CIV PRO MBE

JURISDICTION & VENUE

SUBJECT MATTER JURISDICTION

• Diversity of Citizenship.

• Federal Question.

Amount in Controversy:

• Must be in excess of $75K.

• Court must have “legal certainty.”

Adding Claims:

• Plaintiff can ADD claims if one exceeds $75K.

• Single Plaintiff can ADD claims against Single Defendant to reach $75K.

Multiple Plaintiffs:

• If Single Plaintiff meets $75K then other plaintiffs can join.

• Cannot join if no Single Claim exceeds $75K.

Class Action:

• One named member must meet $75K.

Diversity Jurisdiction:

• Case exceeds $75K.

• Complete Diversity of Citizenship.

  • Diversity of Citizenship: No plaintiff may be a citizen of the same state as any defendant.

Citizenship – Domicile:

• Present location & Intent to stay.

Foreign Citizens:

• US Citizen + Foreign Citizen = Diversity.

• Two Foreign Citizens = NO Diversity.

Corporation – Domicile:

• State of incorporation AND

• Principal place of business.

Joining Parties:

• CANNOT join a party just to obtain Diversity.

Federal Question:

• Plaintiff’s claim must be based on federal law.

Well-Pleaded Complaint Rule:

• Federal issue must be obvious.

  • AdaptiTip: Federal Issue as a defense is NOT a federal question.

Federal Question Cases:

• Admiralty.

• Maritime.

• Intellectual Property.

SUPPLEMENTAL JURISDICTION

• May add claims without subject-matter jurisdiction if they arise from a “common nucleus of facts.”

Diversity Cases:

• New party cannot destroy diversity of citizenship.

Supplemental Jurisdiction – Allowed:

• Compulsory Counterclaim.

• Joinder in Compulsory Counterclaim.

• Cross-claim.

• Impleader of 3rd Party Defendants.

Supplemental Jurisdiction – NOT Allowed:

• Original Plaintiff vs. 3rd Party Defendant.

• Compulsory Joinder.

• Joinder of Defendants.

• Intervention.

  • AdaptiTip:

    • If defendant is trying to add, generally ok.

    • If the plaintiff is trying to add, generally not ok.

Supplemental Jurisdiction & Discretion:

• Court has DISCRETION to apply Supplemental Jurisdiction.

PERSONAL JURISDICTION

• In personem.

• Ability to bring the individual into court.

General Rules:

• Present/Personally Served.

• Domiciled.

• Consent.

  • AdaptiTip: If you are in the state for a different proceeding or because of fraud, the court will not be able to get personal jurisdiction.

Long-Arm Statute:

• Gives courts the power to reach out-of-state persons.

Minimum Contacts Standard:

• Suit does not offend traditional notions of Fair Play & Justice.

• Defendant could Reasonably Anticipate litigation.

Minimum Contacts – Corporations:

• Purposeful Availment.

• Systematic & Continuous Activities.

IN REM JURISDICTION

• Jurisdiction over an object/property.

QUASI IN REM JURISDICTION

• Going after property to satisfy a judgment against an individual.

SERVICE OF PROCESS

• Only in the state where district court sits OR

• Anywhere allowed by long-arm statute.

100 Mile Bulge Rule:

• Out-of-state service allowed within 100-mile radius.

• Only for out-of-state 3rd party defendants/indispensable parties.

Service of Process & Notice:

• Method must give adequate NOTICE.

Proper Ways to Serve Process:

• Personal Service by non-party over 18.

• At Home with person of suitable age.

• First Class Mail.

• Authorized Agent.

• State Law Methods.

  • AdaptiTip: Remember, don’t get stung by A WASP:

    • A – Abode.

    • W – Waiver.

    • A – Agent.

    • S – State method.

    • P – Personal service.

Out-of-State Service of Process:

• Mail.

• Newspaper if no other reasonable way.

Service of Process – Corporations:

• Officer or Designated Agent.

