Civil Procedure

common bases for specific in personam jurisdiction

1. An act or omission in the state causing injury to a person or property here or elsewhere 2. An act or omission outside the state causing injury to a person or property inside the state, provided that the deft conducted activities here or induced goods into the flow of commerce. 3. any claim arising out of a contract to perform services in the state or to pay someone in the state to perform services elsewhere, or out of the actual performance of such services. 4. any claim arising out of a contract to ship goods to or from the state, or arising out of the shipment of such goods 5. any claim regarding local property 6. any action against an officer or director of a domestic corporation for acts taken in that capacity. 7. any contract for insurance where the plaintiff was a resident of the state when the claim arose, or the event giving rise to the claim occurred in the state note: almost everything is covered by a state's long-arm statute, so long as the claim arises out of a transaction involving the state

Amendments to Pleadings

1. As of right may be amended once any time within 21 days of service of the pleading or within 21 days of the defendant's response if there is one. 2. By leave of court After the party has amended once, leave to amend must be sought from the court. (this should be freely granted) - judge must have a reason for denying leave to amend Timing for Deft's answer to amended pleading: - 14 days after the service of the amended pleading However, the court may shorten or extend these deadlines, and the response must be made according to the court-ordered deadline.

special provisions for venue

1. For a case begun in state court and removed to federal court, venue is automatically proper in the federal district where the state court sits, even if that district would not have been proper originally. 2. when a defendant is a nonresident of the U.S., venue is proper in any federal judicial district.

personal jurisdiction (two questions that always need to be asked)

1. Has the basis for exercising PJ over an out-of-state defendant been authorized by statute or by rule of court? 2. Is the particular basis for exercising personal jurisdiction permitted by the due process clause of the US constitution? Due process requires minimum contacts between the deft and the forum state such that it is consistent with traditional notions of fair play and substantial justice to sue the defendant here. in assessing minimum contacts, courts look for a purposeful availment by the deft of the protections of the forum's law

types of personal jurisdiction

1. In personam 2. In rem 3. Quasi in rem

Bases for General in personam jurisdiction

1. Physical presence within the state: service of process on the deft while she is physically present in the state. Exceptions: 1) if a person was only in the state to answer a summons OR 2) if the person was brought to the state by force or fraud. 2. Domicile: where one resides with intent to remain indefinitely. 3. Consent: express or implied from not raising the issue 4. Corporations: - corporations can consent to personal jurisdiction - merely "doing business" in the state is insufficient to support general jurisdiction. - General in personam jurisdiction applies only to corporations that are essentially "at home" in the forum state. [the state of incorporation and the state where the corporation has its principal place of business] Note: It is possible in theory for a corporations operations in a state to be so continuous and systematic as to render the corporation essentially "at home" in a state but there have been no cases as of yet.

Types of Pleadings

1. The complaint - used to state a claim for relief - the plaintiff or the deft may file a claim against a co-party, called a cross-claim complaint. - a deft files a third-party complaint to implead a third party deft 2. The Answer - filed by the opposing party in response to the complaint - it may contain responses to the allegations of the complaint, affirmative defenses, and/or counterclaims 3. The reply - used by the plaintiff to answer a counterclaim - a reply to the defts answer is made only when the plaintiff is ordered to do so by the court

Exceptions to Discovery

1. evidentiary privilege (anything covered by privilege is not discoverable) 2. work product rule: protects 1) documents and things (not information), 2) that are prepared in anticipation of litigation or for trial, 3) by party's representative. The work product rule can be overcome only if the party seeking discovery shows: 1. a need for the document or thing and 2. that the info cannot be obtained elsewhere NOTE: the mental impressions of the lawyer cannot ever be discovered.

Federal rules for service which are always allowed

1. in hand personal delivery 2. leaving the summons at the deft's dwelling or usual place of abode with a person of suitable age and discretion. 3. delivery of the summons to an authorized agent 4. for persons in foreign countries, service can be made by registered mail, return receipt requested. Note: service by mail to the attorney of record is generally NOT accepted for service of process UNLESS state law so provides, even though other documents are served by mail

Special rules for service of process

1. infant (minor): service must be made on the infant AND on the parent or guardian. 2. adjudicated incompetent: service must be made on the incompetent AND her guardian. 3. Partnership: service must be made on a general partner, an attorney in fact, or an authorized agent. 4. Corporation: Service must be made on an officer, director, managing agent, or on an agent appointed for receiving service of process (corporations doing business in the state must have an agent) - FRCP allows service of process on a corporation outside the US to be made using any methods available. [internationally agreed upon and which will reasonably give notice.] [ to meet constitutions due process requirements, a litigant must be given reasonable notice of the action] - if no international agreement exists, service may be effected by any method ordered by the court that is not prohibited by the law of the foreign country. 5. Non-resident motorists (claims arising out of in state accidents): Generally, service can be made on a state official who then forwards a copy to the out-of-state deft.

