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Table of Contents

I. Procedural due process………………………………………………………..…...…..p. 2


a. United States Constitution 14th Amendment Section 1: Due Process
b. Notice
II. Personal Jurisdiction…………………………………………………...…………..…..p. 5
a. Specific Jurisdiction
b. General Jurisdiction
c. Ways to Challenge Jurisdiction
d. General Jurisdiction Cases
e. Specific Jurisdiction Cases
III. Subject Matter Jurisdiction………………………………………………………...…..p. 11
a. Diversity
b. Diversity continued/Federal Question
c. Tribal Courts
d. Venue/Removal
e. Forum Non Conveniens
f. Jurisdiction in US Courts for violations of International Human Rights
IV. Constructing a Civil Lawsuit…………………………………………………..……….p.
a. History of Civil Procedure and Complaint
b. Bell Atlantic case and notes that follow
c. Case planning
d. Ethics
e. Pre-Answer Motions and Answer
f. Affirmative Defenses/Amended Pleadings
g. Joinder of Claims and Parties
h. Supplemental Jurisdiction
i. The Erie doctrine: state law in federal court
V. Discovery………………………………………………………………………………..p.
a. Overview of discovery/Mandatory disclosure
b. Scope of Discovery and Limitations. Protective Orders and Sanctions
c. Privilege/Trial Preparation Materials
d. Appealability of Discovery Orders
e. Constitutional Right to Trial by Jury
f. Jury selection/Race and Gender Bias
VI. Pre-trial Disposition…………………………………………………………………….p.
a. Summary judgment (SJ)
VII. Trial and Beyond………………………………………………………………………..p.
a. Alternative Dispute Resolution
b. Judgment as a matter of law
c. Post-Trial Motions and Appeal

1
I. Procedural due process
A. United States Constitution 14th Amendment Section 1: Due Process
1. Due Process: 14th Amendment requires that when the state or federal government acts in
such as way that denies a citizen of a life, liberty, or property interest, the person must
be given notice and an opportunity to be heard.
a.Guarantees rights of Due Process
i. Sniadach v. Family Finance Corp.: opened all forms of prejudgment seizure of
property to attack if the associated procedures were deficient and the D is debtor
● clerk of the court issued summons for wage garnishment; P deprived of her sole
income
ii. Goldberg v. Kelly: termination of P aid pending resolution of a controversy over
eligibility may deprive P of means to live w/o opportunity to be heard after trying to
visit agent two to be heard.
iii. Mathews v. Eldridge: Similar to above, but SS benefits. No hearing needed before
cutting Soc. Sec. benefits
A. Consider THREE factors BALANCING TEST:
1. Private interest
- how the individual will be affected
2. Risk of error
- Risk of false deprivation of interests vs. probable value of add.
safeguards
3. The gov’ts interest (i.e. function, fiscal/administrative burden)

vi. Lassiter v. Department of Social Services: the gov’ts interest in a quick and
economically efficient method for adjudicating these cases is balanced against
both parties’ interest in a fair proceeding through which the truth may be
ascertained.
● In Lassiter’s case, there were no complex evidentiary or legal issues, and the
clear weight of the evidence suggested that Lassiter and her mother were
unable or unwilling to care for the child;

v. Hamdi v. Rumsfeld: P held without due process as an enemy combatant


A. Detention of Enemy Combat (EC), for the duration of conflict is OK
B. To challenge classification, EC must receive notice of factual basis and a
fair opportunity to rebut. Reasonable timeframe (burden on EC). Hearsay
OK.
C. P has right to counsel.

vi. Rule 65(b): Temporary Restraining Order


A. No notice needed if:
1. W/o TRO, immediate/irreparable injury AND
2. Movant made effort to give notice/reasons no notice required

HYPO: Pharmacist facing revocation of license for 3 months until final judgment issues
“Extraordinary Situations” Test for pre judgment seizure exception to proceed w/o notice
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Fuentes v. Shelvin: P property seized w/o notice or opportunity to be heard; D actions wrong but test
established when no need for notice
a. necessary to secure
b. important governmental or public interest (general)
c. special need for prompt action
● gov’t official responsible for determining
● under standards of narrowly drawn statute
○ ex. Nat’l Security, under investigation, DV
B. Mitchell v. W.T. Grant Co.
- Fuentes v. Shevin (1972) does not apply to a state statute that requires
a clear showing of the nature of the claim and the grounds relied upon
for the issuance of the writ of sequestration.
- Judge
vii. Adversarial (American) Justice System:
A. Neutral and passive decision maker
1. Ensures appearance of fairness
B. Party presentation of evidence
1. Insulates judge from involvement
2. Allows judge to see what each party thinks is important
3. Focuses litigation to issues most important to the parties
C. Highly structured discovery procedure
1. Produces a climactic confrontation
2. Ensures fairness through equal opportunity to make a case
Attorneys must (1) zealously represent client while (2) trying to find the truth

B. Notice
Rule 4: Summons
A. Contents; Amendments
1. Contents
name of the court parties
a. directed to the D
b. name and address of P attorney
c. state the time w/in D must appear and defend
2. Amendments
B. Issuance: summons must be properly completed, the clerk must sign, seal, and issue it to the P
for service on the D
C. Service
D. Waiving Service
(1) D may waive service. Benefit:By accepting a waiver of personal service, you get 60
days, as opposed to 21 days, to file a motion. and to avoid paying fees
(2) Failure to Waive: can be done by mail
(a) expenses later incurred in making service; and
(b) reasonable expenses, including attys fees, of any motion to college those
service fees
(5) Jurisdiction and Venue not Waived: waiving service of a summons doesn’t waive any
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objection to PJ or venue
E. Domestic delivery options:
1. Give to D personally
2. Leave at D’s residence w/ someone of
suitable age, and discretion who resides there
3. Deliver to an authorized agent; officer or
managing and general agent
4e1----> could be email
G. Serving a corporation:
1. Delivery to an officer or other authorized
agent and mailing to each D
H. Service is sufficient for personal jurisdiction IF:
1. The forum district’s state laws allow it OR
2. The D is a joined party and is served
within 100 miles from where the summons was issued OR
3. It is authorized by a U.S. statute
I. If D not subject to the Jurisdiction of ANY state, service establishes PJ IF:
1. D is not subject to jurisdiction of ANY
state AND
2. Exercise of jurisdiction is Constitutional
AND
3. The claim arises under Federal Law
J. Service must be made within 120 days of complaint
Rule 12: Defenses and Objections: When and How Presented; Motion for Judgement on
the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearings
1. In General
a. D must serve an answer:
i. w/in 21 days after being served w/ summons and complaint; or
ii. if it is timely waived service of process under Rule 4(d) then w/in 60
days after the request for waiver sent or 90 days after it was sent to the
D outside the US
b. party must serve an answer to a counterclaim or crossclaim w/in 21 days after
being served w/ the pleading that states the counterclaim or crossclaim.