• Anyone of sufficiently high placement.

REMOVAL

• When a State Court case could have originally been brought in Federal Court.

  • AdaptiTip: Removal is not allowed for state agencies.

Who Can Remove:

• Only DEFENDANT may remove.

• ALL defendants must agree.

Removal – Timing:

• Filed within 30 DAYS of service of Complaint.

Diversity Cases:

• Case cannot be removed more than 1 year after start.

• Defendant cannot remove if he is a citizen of forum state.

Multiple Claims:

• If one claim is removable, then the entire case can be removed.

REMAND

• Plaintiff wants to bring case back to State Court after improper Removal.

Remand – Timing:

• Within 30 DAYS of filing of Notice of Removal.

• Defendant has burden to show Removal was proper.

VENUE

• The proper Federal District Court for the case.

Proper Venue:

• Where any defendant resides, if all defendants reside in same state.

• Where substantial part of events took place.

• ONLY IF 1 & 2 DON’T APPLY:

  • Where there is Personal Jurisdiction over defendant.

Venue – Corporations:

• Principal place of business.

• Any district in state of incorporation.

  • AdaptiTip: Venue is based on where DEFENDANT resides.

Transfer of Venue – Proper Venue:

• Court may TRANSFER to another district.

• For the convenience of parties & interest of justice.

• Law of original venue will apply.

Transfer of Venue – Improper Venue:

• Judge must dismiss OR transfer in the interest of justice.

• Transfer to any district where the case could have originally been brought.

Transfer by Consent:

• Both parties must consent.

Dismissal for Improper Venue:

• If the more convenient forum is a foreign country.

PRE-TRIAL PROCEDURES

PLEADINGS, ANSWERS, & COMPLAINTS

Complaint:

• Filing of Complaint commences Statute of Limitations.

• Service of the Complaint within 90 days.

Elements of the Complaint:

• Statement of Jurisdiction.

• Statement of Facts (not theory).

• Demand for Relief.

Specific Complaint:

• Fraud & Special Damages.

Answer:

• Signed by lawyer.

• Whatever is not denied is admitted.

• Served within 21 days of service of Complaint.

Affirmative Defenses – Pled in Answer:

• Contributory Negligence.

• Statute of Frauds.

• Statute of Limitations.

• Illegality.

• Duress.

AMENDMENT

Amendment as of Right:

• Once within 21 days of service of pleading.

After 21 Days:

• Need Court’s permission.

• “When justice so requires.”

Relation Back:

• “Arose out of the same conduct, transaction, or occurrence.”

Relation Back (for PARTIES):

• Same conduct, transaction, or occurrence.

• Within 90 days of filing the party had notice.

• Knew/should have known but for mistake of ID.

RULE 11

• Attorney signs to best of “knowledge, information, and belief” there is a basis for the claim.

• Key Words:

  • Warranted by existing law.

  • Evidentiary support .

  • No improper purpose.

ADDING OR CHANGING PARTIES & CLAIMS

Counterclaim:

• Defendant raises a claim back at the plaintiff.

Compulsory Counterclaim:

• Same transaction or occurrence.

• Supplemental jurisdiction.

Permissive Counterclaim:

• NOT same transaction or occurrence.

• Needs independent jurisdiction.

Permissive Joinder:

• Single transaction or occurrence.

• Common questions of law/fact.

Compulsory Joinder:

• Party needs to be joined or unfair.

• Necessary Party = Impair Interest.

  • If cannot join due to jurisdiction – Case may STILL PROCEED

• Indispensable Party = Prejudice.

  • If cannot join due to jurisdiction – Case must be DISMISSED

Class Certification:

• Size.

• Common Question.

• Typical.

• Representation/Conflict.

Types of Class Actions:

• B1 = Impairment of Interests.

• B2 = Injunctive Relief.

• B3 = Common Question (the superior method).

Opting Out:

• B1 & B2 = Members MAY NOT OPT OUT.

