Mental impressions, conclusions, or theories of a party) → Never subject to discovery

         2. Qualified Work Product → If a requesting party can show substantial need for the info AND undue hardship in getting the info some other way, then the court might order it to be turned over in discovery.

3. Rules of Engagement

   1. 3 Ways Courts get involved in discovery disputes

      1. Party seeks protective order

         1. Request subjects her to annoyance, embarrassment, under burden or expense

         2. Try in good faith to resolve the issue without court involvement. (meet and confer)

            1. If unsuccessful, move for a protective order from the court.

         3. Court can deny discovery; limit discovery; or permit discovery on specified terms

      2. Party responds, but not fully

         1. Move to compel to comply by court order

         2. Sanctions 2 step proves

            1. Requesting party moves for order compelling discovery 

            2. Opposing party fails to respond to court order

            3. Merits sanctions including contempt

            4. But no contempt for refusal of medical exam

      3. No response to discovery request

         1. Merits sanctions (+ attorney’s fees for motion)

   2. Merits Sanctions

      1. Establishment order

      2. Strike pleadings of the disobedient party

      3. Disallow evidence from the disobedient party

      4. Dismiss P’s case

         1. If bad faith shown

      5. Enter default judgement against D

         1. If bad faith shown

   3. Litigation Hold

      1. Litigation reasonably anticipated, parties must preserve discoverable information

      2. ESI lost because failure of reasonable steps to preserve it

         1. Court orders measures to cure harm

         2. For merit sanctions or adverse inference instruction, must show that the other side intentionally let it get destroyed so the other party wouldn’t get it

Right before trial

• Parties must give detailed lists of specific evidence parties will present at trial and identity of witnesses

• 30 days before trial

Bench Trial

In a civil trial, a judge (bench trial) or jury (jury trial) will weigh the evidence and decide the case.

Bench Trial

• Judge must record her findings of fact orally on the record or in writing

  • Along with conclusions of law (stated separately)

Jury Trial

In a civil trial, a judge (bench trial) or jury (jury trial) will weigh the evidence and decide the case.

1. Requesting a Jury Trial

   1. If the P seeks money damages, both the P and D have the right to a jury (7th amendment applies only in federal civil cases)

      1. Actions in equity only = bench trial

      2. Mixed Suits → If P seeks both equitable and at law relief

         1. Facts underlying damages tried first before jury

         2. Then facts relating only to equity claim are tried to judge

   2. In diversity suits, the federal court must permit a jury trial even if the state court would deny a jury.

   3. Must make a written demand and serve on all parties no later than 14 days after service of the last pleading showing jury triable issue (usually the answer)

      • Only two pleadings: complaint and answer

2. Motion in Limine

   1. Motion to decide whether the jury should hear certain evidence

3. The Jury

   1. Voir dire

      1. Challenges for Cause → Unlimited

         1. Knowing too much about the case or Biased

      2. Peremptory Challenges → Generally 3 per side

         1. Doesn’t require any reason 

            1. Exception: Must not be based on a person’s race or sex. 

   2. Jury must have at least six (but not more than 12) jurors and randomly chosen.

      1. Unless the parties agree otherwise

   3. Making a decision

      1. Judge instruct the jury, tells them about the law they need to use to decide the facts

         1. Judge typically holds an off the record conference to discuss proposed instructions

            • Objections must be made on the record (not just at the conference) or it is waived

      2. In federal court, a unanimous verdict is required. 

         1. Types of Verdicts

            1. General Verdict: Find for one party or the other, and give the relief due.

               1. Clerk enters the judgment based on the verdict.

            2. Special Verdict: Jury makes conclusions of fact.

               1. Then the court applies the law.

            3. General Verdict with Interrogatories

         2. Entering Judgment based on Special & General Verdict with interrogatories

            1. If answers consistent with each other and verdict → judge approves and clerk enters the judgment

            2. If answers consistent with each other but inconsistent with the verdict → court enter judgment consistent with the answers

            3. If answers inconsistent with each other and one or more is inconsistent with general verdict → no judgment may be entered 

   4. Jury Misconduct

      1. Verdict may be impeached (challenged) on basis of external matters

Motions During Trial and Post-Trial

1. Judgement as a matter of law (JMOL) (Directed Verdict)

   • Renewed Motion for Judgment as a Matter of Law (RJMOL) (Directed Verdict)

2. New Trial

3. Offer of Judgment

4. Relief from a Judgment or Order (Rule 60)

Motions During Trial and Post-Trial - JMOL and RJMOL

Judgement as a matter of law (JMOL) (Directed Verdict)

• Similar to Summary Judgement, only this motion is made at trial instead of before trial.

• Can only be granted after the other side has been heard at trial.

1. Request that judge direct a verdict for the moving party rather than give the case to the jury

   1. Standard: “Reasonable people could not disagree”

      1. View facts in favor of non-moving party

      2. If taking all facts presented as true, the non-moving party hasn’t presented enough evidence to possibly win their case.