Constitutional Standard: notice must be reasonably calculated under all the circumstances to
apprise the party of the proceeding.
Mullane v. Central Hannover Bank (test from Mullane applied in Greene).
If the P knows that the D didn’t get the notice then P must seek an alternative measures.

Application of Rules of notice: Serving someone in person in the state creates personal
jurisdiction there.
A. State is required to use alternative methods when they are feasible and customary and more
likely to lead to actual notice. See Greene v. Lindsey (door posting ineffective b/c sheriff
knew door posted noticed ripped off)
B. State is required to use alternative methods when they know that their chosen method has
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failed. See Jones v. Flowers (notice sent by certified mail returned multiple times)
C. Newspaper – generally least effective method. See Mullane v. Central Hanover Bank (NY
trust fund published appointment of representatives of investors)
D. Certified mail – generally ok. See Dusenberry

II. Personal Jurisdiction


a. Specific Jurisdiction:
i. The lawsuit arises out of the defendant’s contacts in the forum state.
ii. Can be served with process in that state (the physical service).

b. General Jurisdiction
i. Systematic, substantial, and continuous contacts within the state.
A. The person is subject to ANY case against them in that state. Does NOT have to
arise out of those contacts

Ways to Challenge Jurisdiction:


i. Direct Attack: challenge the jurisdiction of the court in proceeding of
jurisdiction
Immediately file a motion for dismissal (Rule 12 of Federal Rules) for lack of
personal jurisdiction.

ii. Collateral Attack: Wait for the judgment to be entered without


showing up to court and then asserting that the judgment doesn’t matter because there
is no personal jurisdiction; have to start another proceeding.

Basis for General Personal Jurisdiction

Goodyear v. Brown (2011)


- Continuous, systematic, and substantial activity is the standard to be proved for establishing
general jurisdiction and stream of commerce alone cannot establish this.
- General Jurisdiction if the D is at home
- Corporation: 2 states: state of corporation principal place of business
- Individual:
Daimler AG v. Bauman (2014)
- A court may assert general jurisdiction over a corporation when the corporation’s affiliations
with the forum state are so continuous and systematic as to render the corporation essentially
at home in the state.

Basis for Specific Personal Jurisdiction


Pennoyer v. Neff: D was sued in OR, but resident of CA. In order to put liability on a non-resident
of a state, the state must first establish specific jurisdiction over him OR he must voluntarily appear
in court
Types of Jurisdiction
- In Personam: Jurisdiction over the D when have presence in the state at the time of service
1. Consent: when the party comes into the forum state and consents to being sued in the
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state
2. Presence: party served while in the state
3. Citizenship: party is resident of the forum state and can always be used in the state
- In Rem: Jurisdiction over land which a party owns w/in the forum state
- Quasi In Rem: when party owns land which is used as a means to assert PJ over D on case
unrelated to property ownership. Attachment of property must be at time suit is filed.

International Shoe Co. v. Washington: Shoe company sued in WA, but incorporated elsewhere. A D
cannot be brought before a court of a particular state UNLESS that person has minimum contacts.
i. Jurisdiction is appropriate if (minimum contacts requirements) doesn’t
offend “fair play and substantial justice”:
A. Engaged in substantial activities in the state, and
B. Enjoyed the benefits and protections of the state, and
C. Had access to the state’s courts to resolve its disputes.

ii. Long-Arm Statutes: A state’s definition of the circumstances under which they
would attempt to exercise jurisdiction over nonresident defendants.

One step: CA- if constitution allows them to sue


Quasi- Two Step: make statute operationally identical to a one step. Appear to
Two-Step:
A. Some states approach long-arm as consistent with the Constitution.
Some are more conservative in terms of how they extend their reach.

World-Wide Volkswagen Corp. v. Woodson: Car sold by D in NY blows up in forum state. Merely
placing an item into the stream of commerce IS NOT sufficient connections. P unilateral
activity is reason car ended up in forum state. D did not meet test of Int’l Shoe.
i. physical presence
ii. benefit of the state
iii. purposeful availment
iv. Foreseeability of being called into a state court by itself has never been sufficient
for personal jurisdiction.
Dissent (Brennan)
- witness injury treatment all occurred in OK
- automobile is intended for interstate travel
- there is no difference in how stream of commerce occurs
Dissent (Marshall)
- it was a deliberate decision to be apart of the network
- need for interstate commerce

Hanson v. Deckla
- purposeful availment: D must have sufficient
Note- Keeton v. Hustler Magazine, Inc.
- P sued a magazine, an OH corporation, headquartered in CA for libel in NH
- regular circulation of magazine in the forum state is sufficient to support assertion of
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jurisdiction in a libel action based on contents
- sold 10k to 15k issues per year in forum state so PJ meet minimum contacts test
- interest of the state in litigation

Note- Calder v. Jones, Inc.


- P sued writer and editor of the National Inquirer who are in FL for libel published in
P home state,CA.
- The editor and writer reasonably should have anticipated that litigation might be
initiated in P home state. D met minimum contacts

Note- Walden v. Fiore


- P cannot be the only connection between D and forum state
- A federal court has PJ over a D when D has consistent personal contacts or
connections to the forum state.
- incident happened in ATL but is suing in Nevada where D lived but

Asahi Metal Industry Co. v. Superior Court: Faulty valve made by Japanese company causes damage
in CA. taiwanese O’Connor: Must be clear evidence that the D sought to serve the market in the
particular state (Stream of Commerce Plus). (PLURALITY COURT)

(Manufacturer)
Zucher v. Cheng Shin Taiwan
v.
Ashai Metal Japan
(manufacturer of the Valve Assembly)
i. Reasonableness depends on an evaluation of several factors:
A. The burden on the defendant (Burger King)
B. The interests of the Forum State
C. The plaintiff’s interest in obtaining relief
- personal burden
- location of evidence
- Joinder
D. The interstate judicial system’s interest in obtaining the
most efficient resolution of controversies
E. The shared interest of the several States in furthering
fundamental substantive social policies.

ii. Asahi Dissent: Stream of Commerce


A. As long as a party is aware that the final product is
being marketed in the Forum State, the possibility of a lawsuit cannot come as a
surprise
B. No distinct line between “purposeful availment” and
“mere awareness that a product will end up in the forum state.”
C. Purposeful availment depends on: the volume, the
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value, and the hazardous character of the components.