• vs.

• • B3 = Member MAY OPT OUT.

Notice & Class Actions:

• B1 & B2 = Notice NOT required, in discretion of Court.

• vs.

• B3 = Notice to ALL members.

Diversity in Class Actions:

• Citizenship of the named representatives.

• One member must meet $75K+ OR the sum of claims is $5 million.

Appealability of Class Actions:

• If Certification of Class is denied – May be appealed.

Intervention as of Right:

• Interest in property/transaction.

• Interest is impaired.

• NO Court permission required.

Permissive Intervention:

• Claim/defense has common question of law/fact.

• Court permission IS required.

Interpleader:

• 1 party owes something to 2 or more people.

Statutory Interpleader:

• Nationwide Service.

• ANY 2 claimants can be diverse.

• $500 or more at stake.

• Deposit money/property in Court/bond.

Rule Interpleader:

• NO Nationwide Service.

• Complete Diversity between claimant & ALL opponents.

• $75K+ requirement.

• NOT required to deposit money.

Impleader:

• Adding a 3rd party defendant who owes part or all of claim.

Cross Claim:

• Co-party.

• Same transaction or occurrence.

• Actual damage.

DISCOVERY

Discoverable:

• Not privileged.

• Relevant.

• “Proportional to needs of the case.”

Work Product:

• Generally immune from discovery.

• Documents prepared in anticipation of trial.

Work Product – Discoverable:

• Substantial need.

• Cannot obtain without UNDUE HARDSHIP.

Absolute Immunity:

• Mental impressions.

• Conclusions.

• Legal opinions/theories.

EXPERT – Testifying:

• MUST provide ID.

• Expert must prepare report.

EXPERT – NOT Testifying:

• Discoverable only in “EXCEPTIONAL CIRCUMSTANCES.”

Duty to Supplement:

• Duty to supplement incomplete or wrong information.

• Must be done in a timely manner.

Depositions:

• Party or non-party.

• Written or oral.

• Non-party by subpoena.

• Limit = 10.

  • AdaptiTip: You cannot depose the same person more than once without the court’s permission.

Interrogatories:

• Only to a PARTY.

• Written/Answered in writing.

• Limit = 25.

Request to Admit:

• Written request.

• Conclusively established.

Request to Produce:

• Documents in the other side’s possession, control, custody.

Physical/Mental Exam:

• Must be at issue.

• Court Order.

• Good Cause.

Object to a Request:

• Information not relevant.

Protective Order:

• Stop Discovery for embarrassment, harassment, undue burden.

Order to Compel:

• Party not complying with Discovery.

  • AdaptiTip: Court may order sanctions if one party has acted unreasonably. Start with minimal sanctions of fees/costs and work up to larger sanctions.

Admissibility at Trial:

• Discoverable information is admissible at trial.

PARTY CONFERENCES

Conference of Parties:

• Court MUST have conference.

• Parties MUST submit Discovery plan.

Scheduling Conference:

• Court MUST have conference to limit time.

• Must issue SCHEDULING ORDER within 90 days of filing complaint.

• CANNOT be modified unless “Good Cause.”

Final Pretrial Conference:

• Court MAY hold conference.

• IF there is a conference, Court MUST issue Pretrial Order.

• ONLY modified to prevent “Manifest Injustice.”

TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION

Temporary Restraining Order:

• No notice.

• IMMEDIATE IRREPARABLE HARM.

• Expires in no more than 14 days.

Preliminary Injunction:

• Notice & Hearing required.

• IRREPARABLE HARM.

JURY TRIALS

RIGHT TO JURY TRIAL

7th Amendment:

• At least 6 jurors unless stipulated.

• Unanimous verdict unless stipulated.

Demand for a Jury:

• Made within 14 days after service of the last pleading.

Action in Equity:

• No right for actions based in equity (injunction, etc.)

Law & Equity:

• Legal issue is tried by jury first.