Devices for termination without trial

1. judgment on the pleadings: rarely used; appropriate only when the pleadings agree on all of the facts. 2. default judgment: defendant has not shown up. 3. voluntary dismissal (dismissal without prejudice; party can bring the dismissed claim again in a new lawsuit) - plaintiff has right to a voluntary dismissal once at any time prior to the deft serving an answer or a motion for summary judgment. [otherwise the plaintiff must seek leave of court for dismissal without prejudice] 4. involuntary dismissal (typically dismissal with prejudice; bars any attempt at relitigation of the same claims) [standard for appellate review: abuse of discretion] - if involuntary dismissal is for lack of jurisdiction, improper venue, or failure to join an indispensable party then the dismissal is without prejudice. 5. summary judgment - there is no genuine dispute as to any material fact and the non-moving party is entitled to judgment as a matter of law [no reasonable jury could find for the non-moving party] -partial summary judgment: SJ can be granted for the entire case, or only for certain parties, claims or defenses, or certain issues. NOTE: materials in a record must generally be sworn statements to be considered in deciding a motion for summary judgment. [sworn statements must generally be based on personal knowledge] NOTE: the denial of summary judgment is generally not appealable until after a trial on the merits or a final judgment.

Temporary Restraining Order (TRO)

A TRO can be issued without notice to the adverse party, but only in limited circumstances and only for a limited time. Requirement To secure a TRO without notice, the moving party would need to submit an affidavit containing specific facts that demonstrate a risk of " immediate and irreparable injury" if the permit or document is issued. Factors courts consider: In deciding whether to grant a TRO, courts will also consider the same factors that are relevant in deciding whether to grant a preliminary injunction (moving party's likelihood of success on the merits, the balance of hardships, and the public interest). Duration The TRO would last only long enough for the ocurt to consider and resolve a request for a preliminary injunction, but no longer than 14 days (unless the court extends it for good cause or the adverse party consents to an extension) NOTE: Bond is required

post trial correction of mistakes

A district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record. The court may do so on its own initiative (i.e., sua sponte) or pursuant to a party's motion before an appeal from the judgment or order is docketed. But after an appeal is docketed, the district court can correct the mistake only with the appellate court's leave (i.e., permission).

Complusory Joinder

A necessary party- a person whose participation in the lawsuit is necessary for a just adjudication because: - absent the party, complete relief cannot be accorded to the existing parties; - the necessary party has an interest in the litigation which will be impleaded if the litigation goes forward without that party; or - there is a substantial risk of double or inconsistent liability. Necessary parties MUST be joined if feasible Feasible- if 1) it will not deprive the court of SMJ (i.e. wont destroy complete diversity) and 2) the court can assert PJ over the necessary party Bulge provision: in addition to other grounds for serving an out of state party, a necessary party may be served anywhere within 100 miles of the federal courthouse If a necessary party CANNOT be joined, the court decides whether to: 1) continue without the necessary party (typically the case) or 2) dismiss the suit (rare) (i.e. the party is described as indispensable)

Relief from final judgment

A party may obtain extraordinary relief within one year of the entry of a final judgment based on (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, or (3) an opposing party's fraud, misrepresentation, or misconduct.

Devices to Create or Destroy Diversity

Action that create or defeat diversity are permitted, so long as the change in domicile is genuine, not a sham. - Moving is permitted, even if it is done with the purpose of affecting diversity, so long as the change in domicile is genuine. -Assignment of a claim is permitted so long as the assignment is real (reveal) and complete (not collusive). NOTE: Partial assignment of a claim for debt collection does NOT affect citizenship if the assignor retains an interest in the claim (assignor's citizenship controls).

Aggregation in Diversity claims

Adding up smaller claims to exceed $75,000. 1. One Plaintiff vs. one Defendant: plaintiff can aggregate all her claims regardless of whether the claims are related. 2. One plaintiff vs. two (or more) defendants: plaintiff MAY NOT aggregate her claims against different defendants; claims against each deft must total more than $75,000. (unless there is joint liability against the defendants) 3. two (or more) plaintiffs [not a class action] vs. one defendant: plaintiffs may not aggregate their claims against the defendant. [each plaintiff must seek more than $75,000 from the deft]

Supplemental Jurisdiction

Allows a federal court with subject matter jurisdiction over a case to hear additional claims over which the court would not independently have jurisdiction over if ALL the claims constitute the same case or controversy - in other words, all claims should arise out of the same transaction or occurrence. Note: the decision to hear additional claims is within the discretion of the court and is typically made on practical grounds Federal Question Cases: - if you have one federal question claim and other state law claims, and all of the claims arise out of the same common nucleus of operative fact, the court can exercise supplemental jurisdiction over the state law claims. - applies whether or not those claims involve the joinder of an additional party. (pendant party jurisdiction) Diversity Jurisdiction cases - state law claims still must be part of the same case or controversy -additionally, the statute bars supplemental jurisdiction in diversity jurisdiction cases when: a) would contaminate diversity of citizenship or b) seeks $75,000 or less and is made by a plaintiff (1) against parties added through joinder, intervention, or impleader or (2) seeking to join through compulsory joinder or intervention NOTE: hard for plaintiffs to take advantage of supplemental jurisdiction. NOTE: if such claims are to be part of a diversity case, they must independently satisfy the complete diversity and AIC requirements. NOTE: claims by defendants are allowed