Burger King Corp. v. Rudzewicz: MI businessman is sued in FL by Burger King. There was a forum
selection clause in the franchise contract stipulating that any disputes would be adjudicated under FL
law
● Confirms that there are two factors from Ashai.
○ Must have Minimum Contacts before Fairness
● burden of the D to show that the forum is so gravely inconvenient that it has a
disadvantage for litigation

In considering whether a contract creates a contact, there are four factors to be considered:
A. The nature of prior negotiations between the parties
B. The “contemplated future consequences” of entering
into the contract
C. The terms of the contract
D. The course of dealing between the parties

J. McIntyre Machinery v. Nicastro


- The stream of commerce theory does not create enough
- Stream of Commerce Plus (McIntyre): Injecting product into the stream of commerce creates a
contact with the US but is not sufficient to establish Personal Jurisdiction without additional
independent contacts with the forum state.

Zippo Mfg. Co. v. Zippo Dot Com: case of copyright infringement on of lighter company who shared
the same name with adult site
Test for determining specific personal jurisdiction over nonresident defendant:
(1) the defendant must have minimum contacts with the forum state;
(2) the claim asserted must arise out of those contacts; and
(3) the exercise of jurisdiction must be reasonable.

Sliding Scale Test: the nature and quality of commercial activity that the entity
conducts on the internet based on the interactivity and business that results
- Active Website: doing business over the internet
- Passive site:does little more than make information available to those who are
interested in it is not grounds for the exercise of personal jurisdiction
D had an interactive website where the provided services to PA residence, solicited to PA residence

Jackson v. California
- didnt cause effect in the forum state, Unlike the Calder Effect, this online magazine was
targeted to a specific region in CA. No purposeful availment or affect on the P career or
personal life, Not foreseeable D brought into court in IL.

Bristol Myers Squibb v. California (2017)


- SCOTUS held that exercising personal jurisdiction must alignment w/ Due Process Clause of
the 14th Amendment
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- General PJ: corporation must be incorporated or headquartered w/in the state seeking to assert
PJ
- Specific PJ: suit must arise out of the Defendant’s contacts within the forum state
- Evidence test: provide evidence of 2 or more elements that the claim arises out of
- “BUT FOR” test: when the claim arises out of a contact if the claim would not have
arisen but for D contacts in the state

In Personam PJ 3 Part Test


1. Statutory Inquiry
a. Is there a long arm statute that covers issue?
i. If yes, then ok in state court; would need a piggyback statute to get into Federal
court
2. Is there a meaningful contact with the state?
a. Purposeful availment/direction by defendant (leg up now due to McIntyre)
b. Stream of commerce + foreseeability
3. Is jurisdiction reasonable?
a. Conveniences for plaintiff, defendant, evidence, witnesses
b. State’s interest in resolving action
c. Efficiency of interstate judicial process
4. NEED TO ANALYZE ALL OF THESE IN ORDER TO LOOK FOR IN PERSONAM PJ

Analytical framework for approaching PJ constitutional questions


1. How to apply International Shoe?
a. Is there a relevant contact between the defendant and forum? Must have this. Assess
purposeful availment/reach out to forum like McGee, but not in VW. Also assess
foreseeability – gotta be foreseeable that defendant could get sued in the forum
b. If a contact, then assess relatedness – tell whether this is specific or general jurisdiction –
does this claim arise from the defendant’s contact with the forum? If yes, then specific
jurisdiction; if no, then need general jurisdiction. If looking for general jurisdiction then
need to address Goodyear to meet general jurisdiction

2. Is jurisdiction fair in this case?


a. Five fairness factors; but never told how to weigh them.
b. Five factors:
1. Inconvenience for defendant and her witnesses (but huge burden to show this from
Burger King);
2. Forum state’s interest (McGee – CA has interest in providing justice for citizens);
3. Plaintiff’s interest – want to litigate at home;
4. Legal system’s interest in efficiency;
5. Shared substantive policies

3. Key is to hit reasonable conclusion; no specific question

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Analytical Framework for Statutory Inquiry for PJ
● Every state has statute for the traditional forms of P
● Also every state has non-resident motor act
● Every state also has a long arm statute – allows you to sue a non-resident and usually have a
laundry list of things that non-resident can do in the forum that would subject them to
jurisdiction; however, all long arms are unique and different (need to analyze text – also
same language may be interested in different ways)
● Long arm statutes are for specific jurisdiction because act was committed in the forum
● Long arm statutes sometime involve tort, but various interpretations of where tort happens,
either occurs where injury happens, or tort is where company is

HYPO: Personal Jurisdiction in-class problem: accident occurred on a chartered boat in Costa Rica,
that the hotel promoted. The hotel website offered a toll-free number and call resort from US. How
can we have personal Jurisdiction over the resort.

III. Subject Matter Jurisdiction (Federal)


● Subject matter jurisdiction is about what court to go to? State or federal? You already know
what state, but must choose court. Gotta have both PJ and SMJ, but they are completely
different.
● Personal jurisdiction is over parties; SMJ is over cases and claims – can the court hear this kind
of case or claim; important because federal courts have limited cases they can hear.
● Two major cases that go to federal court are diversity of citizenship and federal question. In
contrast, state courts can essentially hear anything, though there are a few federal questions
that must go to federal court.

a. Diversity (must be diversity of citizenship AND AIC >$75,000)


i. 28 U.S.C. § 1332 (This governs court’s jurisdiction. More restricted than what
constitution allows)
A. Federal courts may exercise jurisdiction between citizens of different states where
The amount must EXCEED $75,000
● Must be a legal certainty that can’t claim jurisdictional amount under
$75,000
● Designed to give an answer---> legal certainty can’t get much money
or not
● If less $$ than that, then have to pay the cost of litigation
B. Litigant may choose either state or federal court to hear the claim.
C. Complete diversity plaintiffs must be diverse from defendants.
D. From a state IF resides there and has intention of remaining there indefinitely.
● How to affirmatively change domicile
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○ Physical presence (enter the new state).
○ Form the intent to make the new state permanent home
■ Take job
■ Change drivers license
■ Buys a home
● Citizenship of non-incorporate business
○ Use the citizenship of all of its members
■ Not principal place of business
● Citizenship of corporation ----> defined by statute
○ Of all states where incorporated AND
○ One state where principal place of business "headquarters"
■ Hertz Corp. v. Friend (2010): where the managers direct, control and
coordinate activities---> "nerve center"
■ Ex. Law firm---> citizenship of the 18 states then partnership is citizen
of 18 states
F. The amount in controversy (AIC) may sometimes be satisfied by aggregating
claims within the lawsuit.
1. 2+ of ONE P against one D CAN be aggregated to reach the AICR
2. Claims of 1< plaintiff, each of which fails to meet the AICR standing alone,
CANNOT be aggregated to reach the AICR if the P’s claims are SEPARATE
AND DISTINCT (i.e. not asserting one right).
3. There is NO aggregation of a P’s claims against multiple defendants.
4. A D’s compulsory counterclaim against the P falls within the supplemental
jurisdiction of the court and thus CAN be heard even if it does not meet the
AICR.
5. If the D’s counterclaim falls below the AIC and is UNRELATED to P’s
claim, then it is NOT within the court’s supplemental jurisdiction.
6. Separate counterclaims of a single D against a single P CAN be aggregated to
reach the AIC.

