Civil Procedure
Pre-Trial
Trial
Jurisdiction
Discovery
Service of Process
Personal Jurisdiction
Venue
Subject Matter Jurisdiction
CANNOT BE WAIVED
Federal courts have limited SMJ.
Traditional
Long Arm
Fed Question
Class Actions
Jury Trials
Types
Prejudice
Injunctive
12b Mot to Dismiss Defenses
Sanctions
Appeal and Review
Appeal
Res Judicata
step 1: Contact
step 2: Relatedness
foreseeability
purposeful availment
Does the P claim arise from the D's contact with the forum
if yes- specific PJ
if no- general PJ
D must be domiciled in the forum. OR
D is served with process in the forum state.
CORPS: state of incorp. and pincipal place of biz
Fairness
burden on D and witnesses (not perfect)
state's interest
P's interest
States wanna protect their citz.
2 parts
Copy of complaint
Summons
Who
non party, 18+ y/o.
When
within 90 days
how
personal service
given to them personally.
State Law
Agent Service
substituted
can only be done at D's usual place of abode.
of suiitable age and discretion.
that person must reside there.
common sense determination
either SPS or like an officer/ asst. if their duties include the scope of this type of thing.
either the state where fed ct sits, or the state.
service of process by mail. Most states allow.
Can serve a minor or incompetent's person acc to state law.
Waiver
If a D waives service, they do NOT waive defenses, such as PJ.
Plaintiff files waiver with the court and its treated as proper service on that date.
If D refuses to pay without good cause, they have to pay a penalty.
other documents
can be emailed if the parties agree. NOT true for summons/complaint
Diversity
Diversity citizenship
$75,000.01 in controversy
Alienage- 1 party is not a citz
State to state
ANY plaintiff cannot be of the same state as EVERY D
natural person can only have ONE domicile.
physical presence
subjective intent to make a new domicile for foreseeable future,
courts will look at ALL relevant factors
house
voter registration
taxes
Unincorporated business
citizen of all of its members.
Decedent, Minor, incompetent
use citizenship of that person, not the representative.
litigation costs do not count
does not matter how much they ultimately recover
Aggregating
A single P may aggregate all claims against a single/all D
multiple P's cannot do this.
do not need to be CNOF
Multiple D's is OK so long as they are joint D's
Equitable Releif
Will the equity cost the D $75,000 or more
Will the P benefit by $75,000 in value
Excluded
probate
custody/ alimony/ divorce
P is ENFORCING a fed law
Supplemental
Fed. Ct must have SMJ over every single claim
Step 1: Does this claim invoke Diversity or FQ
If no
If Yes--> not supplemental, just reg.
Common Nucleas of operative Facts with OG pleading.
If diversity
asserted by non-pltf = good
If P= LIMITAION: P2 falls short of diversity but shares CNOF
STEP 1: Is there a federal law that directly conflicts with state law
If yes- Fed. Law wins
if no- STEP 2: Is the issue substantive?
SUBSTANTIVE = state law
statute of limitations
tolling SoL
elements of claim
New Trial because of excessive/inadequate jury damages
conflict of law
STEP 3: no fed law, no subs. issue- THEN Fed. Judge must determine whether the ISSUE is substantive
determining factors
Balance interest factors
avoid forum shopping- will decision cause Ps to flock to fed court
outcome determinative
All D's reside
substantial part of claim arose
Requirement Does NOT apply for removal.
States Generally have SMJ.
If different Dists of same state, then any dist in that state is fine.
click to edit
If D does not reside in the U.S., any Fed. Dist is proper
businesses reside in every dist where they are subject to PJ.