• Equitable claim is settled by judge.

Withdrawing a Demand:

• Demand may be withdrawn IF all parties consent.

State Trials:

• No right to a jury in State trials.

• Number of jurors varies by State.

• Verdict does NOT need to be unanimous.

Judge’s Role - No Jury:

• Acts as Finder of Fact.

• States Findings & Conclusions.

• Mini-trial to dispose of the case.

JURY SELECTION

• 2 ways to dismiss a juror.

Dismiss For Cause:

• Juror shows any bias/connection to case.

• No limit.

Peremptory Challenge:

• Dismissal for any reason.

• Each party has 3.

• CANNOT dismiss for race/gender.

Balanced Pool of Jurors:

• Jury pool must be representative of overall community.

DELIBERATIONS

Jury Instructions:

• Must object before jury retires.

• Or waived for appeal.

Jury Deliberation:

• Allowed: Papers, Exhibits, & Notes.

• NOT Allowed: Anything not in evidence.

Juror Conduct:

• Cannot conduct experiments or studies outside jury room.

• Cannot talk to non-jurors about trial.

• Misconduct/Possible New Trial.

Prejudicial Information:

• New trial can be ordered for outside prejudicial information.

• Verdict will NOT be set aside for inside juror prejudice.

New Trial for Post-Trial Bias:

• Juror failed to honestly answer a material question.

• A correct answer would have led to a valid challenge.

MOTIONS

12(b) Motion:

• Defendant is attacking the complaint.

Lack of Subject Matter Jurisdiction:

• Can be raised ANYTIME.

Waived if not included in Answer/12(b):

• Lack of Personal Jurisdiction.

  • Improper Venue.

  • Insufficient Service of Process.

Failure to Join a Party:

• May be raised before or at trial.

Failure to State a Claim:

• Even if the facts are true, there is no recovery.

• Insufficient facts.

• Dismissal with prejudice.

• May be raised before or at trial.

Motion to Strike:

• Before responding to a pleading.

• Within 21 days of service.

• For redundant, immaterial, or scandalous material.

Motion for a More Definitive Statement:

• Before responding to a pleading.

• Pleading is vague or ambiguous.

Motion for Summary Judgment:

• No genuine dispute of material fact.

• Filed until 30 days after discovery close.

• Denial not appealable.

• Burden on moving party.

• Partial judgment allowed.

Affidavits:

• Must be based on personal knowledge.

Judgment as a Matter of Law – Directed Verdict:

• Raised by defendant after plaintiff’s case.

• Raised by either party at the close of evidence.

JMOL Standard:

• A reasonable jury would not have a legally sufficient evidentiary basis to find for non- moving party.

• Evidence viewed in light most favorable to non-moving party.

Renewed Motion for Judgment as a Matter of Law:

• Must have filed a prior JMOL.

• Filed within 28 days after verdict.

• Judge may overturn verdict.

Motion for Relief from Judgment:

• Clerical error, oversight, or mistake.

• Fraud or misconduct by the other party.

Motion for a New Trial:

• Error would have caused different outcome.

• Judge erroneously admitted or excluded evidence.

• Improper conduct by party, witness, lawyer, or jury.

• Verdict is against clear weight of the evidence.

Remittitur:

• New trial for excessive damages.

• Unless the party agrees to reduction of award Additur.

• No Additur in Federal Court.

Newly Discovered Evidence:

• Evidence was discovered after trial.

• Party was reasonably diligent in searching before/during trial.

• Evidence was material.

JUDGMENTS

Default Judgment:

• One party fails to plead or defend.

• Court enters default judgment

Voluntary Dismissal:

• Plaintiff voluntarily dismisses.

• Before Answer/Summary Judgment.

• First time without prejudice.

Involuntary Dismissal:

• COURT dismisses the case.

Involuntary Dismissal – Usually with Prejudice:

• Failure to State a Claim.

• Failure to Obey Court Order.