Rule 19 Joinder

Allows existing parties to demand joinder of non-parties

Amendment to Add or Change a Party

An amendment to add or change a party against whom a claim is asserted must: (1) concern the same conduct, transaction, or occurrence as the original pleading; and (2) the party to be added must have known or had reason to know that the action should have been brought against that party but for the mistake. [notice]

Personal Jurisdiction (waiver)

An objection to personal jurisdiction can be waived. Voluntarily litigating on the merits waives any objection to PJ - a deft waives any objection to PJ by substantial participation on the merits before raising that objection [this can be almost anything other than challenging jurisdiction] Federal Rules: An objection to personal jurisdiction must be raised at the first opportunity or it is waived - if the deft chooses to file a pre-answer motion to dismiss she must make the objection then or waive it. OR - if the deft does not file a pre-answer motion, the objection must be raised in the answer.

permissive joinder by parties

Any number of plaintiffs may join if: 1) they assert claims arising out of the same transaction or occurrences. AND 2) there is a common question of law or fact Any number of defendants may be joined in the same action if: 1) the claims against them arise out of the same transaction or occurrences. AND 2) there is a common question of law or fact. Note: these rules apply assuming there is SMJ Diversity cases: NO party can be joined whose presence would destroy complete diversity even if the joinder rules are otherwise satisfied.

Joinder of Claims

As between the same P and same D, ALL claims may be joined. Diversity case - P can add up (aggregate) all claims against the same D to exceed the jurisdictional minimum. Federal questions case - if diversity is lacking for additional state-law claims, additional state-law claims can be joined only if they are covered by supplemental jurisdiction (i.e. same Transaction or Occurrence as original claim).

two preclusion questions you always need to ask

Ask two questions in this order: 1. is the claim in the second suit precluded by the prior adjudication? if yes then the inquiry ends. 2. If not, are there any issues in the second suit that are precluded by the prior adjudication.

Collateral Order Doctrine

Authorizes immediate appeal of orders separable from and collateral to the main suit and too important to deny immediate review Most likely case: The denial of a motion to dismiss for forum non conveniens is almost always a collateral order and immediately appealable.

physical and mental examinations

Available only against a party. Only permitted when the party's physical or mental condition is in controversy and only for good cause shown.

crossclaims (supplemental jurisdiction:diversity)

Claim by a co-party (ex: deft against deft) [will usually but not always qualify for supplemental jurisdiction] Relatedness requirement: Must arise out of the transaction or occurrence that is the subject of the action or of a counterclaim To qualify for supplemental jurisdiction, a cross claim: 1. MUST be related to a claim over which the court has subject matter jurisdiction; and 2. MUST not be asserted by a plaintiff against a person made party under rules 14, 19, 20, or 24.

7th Amendment Right to Jury Trial

Claims for damages are the classic remedy at law; triggers right to jury trial [legal issues require jury trial] - demand for trial by jury may be made by any party either in a pleading or separate motion. - must be made no later than 14 days after service of the last pleading directed at the issue. NO Jury trial required: Equity issues, such as a request for an injunction and specific performance, DO NOT require trial by jury. Neither do Admiralty issues. NOTE: When legal and equity issues overlap in one lawsuit, try the legal issues first, no matter the order in which they arose.

Full Faith and Credit

Courts in the US, both state and federal, must give full faith and credit to judgments rendered by courts of other states, provided that the rendering court had jurisdiction.

Erie: What to do when there is no federal statute or rule on point

Determine the law behind the primary issue and determine whether the law is procedural, substantive, or something in the middle. - if the issue is substantive apply state law - if the law is procedural apply federal law If law is something in the middle (neither substantive nor procedural), then there are three tests you can use to determine which type of law should apply: 1. The outcome-determinative test: ask does the choice of law impact the outcome of the case? If so, apply state law. 2. Forum shopping test: ask would failing to apply the state law lead more people to want to litigate in federal court (encourage forum shopping)? If so, apply state law. 3. The balance of interest test: ask does the state have a greater interest in having it's own law applied than the federal law? if so, apply state law. [balance of interest will favor the state in cases dealing with remittur, additur, notice of claim requirements, issue preclusion rules]

motion for a judgment as a matter of law (JMOL)

Essentially a motion for summary judgment after the trial has begun. Rule: viewing the evidence in the light most favorable to the non moving party, the evidence cannot support a verdict for that party. [no reasonable jury could find for the non moving party] Credibility of a witness: if the case turns on this issue, then there is a dispute as to an issue of material fact and the motion for JMOL will be denied; the issue is for the jury.