G. If an injunction is requested by P (instead of monetary award), the court may take


one of several approaches in determining amount in question:
1. Assessing the value of the injunction to the plaintiff;
2. Assessing the cost of complying with the injunction for the defendant; or
3. Analyzing both value to the plaintiff and cost to defendant and allowing
jurisdiction if either one exceeds $75,000.
H. If more than $5,000,000 is at stake in a class action lawsuit, D can opt to have that
heard in Federal Court, even if diversity requirement is not fulfilled. Exxon Mobil
v. Allapattah

ii. U.S. Constitution, Article 3 §§ 1, 2 (more open than statute)


A. At least ONE of the Ps is from a different state than at least ONE of the D’s.
B. It is enough if federal law is merely an ingredient of the dispute; it need NOT be
the central issue.
C. Federal courts may hear state law claims that arise between citizens of the same
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state IF that state law claim grows out of the same “common nucleus of operative
facts” as a claim that meets Article III requirements.
D. A court must have personal jurisdiction AND subject matter jurisdiction to try a
case.
1. A defendant can consent to personal jurisdiction, but cannot consent to subject
matter jurisdiction.
E. Almost all cases that can be brought in Federal Court can be brought in State
Courts as well.

iii. Sheehan v. Gustafson: D was domiciled in NV, even though he had substantial ties
to MN, because he lived in NV and intended to remain there indefinitely. Burden of
proof is on the plaintiff to prove domicile.
A. Two-part test for domicile:
1. Presence in the purported state of domicile.
2. Intention to remain there indefinitely.

b. Federal Question
i. 28 U.S.C. § 1331
A. Federal courts may hear a case IF the federal law has a SUBSTANTIAL and
DIRECT bearing on the case.
B. Just because a federal statute is involved does NOT mean that one MUST litigate
in federal court, although they may retain the option to do so.
C. Many courts have held that whether the presence of federal law in a case is
enough to “federalize” it under §1331 is a MATTER OF DEGREE.
ii. The Declaratory Judgment Act (28 U.S.C. §2201)
A. Allows potential defendants to become plaintiffs instead and test whether they are
excused from a particular act.
1. Ex: R.R. can test whether or not they are excused from renewing passes like
those granted to the Mottleys.
B. Does NOT alter the jurisdiction of the federal courts. If Ps could not plead “well”
in the federal courts, neither could the defendants.
C. Parties, such as a R.R., probably don’t want to wait to be sued before determining
the constitutionality and viability of their potential defenses. This act allows them
to “test the waters.”

iii. Private Right of Action for Statutory Violation:


A. Created when a statute gives to private persons, not merely public authorities, the
right to enforce the statute through litigation. This happens when:
1. The statute expressly provides for this private right of action, or,
2. A court concludes that the statute, despite the absence of explicit
congressional language granting such a right, implies such a right.
-Courts are increasingly wary of finding an implied private right of action.
B. Factors (unpredictable test. Decline in use):
1. Enacted for the benefit of a special class of which the P is a member?
2. Intent to create a private right of action?
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3. Private right of action frustrate the purpose of the legislative theme?
4. Private right of action inappropriate b/c subject matter involves an area
basically of concern to the states?

vi. Louisville & Nashville R.R. Co. v. Mottley: D gave P passes for free rides for life. D
then revoked the passes. Court held that a suit arises under federal question
jurisdiction ONLY if the original statement of the P’s cause of action shows that it is
based on the Constitution or federal statutes. (A federal court can’t have jurisdiction
just because the defendant might use a federal law or the Constitution to defend
himself.)

c. Tribal Courts
i. Tribal Courts have exclusive jurisdiction over (the following cases are for illustration.
USE THIS GUIDELINE):
A. A suit by any person against an Indian for a claim arising in Indian Country.
B. Disputes between tribal members arising on the reservation.
C. PROBABLY, claims against tribal members domiciled or present within their
territory even though those claims arose outside of Indian country.
1. Many tribes have chosen not to exercise this jurisdiction.
D. Many tribes have revised their codes to permit jurisdiction over non-Indians for
reservation-based claims.
ii. A party seeking in federal court to challenge a tribal court’s jurisdiction must FIRST
exhaust tribal remedies.
iii. Williams v. Lee: Non-Indian storeowner (on tribal land) sues Indian couple for
nonpayment of layaway goods. Court held that a STATE may not exercise
jurisdiction over civil suits brought by non-Indians against Indians, when the action
arises on an Indian reservation.
iv. United States v. McBratney: State laws extend to Indian reservations insofar as they
relate to crimes by NON-INDIANS against NON-INDIANS.
v. Montana v. United States: The inherent sovereign powers of an Indian tribe do not extend
to the activities of nonmembers of the tribe. Also, a tribal court has no jurisdiction
over litigation between nonmembers arising out of a vehicle accident on a state
highway within the reservation. EXCEPTIONS:
A. Tribe CAN regulate activities of nonmembers who enter consensual
relationships with the tribe or its members.
B. Tribe CAN exercise civil authority over the conduct of non-Indians on fee lands
within its reservation WHEN that conduct threatens or has some direct effect on
the political integrity, the economic security, or the health or welfare of the tribe.
Venue/Removal
i. 28 U.S.C. § 1391
A. (a) If juris. is only on diversity, case may be brought only in:
1. District where any D resides, if all D reside in the same state
2. District where a sub. part of the events/omissions of the claim occurred, or a
sub. part of the property that is the subject is situated.
3. District where any D is subject to personal juris. at the time the action is
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started, if no district in which the action may otherwise be brought.
B. (b) If juris. is NOT only on diversity, then may be brought only in:
1. District where any D resides, if all D reside in the same state
2. District where a sub. part of the events/omissions of the claim occurred, or a
sub. part of the property that is the subject is situated.
3. A district where any D may be found, if there is no district in which the action
may otherwise be brought.
C. Corporations reside in any district in which it is subject to personal juris.
D. An alien may be sued in any district.
ii. 28 U.S.C. § 1441 (Removal Statute):
A. Requirements:
1. The action could have originally been brought in federal court.
2. All Ds must join in the petition for removal.
3. The D cannot remove if the basis for federal juris. is ONLY diversity AND
the D is a citizen of the state in which the original action was filed.
-Based on the notion that a resident D has no reason to fear bias by his or
her own home courts.
4. The D must remove BEFORE taking substantial steps to defend the action in
the state court.
B. Removal of a trial is ONLY moving a state court hearing to a federal court.
C. Venue is a statutory matter, not mandated by the Constitution.
D. Venue is waivable by the defendant.
E. For purposes of venue, a corporation resides in any judicial district in which it
would be subject to personal jurisdiction.

