Please enable JavaScript.

Coggle requires JavaScript to display documents.

Civil Procedure (Pleadings (First Responsive Pleading (Rule 12): Once…

- - - - Joined parties claim relief (if Ps) or face liability (if Ds) that arises out of the same TOO AND
      - There will arise question of law/fact common to joined parties
    - - Step 2: If missing party is necessary, can she be joined?: Missing party can't be joined in fed ct if ct lacks PJ over missing party, or adding would destroy SMJ by destroying diversity. Yes? --> Ct should just join them, adjudicate case (skip ste 3). No? --> Proceed to Step 3
      - Step 3: If cannot be joined, are they indispensable? Ct will consider: extent of prejudice to missing party; can prejudice be lessened by shaping relief in a certain way (damages instead of specific performance); and if case is dismissed, whether P can find relief in another forum. Yes? --> Must dismiss the suit. No? --> Ct can adjudicate case in party's absence
      - Step 1: Is the absent party necessary?: Necessary party = has an interest that might be impaired if left out (suing for painting back, need the guy who has it); complete relief cannot be issued in the party's absence; or if current parties would be subject to inconsistent/duplicative liability. If party is not necessary, no mandatory joinder
  - - - Adding new claims: amendment considered filed on date of original claim IF new claim arises from the same TOO as existing claim (relation back rule)
      - Adding new parties: will relate back to original filing date if same TOO AND party to be added: 1) knew of the suit soon enough to not be prejudiced and not later than time permitted for service (90 days) and 2) should have expected to be named as a D and 3) was originally left out b/c of mistake in identity (not P's strategy)
      - Amendments that do not add new claims or parties (just damages or correcting errors) do not implicate SOL concerns
  - - - Interpleader (Rule 22): holder of a common fund may file a lawsuit as a P and join as Ds all rival claimants (opposite sides of v.) to its common fund (having the other 2 guys sue each other when the interpleading party fears it will face multiple/inconsistent liabilities: i.e. ex-wife and wife fighting over insurance payout when husband dies. insurance co-files interpleader b/c if it pays one of them the other will sue the co)
      - Intervention (Rule 24): A non-party moves to enter into a lawsuit
        
        As of right: must be permitted to intervene upon timely application when 1) claims an interest relating to subject matter of the action and 2) w/o intervention, risk they might not be able to protect that interest (preclusion). Ex: insurance company intervening to make sure P gets enough money in lawsuit from D to cover otherwise insurance payments
        
        Permissive: upon timely application and at ct's discretion, may intervene w/ a claim or defense that shares w/ the main action a common Q of law or fact. Must have SMJ, PJ (which can happen by P's consent), and venue.
      - Impleader (Rule 14): D may bring in a 3rd party if that party may be liable to D for all or part of D's liability to P. D has right to implead w/in 14 days of serving an answer, otherwise needs permission from ct. After impleaded, 3rd person made party may bring own claims against others and implead others. Original P can also file claim against impleaded D IF it relates to one of P's original claims. Supplemental jx can cover the impleader claim if it wouldn't have SMJ on its own.
  - - - conditions precedent, but only when denying the condition has occurred
      - capacity or authority to sue, but only when req'd to show the ct has jx
      - time and place, when testing the sufficiency of a pleading, and
      - special damages (the kind not expected to flow from the injury)
      - fraud, mistake, or condition of the mind
  - - - In addition, the answer must include the previous 12(b) defenses and all affirmative defenses or they are waived. The affirmative defenses under Rule 8(c)(1) include:
        