Federal Question Jurisdiction (SMJ)

Exists for a claim that arises under federal law Well pleaded complaint rule: The plaintiffs claim MUST be based on federal law. - existence of federal defense DOES NOT matter

Minimal diversity (exception to complete diversity requirement)

Exists when any plaintiff is diverse from any defendant, even if other plaintiffs and defendants overlap. Permitted in the following circumstances: 1. Federal interpleader act (statutory interpleader) [any two adverse claimants are diverse from each other]; 2. Class actions with claims more than $5 million or 3. interstate mass tort if at least 75 natural persons have died in one accident and the plaintiffs and defendants are from many different states (ex: airplane crash) Outside of these exceptions, the general rule is that complete diversity is required.

In Personam Jurisdiction

Federal courts follow the personal jurisdiction law of the states in which they sit. General in personam jurisdiction: The plaintiff can assert any claim whatsoever, even if unrelated to the deft's contacts with the state. [when the defendant has continuous and systematic contacts with the forum state that are so substantial that the defendant is essentially "at home"] Specific in personam jurisdiction: plaintiff's claims against the deft must arise out of or directly relate to the deft's minimum contacts with the forum. - governed by the state's long arm statute ( some state statutes are very broad and others list specific activities that give rise to jurisdiction)

What law applies when there is federal question jurisdiction?

Federal laws are applied to procedural and substantive issues. [this includes federal common law]

Determining Applicable State Law (state substantive law)

Follow precedent from highest state court. -If there is no precedent, predict how the highest state court would rule. -Give respectful attention to the decisions of the lower state courts (not binding).

The Erie Doctrine

General Mandates that when there is diversity jurisdiction, federal courts must apply state substantive law. Procedural laws: laws that provide the process by which a case will progress. Substantive laws: laws that provide a right. NOTE: some laws such as SOL fall within a grey area between procedural and substantive. [status is dependent on the outcome-determinative test] State substantive law: - the substantive rules that govern conduct (what must be proved to win a case and what defenses may be asserted) [ex: elements of a crime] - state statutes of limitations on state causes of action - the burdens of proof on state claims or defenses; and -state rules on choice of law Federal procedural law: - anything covered by the federal rules of civil procedure is "procedure" for purposes of ERIE [ applied where FRCP addresses the federal issue at hand] NOTE: if no federal rule applies, then the district court must follow state law with regard to substance, but it can choose to ignore state law with regard to procedure under certain circumstances.

scope of discovery

General rule is relevance - you can discover anything that might be admissible at trial or that might lead to something that might be admissible at trial. Proportionality - limited to matters that are proportional to the needs of the case (ex: whether the burden or expense of discovery outweighs it's likely benefit.)

notice and service of process

Generally means service of a summons on the deft (formally gives court jurisdiction over the case) Personal service- used to assert personam jurisdiction - should also be used for in rem and quasi in rem actions when the identity of an interested party is known - service by publication is only appropriate for in rem actions when that is the best that the serving party can do Constitutional test: Notice must be reasonable under the circumstances. Federal rules authorize service in accordance with the state law where the federal court sits.

Choice of law (which states law applies in transfers)

If a suit was brought in a district with proper venue and the case is transferred to another district, the law of the transferor (first) forum controls [you take your law with you] If the suit was brought in a district without proper venue and is transferred to another district, the law of the transferee (second) court controls.

multiple plaintiffs, single defendant (permissive joinders and class action) (supplemental jurisdiction: diversity)

If the claim of one diverse plaintiff against a single deft satisfies the AIC, other diverse plaintiffs who have related claims against the deft can also be heard even if their claims do not satisfy the AIC

Impleader (third-party practice)

Impleader is a device by which the deft brings into the suit someone who is or may be liable to the deft for all or part of the plaintiffs claim against him - a deft may implead a third party at any time after the complaint has been filed by serving a summons and third party complaint on the third party - deft can seek contribution from the third party NOTE: - diversity cases: impleader comes within the court's supplemental jurisdiction. - a plaintiff cannot make a claim against a third party unless complete diversity is met (or there is federal question jurisdiction for the claim) - bulge provision: in additional to all other methods for asserting PJ, impleader allows the assertion of PJ by service of process anywhere within 100 miles of the courthouse.

citizenship of parties (diversity jurisdiction) [individuals, aliens, representative parties, class actions, corporations, and partnerships/unincorporated associations)

Individuals -Must be a citizen of the US and a domiciliary of the relevant state -Domicile: residence + intent to remain indefinitely ( or with no intent to leave) [there can be only one domicile at a time] Aliens (citizens or subjects of a foreign country) - A citizen of a foreign country who has been admitted to the US as a permanent resident is treated as a citizen of the state in which he is domiciled. Representative parties (suing on behalf of another) - generally, the citizenship of the representative party controls. Exceptions: 1. For litigation involving a decedent's estate, the citizenship of the decedent controls 2. For the legal representative (guardian) of a minor/infant or an incompetent person, the citizenship of the infant/ incompetent controls. Class actions: citizenship of the named or representative parties count. - class members not named may join without regard to citizenship. Corporations: can have several citizenships simultaneously - citizen of the state, states, or foreign countries in which it is incorporated; and - citizen of the state or country where it has its principal place of business (executive office) NOTE: for complete diversity you need to consider EVERY state where the corporation is a citizen. Partnerships and unincorporated associations: Are citizens of every state of which its members are citizens

Venue

It is the defts responsibility to object if the venue is improper. -failure to make a timely objection results in waiver - FED law: claim of improper venue must be made at the first opportunity or it is waived ( either a pre-answer motion to dismiss or the deft's answer, if no pre-answer motion is made) Federal venue is proper in a district: 1) Where any deft resides, as long as ALL defts reside in the same state; 2) where the claim arose - where a "substantial part of the events or omissions" on which the claim is based occurred or where a "substantial part of the property" that is the subject of the action is located. 3) If neither of the above (rare), any district where the deft is subject to personal jurisdiction has venue. Residence: - individuals: residence means domicile - business entities: resides in every district in which personal jurisdiction exists.

Federal common law

Judge-made federal law that overrides any inconsistent state or local law or rule -Federal courts make federal common law only when they encounter important federal interests that are not covered by a statute. - federal common law would apply to boundary disputes between states and claim preclusion In determining whether to use federal common law, a district court will ask whether the failure to apply state law will lead to different outcomes in state and federal courts - if yes, court will apply state law unless affirmative countervailing issues are at stake that warrant application of federal law.

motion to dismiss

May be used to raise: - lack of subject matter jurisdiction - lack of personal jurisdiction -improper venue -failure to state a claim upon which relief can be granted - failure to join a necessary party -forum non conveniens Note: - claim of no personal jurisdiction or a claim of improper venue must be made at the first opportunity (otherwise its waived). [either pre-answer motion to dismiss or answer] - lack of subject matter jurisdiction cannot be waived. In ruling on a motion to dismiss for failure to state a claim, the court must take all well pleaded facts in the complaint as true and resolve all doubts and inferences in complainants favor

Jury Selection

Minimum of 6 jurors; maximum of 12 jurors - all must participate in the verdict unless dismissed for good cause. - each litigant gets 3 preemptory challenges (no need to explain or justify) [cannot be used for reasons of race or gender] Note: a case may be tried by less than a 6 member jury if the parties stipulate.

Special Pleading

No particular form or words are used but its alleged with particularity and detail. Types of claims requiring special pleading - fraud or mistake must be specially pleaded - claims for special damages must be specially pleaded (i.e. damages that do not ordinarily follow from the wrong)

electronically stored information

Normally should be preserved If lost through unreasonable conduct of a party, the court may order measures to cure the prejudice to the other party. If the material was destroyed with the intent to prejudice the other party, the court may instruct the jury to presume the information was unfavorable, or even order the end of the litigation NOTE: Federal rules provide expressly that, in the absence of "exceptional circumstances," parties should not be sanctioned for the loss of electronically stored information when the loss occurs pursuant to "routine, good-faith operation of an electronic information system." - However when a party anticipates litigation it must suspend its routine document retention/ destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.

Appeals: Final Judgment Rule

Ordinarily, appeals are available only from a final judgment. - a final judgment resolves ALL the claims of ALL the parties Partial Final Judgment: The court may enter a final judgment on some claims by expressly designating the order as final. Notice of appeal must be filed in the trial court within 30 days of entry of judgment. - a timely post-judgment motion will toll the 30 day limit EXCEPTIONS: interlocutory appeals statute (28 U.S.C. § 1292) provides some exceptions to the final-judgment rule that allow an immediate appeal of certain orders: These include: - orders granting, modifying, refusing, or dissolving injunctions - orders appointing or refusing to appoint receivers and - decrees determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

Subject Matter Jurisdiction (SMJ)

Power of the court to hear and decide a type of case - Federal Courts are courts of limited SMJ - State courts are courts of unlimited SMJ Pleading SMJ: Basis for federal SMJ must be affirmatively pleaded in every case - if challenged, it must be proved that there is a basis for SMJ Waiver: Can't wave an objection to SMJ Objection to SMJ: Lack of SMJ can be raised by any party at any time.

statute of limitations and the doctrine of relation back

Pre-requisites: In some circumstances, an amendment is deemed to relate back to the date the original pleading was filed. - if the statute of limitations has NOT yet run, this doctrine doesn't matter - if the statute of limitations has run out, then relation back determines whether the amended pleading is allowed (relates back) or is time barred (does not relate back) NOTE: on the exam, when you see that the original pleading was timely but the amendment was not, then you know you are being asked about the doctrine of relation back. Rule: An amendment relates back to the date of the original filing if it concerns the same conduct, transaction, or occurrence as the original pleading - the key concept is notice; it cannot have the effect of surprising the other party.

Claim Preclusion (Res Judicata)

Precludes relitigation of every claim that was raised or should have been raised in the first suit Three requirements: 1. There must have been a final judgment on the merits in the first suit; 2. The second suit must be between the same parties or their successors in interest; and 3. The second suit must involve the same claim or cause of action Final judgment on the merits: includes a default judgment, summary judgment, and dismissal with prejudice. - NOT necessary that there had been a trial Same claim: all legal theories to recover for harm arising out of a single transaction or occurrence are one claim for the purposes of claim preclusion. Installment sales: creditor must sue for all that is "due and owing" at the time of the suit. [debts owed is one claim and future debts are another claim]

When can a federal court may grant a preliminary injunction?