      2. Judge can grant, deny, or reserve ruling on the motion until the D has presented their case. 

         1. Grant of a motion can be appealed but the other's cannot be.

         2. Bottom line: Deny a motion for directed verdict if there is any triable issue of fact for the jury

      3. JMOL motion doesn’t have to dispose of the entire case. 

   2. Timing: any time before case is submitted to the jury

      1. BUT court can’t grant the motion until the party opposing the motion has been heard at trial 

   3. High Burden

      1. P moves for Directed Verdict - almost always denied

      2. D moves for Directed Verdict - could be granted if P has not shown breach of duty (torts)

      3. Most cases on exam - motion should be denied

Renewed Motion for Judgment as a Matter of Law (RJMOL) (Directed Verdict)

1. After trial, after jury returns verdict

   1. Provided that he already moved for a judgment as a matter of law based on the same grounds (if not, then waived)

      1. Must be done with 28 days of entry of judgment 

2. Same Standard as JMOL

   1. If it’s granted, the Court enters judgment for the party that lost the jury verdict.

Motions During Trial and Post-Trial - New Trial

A party might have met the standard for RJMOL but waived it by not moving for JMOL at trial. Party can move for new trial on the grounds that the verdict is against the weight of the evidence.

1. Based on serious errors that occurred during the trial

   1. Serious Errors:

      1. Judge gave erroneous jury instructions

      2. New evidence that couldn’t have been discovered before (with due diligence)

      3. Misconduct by a jury, party, or lawyer

      4. Judgment is seriously in error (against the weight of the evidence)

      5. Damages are inadequate or excessive 

   2. Must be done with 28 days of entry of judgment  

2. To avoid a new trial, the court might suggest remittitur or additur. 

   1. Remittitur → Damage figure shocks the conscience

      1. P accept the lower amount of damages awarded, or we are going to a new trial.

      2. Allowed in state and lower court

   2. Additur → Damage figure shocks the conscience

      1. D add to the damages awarded, or we are going to a new trial. 

      2. NOT allowed in federal court 

3. In a diversity case, federal trial courts are required to apply a state law standard when considering a motion for a new trial based on the excessiveness of the verdict.

Motions During Trial and Post-Trial - Offer of Judgment

1. D can submit formal offers to settle up to 14 days before trial. 

2. Cost-shifting provision → if P rejects an offer to settle and doesn’t do as well at trial as the offer 

   • Liable for litigation costs that were incurred after that offer was made

Motions During Trial and Post-Trial - Relief from Judgment or Order (Rule 60)

1. Due to:

   1. Clerical error

      1. Timing: any time

   2. Mistake, inadvertence, surprise, or excusable neglect; 

      1. Timing: Reasonable time (never more than one year)

   3. Newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; 

      1. Timing: Reasonable time (never more than one year)

      2. Evidence must have existed at the time

   4. Fraud, misrepresentation, or other misconduct of an adverse party;

      1. Timing: Reasonable time (never more than one year)

   5. Judgment being void;  

      1. Timing: reasonably time (no maximum)

   6. the judgment being satisfied, released, or discharged; or a prior judgment on which it is based was reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or

   7. any other reason justifying relief from the operation of the judgment

Appeal

1. An appeal is a review of how the lower court applied the law, not the facts of the case. 

   1. Appellant → party who initiates the appeal

   2. Appellee → party who did not initiate the appeal

      • Appellee believes that a different legal error was made—one that adversely affected him—he may file a cross-appeal regarding that error.

2. Final Judgment Rule → The losing party may appeal if the court’s order determines the merits of the entire case. 

   1. Example: denial of a new trial 

   2. Examples of not final judgments

      1. Denial of summary judgment motion

      2. Granting of a new trial

3. Interlocutory Judgment: Non-Final

   1. Limited situations where it can be appealed:

      1. Orders regarding preliminary or permanent injunctions: As a matter of right

         1. TROs not included (because it is not an injunction and aren’t around for long - usually 14 days) UNLESS it is extended because it then becomes a preliminary injunction

      2. Interlocutory Appeals Act allows appeals of a non-final order if all the following apply: 

         1. Controlling issue of law (not fact)

         2. Substantial ground for difference of opinion

         3. At least 2 Court of Appeals judges agrees to hear it

      3. Collateral Order Rule

         1. Appellate Court has discretion to an appeal to an appeal if that issue:

            1. Distinct from the merits of the case;

            2. Involves an important legal question; AND

            3. Essentially unreviewable if parties have to wait a final judgment

               1. Tough to show

      4. Multiple Claims and Parties

         1. Judge wraps up case as to some claims or parties

            1. Not a final order if there are more claims or parties

         2. Court may direct entry of final judgment and expressly find no just reason to delay appeal

      5. Class Action

         1. Court of Appeals has discretion to review an order granting or denying certification of a class action

            1. Must be done within 14 days of order 

      6. Extraordinary Writ (Mandamus or Prohibition)

         1. Original proceeding in the court of appeals to compel the district judge to make or vacate a particular order 

         2. Only available if the district court is violating a clear legal duty

   2. When more than one claim is presented in a case or when there are multiple parties, the trial court can expressly enter a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay.

