Federal Rules of Civil Procedure

FRCP 4(K)(1)(A)

(k) Territorial Limits of Effective Service.

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(A)    who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

FRCP 4(c)

Service.

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

FRCP 4(m)

Establishes a 90-day period after filing a complaint to serve a summons and complaint

(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

FRCP 12(a)

Defendant has 21 days to answer after the service of the summons and complaint (some states are different (20-45), but federal is 21 and we focus on federal)

FRCP 12(b)

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

§  (1) lack of subject-matter jurisdiction;

§  (2) lack of personal jurisdiction;

§  (3) improper venue;

§  (4) insufficient process;

§  (5) insufficient service of process;

§  (6) failure to state a claim upon which relief can be granted; and

§  (7) failure to join a party under Rule 19 .

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

28 USC 1331

Federal Question Jurisdiction - Under Art. III of the Constitution - federal courts may hear cases that arise under federal law (statutory law and constitutional law)

• Can be heard regardless of whether they arise in the plaintiff’s complaint or the defendant’s answer

• The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

28 USC 1332(a)

Diversity Jurisdiction - Provides for federal court jurisdiction over state law claims between parties who’s citizenship is from different states AND controversy exceeds $75,000 →

(a)The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—

(1)citizens of different States;

(2)citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;

(3)citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4)a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

-          Supreme Court added the word complete meaning there must be complete diversity

o   Complete diversity means (1332a requirement)

Ex: Mn v. Wis. & NY & Mass.

But not Mn v. Wis. & Mn.

Domicile Test = Physical Presence + Intent to Remain Indefinitely

28 USC 1367

Supplemental Jurisdiction - Permits state law claims that do not qualify for diversity jurisdiction to be heard in federal court if they are so closely related to the federal claims in the case that they are deemed to be part of the case or controversy

28 USC 1332(c)

State Citizenship Test for Corporations

(c) For the purposes of this section and section 1441 of this title—

(1) a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of—

·       (A) every State and foreign state of which the insured is a citizen;

·       (B) every State and foreign state by which the insurer has been incorporated; and

·       (C) the State or foreign state where the insurer has its principal place of business; and

(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.

• Third way for a corporation to be a citizen of a third state in PERSONAL JURISDICTION -> where they are essentially at home (basically like 90% of sales in one home, except don’t know exact number)

• For purposes of SUBJECT MATTER JURISDICTION (more precisely diversity jurisdiction) it is only incorporated and principal place of business

CORPORATE DOMICILE

Subject Matter Jurisdiction (diversity)	Personal (General) Jurisdiction
1.      State of Incorporation	1.State of Incorporation
2.      Principal Place of Business	2.Principal Place of Business
	3.      Essentially at Home (90%>)

28 USC 1441(a)

Removal of Civil Actions (Removal Jurisdiction)

(a)Generally. —

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

• EX: If the state court is Polk County, then you can only remove to the Southern District Federal Court in Iowa

TIMING - Must remove (from state to federal) within 30 days of a claim

• If defendant improperly removes, then the plaintiff has another 30 days to file a remand to kick the case back down to state court (Remove = Up to federal, Remand = down to state)

28 USC 1441(b)

(b)Removal Based on Diversity of Citizenship.— must be properly joined and served as defendants

(1)

In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.

(2) - Snap Removal Rule

A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 USC 1391(b)

(b)Venue in General.—A civil action may be brought in—

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

(2) a judicial district in which a substantial (means anything significant, not necessarily THE most important thing) 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; or

(3) (Fall back) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

28 USC 1391(c)

(c)Residency.—For all venue purposes—

(1) a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled.

(2) an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and

(3) a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.

28 USC 1404

Transfer from Proper to Proper Venue

(a)    For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.

(b)    Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.

(c)    A district court may order any civil action to be tried at any place within the division in which it is pending.

(d)    Transfers from a district court of the United States to the District Court of Guam, the District Court for the Northern Mariana Islands, or the District Court of the Virgin Islands shall not be permitted under this section. As otherwise used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.

28 USC 1406

Transfer from Improper to Proper Venue

(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.