e. Forum Non Conveniens


i. Doctrine of Forum Non Conveniens: employed when the court chosen by the plaintiff
is inconvenient for witnesses or poses an undue hardship on the defendants, and a
more “convenient” forum exists.s
A. Not “removal” because it allows for a case to be dismissed so that it may be heard
in other countries or states (not to a federal court, per se).
ii. Piper Aircraft Co. v. Reyno: Air crash in Scotland. D sued in CA.
A. In granting forum non conveniens, a court should consider:
1. All relevant public and private interest factors
-Public Interest Factors
•Administrative difficulties (i.e. court congestion)
•Local interest in local matters
•Holding trial in forum whose law will apply
•Avoid unnecessary conflict of laws/interpretation of foreign law
•Unfair to require jury duty in unrelated forum
-Private Interest Factors
•Ease of access to proof
•Availability of unwilling witnesses/cost of witnesses
•View of premises
•Problems regarding “easy, expeditious, inexpensive” trials
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2. The balancing of these factors should be reasonable.
iii. Dominguez-Cota v. Cooper Tire & Rubber Co.: District ct. cannot decide forum non
conveniens until it establishes that it has proper subject matter jurisdiction.
iv. Less respect is granted to a foreign plaintiff suing in the US, in regards to forum non
conveniens, because it is more likely that the foreign plaintiff engaged in “forum
shopping” for a better possible outcome.
v. An individual’s choice of forum may be given more respect than the choice of a large
business because of the hardship on an individual is greater.
vi. According to §1404, a district court may transfer any civil action to any other district
or division where it might have been brought.
f. Jurisdiction in US Courts for violations of International Human Rights
i. 28 U.S.C. § 1350 (Alien Torts Statute)
A. The district courts have jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the US. You need to be
able to get personal jurisdiction over the defendant.
1. May get personal jurisdiction over an individual by presence in the state.
2. Probably not going to get specific jurisdiction over a corporation (the lawsuit
generally will not arise out of acts that occur in the state).
-Hence, general jurisdiction usually must be acquired.
ii. WIWA v. Royal Dutch Petroleum Company: Emigrants who allege that either they,
or their deceased next of kin, suffered “grave human rights abuses” at the behest of
the D. Court held that case should NOT be dismissed for forum non conveniens,
paying deference to P’s choice of forum and US’s interest in human rights issues.

IV. Constructing a Civil Lawsuit


a. History of Civil Procedure and Complaint
i. Common Law:
A. Purchase a writ. A writ said what you claimed happened and it was served upon
the defendant party.
1. If you picked the wrong writ at the beginning, you LOST, regardless of if you
proved something that entitled you to recovery.
2. You only had one ground for recovery and you had to plead it. You
could not allege two things at the same time.
B. The defendant had to defend using specific forms. If you defended in the wrong
way, you lost automatically. You had to do everything right, or else you’d lose on
technicality (ex: spelling someone’s name wrong).
C. Law Courts: Give money to settle disputes. Jury trials.
D. Equity Courts: Give remedy by special performance, injunctions, equitable
remedy, etc. No jury trials.
ii. After Reformation:
A. Field Code: 1848. Abolished writs and was designed to handle both matters of
law and equity.
1. More limited pleadings, but pleadings still very technical and formalized.
2. Not adopted in every state.
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B. Discovery: the ability to formally get information from the other party. This was
not really available under the Field Code.
C. Federal Civil Procedure combined courts of law and equity. Also created
simplified pleadings and extended discovery.
iii. Procedure:
A. Complaint is filed.
1. After complaint, motions to dismiss can be filed.
-Lack of personal jurisdiction
-Lack of subject matter jurisdiction
-Lack of venue
-Failure to state a claim (“So what?”/Demurrer)
B. Answer is filed. Admits or denies allegations and raises defenses.
1. Can file a counterclaim, to which the plaintiff would file a reply.
C. Discovery: The ability to get information from opposing parties and other parties
not otherwise involved in the case.
D. In the end, we have Rule 8(a) of the Federal Rules of Procedure, which state what
a complaint must contain.
1. Statement of jurisdiction.
2. Statement that P is entitled to relief
3. Relief sought
4. You are now allowed to put on alternative statement of the claim.
-The claims can be inconsistent with one another.
*EX: I deny this happened. But if it did, I was acting in self-defense.
E. Rule 9: Certain situations require a more detailed pleading. (Ex: Fraud)

iv. Conley v. Gibson: Railway workers were fired because of their race, but equal right
laws did not exist yet, so no cause of action for this. So this case ends up being about
whether the union violated its duty to its members by not giving the black railway
workers the full protection of union membership. The Supreme Court says that the
claimant does not need to set out in detail the facts upon which he bases his claim.
A. All Rule 8 requires is “a short and plain statement of the claim.
b. Bell Atlantic case and notes that follow
i. Bell Atlantic v. Twombly:
A. The respondants, a class action group (herein “Twombly”), brought suit against
petitioners, Bell Atlantic, alleging collusion.
B. Supreme Court dismissed, holding that in order to adequately submit a complaint
in an antitrust suit, the plaintiff must supply enough evidence to make their claims
PLAUSIBLE, as opposed to merely conceivable.
1. In this case, also collusion could have been a reason for the actions of the Ds,
it was more likely that there was an honest explanation.
c. Case planning
i. Immediate concern: Whether there are factual and legal predicates to support a
claim or defense on behalf of the new client.
A. Consider pretrial litigation in the context of the particular court/judge
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B. Important to figure out which actions not to pursue.
C. Develop a chronology of important events and highlight information that isn’t yet
known.
D. Conduct preliminary legal research.
E. Make a list of possible witnesses, documents, physical items needed to establish
your case.
ii. Determine:
A. The factual information that should be sought.
B. The source from which to seek the information.
C. The person to whom the request for information should be directed.
D. How to seek the information.
E. When the information should be sought.
iii. No need to inform opposing party of informal discovery.
d. Ethics
i. Rule 11(b):
A. A signature implies that the pleading is:
1. Made with proper purpose (not to harass or cause unnecessary cost/delay)
2. Warranted by existing law (or non-frivolous argument to change the law)
3. Well grounded in fact
4. Based on evidence

ii. Rule 11(c) (sanctions):