        arbitration and award
        
        assumption of risk
        
        accord and satisfaction
        
        contributory neg
        
        discharge in BK
        
        duress
        
        estoppel
        
        failure of consideration
        
        fraud
        
        illegality
        
        injury by fellow servant
        
        laches
        
        licenses
        
        payment
        
        release
        
        res judicata
        
        Statute of Frauds
        
        statute of limitations
        
        waiver
    - - Insuff. service of process or insuff. process (C'l or statutory)
      - Improper venue
      - Lack of PJ
      - Failure to state a claim upon which relief should be granted (ct assumes facts are 100% true, must be plausible, not probable [needs some facts] (waived if not before end of trial)
      - Failure to join a necessary party (waived if not before end of trial)
      - Also includes lack of SMJ, but that defense is never waived. It can be raised at any time, including on appeal, and can be raised by the ct itself.
    - - Motion to dismiss: seeks dismissal, can be filed by any defending party
      - Motion to strike: ct can (on own or motion) order material stricken if complaint/answer contains redundant, immaterial or scandalous stuff
      - Motion for more definite statement: ct will order pleading to be clarified if so vague that responding party cannot reas prepare a response
    - - Initial response (answer or pre-answer motion): If D was actually served w/ process --> 21 days to respond. If D waived in-person service --> 60 days to respond
      - If D responds w/ a ^ motion (definite statement, strike, dismiss) and it is denied, D must file answer w/in 14 days of denial regardless of original time period (21 or 60 days)
  - - - Numbers--the class must be so numerous that joinder of them all would be impracticable (at least 40)
      - Commonality--there must be common issues of of fact or law including common claims and common injuries
      - Typicality--the claims of the named P are typical of the class, ensuring the rep will have an incentive to litigate in ways to protect the class
      - Adequacy--the named P and class counsel lawyers must fairly and adequately represent he class
    - - where party opposing has acted in ways generally applicable to the class (not likely to work if seeking $$ -- usually for injunctions)
      - court finds that common questions of law or fact predominate over individualized Qs and a class action is superior to other methods for fair/efficient result (normal large news/email class actions)
      - Separate actions would create risk of inconsistent judgments or judgments would impair the nonparties from protecting interests
    - - ct must have PJ over every D but only the named P
      - Judgment binds all class members unless they opt out
      - SMJ: When alleging state law violation, class can appear in fed ct only if Ds and all representative Ps (not all class members) are completely diverse. Exception: if >100 members seek damages >$5M, diversity is satisfied if any single class member is diverse from any D
- - - - If D = natural person, 4 options: 1) Personal service to D himself (through 3rd person), 2) leave at D's usual Abode w/ a person of suitable age and discretion who actually resides there, 3) serve D's registered Agent, or 4) mail w/ letter requesting D Waive in-person service (If D declines to waive, he becomes responsible for cost of personal service)
      - If D = corp, PTP, ass'n, 3 options: serve process on: 1) an officer, 2) a managing agent or general agent or 3) any other agent authorized by appt or by law to receive service (if law req's by mail, must serve both by hand and mail)
- - - - entry by clerk: if claim is for a "sum certain" (or by math) and P requests the default judgment, clerk must enter and assess damages and costs against the D
      - Entry by the ct: if clerk can't do it, ct will, but P must ask for it. If D initially appeared but failed later, ct can issue only if D served w/ written notice of application for default 7 days before hearing. Judge may hold hearings to calculate $$ damages or other matters
  - - - Ct will look only at non-movant's E (won't weigh against moving party's) and assume witnesses are truth tellers -- no credibility issues
      - if non-movant does not produce E but just talks pleadings, they'll lose, but if pleadings are under oath, they do count as E
    - - pointing out w/ citations to the record holes in opposing party's claims or defenses (only for party who does not have BOP), or
      - adducing new E to demonstrate that claim or defense cannot be true
  - - - stipulation of dismissal signed by all parties (settlement)
      - permission of the ct. Generally will grant but if D filed cc, ct will not dismiss unless that claim can remain pending for independent adjudication
      - unilateral dismissal by filing notice any time before D has filed an answer or motion for summary judgment
    - - if notice, speculation, or ct order specifies, bound by that
      - if silent, presumed w/o prejudice in first dismissal, subsequent dismissals are presumed w/ prejudice (making it an adjudication on the merits)
- - - - Copies of insurance agreement(s) that may require them to pay
      - Copies (or descriptions of) Documents, elec stored info (ESI), and tangible objects that party may use to support claim or defense
      - All other parties the nam/contact info of any witness that a party may use to support a claim or defense
      - Computation of damages sought and supporting docs
    - - witnesses she may call if the need arises
      - list of witnesses whose testimony will be given through deposition or transcript
      - list of docs or physical E she expects to present
      - list of witnesses she expects to call
  - - - Depo of party/party's designee can be used for any purpose
      - Depo of non-party can be used 1) to impeach or 2) if deponent is unavail (dead, disappearance), for any purpose
      - Objections can be made to any Q that would be objectionable at trial. But counsel can only instruct a witness to refuse to answer a question if it is 1) privileged or 2) there is an order limiting the scope of deposition
    - - ad testificatum: demand for testimony
      - person served may object as outside scope of discovery or if it reqs person to travel >100 miles from home or work (bulge rule)
      - duces tecum: demand for docs
  - - - Non-testifying expert: assessing merits of case. No intention to call at trial --> undiscoverable unless party has extraordinary need/no other way to obtain such info (rare)
      - Testifying expert: opinions held by those testifying are discoverable to a limited extent. Besides mandatory report, party can also get communications relating to:
        