Transfer
Removing to a different district
original court is the transferor.
venue must be proper in the transferee court.
unless all parties consent and the court agrees
Pleading
some claims requre more detail or specificity
mistake
special damages
fraud
Response
D has 21 days to file, or 60 days if they waived service
Motion 12b gets filed first.
motion denied = respond in 14 days
12f- any party can move to strike, whether it be a claim or a defense.
non-waivable
waivable: have to plead them up front otherwise they are unavailable
Improper Venue
Improper Process (docs)
lack of PJ
Lack of SMJ
Deny
Lack of sufficient info
Admit
cannot do this if the lack of info is in D's control
Failure to deny = admission
except re: amount of damages
affirmative defense
inject new fact
waived if not asserted in answer
Pltf need not respond
Amending
Pltf has the right to amend once, no longer than 21 days after D's Motion to Dismiss
improper service
D has right to amend answer up till 21 days after filing.
this includes aff defenses that he forgot
Amendment can be filed after the SOL if: The plaintiff sued the wrong defendant and the right defendant knew about it
Supplemental Pleading
Something happens AFTER filing. (D punches P in the nose after filing)
Fail to state a claim
Fail to join indispensable party
Joinder
Claim Joinder by P
Necessary Parties
Multiple Ps or Ds
step 1. Is absentee necessary or required?
step 2. if yes- can they be joined?
step 3. if no- can case proceed? Factors:
absentee's interest be harmed
Absentee claims an interest that subjects D to a risk of multiple obligations.
w/o absentee, ct cannot accord complete relief
Federal SMJ over absentee's claim
PJ over absentee
If yes - join
if no- do not join
actual harm to absentee is likely
ct can shape relief to avoid any harm
alternative forum available?
Claim joinder by D
cross claim: claim against a co-party from same t/o
counterclaims : any claim against a complaining party, P must respond in 21 days.
Must have Fed. SMJ. If no- is there Supp Jur?
permissive
compulsory
same t/o
use it or lose it. BEFORE answering or defending original case
Must have either SMJ or Supp. Jur
Impleader brings in new party for indemnity or contribution (3PD). Permissive. Reqs SMJ, does not destroy diversity, because its a new claim
step . File a third party complaint
step 2. have the complaint formally served.
Intervention- Requires SMJ or Supp, Jur. If P intervenes, they may destroy diversity
permissive
of right
interest is not adequately rep'd.
absentee's interest may be harmed
1 common question of law/fact.
discretionary to court.
delay things
prejudice things
Requirements
commonality
typicality
nnumerosity
adequate representation
Common Question
cannot seek damages
rare, Ps are poor, etc.
common question must predominate
class is superior method to handle this
Process
Court must certify.
Must also define class, issues and defendant
court appoints class counsel.
court THEN must send notice to all reasonably identifiable members- paid for by the rep.
ONLY FOR TYPE 3
bound by judgment
can enter a separate appearance
can opt out.
cannot opt out
cannot opt out
SMJ is determined by class rep only.
CAFA
any class member is diverse from any defendnat
100+ class members
$5 millions aggregated claim value
Any D may remove
Initial Required Disclosures (14 days after Rule 26f conference)
failure to produce intitial disclosures
party cannot use undisclosed material in the case unless it was justified or harmless.
expert witnesses Required Disclosures
expert witness
consulting experts
failure to disclose EW stuff
they cannot use the EW in the case unless justified or harmless
Required Pre-trial Disclosures (30 days before trial)
ID of witnesses who will testify
documents, ESI and other things they intend to introduce.
Depos
Notice of Depo- compels party
non-party must be subpoenad
Subpoena Duces Tecum- requires deponent to bring material to depo
unless they agree otherwise, they can only be required to travel 100 miles from home or work.
Deposing a business
Notice what you want
business designates a proper person to fulfill those needs
ROGGS
cannot depose same person twice
cannot last than 1 7 hour ay
can only take 10 unless court stipulates otherwise
must answer in 30 days
limited to 25 questions, including subparts
reasonably available info to aid is necessary
if burden is the same, responding party may just give access to records to the asking party instead of looking it up
Contention ROGGS
inquire about legal contentions
Req for Production
response in 30 days of service.
either produce or object.
only go to parties
unless you subpoena the non-party
medical exam
court order is required to compel a party to submit to exam.
health is actually in controversy
good cause.
Once exam is done, Dr. makes a medical report.
examinee gets a copy of the report. But once they do, she must produce ALL medical records pertaining to that ailment with her own doctor.
- kills patient privilege
Req for Admission.
failure to deny in 30 days = admission
facts used for opinions
EW's quals
bases for opinion
rate of pay
opinion EW will express
Documents and things used to support claims/defenses
Identities of persons with disco info the party may use to support their claims/defenses
computation of relief and supporting documents
Relevant insurance coverage- even if not admissible
documents and tangibles not in possession need not be disclosed
Scope: Relevant to claim/defense and proportional to needs of the case
Undue costs ARE considered.
Courts MAY allocate costs if P shows good cause to obtain despite cost
D can move for a protective order or object to disco of ESI
Work Product: Material prepared in anticipation of litigation
Need NOT be generated by lawyer
Qualified- Admissible IF
Absolute
Substantial Need AND
Undue hardship to obtain otherwise
Asserting Privilege
Must claim protection expressly and describe in detail
"PRIVILEGE LOG"
Judge determines if it is or not discoverable
Partial Disco Failure
Full Disco Failure
Requesting Party- motion to compel
Opp. party fails to respond
contempt
except for refusal to submit to medical exam
Court enters merit sanctions right away. No need for mot to compel
Strike pleadings of disobedient party as to the issues
Disallow evidence from the disobedient party as to the issues
Dismiss P's case/ Enter Default Judgment against D.
Establishment Order- facts as true
only available if there is bad faith
Lost
ESI is truly lost- unrecoverable
Ct can enter "Adverse Inference order"
tells jury that they presume the lost info would be unfavorable to the party that lost it.
Adjudication without Trial
(Resolution without trial)
Preliminary Injunctive Relief
Temporary Restraining Order
(issued to maintain status quo until PI hearing)
No immediate appeal
14 days or less.
Can be extended for another 14 days.
contents
ex parte
applicant files paper under oath
applicant's lawyer certified in writing her efforts to give oral or written notice to D.
specific terms
detail the D's conduct
detail WHY
Burden on applicant to show:
likely to win on the merits
balance of hardship favors applicant AND
likely to suffer irreparable harm
public interest
Court discretion
Appeal available.
Voluntary Dismissal.
Must be before Answer OR Mot for
Summ Judg.
Parties may stipulate
After which, court uses discretion to grant
Can only dismiss without prejudice ONCE.
Default- notation by clerk on the docket sheet. Does not happen automatically.
P must move for it.
cuts off D's ability to answer.
THEN default judgment
Clerk can enter default judgment
D made no response.
claim itself is for sum certain
P gives an affidavit of the sum owed
D is not a minor
^IF ANY OF THESE ARE NOT SATISFIED
There will be a hearing
12b6- Fail to State a Claim
ignoes legal conclusions
"If these FACTS are true, do they state a plausible claim?
Judge might give you leave to amend pleadings instead
Summary Judgment
No genuine dispute of material fact
she is entitled to JMOL
NO more than 30 days after close of Disco
Evidence allowed, provided by both parties
CAN be a partial Summ Judg.
No evidence allowed
Depo, ROGGS, Affss, Disco UNDER OATH
If you need more time, the judge may allow it but you have to explain WHY you need it
Pleadings are NOT evidence
Pretrial Conferences
Whenever the jugde feels like it
to oversee the case.
FINAL Pretrial Conference
Issues to be tried.
Evidence to be proffered
Bench Trial
Motion in Limine
limits evidence proffered
7th Amendment
Right to jury trial for actions at law
No right at actions in equity.
Mixed suits
Facts underlying damages tried first before jury
THEN facts relating only to equity are tried to judge
jury questions
judge questions
EVEN if the fact underlies an equitable issue
Jury must be demanded within 14 days of the last pleading showing jury triable issues. Otherwise it is waived
It will usually be an answer.
Voir Dire
Peremptory Challenge
For- Cause Challenge
unlimited number
generally 3 per side
no reason is needed.
MUST give reason
must be race and gender neutral because this is state action
Verdict must be unanimous in Fed Ct.
Juror Misconduct
Jury instructions
close of all evidence
typically off the record discussion, THEN on the record argument. Court must then inform lawyers (not jury)
what instructions it will give
which instructions were rejected.
objections are allowed.
failure to object = waiver
Types of verdicts
Combo
Special Verdict
General- who wins, and what relief
Jury answers in writing, specific answers to questions. Does not say who wins or loses
General with written answers
THEN clerk enters the judgment
THEN judge will approve judgment, and clerk enters it
THEN judge will approve judgment, and clerk enters it
If the answers are inconsistent with the general verdict, judge has options
no judgment can be entered
order a new trial
advise the jury to revise
a verdict may be impeached based on external matters
judge determines facts at trial and record her findings of fact AND conclusions of law
Judgment entered will be general. Who wins, and relief granted
Remittitur and Additur: Jury damages is inappropriate
New Trial Motion
JMOL- Directed Verdict
only available at jury trials
Based on evidence at trial
Std: Reasonable people could not disagree on the result
Party can move for JMOL after the OTHER side has been heard at trial on the issue
Renewed JMOL
Std: Jury reached a conclusion that reasonable people could not have reached
comes after jury verdict
Must be made within 28 days of entered judgment
MUST have made a JMOL motion at trial, properly. And be on the same Basis made previously
Same timing as RJMOL but does not require a previous motion to be preserved
some error occured
jury/party/lawyer misconduct
judgment is against weight of evidence
new evidence discovered
Damages are inappropriate.
erroneous jury instruction
gotta be serious error of judgment
Remittitur
Addititur
"shocks the conscious"
P remits part of damages, or undergoes new trial. Must give the P a choice
Not available in Fed Court
Gives D the choice to add to the damages or undero a new trial
Offer of judgment: D can submit formal offers up to 14 days before trial.
If P wins less than the offer, the P has to pay D's fees
Final judgment Rule: Losing party has the right to appeal if the court's order is a final judgment.
Final judgment wraps up the entire case. "Does the trial court have anything to do on the merits of the case"
If yes- interloccutory
if no- final judgment = right to appeal
Remand is often not appeal-able.
Injunctions and TROs
Injunctions may be appealed
If a TRO extends beyond 28 days, it is no longer a TRO, and may be appealed
Interlocutory Appeal (must have all 3)
substantial ground for diff of opinion
Ct. of App has to agree to hear it
Dist Judge certified that it involves a controlling issue of law.
App court has discretion to hear an appeal on an issue if
distinct from merits of case
involves an important legal question
is essentially unreviewable is parties await final judg.
Class Actions
Ct of Apps has discretion to review class certification
Whether a judgment already entered precludes litigation of any matters in another case
If case 1 and 2 are in different judicial systems then case 2 will use preclusion law of the case 1 court.
If diversity jurisdiction- federal law
Requirements
case 1 and 2 are brought by same claimant against same defendant
Case 1 must have ended in valid final judgment on the merits
Case 1 and 2 must be the same claim
does NOT include
improper Venue
Failure to join indispen. party
lack of Jx
primary rights doctrine
majority view
a claim is any right to relief arising from a t/o
separate claims for personal injury and property damage permissible
Collateral Estoppel- Issue Preclusion
case 1 ended in valid final judgment on the merits
same issue was actually litigated and determined in case 1
Issue was essential to judgment in case 1
Against whom is preclusion being used?
By whom is preclusion used? Mutuality
Due Process. Must be in privity with a party in case 1
nonmutual issue preclusion
nonmutual offensive issue preclusion
nonmutual defensive issue preclusion
person was no a party to case 1
Defendant in case 2
Eerie
Step 1: Is there a federal law that directly conflicts with state law?
If no, Step 2: is the issue substantive?
If yes- apply Federal Law
If no, Step 3: Federal judge must determine whether the issue is substantive
If yes- Apply state law
SOL, tolling
New trial// excessive damages
elements of a claim
conflict of law
Forum shopping- will the decision cause Ps to flock
Balance interest factors
outcome determinitive