• Failure to Prosecute.

Involuntary Dismissal – Without Prejudice:

• Lack of Jurisdiction.

• Venue.

• Failure to Join Indispensable Party.

JUDICIAL BIAS

Challenge for Cause:

• The appearance of bias.

• Parties can waive.

Grounds for Recusal:

• Judge MUST recuse himself and parties CANNOT waive if:

  • Personal knowledge of facts.

  • Acted as lawyer with one of the other lawyers.

  • Expressed an opinion on merits while in government employment.

  • Financial interest in subject matter/party.

  • Violates Due Process Rights.

CLAIM & ISSUE PRECLUSION

Res Judicata/Claim Preclusion:

• Same parties or privity.

• Same transaction or occurrence.

• Judgment on the merits.

Res Judicata – Merger:

• Plaintiff wins case.

• Claim merges into judgment.

• Cannot sue on same cause of action.

Res Judicata – Bar:

• Plaintiff loses case.

• Barred from suing on same cause of action.

Claim Splitting:

• Plaintiff cannot SPLIT a claim.

Res Judicata does not apply to:

• Dismissal for lack of jurisdiction.

  • Dismissal for improper venue.

  • Settlement (unless after settlement, case is dismissed with prejudice.)

Change of Law:

• Once there is a final judgment, you cannot bring suit again.

Privity:

• Legal or special relationship.

• Res Judicata applies.

Collateral Estoppel/Issue Preclusion:

• Same issue.

• Final judgment.

• Issue necessary to judgment.

Collateral Estoppel does not apply:

• Settlement.

• Default Judgment.

Necessary to Judgment:

• Party preclusion is asserted against must have had full & fair opportunity to litigate.

• Collateral Estoppel typically has THREE people.

• Defendant CANNOT use Collateral Estoppel to prevent NEW plaintiff from bringing suit

Defensive Use of Collateral Estoppel:

• Same Plaintiff, New Defendant.

• New Defendant can use Collateral Estoppel as defense.

Offensive Use of Collateral Estoppel:

• New Plai,///

• ntiff, Same Defendant.

• New Plaintiff cannot use Collateral Estoppel against Same Defendant.

Applicable Preclusion Rule – Diversity Cases:

• First case in Federal Court, apply federal preclusion rule.

• First case in State Court, apply the first jurisdiction’s preclusion rule.

FULL FAITH & CREDIT

• One state must respect the other’s judgments.

APPEALABILITY AND REVIEW & LAW APPLIED BY FEDERAL COURTS (ERIE)

APPEALS

Notice of Appeal:

• Filed within 30 days of judgment

Grounds for Appeal:

• Objections made at trial.

• Must state grounds.

• Waived if not preserved.

Appellate Court:

• Generally, reviews issues of LAW.

• Deference to trial court for FACTS.

Appealing Errors:

• Outcome would have been DIFFERENT.

• No appeal if error was HARMLESS.

Final Judgments:

• Only FINAL JUDGMENTS may be appealed.

Interlocutory Order:

• Order given before final judgment.

• Generally, NOT appealable.

Collateral Order Exception:

• Conclusively determines disputed question.

• Resolves important issue separate from merits.

• Delay would cause irreparable damage.

ERIE DOCTRINE

• Choice of Law.

• Applies to DIVERSITY cases.

Federal vs. State Law:

• Apply State Substantive Law.

• Apply Federal Procedural Law.

Venue:

• PROCEDURAL Issue.

• Federal Law.

Statute of Limitations:

• SUBSTANTIVE Issue.

• State Law.

State A vs. State B:

• Apply the law of the state where the Federal Court sits.

TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION

Temporary Restraining Order:

• No Prior Notice.

• Immediate Irreparable Harm.

• No longer than 14 days.

Preliminary Injunction:

• Requires Notice & Hearing.

• Irreparable Injury.

• Likely to succeed on the Merits.

• Harm to moving party outweighs harm to other party.