        data provided by atty to expert, or
        
        any assumption atty asked expert to make in opinion
        
        compensation for expert's study or testimony
  - - - Sanctions (if after motion to compel, still doesn't comply)
        
        ct order declaring facts established for requesting party
        
        ct order prohibiting disobedient party from presenting certain claims or defenses
        
        stay or dismissal of entire action, or
        
        order of contempt
      - Motion to compel: made after movant has in good faith attempted to confer w/ resistor. If granted --> movant gets fees/expenses for motion. If denied --> non-movant may get fees but only if motion was not substantially justified
    - - Additionally, if the ct finds that the party acted w/ the intent to deprive another party of the information's use in the litigation, the ct may 1) presume that the lost info was unfavorable to the party, 2) instruct the jury that it may or must presume the info was unfavorable to the party, or 3) dismiss the action or enter a default judgment.
- - - - Service: if a D is served while in forum state, PJ exists even if his presence is temporary and unrelated to the lawsuit. But if their presence is solely due to force or fraud by P, or participation in another legal/judicial proceeding, service may not establish jx
      - Residency: if party is domiciled (resides w/ intent to remain indefinitely) in state where suit filed, PJ is C'l. Corp is resident of state(s) where incorporated and where PPB is. All other entities: just where HQ or PPB is.
      - Consent or waiver: Party can consent to PJ over him in 3 ways:
        
        Appearance: Party appears in ct w/o objecting to PJ (must object to PJ in initial filing or first appearance before ct)
        
        K: if D signed K w/ choice-of-forum clause --> consent
        
        Appt: Some states require biz to appoint agents located in state to receive process --> consent. (but cts are split on this)
      - Minimum contacts: Need all 3:
        
        D has established a minimum contact w/ forum state (established if D causes harm in state, does business, or has an interest in real property in the state). Isolated contacts directed at the forum state are enough --> D can reas anticipate out-of-state litigation if they purposefully avail themselves of the privilege of conducting activities in that state.
        
        Factors: 1) quantity of contacts, 2) nature and quality of contacts, 3) connection/relation b/w contacts and COA, 4) state's interest in providing a forum, and 5) the relative convenience of the parties
        
        Claim against D arises from contact and
        
        PJ won't offend traditional notions of fair play and substantial justice (burden on D, forum state's interest, P's interest in obtaining relief, interstate judicial system's interest in efficient resolution of controversies, and shared interests of states in furthering fundamental social policies)
      - Substantial business: VERY high bar. Business must be so significant (relocating office) that tho not incorporated or HQ'd in state, is essentially At home there
  - - - Step 1: Determine relatedness. Does claim 2 (piggyback claim) arise from the same TOO as one w/ FQ or Div (anchor claim)? If not, no supplemental. If so, move to step 2
      - Step 2: Sneaky Ps. Is anchor claim FQ? If yes, move to step 3. If not, anchor must be Div. --> need to determine how they were brought into suit. If brought in by P whose present in the suit is pursuant to Rules 14 (impleader -- 3rd party D), 19, 20, 24, P may be trying to sneak in a claim she could otherwise have not made (doesn't meet 2 Div reqs). These are not allowed under Supplemental -- need FQ or Div or to drop the added claim. Stacked Ds: need FQ or Div. Stacked Ps against one D: ok to use supplemental. If no sneaky Ps, move to step 3.
      - Step 3: Is there a good reason for the court to decline anyway? If yes, the ct MAY decline. Possible reasons: 1) involves novel or complex issue of state law, 2) state claim "substantially dominates" over FQ or Div, 3) anchor claim was dismissed, 4) other compelling reasons
      - If supplemental jx later fails (the fed claim drops out), the fed ct may, in its discretion, either hear the state claim or dismiss the action (but it will not remand to state ct -- remand is only from state to fed)
    - - If diversity jx is basis for removal, removal is not allowed if any D is a citizen of the state where the action is pending. (doesn't apply to Fed Q)
      - If fed jx dos not exist, P can seek a remand back to the state ct w/in 30 days of the filing of the notice of removal
      - Exception (Home-state D rule): D can't remove if: 1) fed jx would be grounded ONLY in Div jx and 2) D is a citizen of state where P filed suit
      - If multiple Ds, removal allowed only if ALL Ds agree to remove
      - Timing: D must remove w/in 30 days of when grounds become apparent
        
        Multiple Ds: later service on other Ds gives later D right to choose removal (D1 can join later D's removal but can't himself remove if too late for D1)
        
        If removal based on diversity and P changes her claims or parties after initially filing (like settling w/ one D), D must remove w/in 1 year of P filing suit unless P attempted to thwart removal
        
        Normally, when D served w/ complaint. [Can be later -- if P amends, then 30 days from that point -- Final says this isn't true. ONLY from original complaint]
    - - Federal Question: if the claim arises under fed law or is created by state law but depends on a substantial fed Q (usually const'l). A defense is insuff to establish FQJ. The federal statute must actually provide for a remedy or COA for violating the statue in order for a P to have FQ jx under that statute.
        
        A question of fed law must arise in P's affirmative claim (well-pleaded complaint rule) (not enough for a party who would normally be the D to initiate the action, for declaratory relief). Can have state law in addition to fed if the FQ is:
        
        demands fed judge's expertise and ought to be resolved uniformly +
        
        not so commonly present in state law actions to trample their jx
        
        Actually in dispute +
        
        Necessarily raised, substantial, and capable of resolution in fed ct w/o disrupting the fed-state balance approved by Congress
      - Diversity Jx: complete diversity of citizenship (no single P may be a citizen of the same state as any D.) and >$75k in controversy (measured at time suit is filed but amended complaints that add or dismiss can affect diversity)
        
        Individual's citizen is determined by domicile (where resides and intends to remain indefinitely) -- look only at time of filing, not later. If you definitely plan to move back somewhere else, that's your domicile. if you move somewhere and might move back but have no plans, the new state is your domicile.
        
        Corp: a citizen of 1) its state of incorporation and 2) a citizen of a state where its PPB is located (could be citizen of 2 places)
        
        PTP/assoc: deemed a citizen of every state in which one of its members is a citizen
        
        P's view governs amt in controversy, and only the alleged amt governs. A SINGLE claimant may aggregate claims agains a single D (can be totally unrelated, no TOO req), but not multiple Ds. MULTIPLE claimants cannot aggregate claims to meet the $75k min unless their claims are common and undivided (from the same occurrence and same property)
        
        Class Actions: All Ds and named (representative) Ps must have complete diversity. Exception: Class actions where >100 persons and >$5M --> diversity need only be "minimal" -- a single P diverse from a single D
    - - 1. Overall Rule: Fed cts are cts of limited jx
      - 2. General Rule: Fed cts may only hear cases that involve a FQ or are based on diversity jx
        
        1.A. Rule 1: Fed cts have jx over claims arising under the const'l. laws, and treaties of the US. Apply to facts, and conclude if FQ jx exists or not.
        
        1.B. Rule 2: Fed cts have jx over matters involving diverse citizens, where the amt in controversy is more than $75k.
        
        1.B.i. Rule A: Complete diversity is req'd, meaning no P and D can be citizens of the same state. (May need more rules if a corp is one of the parties). Apply to facts and conclude if complete diversity exists or not.
        
        1.b.ii Rule B: The amt in controversy must be >$75k. A claimant may aggregate claims against a single D, but not against multiple Ds. Multiple claimants cannot aggregate claims to meet the $75k minimum. Apply to facts and conclude if amt in controversy is met or not.
      - 3. Overall Conclusion: Fed SMJ exists?
  - - - Agreement: If all parties join request to transfer, ct does not need to consider PJ or venue (if agree, consenting) or even convenience
      - Interest of justice: if filed in improper venue, ct can dismiss or in the interest of justice (i.e. P would fail SOL if re-files), transfer where could have been filed originally
      - Convenience (common): could have been filed there in first place and transfer is necessary for convenience of parties and/or witnesses
    - - If all Ds reside in same state --> district where any single D resides (humans where they live, bizes reside in every district in which they are subject to PJ for that suit, like minimum contacts) OR location of the harm (see below)
      - Ds reside in multiple states --> location of harm (the district where a substantial part of the events or omissions giving rise to the claim occurred or where a substantial part of the property that's the subject of the action is located -- can be more than one place)
      - Last resort: district where any D is subject to PJ (this might come up if Ds live in different states and the event happened in Canada but everyone is a US citizen -- need to just choose one of the D's districts). OR a district where the parties consent (PJ) to venue.
- - - - If it is a partial final order that resolves only some of the claims, but not all of the claims, then an interlocutory appeal can be requested. Both the trial ct and the app ct must find that there is doubt as to a controlling legal issue and that app review would advance the litigation.
    - - order involves a controlling Q of law
      - issue of law is one on which there is a substantial difference of opinion, and
      - immediate appeal will materially advance the ultimate resolution of the action
    - - order conclusively decides a particular issue, and
      - delaying appeal until a final judgment has issued would effectively deny app review of the issue
      - order pertains to matter unrelated to merits (collateral)
  - - - Questions of law: Reviewed de novo -- no deference to lower ct, and addresses legal issue as if it has never been addressed
      - Questions of fact: will affirm unless clearly erroneous -- irrelevant whether the app judges might have decided factual issue or a jury -- only inquiry is if "clearly" was wrong. High standard -- rarely overturn lower findings of fact
      - Inherently discretionary questions: When trial cts have discretion, reviewed using deferential abuse of discretion standard
- - - - fraud, misrep or misconduct by party
      - judgment is void: court lacked SMJ or PJ
      - newly discovered E
      - judgment has been satisfied
      - mistake, inadvertence or excusable neglect
      - catch-all: any other reason that justifies relief, but can't be used when above applies
- - - - Challenge for cause: Unlimited, unfit to serve but must articulate unfitness
      - Preemptory challenge: Parties have 3, auto dismissal, no justification needed unless the strike gives rise to gender/race discrimination
- - - - it arises out of the same TOO, AND
      - the ct filed valid final judgment (resolving entire case in favor of P or D) on the merits (inquiry into P's claim) and had proper SMJ, PJ, and venue. Dismissal w/ prejudice = on the merits.
      - the claim arises b/w the same parties on the same side of the V as before
  - - - if the P in the 2nd suit could have joined the 1st action
      - Whether there are procedural opps avail to the D in the 2nd suit that were unavail in the earlier action, AND
      - Whether the D had incentive to litigate the issue in the 1st action. May file in fed ct to challenge the adequacy of state procedures.
    - - issue must have been essential to the judgment. Essential = if decided the opposite way it would have changed the result of the case
      - Prior suit must have ended in a judgment on the merits
      - must have been litigated and determined in the prior suit
      - party against whom preclusion is asserted must have had full and fair opp, as well as incentive, to litigate the issue in the 1st suit
- - - - (1) specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
      - (2) the movant's attorney certifies in writing any efforts made to give notice and the reasons why notice should not be required