Preliminary injunctions are injunctions that seek to protect the plaintiff from irreparable injury and to preserve the court's power to render a meaningful decision after a trial on the merits. Procedural grounds for granting a preliminary injunction: 1) preliminary injunctions may be granted only upon notice to the adverse party, AND 2) only if the movant "gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." Substantive grounds for granting a preliminary injunction: (1) the movant is likely to succeed on the merits, (2) the movant is likely to suffer irreparable harm in the absence of relief, (3) the balance of equities is in the movant's favor, and (4) the injunction is in the best interests of the public. NOTE: If a plaintiff has an adequate remedy at law (ex: money damages can compensate the plaintiffs loss) then a preliminary injunction will be denied.

class actions

Prerequisites: Need all 1. numerousness: so numerous that joinder of all members is impracticable. no set number. 2. commonality: questions of law or fact common to class 3. typical claims or defense: the claims or defenses of the representative parties are typical of the C/Ds of the class. 4. adequecy of representation Diversity jurisdiction: named representatives must be completely diverse from the defts and at least one plaintiff has a claim over $75,000 Class action fairness act: - allows very large class actions, involving at least 100 members with more than $5 million at stake - only minimal diversity required

writ of mandamus

Provides for immediate appellate review of an order that is an abuse of authority

oral deposition

Questions asked and answered orally under oath by a party or witness. Limited to 10 depositions, unless court allows more. Each is limited to one day of 7 hours, unless the court allows more. Any kind of notice suffices for deposition of a party; but a deposition of a nonparty witness requires a subpoena. When deposing an organization, notice or a subpoena is served on the org. org then selects a person who will be deposed.

Interrogatories

Questions asked in writing to be answered under oath in writing. may only be used against a party. presumptively limited to 25 interrogatories, unless the court allows more responses required in 30 days May respond by producing business records if the answer can be ascertained and the burden of deriving the answer is substantially the same for the party serving the interrogatories as for the responding party.

Standard of Review

Questions of law - appellate review is de novo Findings of fact - jury verdicts must be affirmed if supported by substantial evidence - judge's findings of fact must be affirmed unless they are clearly erroneous. Matters of discretion - many issues decided by lower courts (continuances, new trials, discovery limitations) -standard of appellate review is abuse of discretion - any reasonable decision will be upheld

removal procedures and improper removal

Removal procedures - a notice of removal is filed in the federal court with a copy to the state court - when the removal notice is filed, the state courts jurisdiction ends instantly and automatically . Improper removal A plaintiff can file in federal court a petition for remand, and it is on that petition that the federal court will hold a hearing. - if removal is proper, remand is denied, and the case stays in federal court. - if removal is improper, remand is granted, and the case goes back to state court.

counterclaims (supplemental jurisdiction:diversity)

Rule: A counterclaim in a diversity action (brought by a defendant) does NOT have to meet the AIC if the counterclaim is compulsory Compulsory counterclaim: one that arises out of the same transaction or occurrence as the opposing party's claim. Permissive Counterclaim: one that does NOT arise out of the same transaction or occurrence as the main claim. -can only be heard by a federal diversity court ONLY if it independently satisfies diversity jurisdiction.

Diversity Jurisdiction (SMJ)

SMJ exists under diversity jurisdiction if: 1) the case is between citizens of different states, or citizens of a state and a foreign country (complete diversity between plaintiffs and defendants) and 2) the amount in controversy exceeds $75,000 (CANT be exactly $75,000) [ any good faith allegation will suffice; you are ultimately allowed to recover less in the end] - only when it appears to a legal certainty that AIC will not be met, will the court dismiss for lack of AIC. Exceptions: Probate (wills) and domestic relations actions CANNOT be brought in federal court under diversity jurisdiction even if the normal requirements are satisfied. Timing: Diversity MUST exist when the complaint is filed - DOES NOT matter that diversity did not exist when the cause of action arose or no longer exists when the case comes to trial.

In rem jurisdiction

Suit against any kind of property, real or personal, so long as the property is located in the state where you are suing, and it can settle everyone in the world's claim against that property. [suit against any kind of thing]

quasi in rem jurisdiction

Suit to adjudicate the claim to property of a particular deft or defts; the subject matter of the suit may or may not be related to the property. [ using deft's property as a hook for jurisidction] Present rule: The supreme court has held that quasi in rem actions are subject to the same minimum contacts test as applies to personam jurisdiction. - when the property is not the subject of the suit, the ownership of property in the state is not nearly enough to establish general jurisdiction over the deft.

Erie: What to do when state common law and federal law conflict?

The District court must first ask whether a valid federal statute or rule (FRCP) covers the disputed issue. NOTE: Before applying a federal rule that is on point, the court must determine whether the rule is valid under the Rules Enabling act. - specifically the court must ask whether the federal rule abridges, enlarges or modifies any substantial right.

Notice Pleading

The federal rules generally require only notice pleading: - a pleading need NOT detail the facts of the plaintiff's case or spell out the legal theory - MUST ONLY give fair notice of the pleaders claim - ALL that is required is a short and plain statement of the claim showing that the pleader is entitled to relief NOTE: it is now required that the allegations in the complaint state a plausible case for recovery - plausible is something between probable and possible. - Under notice pleading, unconvincing and implausible allegations with no factual support should be dismissed.

Issue Preclusion (Collateral Estoppel)

Three requirements: 1. the same issue of fact must arise in both suits 2. the issue must have been actually and necessarily decided in the first suit; and 3. the party against whom preclusion is asserted must have been a party to the first suit [or a successor in interest]. - NOTE: Nonmutual - where nonparties from the first action assert collateral estoppel in a subsequent action against parties from the first action [this is allowed] Actually and necessarily decided: - default judgment: results in full claim preclusive effect, but no issue preclusive effect because nothing was actually litigated. - to be actually litigated, there must be some sort of adversarial stance by the parties and an actual resolution of the issue by a factfinder or judge.

Transfer (one federal court to another)

Transfer is only to a district with proper venue (where it could have been brought originally) Exception: transfer to a district without proper venue may occur when all parties agree.

effect of jury polling

Unless the parties stipulate otherwise, a verdict must be unanimous and returned by at least six jurors. To determine whether a verdict is unanimous, the court may poll the jurors individually after a verdict is returned but before the jury is discharged. This must be done upon a party's request, or the court may do so on its own initiative (i.e., sua sponte). If the poll reveals that the verdict is not unanimous, the court can either order a new trial OR direct the jury to deliberate further

Interpleader

Used to resolve the problem of competing claims to the same property two types: 1. Rule interpleader- remedy available in a lawsuit otherwise within the court's jurisdiction 2. Statutory interpleader- only applies in federal court (meant to make access to federal court easier) - special jurisdictional amount: need only be $500 - authorizes nationwide service of process -venue is proper in any district where any claimant resides -SMJ based on minimal diversity (i.e. when any two claimants are from different states)

Motion for a new trial

Usually made with a renewed motion for JMOL A new trial may be granted in the discretion of the court for many reasons, including: - legal errors - newly discovered evidence -prejudicial misconduct by a lawyer, party, or a juror. - judge concludes that the verdict is against the great weight of the evidence, either in substance of the verdict or amount of damages awarded. Remittitur: If the court determines that a verdict was seriously excessive, then it may offer a remittitur to reduce the verdict and grant a new trial on the condition that the remittitur is not accepted. - the new trial order must specify the reasons for the new trial to allow for appellate review a) if the reason is a question of law, it is reviewed de novo by the appellate court b) other grounds for a new trial are reviewed for abuse of discretion.

certification of pleadings

Verification- most pleadings are NOT verified (sworn to), nor do they have to be. Certification- pleadings and all other documents - including motions of all kinds and discovery requests - must be signed by the attorney of record and provide the attorney's contact info. -The signature certifies that- (a) there is an appropriate legal and factual basis for filing; (b) that to the best of her knowledge after reasonable inquiry there is NO improper purpose; (c) the legal contentions are warranted by existing law or by a non-frivolous argument for a change in the law; and (d) the factual allegations have evidentiary support or are likely to have such support after discovery. NOTE: violation of certification requirement can be raised by the court or by a party in a motion for sanctions

Requirements for class action settlement, compromise, or voluntary dismissal

When a settlement is proposed to the court, notice of the proposal must be provided to all class members who would be bound by it. This allows members to object to and opt out of the settlement before the court approves it. In addition, any proposed settlement must be approved by the court to be valid. The court may approve such a proposal only after it holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.

service of process for in rem and quasi in rem actions

You must make a diligent effort to locate all claimants to the property and serve them personally If the claimants cannot be located, then notice by publication is permitted.

Requirements of a complaint

a complaint (or any pleading in which a claim is made) must include: 1. a short and plain statement of the court's subject matter jurisdiction; 2. a short and plain statement showing the claimant is entitled to relief; and 3. a claim for the relief sought by the pleader (what remedy they are seeking) NOTE: recovery is not limited by the claim for relief as stated in the complaint, except for default judgements. - you get what you prove not what you ask for.

Renewed Motion for Judgment as a Matter of Law

a motion for JMOL made at the close of all the evidence and denied by the court may be renewed after the jury returns a verdict. [prior JMOL is a condition precedent] - must be filed within 28 days of entry of judgment to seek to overturn an adverse verdict.

interlocutory orders [non-final orders which are immediately appealable]

a) interlocutory orders immediately appealable as of right - any order granting or modifying an injunction - any order that changes or affects possession of property. b) any interlocutory order is appealable with leave of courts - both the trial and appellate courts must agree to allow the appeal.

motion for judgment on the pleadings

applies when the pleadings agree entirely on the facts and only the law is in dispute if there is any element of factual dispute, you have a case for summary judgment

Motion for a more definite statement

asks that a pleading be made more specific - judges typically disfavor this motion

Motion to Strike

can be used to delete from a pleading scandalous or prejudicial matters that are NOT relevant to the case at hand - also used by the plaintiff to strike a legally invalid defense.

cross claims

claims asserted against a co-party MUST arise out of the same transaction or occurrence as the original claim or a counter claim. (often fall under supplemental jurisdiction.) Cross-claims are never compulsory (can be saved for a later day)

use of depositions at trial

deposition of an adverse party is admissible as an admission of party opponent deposition of a mere witness can be used to impeach that witness deposition of a witness who does not testify can be used if the witness is dead, beyond the courts subpoena power, or otherwise unavailable. - can also be used if the witness is more than 100 miles away from the place of trial

Federal exceptions to specific in personam jurisdiction

federal courts can asset broader personal jurisdiction in specific cases 1) Federal Interpleader Act (statutory interpleader) -authorizes nationwide service of process: service anywhere in the US establishes personal jurisdiction. - congress can authorize nationwide service of process as a means of asserting personal jurisdiction nationwide 2) The Bulge Provision of the federal rules Allows service anywhere within 100 miles of the federal courthouse, even if in another state in two situations: - For impleading third-party defendants under rule 14 and - for joining necessary parties under rule 19 3) Unusual provision - narrow authorization of nationwide service of process when the plaintiff's claim arises under federal law and the deft is not subject to PJ in ANY state court -suit may be brought in federal courthouse, so long as there are minimum contacts with the US as a whole. -Used rarely; most relevant with foreign defts with no particular contact with a particular state.

bench trial

judge is required to make findings of fact on the record and state conclusions of law

Jury Instructions

judge must inform the parties of the court's proposed instructions before final argument Court must provide an opportunity to object to proposed instructions: - objections must be on the record (preserved), for stated reasons (so the appellate court can follow the argument), and made before the jury retires to deliberate. - only a timely objection preserves the issue for appeal

answer

must not only deny or admit the allegations of the plaintiffs complaint but also state applicable affirmative defenses, including the SOF. - those affirmative defenses not stated in the defendant's answer are deemed waived. NOTE: A failure to deny these allegations generally results in them being admitted and conclusively established. However, damages-related allegations cannot be admitted by the defendant's failure to deny them in an answer. Timing: must ordinarily be served within 21 days of service of the pleading to which it responds. NOTE: the same rules apply to the reply

Removal

removal- moves cases from state court to federal court. transfer- moves cases from one federal court to another federal court. NOTE: there is no procedure to remove a case from federal court to state court. NOTE: Federal court can abstain from hearing the case in very narrow circumstances. General Rule: - removal is proper ONLY if the case could have been brought originally in federal court. [fed court would have SMJ] - Only defendants may remove [ALL defendants MUST consent to removal within 30 days of service] Federal Question: if the well-pleaded complaint discloses that the plaintiff's claim is based on federal law, then the deft may remove to federal court. Diversity Jurisdiction: removal is proper if: 1. there is complete diversity 2. the AIC exceeds $75,000 and 3. the action is brought in a state in which no defendant is a citizen. One Year Limit on Removal: MUST remove within one year of the commencement of the action in state court, unless the plaintiff acted in bad faith to make the case non-removable.

counter claims

two types: 1. Compulsory counter claim- arises out of the same transaction or occurrence as the claim to which it responds. - A compulsory counterclaim must be asserted in the defendant's answer or the counterclaim is waived. This is true unless the action is dismissed before the defendant files an answer, in which case the compulsory counterclaim is not waived and can be raised in a future lawsuit. - supplemental jurisdiction will generally be available for compulsory counterclaims - if there is SMJ over the main claim, there is SMJ over a compulsory counterclaim. -Diversity case: AIC of compulsory counterclaim does not matter. -filing of the original complaint tolls the SOL for the original claim and compulsory counterclaim 2. Permissive counter claims- counterclaims that DO NOT arise out of the same transaction or occurrence. - may be pleaded now or raised later - requires an independant jurisdictional basis: (fed claim or diversity) - A permissive counter claim must be timely as of the date it is filed or it's time barred.

intervention (when an outsider volunteers to enter lawsuit)

two types: Intervention as of right- [rule 24(A)] Federal courts allow a person to intervene in an action as a matter of right if the person: 1) is interested in the property or transaction that is the subject of the action. 2) is so situated that its interest may be impaired or impeded if the litigation goes forward without it, AND 3) is not adequately represented by the existing parties permissive intervention- may be allowed whenever there is a common question of law or fact between the intervenor's claim and the main claim. - may ask the court's permission (court discretion) Note: - Both types must be timely: reasonable promptness - There is no supplemental jurisdiction for either kind of intervention when jurisdiction is based on diversity (Diversity case: intervenors MUST satisfy complete diversity and have a claim that exceeds $75,000)