(c) As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.

28 USC 1652

State Laws as Rules of Decision

The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

• Basically: Hey federal judge, if state law claims are heard by your court then you apply state law to them not federal

FRCP 3

Commencing an Action

(2) This rule governs the commencement of all actions, including those brought by or against the United States or an officer or agency thereof, regardless of whether service is to be made personally pursuant to Rule 4(d), or otherwise pursuant to Rule 4(e).

• A civil action is commenced by filing a complaint with the court

FRCP 8(a)

Plausible Claims

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

FRCP 9(b)

Heightened standard above plausibility for claims of fraud →

(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

FRCP 11

Representations to the Court

(a) Signature.—or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Under Rule 11:

1. Serve First

2. Wait 21 days to give chance to fix mistake without judge

3. Then file if you have heard nothing

FRCP 12(f)

Motion to Strike - Strike gratuitous or redundant material from record

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

FRCP 12(e)

Motion for a More Definite Statement - Write complaint better

(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

FRCP 8(b-d)

(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

              *Used when you don’t know the answer to a claim from a plaintiff as a defendant, and answer in admit/deny section

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: ← Meaning not a comprehensive list, and still must be plead if they are there

• accord and satisfaction;

• arbitration and award;

• assumption of risk;

• contributory negligence;

• duress;

• estoppel;

• failure of consideration;

• fraud;

• illegality;

• injury by fellow servant;

• laches;

• license;

• payment;

• release;

• res judicata;

• statute of frauds;

• statute of limitations; and

• waiver.

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.

(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

FRCP 15(a)

Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course no later than:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b) , (e) , or (f) , whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

FRCP 15(c)

Legalized Time Travel (Statute of limitations runs on OG complaint, but you have an amended one)

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

(2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.

*In plain language: If within 90 days under rule 4m of someone filing suit, the not named party heard of the lawsuit and realized they are who was intended to be sued, then when the original party figures out that the not named party is supposed to be named and they can show that the not named party was aware, then it can be switched

• Not very likely, but between two businesses is most common

FRCP 26(a)(1)

Required Initial Disclosures

o   A party must, without awaiting a discovery request, provide to the other parties:

• 1. Any insurance agreements that pertain to the case (defendant and plaintiff)

• 2. Plaintiff must produce to the defendant the evidence that supports how they computed their damages (Itemize)

• 3. Identify all the witnesses you might call in your support at trial

·       DON’T NEED TO INCLUDE WITNESSES YOU ABSOLUTELY WONT BRING BECAUSE THEY HURT YOU BUT

You can serve an interrogatory multiple times on the opposing party saying if there are any bad witnesses they have to provide them

Any new witnesses though you have to inform the other attorney, even after initial witness phase

• 4. Identify all documents, tangible or intangible evidence, that you might use at trial

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34 , any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:

(i) an action for review on an administrative record;

(ii) a forfeiture action in rem arising from a federal statute;

(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;

(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

(v) an action to enforce or quash an administrative summons or subpoena;

(vi) an action by the United States to recover benefit payments;

(vii) an action by the United States to collect on a student loan guaranteed by the United States;

(viii) a proceeding ancillary to a proceeding in another court; and

(ix) an action to enforce an arbitration award.

(C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.

(E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

FRCP 26(b)(1)

(b) Discovery Scope and Limits.

Plain Language:

1. Must be relevant to claim or defense

2. Must be non-privileged (meaning you are not entitled to communications covered by attorney-client privilege)

3. Must be proportional (Meaning if it is a $50,000 case, and it will cost $500,000 in discovery to respond, you can say that even though it is relevant it is disproportionate so discovery should be narrowed)

Meet and Confer Rule: If other side makes unreasonable requests, the rule expressly requires you to meet in a good faith effort to resolve the dispute before bringing a motion and bothering the judge.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

FRCP 26(b)(3)

(3) Trial Preparation: Materials

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative…But, subject to Rule 26(b)(4), those materials may be discovered if:

              (i) They are otherwise discoverable under Rule 26(b)(1); and

(ii) The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

(i) a written statement that the person has signed or otherwise adopted or approved; or

(ii) a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement.