A. 1983 Revision
1. Judges MUST impose sanctions.
2. Monetary sanctions (attorney’s fees for the other party for anything they had
to spend money on for the frivolous suit)
3. No chance to amend filings
4. Saltany v. Reagan/Bush: Where there is a violation of Rule 11, there must be
sanctions; the federal courts are not a forum for “protest” suits that have no
merit
B. 1993 Revision
1. More judge discretion in administering sanctions.
2. Money is not the biggest sanction, although judge can order the money to be
paid to the non-violating party, only if, under11(c)(4), it is limited to what
suffices to DETER REPETITION of the conduct
3. 21 day “safe harbor” provision allows 21 days, from when the motion to
sanction is served, to retract or amend filing.
4. Rule was revised because old rule stifled the ability of a lawyer to challenge
current law and also the old rule led to an influx in pretrial litigation (opposing
parties trying to get $ for other party).
iii. Business Guides, Inc. v. Chromatic Communications Enterprises: P filed for a
temporary restraining order b/c they thought that D was stealing information from
their published company information guide. Rule 11 sanctions WERE appropriate
b/c the party did not make a reasonable inquiry into the validity of their claims before
applying for a temporary restraining order.
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iv. Kraemer v. Grant County: P’s husband died and her parents-in-law took away her
belongings/home. Alleged collusion between parents and sheriff, but required
discovery to prove such collusion existed. D moved for Rule 11 sanctions. The court
held that if discovery is necessary to establish a claim, then it is not unreasonable to
file a complaint so as to obtain the right to conduct that discovery and so Rule 11
sanctions DO NOT APPLY.

e. Pre-Answer Motions and Answer


i. Rule 7 (Pleadings Allowed):
A. Allowable pleadings:
1. The complaint
2. The answer
3. A reply to a counterclaim
4. An answer to a cross-claim
5. A third party complaint
6. A third party answer
7. A reply to an answer or third party answer
B. Motions and other Papers:
1. Requirements for an Application for an Order:
-Must be made in writing:
-Must state the ground for motions
-Must state relief sought

ii. Rule 8 (General Rules of Pleadings):


A. (b) Defenses: Form of Denials
1. State defenses to claims and admit or deny allegations.
2. If Pleader doesn’t know, he may say so (court counts this as a denial)
3. Denials must challenge the substance of the denied allegations
4. If denying a part of an allegation, specify what is true and deny the rest.
5. Types of Denials:
-Specific: applying to only parts of the pleadings.
-Complete: applying to entire complaint.
-General: applying to entire complaint, except specified paragraphs.
B. (d) Effect of failure to deny
1. Any denials omitted are deemed to have been admitted, unless:
-A responsive pleading was not required OR
-The omission involved a dispute in the amount of damages claimed.
2. Any allegations to which no answer is required shall be taken as denied.
iii. Rule 12 (Objections and Defenses):
A. (b) How Presented:
1. All defenses must be made in answer, except for motion for:
-Lack of subject matter jurisdiction
-Lack of personal jurisdiction
-Improper venue
-Insufficiency of process
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-Insufficiency of service
-Failure to state a valid claim
-Failure to join a party
*These are made in the pre-trial motion
B. (h) Waiver or preservation of Defenses:
1. If omitted from consolidated motions OR not in responsive pleadings, these
objections are WAIVED:
-Lack of personal jurisdiction
-Improper venue
-Insufficiency of process
-Insufficiency of service
2. Motions that may be made at trial or in pleadings:
-Failure to state a claim
-Failure to join a third party under Rule 19
3. Motion for lack of subject matter jurisdiction may be made AT ANY TIME.

f. Affirmative Defenses/Amended Pleadings


i. Rule 8(c) (Affirmative Defenses)
A. See Fed. R. Civ. Pro. for complete list.
ii. Rule 15(a) (Amendments)
A. Parties have a right to ONE amendment:
1. Before the answer or responding pleading is served.
2. In a non-responsive pleading, 20 days after the pleading is served
B. Otherwise, a party must:
1. Request a “leave of court” to amend (court MUST consent if “justice so
requires.” OR
2. Obtain written consent from the adverse parties.
C. Answering Amendments- must be done with the LONGER of:
1. 10 days after service of the amendment OR
2. The time remaining within the original 20 day response period
iii. Rule 15(c) (Relation Back of Amendments)
A. Amendments will relate back to date of the original pleading IF:
1. Permitted by law providing for the Statute of Limitations in the case OR
2. They arise out of the same conduct, transaction, or occurrence as the original
claim.
3. There were misidentified parties in original claim. The amendment will relate
back only upon reasonable notice IF:
-A party has received notice of the action and will not be prejudiced in
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maintaining a defense on the merits AND
-The party knew or should have know that the action would have been taken
against them, BUT FOR the fact that there was a mistake as to their actual
identity.
iv. Moore v. Baker: P originally filed suit against her doctor for violation of informed
consent laws. P then amended her complaint, after the statute of limitations was up,
to allege negligence. Court did not allow amendment b/c new claim did not arise out
of the same conduct, transaction, or occurrence as the original claim (which is
necessary after statute of limitations expires).
v. Bonerb v. Richard J. Caron Foundation: P slipped on a basketball court at his rehab
center. Original complaint alleged negligent maintenance of the court. After the
statute of limitations expired, P amended to allege malpractice in the failure of the
clinic to properly instruct him in playing basketball. Court held that factual content
of the two complaints was the same and that D would not be prejudiced by having to
answer this claim, as discovery was still open.

g. Joinder of Claims and Parties


i. Rule 13 (Counterclaims/Cross-claims)
A. (a) Compulsory Counterclaims
1. Any RELATED claim arising out of the initial action
2. MUST be joined
3. Any third parties involved MUST have Personal Jurisdiction
4. Must be stated in the pleading UNLESS:
-The claim is already subject to another pending action
-The D brings the suit by attachment or process w/o the Court’s juris.
B. (b) Permissive Counterclaims
1. ANY claim against an opposing party that is not related to action
2. MUST BE STATED IN PLEADINGS
C. (g) Crossclaims against a Co-Party: Usually considered permissive
1. Guarantors SAME transaction: May allow crossclaim for a claim either:
-Arising out of the same transaction or occurrence of either:
•The original action OR
•A counterclaim
-OR relating to any property subject to the original action
2. Indemnity: Cross-claims may include a claim to a co-party to indemnify the
claimant for all or part of the liability arising out of the action.
ii. Rule 14(a) (When a Party May Bring a Third Party)
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A. When Defendant may bring a third party
1. At any time AFTER the commencement of the action. This happens when the
D feels that the 3rd party is liable to indemnify the D for any judgment
2. If the D serves the 3rd party within 10 days after serving the original answer,
then no leave of court is needed to serve the 3rd party. If after 10 days, the D
must get leave of court (permission of the court).
3. Third party is then known as “3rd Party D” and D is know as “3rd Party P”
4. 3rd Party D’s options to respond to D’s pleadings:
-Answer- 3rd may assert any defenses which D may have to P’s claim.
-Counterclaim against P- arising out of the same transaction/occurrence of P’s
claim against D
-Cross-claims against D
5. P may counterclaim against 3rd
6. Any party may move to:
-Strike 3rd party claim OR
-Sever the claim OR
-Separate trial
7. 3rd party may bring in a 4th party
iii. Rule 14(b) (When a Plaintiff May Bring a Third Party)
A. When a counterclaim is made against the P, the P may bring in a third party just
as the D

iv. Rule 18(a) (Joinder of Claims)


A. A party may join as many independent or alternate claims as it has against an
opposing party. These include:
1. Original Claims
2. Counterclaims
3. Cross-claims
4. Third party claims
v. Rule 20 (Permissive Joinder of Parties)
A. Permissive Joinder
1. All persons may join as a P or a D, if they assert or are subject to any right to
relief which both:
-Arises out of the same transaction/occurrence AND
-Has a question of law or fact common to all co-parties in the action
•EX: If you are negligent and you think a 3rd party is contributorily
negligent, you can join her/him.
2. There is no need for all Ps or Ds to seek all claims of relief being claimed in
an action; judgment will be accorded as per each party’s respective rights or
liabilities.
B. Protective Measures
1. The Court may order separate trials or make other such orders to prevent:
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-A party from being embarrassed OR
-Delay OR
-Prejudice OR
-A party from incurring undue expense from the inclusion of a 3rd party, if no
claims exist between the parties.
vi. Rule 42(b) (Separate Trials)
A. A court may split any claims for any of the following reasons:
1. To avoid prejudice
2. To further convenience
3. To increase economic efficiency
vii. Mosley v. General Motors Corp.: P’s claimed that D was discriminating based on
race. Court had to decide if all the P’s claims could be joined into a class action, even
though they did not all occur in the same instance. The Court held that joinder of
claims WAS appropriate.
A. Requisites for Joinder of Parties:
1. A right to relief must be asserted by, or against, each P or D relating to or
arising out of the same transaction or occurrence, or series of transactions or
occurrences AND
2. Some question of law or fact common to all the parties must arise in the
action.
viii.Toberman v. Copas: “When a third party’s conduct furnishes a complete defense
against the defendant’s liability, the defendant may raise that conduct defensively in
his ANSWER but may NOT use it as a foundation for impleader (Third Party
Complaint).”
A. D should have a chance to amend.

h. Supplemental Jurisdiction
i. 28 U.S.C. § 1367(a)(b)(c)
A. (a) If the original claim has Federal jurisdiction, then you can add other non-
federal claim/party as long as their involvement comes from the common (same)
nucleus of operative facts.
B. (b) Applies to Diversity jurisdiction cases ONLY. Fed. court cannot hear the
additional claims of parties made party under compulsory joinder (Rule 19),
impleader, permissive joinder, or intervention (Rule 24) if exercising
supplemental jurisdiction would OFFEND DIVERSITY JURISDICTION.
1. APPLIES ONLY TO CLAIMS BY PLAINTIFFS AGAINST NEW
DEFENDANTS.
C. (c) The district courts may decline (discretionary) to exercise supplemental
jurisdiction over a claim if:
1. The claim raises a novel or complex issue of State law,
2. The claim substantially predominates over the claim(s) over which the district
court has original jurisdiction,
3. The district court has dismissed all claims over which it has original
jurisdiction, or
4. In exceptional circumstances, there are other compelling reasons for declining
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jurisdiction.
ii. Exxon Mobile v. Allapattah Services, Inc.: So long as one of the plaintiffs in a suit
satisfied the amount-in-controversy requirement, federal district courts may exercise
supplemental jurisdiction to hear the claims of other plaintiffs that do not
independently satisfy the requirement (must be joined under Rule 20).
i. The Erie doctrine: state law in federal court
i. Eerie R. Co. v. Tompkins: The Federal Rules govern procedural matters while state
law (statutory and decisional) covers substantive issues.
A. A substantive rule is one that characteristically and reasonably affects people’s
conduct at the stage of primary activity outside the context of litigation. It is a
rule with a purpose other than that of assuring the fairness or efficiency of
litigation.
B. A procedural rule is one that is designed to make the process of dispute resolution
a fair and efficient mechanism for resolving legal controversies.
C. Twin aims of Eerie:
1. Reduce forum shopping.
2. Avoid inequitable application of the law.
ii. THERE IS NO FEDERAL GENERAL COMMON LAW (Problem with pre-Eerie
was that there was a basic, misstatement of what law is, that law is transcendental and
innate. It isn’t.)
iii. In Eerie, the Court held that there was no general federal common law and mandated
that state law apply in diversity suits.
A. Assuming no one is forum shopping, the problem is that with diversity of
citizenship, the case can be brought into a different court. The defendant decides
this, unless the federal court is in the D’s home state. This gives the D a lot of
power of forum choice.

iv. 28 U.S.C. § 1652:


A. The laws of the states will be applied in civil actions in federal courts where they
apply, UNLESS the Constitution, treaties, or Acts of Congress require otherwise.
v. 28 U.S.C. § 2072
A. (a) Supreme Court can prescribe general rules of practice and procedure and rules
of evidence.
B. (b) Such rules cannot upset any substantive right.
C. (c) Such rules define when a ruling of a district court is final for the purposes of
appeal.
vi. Hanna v. Plumer: The Federal Rules are presumed to fall within the Supreme
Court’s statutory power under the Rules Enabling Act (28 U.S.C. §2072) to prescribe
rules of procedure that do not “abridge, enlarge, or modify any substantive right.”
vii. BIG ISSUE: Sometimes laws that are procedural can effect the outcome of a trial and
therefore can conflict with a substantive rule
V. Discovery
a. Overview of discovery/Mandatory disclosure (All discovery must take place AFTER the
Rule 26(f) Discovery meeting between the parties) (you MAY prepare a witness to be
deposed, but DON’T tell them what their answers should be) (DEPOS ARE
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EXPENSIVE)
*Most depos are DISCOVERY depos, as opposed to trial depos.
*Instruct your client to not say more than what is asked.
i. Rule 26(a) (Required Disclosures)
A. Initial Disclosures (based on what is then REASONABLY AVAILABLE to a
party. A party is NOT excused from making disclosures b/c it didn’t know.
MUST DISCLOSE WHAT IT HAS REASON TO KNOW)
1. People likely to have discoverable information. Does not include people with
information that will be used only to impeach other testimony.
2. Relevant documents, data, and tangible things that are in the possession,
custody, or control of the party that the disclosing party may use to support its
claims/defenses (unless privileged).
3. Materials from which computation of damages arose (unless privileged)
4. Insurance agreements that may indemnify or pay part of judgment
B. These rules can be waived if the parties or court stipulates otherwise
ii. Rule 26(e)(1) (Supplementation of Disclosures and Responses)
A. A party who responded to a discovery request is REQUIRED to supplement it
with NEW INFORMATION if:
1. The party learns that the disclosed information is incomplete OR incorrect and
new information has not been made known to the other parties during
discovery OR
2. Ordered by the court
iii. Rule 26(g) (Signature Required; Effect of Signature)
A. Every disclosure and every discovery request, response, or objection must be
signed by at least one attorney of record in the attorney’s own name.
1. If not signed, court must strike it unless a signature is promptly supplied

iv. Rule 30(a)(1)(2) (When a Deposition May be Taken) (A deposition may be taken
of ANYBODY, even non-parties. You can request that a party to be deposed
bring certain documents to the deposition)
A. A deposition may normally be taken of anyone without leave of court
B. Leave of court is only required IF:
1. The deposition will result in more than 10 depositions by a party OR
2. The person to be examined has already been deposed OR
3. A party requests to take a deposition before a Rule 26(f) discovery meeting
(UNLESS the witness is leaving the country and will not be available after)
OR
4. The person to be deposed is in prison
v. Rule 30(b)(1)(2)(6) (Notice of Deposition; Other Formal Requirements)
A. Notice must be given to every other party of:
1. The time and place the deposition is to be held
2. The name and address of each person to be examined
3. If name is not known, a general description is sufficient
B. Method of Recording:
1. The notice shall state the method of recording
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2. Depositions may be recorded by sound, video, or stenograph
3. The party taking the deposition shall bear the cost of recording
4. Any party may request a transcript of a deposition
C. Depositions of Organizations:
1. A party may name a corporation or business as a deponent and reasonably
describe the matters to be examined
2. The organization MUST:
-Designate one or more officers to testify on its behalf
-Describe what each deponent will testify about
3. A subpoena is used to notify a non-party organization
4. An organization’s rep. shall testify to all matters know or reasonably available
to the organization.
vi. Rule 30(c) (Examination and Cross Examination; Record of the Examination;
Objections; Written Questions)
A. The officer should put the witness under oath and record the testimony
B. All objections must be made in a non-argumentative and non-suggestive manner.
A person MAY instruct a deponent not to answer ONLY WHEN NECESSARY
TO PROTECT A PRIVILEGE OR ENFORCE A COURT-ORDERED
LIMITATION. All objections regarding the following shall be noted on the
record, but the examination STILL PROCEEDS:
1. To the officer’s qualifications
2. The manner of the recording
3. The evidence presented
4. Any other aspect of the examination proceeding
C. If written depositions are used, the answers shall be given to the officer, who t hen
records them.
vii. Rule 30(d)(1)(2)(3) (Duration; Sanction; Motion to Terminate or Limit)
A. Duration:
1. A deposition is limited to ONE day of SEVEN hours
2. The court or parties may change the time limit.
3. Extra time MUST be allowed if:
-Extra time is needed for a fair examination OR
-The deponent (or some other person/circumstance) impedes or delays
the examination
B. Sanction:
1. The court may impose a sanction on a person who impedes, delays, or
frustrates the fair examination of the deponent.
C. Motion to Terminate Examination:
1. At any time during a deposition, a party or deponent may move to terminate
the examination or change its scope.
2. Grounds for motion:
-The deposition is being conducted in bad faith
-The deposition is unreasonably embarrassing, annoying, or oppressive
3. The court has discretion to make changes or terminate the deposition.
4. The deposition is then suspended until the court reviews the motion.
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viii.Rule 33 (Interrogatories to Parties) (Interrogatories may only be served on other
parties to the dispute)
A. (a) Availability
1. Interrogatories may be served to any party after service of process
2. A party may not serve more than 25 interrogatories
3. Leave of court is needed IF:
-A party wants to serve more than 25 interrogatories OR
-A party wants to serve interrogatories early.
B. (b) Answers and Objections
1. Each question, unless it is objected to, must be answered:
-Separately, Fully, In writing, Under oath
2. If questions are objected to, the objecting party shall state the reasons for the
objection and answer those questions that are not objectionable.
3. Signatures:
-Answers: must be signed by the person writing them
-Objections: must be signed by the attorney making them
4. Time Limitation
-Must return interrogatories within 30 days after they were served
-The court/parties may change this
5. Objections:
-Grounds for objections must be stated with specificity
-Any objection not timely stated is waived unless good cause is shown
6. The party submitting interrogatories may move for sanctions to any
objection/failure to answer an interrogatory.

C. (d) Option to Produce Business Records: The answering party may opt to allow a
questioning party to see records and get an answer himself.
D. Contention Interrogatories: EX: Does the D contend that…?”
1. Court may order that these need not be answered until AFTER designated
discovery OR until a pre-trial conference or other later time.
2. May not extend to issues of pure law.
E. Benefits of Early Interrogatories:
1. Discover organizational structure of a party-opponent
2. Discover dates of meetings and conversations, disclosures, and people with
knowledge of relevant matters.
F. Disadvantages of Interrogatories:
1. Reviewed by opposing counsel before answered
2. No opportunity for immediate follow up.
3. Opposing party may learn things about your case
4. May alert counsel to topics that will be pursued in later depositions
G. AVOID AMBIGUITY IN QUESTIONS (can include definitional section)
vix.Rule 34(a) (Producing Documents/Electronically stored data/tangible
things/entering onto land for inspection and other purposes)
A. Scope: A party may request another party to:
1. Produce any document or information in its custody (not protected)
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2. Permit entry for inspection and surveying (as long as not protected)
x. Rule 34(c) (Nonparties)
A. May be compelled to produce documents and tangible things or to permit an
inspection (Under Rule 45).
xi. Rule 35(a) (Physical and Mental Examinations)
A. Order of Examination:
1. Procedure:
-Obtain a court order (by motion)
-Show GOOD CAUSE for the physical or mental examination
-Show that it is a MATERIAL matter in controversy.
2. Must give notice to all parties, specifying the:
-Examiner
-Time and place of exam
-Scope of examination
xii. Rule 36(a) (Requests for Admission)
A. A party may serve upon any other party a written request for an admission
regarding statement of opinion or fact, the applicability of law to fact, and the
truth of opinions, authenticity of documents, etc.
B. If no answer or object is received within 30 days of the request for admission, a
party is considered to admit the allegation.
C. If an objection is made, the reasons shall be stated in detail
D. