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Civil Procedure - Coggle Diagram

- - - - would be prejudice to any parties' full and fair ajudication, multiple inconsistent obligations
      - Indispensible
        
        whether judgement can be shaped to avoid prejudice
        
        Adequacy of judgment without absentee
        
        Prejudice to absentee and parties
        
        whether another forum can hear entire case
      - Feasible: Can absentee be joined?
        
        PJ over absentee
        
        if absentee served within US district and not more than 100 miles from where summons issued, PJ over absentee regardless of contacts with the forum
        
        SMJ over claim by or against the absentee
        
        Cannot use Supp. Jx. to join Rule 19 party if inconsistent with jurisdiction requirements
      - Is absentee necessary (required)?
        
        B: absentee's interest may be harmed if not joined OR
        
        C: absentee's interest subjects a party (D) to a risk of multiple inconsistent obligations
        
        A: ct. cannot afford complete relief among existing parties
    - - Interpleader: stakeholder can require 2 parties to litigate among themselves to determine claim to the stake
        
        Rule 22 (regular rules)
        
        (1) complete div. between stakeholder and all adverse claimants and AIC in excess of $75,000 or (2) FQ
        
        statutory (special, simple, standards)
        
        diversity between any two contending claimants and $500 in issue.
        
        available if stakeholder is claimant
      - Intervention: non-party moves to enter lawsuit (no supplemental jurisdiction)
        
        As of right: non-party's interest will be adversely affected by the lawsuit, and that right not protected by parties
        
        Permissive: Court discretion if commonality of issues between those in the ongoing lawsuit and those affecting intervener
      - Impleader (look for supplemental jurisdiction)
        
        D may bring 3P: liable to D for all or part of D's liability to P (contribution, indemnity)
        
        look for shifting of DAMAGES; merely claiming 3PD is liable and D is not is not derivate = improper
  - - - after 21 days, file motion for leave to amend: granted freely when justice so requires
        
        new party (new D)
        
        relates back if same t/o, D had knowledge of case, and D knew or should have known that but for a mistake she would have been named originally.
        
        Within 90 days of filing the original pleading
        
        New D knew or should have known that, but for a mistake, she would have been named originally
        
        New D knew or received notice of action
        
        Amendment concerns same conduct, transaction, or occurrence and
        
        new claim
        
        "relates back" if same t/o
      - Supplemental Pleading: event, occurrence, or transaction that occurred after the date of original pleading -- court may give permission
  - - - Never compulsory
      - supplemental jx.
    - - mandatory: same t/o
        
        may invoke supp. jx.
      - permissive: not same t/o
        
        needs original jx.
    - - Adequacy
        
        named P and lawyers must fairly and adequately represent class
        
        experience of lawyer can be factor
      - Numerosity
        
        so numerous that joinder impracticable (at least 40)
      - Commonality
        
        common issues of law/fact
      - Typicality
        
        claims of named P are typical of class
      - 23(b) 1 of 3 -- either:
        
        Type 2: injunctive or declaratory relief appropriate - Injunctive or declaratory relief appropriate
        
        Type 3: Common Question or Damages: Common questions predominate and Class action superior to alternative methods
        
        Type 1 Prejudice: class treatment necessary to avoid harm (prejudice); risk of inconsistent results
      - Certification
        
        Court must determine at an early practicable time whether to allow the case to proceed (certify class)
      - Settlement
        
        Court must approve any settlement between class representatives and opposing party
        
        Settlement must be fair, reasonable, and adequate
        
        Court will seek feedback from absent class members in deciding whether to approve or reject the settlement
        
        In type 3: court may refuse to approve settlement unless members are given second chance to opt out
  - - - Must raise certain 12(b) motions in first pleading or they are waived
        
        Improper service of process
        
        lack of PJ
        
        improper process
        
        improper venue
    - - must admit or deny every allegation
        
        include waivable 12(b) motions or affirmative defenses or they are waived
        
        8(c) affirmative defenses
        
        contrib. neg.
        
        estoppel
        
        duress
        
        statute of limitations
  - - - 1) short and plain statement of jx, (2) statement of a claim that would entitle claimant to relief, (3) demand for relief
    - - without leave of court
        
        P may voluntary dismiss as a matter of course before D serves an answer or motion for summary judgment
        
        without prejudice unless previously filed and dismissed same claims
        
        If D has pending counterclaim, P cannot voluntarily dismiss without D's consent
      - with leave of court
        
        required if there has been answer, motion, or prior dismissal
        
        court discretion if proper
  - - - to best of signor's knowledge, after all reasonable inquiry taken
        
        (2) non-frivolous legal contentions made are warranted by law or non-frivolous argument to change law; and
        
        (3) Factual contentions have evidentiary support
        
        or likely to have evidentiary support, but must be specifically so identified
        
        (1) filing is not for improper purpose
    - - Hearing required -- court must give att'y or party a chance to be heard before imposing sanctions
      - Safe harbor -- Rule 11 motion served by not filed with court for 21 days
      - Sanctions may be non-monetary, monetary payable to court, and payment of costs to opponent
      - no monetary sanction on represented parties
- - - - jurisdiction over property subject to claim
      - forum has power to adjudicate rights of all persons to a particular item of property; defendant not personally bound
    - - type I: court adjudicates rights of parties in property based on property being in forum; close connection between case and property provides minimum contacts
      - type II: court attaches property to bring defendant into forum on unrelated claim; defendant must have minimum contacts with forum
    - - jurisdiction over parties
        
        Located in State
        
        Domicile
        
        physical presence + intent to remain indefinitely
        
        Service ("tag")
        
        UNLESS: only in state due to force, fraud, or participation in another judicial proceeding
        
        Consent
        
        Express
        
        Implied: State has substantial interest in regulating nonresidents in a particular in-state activity
        
        driving
        
        Waived: D fails to raise defense in an answer or first responsive pleading
        
        Non-resident
        
        state long-arm statute: grants personal jx.
        
        Constitutional
        
        Contacts
        
        minimum contacts such that it would not offend traditional notions of fair play and substantial justice
        
        Purposely availed
        
        foreseeable: knew or reas should have anticipated activities made it foreseeable to be haled to court there
        
        Specific Circumstances
        
        3 more items...
        
        Relatedness
        
        Specific PJ
        
        claim arises from or relates to D's contact
        
        Fairness
        
        3 more items...
        
        General PJ
        
        Claim does not arise from contact
        
        1 more item...
  - - - Rule 9 methods
        
        agent service
        
        personal service
        
        waiver
        
        state methods
        
        (1) state where federal court sits
        
        (2) state where service is made
        
        abode service
        
        (2) w someone of suitable age and discretion
        
        (3) who resides there
        
        (1) usual place of abode
        
        must occur within 90 days of filing complaint
        
        Business or Organization (in US)
        
        Delivering to an officer or managing or general agent
        
        Using method permitted by state: (1) where federal court sits or (2) service is to be made
        
        Parties in Foreign Country
        
        method authorized by international agreement
        
        if no such agreement:
        
        Method directed by foreign official in response to a letter of request from American court
        
        Personal service in the foreign country
        
        Method allowed by the foreign country
        
        Mail sent by clerk of the American court
        
        As directed / authorized by the American court
      - Constitutional
        
        reasonably calculated, under all the circumstances, to give interested parties notice of the action
      - Who Can Serve?
        
        Not a party to action
        
        At least 18
      - Exceptions to Requirements
        
        Immunity from Service
        
        D cannot be personally served in state if in state solely as a party or witness in another civil case
        
        Subsequent papers
        
        Subsequent papers filed with the court do not require formal service
    - - P requests waiver: mail def. notice of request to waive
        
        include copy of the complaint and two copies of a waiver form, with prepaid means of retunring
      - D mails waiver form within 30 days = waives service of process
      - penalty for failing to waive: D pays costs of service
  - - - Federal Question
        
        P's well-pleaded complaint alleges issue that arises under federal law.
        
        is party enforcing a FEDERAL right?
        
        Exclusive federal jx
        
        Patent, copyright, trademark
        
        Federal antitrust claims
        
        Bankruptcy
        
        Postal matters
      - Diversity Jurisdiction
        
        Complete diversity of the parties
        
        Citizenship:
        
        Person = domicile
        
        physical presence + intent to remain indefinitely
        
        Corp.
        
        State of incorp.
        
        PPB
        
        Partnership
        
        citizenship in every state where one of its members is a citizen
        
        class action
        
        domiciles of named members
        
        Alienage
        
        citizen of U.S. state and foreign citizen
        
        AIC: in excess of $75,000
        
        P's good faith allegation
        
        Aggregation
        
        One P may NOT aggregate separate claims against SEVERAL Ds
        
        One P may sue several Ds on a joint liability claim if it exceeds 75k
        
        One P may aggregate all claims against single D
        
        Several Ps may aggregate claims against one D if seeking to enforce single title or right
        
        EXCLUDED Cases: even if requirements met, federal cts. decline to hear:
        
        alimony
        
        child custody
        
        divorce
        
        actions to probate estate
    - - must have one claim with original jurisdiction first
      - supplemental claim must arise from a common nucleus of operative fact as the original jurisdiction claim such that the claims should be tried together
    - - Def. can remove to federal ct. that geographically embraces the state court if fed. ct. would have had SMJ.
        
        notice of removal filed in federal court within 30 days of service of complaint
        
        All parties and state court must receive notice of removal
        
        If later pleading, motion, etc., is filed that shows case is now removable, period begins to run on service of that pleading, motion, etc.
        
        Diversity case in state D: no removal if one D citizen of state where action pending
        
        Diversity case: cannot remove more than 1 year after case filed unless D can show P acted in bad faith to prevent removal
        
        Federal Q case
        
        Having a federal defense is insufficient
        
        Entire case removed
        
        State law claims may be severed and remanded to state court
      - Remand
        
        federal jurisdiction does not exist
        
        Improper Procedure
        
        P must file notice to remand within 30 days of notice of removal
        
        UNLESS based on SMJ (no time limit)
        
        Lack of SMJ
        
        P can move to remand at any time
  - - - proper where
        
        b) in the fed. dist. where a subs. part of claim arose or where substantial part of property is located
        
        c) if no fed. districts satisfies a or b, where def. can be found provided PJ
        
        a) any Def. resides, if all defs. reside in that state
        
        Residence
        
        Business Entities: where subject to court's PJ
        
        Nonresidents: any judicial district
        
        Individuals: domicile
      - Venue can be waived
    - - Improper Venue
        
        court may transfer to venue where case could have been brought in interest of justice or dismiss
      - Proper Venue
        
        Court can transfer to venue where might have been brought or parties consent based on convenience of parties and interests of justice
        
        Choice of Law
        
        Transferee (new venue) applies CoL rules of transferor (old venue)
        
        Forum Selection Clause
        
        FSC Enforcement: federal law governs
        
        discretionary analysis by federal court: generally, enforce FSC if not unreasonable (only consider public factors)
        
        where transfer to enforce FSC, transferee court applies its own choice of law rules
        
        1 more item...
        
        Convenience Interests of justice
        
        Private Factors
        
        convenience: where defendants and evidence are found
        
        Public Factors
        
        what community should be burdened with jury service
        
        desire to keep local controversy in local court
        
        what law applies
  - - - if no federal law, apply state substantive law
        
        Conflict (or choice) of law rules
        
        Elements of a claim or defense
        
        Statutes of Limitation
        
        Rules for tolling statute of limitation
        
        Standards for granting new trial because the jury's damages award was excessive or inadequate
      - if no federal law and issue not specific substantive issue, determine whether substantive
        
        balance of interests
        
        does either federal or state system have a strong interest in applying its rule?
        
        avoid forum shopping
        
        if fed. court ignores state law, would it encourage litigants to flock to federal court?
        
        outcome determinative
        
        would applying or ignoring state rule affect the outcome in the case?
- - - - Evidence must be ADMISSIBLE (no hearsay)
  - - - clerk enters default on docket (default judgment must still be entered)
      - Setting aside entry of default: motion with court showing good cause, merit defense, and no prejudice to P
    - - By court
        
        if above elements not met, Court must enter and will hold a hearing on damages
        
        if D has appeared at some point in response to P's complaint, must get 7 day notice of hearing on a default motion
      - By court clerk
        
        2) claim is for money damages
        
        3) P gives an affidavit of sum owed; and
        
        4) D is not a minor or incompetent
        
        1) D has not responded at all
      - Recovery: limited to amount demanded in complaint
      - Setting aside default judgment: may be set aside like any other judgment
    - - Defendant's ability to challenge a default judgement where the defendant never appeared in the action at all.
        
        constitutionally or procedurally defective
  - - - within 28 days of judgment; must have raised JMOL
        
        must be the same grounds as raised in original JMOL
      - Same standards as JMOL
    - - made within 28 days of judgment; court discretion if either errors at trial affected party's substantive rights or verdict against manifest weight of injustive
        
        Judgment against the weight of the evidence
        
        jury erred in reaching verdict given the evidence before it
        
        Newly Discovered evidence that could not have been discovered before with due diligence
        
        Prejudicial misconduct
        
        of party, attorney, juror
        
        Excessive or Inadequate damages
        
        Court cannot increase jury award (violates 7thy A); judge can order a new trial or offer remittur if convinced award is too high
        
        Remittitur
        
        Court can consider a new trial or offer P a choice of taking a lesser figure set by the court
        
        Maj. std. (fed. and most states)
        
        The jury's award shocks the conscience; diversity cases must use the state standard
        
        Prejudicial Error
        
        serious error that makes judgment unfair
  - - - if party accompanies motion with affidavits, court may treat as motion for summary judgment
- - - - Production of Documents
        
        Subpoena: a party may serve on a nonparty a subpoena that compels the nonparty to produce physical material, including documents and ESI, relevant to the pending action
      - Depositions
        
        Nonparties must be subpoenaed
        
        Notice of deposition compels appearance of parties
        
        Scope
        
        May cover any issue within the scope of discovery
        
        Objections
        
        deponent's counsel may object to questions, but deponent is still required to answer
        
        Exception: if objection is based on privilege, counsel can instruct deponent not to answer
      - Request for Phys/Mental Exam
      - Request for Admissions
      - Interrogatories
    - - Work-Product Doctrine
        
        Work Product: any material prepared in anticipation of litigation and was not in ord. course of business
        
        Mental impressions = not discoverable
        
        other WP: discoverable if subst. need and undue hardship of getting it elsewhere
        
        list of identities of people with knowledge of discoverable matters NOT work product
        
        anticipation of litigation
        
        case filed, or litigation is threatened
        
        so standard report not anticipation litigation
    - - Consulting experts: only if exceptional circumstances
      - Testifying experts: may depose
  - - - motion must certify that moving party has made a good faith attempt to obtain discovery of requested material
- - - - fed. court may allow parties to request by motion a jury trial on any issue for which a jury trial may have been demanded (even after 14 days)
    - - Facts underlying damages claim tried to jury; facts relating wholly to equity claim tried to judge
        
        generally, jury issues tried first
    - - jury decides the fact
  - - - Clerk of Court enters judgment
    - - If answers are consistent with each other and verdict, judge approves and clerk enters
      - If answers are inconsistent with the verdict -- Judge can:
        
        instruct jury to reconsider; or
        
        order new trial
        
        enter appropriate judgment consistent with the answers;
  - - - (2) what proposed jury instructions it rejected
      - (1) what instructions it will give
      - Parties must be allowed to object on record out of jury's hearing -- objection waived if not made before jury is "charged" (unless instructions actually given are different)
- - - - When multiple claims or multiple parties are involved in an action, the court may enter a final judgment as to fewer than all of the claims or parties on:
        
        (i) express determination that there is no just reason for delay, and
        
        (ii) an express direction for entry of judgment
        
        unless there is express determination, the order is not final and not appealable
  - - - Equity
      - New facts
      - Merit
      - Due diligence
  - - - Orders involving debatable questions of controlling law
      - Certification of class actions
      - Injunctions
    - - Involves an important legal question; AND
      - Is distinct from the merits of the case
        
        separate issue from main issue
      - Is essentially unreviewable if parties await a final judgment
        
        whether there is political question (justiciability) does not warrant -- still reviewable after final judgment
    - - Court of appeals agrees to hear it
      - As to which there is a substantial ground for difference of opinion; AND
      - District court certifies that it involves a controlling issue of law;
    - - Where more than one claim is presented in a case, or when there are multiple parties, district court may expressly direct entry of a final judgment as to one or more of them if it makes express finding that there is no just reason for delay
    - - court of appeals has discretion to review an order granting or denying certification of a class action
      - party seekign review must do so at court of appeals within 14 days of order
    - - original proceeding in court of appeals to compel district judge to make or vacate a particular order -- available only if district court is violating a clear legal duty
    - - Preliminary Injunction
        
        4 part Test
        
        (2) Reasonable likelihood of success on the merits
        
        (3) Balance of Hardships
        
        (1) irreparable injury
        
        (4) Public Interest
        
        Appealable
      - Temporary Restraining Order (TRO)
        
        Issued by court to when necessary to prevent immediate, irreparable injury to a party
        
        NOT immediately appealable
        
        Expiration
        
        no more than 14 days from issuance; court for good cause without adverse party's consent up to 28 days
        
        after 28 days, treated as preliminary injunction (becomes appealable)
  - - - Bench Trial: clearly erroneous
      - Jury Trial: reasonable people could not have made that finding
- - - - on merits unless based on lack of jx, improper venue, or failure to join indispensible party
  - - - unlike claim preclusion, full trial on merits is almost always necessary to satisfy
    - - privity means party represented someone
    - - Mutual (used by party in Case 1) = OK
      - Non-Mutual
        
        Offensive (used by P in Case 2) = not OK
        
        Fairness
        
        strong incentive to litigate in Case 1
        
        Party asserting could have easily joined Case 1
        
        full and fair opp. to litigate
        
        no inconsistent findings on the issue
        
        Defensive (used by D in Case 2) =OK