FRCP 12(c)

(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

• Ex: Complaint for breach of contract, plaintiff sues defendant, and defendant says yes in their answer that they did it – A plaintiff can ask for judgment on the pleadings

FRCP 56(a)

Summary Judgment - Only permissible at the end of discovery

• Has the plaintiff, during discovery, produced sufficient evidence for a reasonable jury to rule in favor of the plaintiff by a preponderance of the evidence?

(a)   Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that (1) there is no genuine dispute as to any material fact and (2) the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

• Material fact = fact that could bear on the outcome of the case

FRCP 68

In advance of trial, defendant’s will sometimes make an offer of judgment

• This is where a defendant offers a plaintiff money or remedies and defendant accepts judgment against them

68(a) At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment

(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

• Basically, pays the attorney fees from the point of the offer turned down to the verdict

• Used to weed out cases before trial

FRCP 47

Jury Selection

(a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.

(b) Peremptory Challenges. The court must allow the number of peremptory challenges provided by 28 U.S.C. §1870 .

(c) Excusing a Juror. During trial or deliberation, the court may excuse a juror for good cause.

-          Basically look for potential bias

-          Can’t strike a juror for race or gender

FRCP 48

Number of Jurors

(a) Number of Jurors. A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule 47(c) .

(b) Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.

(c) Polling. After a verdict is returned but before the jury is discharged, the court must on a party's request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to, the court may direct the jury to deliberate further or may order a new trial.

FRCP 49(a)

Special Verdict (Specific explanation from Jury to why liable)

(a) Special Verdict.

(1) In General. The court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact. The court may do so by:

(A) submitting written questions susceptible of a categorical or other brief answer;

(B) submitting written forms of the special findings that might properly be made under the pleadings and evidence; or

(C) using any other method that the court considers appropriate.

(2) Instructions. The court must give the instructions and explanations necessary to enable the jury to make its findings on each submitted issue.

(3) Issues Not Submitted. A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its judgment on the special verdict.

ISSUE PRECLUSION - Determines special or general verdict

FRCP 49(b)

General Verdict (Normal, what you see in movies)

(b) General Verdict with Answers to Written Questions.

(1) In General. The court may submit to the jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide. The court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and must direct the jury to do both.

(2) Verdict and Answers Consistent. When the general verdict and the answers are consistent, the court must approve, for entry under Rule 58 , an appropriate judgment on the verdict and answers.

(3) Answers Inconsistent with the Verdict. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may:

(A) approve, for entry under Rule 58 , an appropriate judgment according to the answers, notwithstanding the general verdict;

(B) direct the jury to further consider its answers and verdict; or

(C) order a new trial.

ISSUE PRECLUSION - Determines special or general verdict

FRCP 50(a-b)

(a) Judgment as a Matter of Law - DIRECTED VERDICT BEFORE JURY DELIBERATES

• Applies the SAME legal standard as summary judgment

• Must present enough evidence for a reaosnable jury to come to a conclusion to find for the plaintiff

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.

 

(a)   Renewing [MH1] the Motion After Trial; Alternative Motion for a New Trial. – Judgment notwithstanding the verdict JNOV

If the court does not grant a motion for judgment as a matter of law made under Rule 50(a) , the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59 . In ruling on the renewed motion, the court may:

(1) allow judgment on the verdict, if the jury returned a verdict;

(2) order a new trial; or

(3) direct the entry of judgment as a matter of law.

- Much more likely to succeed with 50b motion than 50a because there has been a verdict, while 50a is before the jury deliberates

• 50(b) motion can only be brought if a 50(a) motion was brought AND you have to use the same motion, you can’t add anything

• JMOL is brought in middle of trial, while summary judgment is at end of discovery, even though they have same effect

• JMOL is also witness’s testifying, while summary judgment is briefs, papers, evidence, etc. to find genuine issue of material fact

FRCP 59

Motion for New Trial (Do-over rule)

(a)   In general,

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

           

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.

 

Rule 59 motions allow judges to weigh credibility of witnesses and new witnesses, and see if a party has a chance to win at trial but this trial was fatally flawed

• Measure less dramatic than a JMOL

• A judge here doesn’t pick who wins and loses, but a do-over

• In general they want to see rule 59 motions paired with rule 50 motions (JMOL or JNOV)

Bring rule 59 motion WITH 50(b) motion

• Gives a judge a less severe remedy than just 50(b) where the judge is deciding the case

  • Mostly when a judge allows or doesn’t allow evidence and messed up

FRCP 18(a)

JOINDER (Two step process to add claims and parties)

1. Rule must permit it

2. Requirements of Subject Matter Jurisdiction must be met

(a)   In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

• Independent or alternative claims = unrelated claims

  • Single plaintiff to single defendant may add all claims related or not related

FRCP 20(a)

Multiple Plaintiffs want to JOIN together to sue somebody

(a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action.

(2) Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if:

(A) (same test as plaintiffs) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

(3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.

FRCP 21

Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.

FRCP 13(a)

Compulsory Counterclaims

A claim that arises from the same transaction or occurrence as one of the plaintiff’s claims against the defendant

• To determine same transaction or occurrence: Look at whether or not the counterclaim is related to the plaintiff’s claim(s)

• Whether the defendant’s counterclaim has a common nucleus of operative fact with one or more of the plaintiff’s claims

COMPULSORY COUNTER CLAIMS ARE USE THEM OR LOSE THEM

(a) Compulsory Counterclaim.

(1) In General. A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and

(B) does not require adding another party over whom the court cannot acquire jurisdiction.

(2) Exceptions. The pleader need not state the claim if:

(A) when the action was commenced, the claim was the subject of another pending action; or

(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

FRCP 13(b)

Permissive Counterclaims

A claim that does not arise from the same transaction or occurrence as one of the plaintiff’s claims against the defendant

• A permissive counterclaim is unrelated to the plaintiff’s claim(s)

• Does NOT arise from a common nucleus of operative fact with one or more of the plaintiff’s claims

Permissive counterclaims are NOT use them or lose them

• They can just be regular claims later

(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

FRCP 14

IMPLEADER - Derivative liability (decided by Defendant)

Defense can bring in a third-party that they think are at fault and sue them

• Ex: Gaughan v. Tony and Tony v. Lucas and Lucas v. Zach

• Then Gaughan can sue Tony, Lucas, and Zach through derivative liability

• PLUS any of these defendants can then serve counterclaims upon Gaughan as the plaintiff together

(2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint—the “third-party defendant”:

(A) must assert any defense against the third-party plaintiff's claim under Rule 12 ;

(B) must assert any counterclaim against the third-party plaintiff under Rule 13a , and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g) ;

(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and

(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

RESTRICTION ON IMPLEADER:

• Does not apply to Mistake of Identity Defenses

  • Gaughan says he bought the product from Tony, when Tony says Seth sold the product, can’t bring Seth in

• Essence of Impleader: If I am liable, you are liable too, that is why I am bringing you in

• Indemnification: When the original defendant is entitled to 100% recovery from the impleaded defendant(s)

• Contribution: When the original defendant is entitled to a percentage reimbursement of what they paid out

FRCP 13(g)

Crossclaim Against a Coparty.

A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

FRCP 19

Required Joiner of Parties (RARE) - Only in Torrington Co. v. Yost

(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

(2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.

(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.

FRCP 24

Intervention

Applies when a party is not sued by a plaintiff and isn’t brought into a case through impleader, but the party wants to be a part of the litigation

• EX: Environmental groups often bring action against government agencies that they aren’t applying laws properly

• This ticks off regulated, private industries who don’t want things to be more expensive

• The problem is the industry doesn’t get sued, the government is sued, so the industry is sitting on the sideline not a part of a dispute that heavily affects them

Allowed to intervene if two things are true

1. Legal rights or obligations could be changed depending on the outcome of the case and you aren’t in the case

2. Also have to show that no current party in the litigation will adequately represent your interests

Don’t get to automatically intervene, have to prove legal rights can be affected, not just that you are being affected

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

(b) Permissive Intervention.

(1) In General. On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.

(2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on:

(A) a statute or executive order administered by the officer or agency; or

(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.

(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

(c) Notice and Pleading Required. A motion to intervene must be served on the parties as provided in Rule 5 . The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.

Preclusion

Once a case goes final, it will not be revisited in later cases (final judgment = appeals are over, otherwise known as FINALITY, meaning right or wrong it is essentially the law)

Types of Preclusion

1. Claim preclusion (res Judicata): Covers all related claims

   1. IF G gets in his vehicle right after class, pulls out driving the speed limit and is driven off the road by T. G sues T for the value of his car and wins. Tries to sue a second time for a broken arm. T can bring a motion for summary judgment because all related claims were not brought in the first suit so it can’t be brought.

      1. If you bring one claim but forget two, you claim precluded those two and they can’t be brought back

      2. Any claims can be brought so long as they come from a common nucleus of operative face

   2. Claim Preclusion Test (LOOK AT PG. 1220-1221)

      1. Three elements must be satisfied before a court will give claim preclusive effect to an earlier judgment:

         1. The claim must be the same as the claim that was litigated in a previous case

         2. The previous case must have resulted in a valid, final judgment on the merits

         3. The parties who litigated the previous claim must typically be the same parties who are litigating the current claim, and they must be in the same configuration (the claimant in the second case is the same as the claimant in the first)

2. ISSUE PRECLUSION - only applies to specific issues in the case

   1. Not claims, but if a particular issue was decided after being fully litigated in a prior case, then the losing party is barred from relitigating the issue

Must establish that:

1. The issue is the same issue that was decided in lawsuit #1

2. The issue was actually litigated in lawsuit #1

3. The decision in lawsuit #1 was a valid final judgment or “final enough”

4. The issue was necessarily decided in lawsuit #1

5. The party against whom preclusion is invokes was a party to, or in privity with a party to, lawsuit $1

6. That party had a full and fair opportunity  to litigate

FRCP 23

Class Actions

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

-          (1) the class is so numerous that joinder of all members is impracticable;

-          (2) there are questions of law or fact common to the class;

-          (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

-          (4) the representative parties will fairly and adequately protect the interests of the class.

THESE ARE THE FOUR CORE REQUIREMENTS

 

Two features of class actions

-          1. Huge #’s of plaintiffs

-          2. Very small individual damages

Certification – of the class – meaning if a class is not certified, then the class action ends

-          Have to determine if people in the class are similarly situated to meet the certification requirements

o   Position where they all have basically the same damage claims

 

Types of Class Actions

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

 

Basically:

1.Better to combine because not doing so would be inconsistent, don’t just want the people that win the race to the court house get paid

2.Injunctive relief class – not asking for damages but to stop defendant from doing something (Floyd case) – makes sense to consolidate class actions to get global disputes

3.Opt-out class – meaning they’ve alerted people (like in post cards) they are a part of a class action or may be, and if you don’t opt out then you waive claim preclusion (MOST COMMON) – there are sufficient assets, but the sames are sufficiently similar that most people have them like consumers were charged $20 more, so class action suit are designed to promote public interest by holding tortfeasors accountable by allowing actions with people who have sufficient and similar claims, even if smaller, to deter and incentivize lawyers to take these cases

• Opt-out class: Can opt out if you think they did more to harm you and you don’t want to be included so you can sue later for your own harms. If you don’t opt out you can’t sue later

 

Finally – defendant corporations do not like state court class actions, they prefer federal

-          Plaintiff’s therefore try to sue in a way that destroys total diversity so they can’t remove to federal court

-          Then Class Action Fairness Act of 2005

o   28 USC 1332(d)(2) – removal to federal court

Appellate Standards of Review

1. De Novo Standard of Review (Questions of Law)

   1. No deference to trial courts (Party appealing has a very low chance of winning)

2. Clearly Erroneous Standard of Review (Questions of Fact)

   1. High deference to trial courts (Party appealing has as good a shot of prevailing as other side)

3. Abuse of Discretion Standard of Review (Case Management Decision)