1. Appeal may be taken by filing a notice of appeal with the district court (not the appellate court) that made the judgment no later than 30 days of the judgment.

   1. Extended to 60 days when the United States is a party to the action

   2. It will make a decision solely on the record

      1. The history of the lawsuit which includes things like the complaint, pleadings, evidence, and testimony.

2. Standard of Review

   1. District Court decided an Issue of Law → De Novo

      1. Appeals court gives no deference to the district court’s findings

      2. Example: Includes when a judge gives a jury instruction that summarizes a question of law (“content”)

   2. District Court decided an Issue of Fact in a Bench Trial → Clearly Erroneous 

      1. Appeals Court will affirm unless the findings are clearly erroneous

   3. District Court decided an Issue of Fact in a Jury Trial → No Reasonable Jury

      1. Appeals Court will affirm unless no reasonable jury could have come to the finding

   4. Trial Judge has ruled on a Discretionary Matter → Abuse of Discretion

      1. Appeals Court will affirm unless the trial judge’s decision was an abuse of discretion.

      2. Examples:

         1. Whether to give certain jury instructions 

            1. If the objection is not made (and therefore not preserved for full appellate review), then the court's review is limited to considering whether there was a plain error in the instruction that affected substantial rights.

         2. Trial court's denial of a motion for new trial

3. Harmless Error

   1. No reversal required if the error is harmless, it did not affect the outcome of the case 

Effect of Judgements

Case 1 and Case 2

• Different Jurisdictions: Court in Case 2 applies the preclusion law of the judicial system that decided Case 1

  • Example: state vs federal or state vs state

Claim preclusion (aka res judicata) (always start with this)

• P may sue only once to vindicate a claim.

Issue preclusion (aka collateral estoppel)

• A final judgment on the merits binds the plaintiff or defendant in later lawsuits on different causes of action with regard to those issues that were actually litigated and essential to the judgment in the first action.

• So, not only can you not relitigate the same cause of action over again, you may not be able to relitigate an issue that has already been decided in another case.

Claim Preclusion

aka res judicata (always start with this)

1. P may sue only once to vindicate a claim.

   1. Where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment.

   2. Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment.

2. A claim merges or is barred if these three things are true

   1. Case 1 & Case 2 were brought by the same P against the same D.

      • If not, then consider if it can be dismissed based on a compulsory counterclaim rule.

   2. Case 1 & Case 2 assert the same claim.

      1. Majority View: Arising from the same transaction or occurrence  

      2. Minority View: Primary Rights Doctrine

         1. Separate claims for property damage and for personal injuries that arise in a single event 

   3. Case 1 ended in a valid final judgment on the merits.

      1. Final Judgement: see appeals sections

      2. Not a judgment on the merits: Judgment based on

         1. Lack of Personal Jurisdiction

         2. Lack of Subject Matter Jurisdiction

         3. Improper Venue

         4. Failure to join an indispensable party

      3. Every other judgment is on the merits unless the Court specifies that a particular judgment is without prejudice.

Issue Preclusion

aka collateral estoppel

1. A final judgment on the merits binds the plaintiff or defendant in later lawsuits on different causes of action with regard to those issues that were actually litigated and essential to the judgment in the first action. 

   1. So, not only can you not relitigate the same cause of action over again, you may not be able to relitigate an issue that has already been decided in another case.

2. 5 Requirements

   1. Case 1 ended in a valid final judgment on the merits.

      1. Final Judgement: see appeals sections

      2. Not a judgment on the merits: Judgment based on

         1. Lack of Personal Jurisdiction

         2. Lack of Subject Matter Jurisdiction

         3. Improper Venue

         4. Failure to join an indispensable party

      3. Every other judgment is on the merits unless the Court specifies that a particular judgment is without prejudice.

   2. The same issue was actually litigated and determined.

   3. The issue was essential to the judgment in Case 1.

   4. The person that issue preclusion is being used against was a party (or represented by one).

      • Example: class actions

   5. The person who’s using the issue preclusion is allowed to use it. 

      1. Same Parties

         1. All Courts → Issue preclusion can be used when the parties are the same (or represented by one)

            1. Unlike Claim Preclusion, the parties do not need to be in the same plaintiff-defendant configuration.

      2. Not the same parties

         1. Minority States → “strict mutuality of parties.”

            1. Meaning you have to have the same parties or you can’t preclude on the issues. 

         2. Majority States → If the non-party wanting to use issue preclusion is D in Case 2 and not a party in Case 1, the court considers fairness to the P being bound.

            1. Often fair to bind P. P had a full chance to litigate.

         3. Division within Courts → If the non-party wanting to use issue preclusion is P in Case 2 and not a party in Case 1, it depends on the court.

            1. Some only allow Ds, not Ps.

            2. Some strict mutuality of parties.

            3. If the court does allow it, they will examine fairness factors.

               1. Party to be bound had: Full and fair opportunity to litigate in Case 1 AND Strong motive to litigate in Case 1

               2. Proponent could’ve easily joined in Case 1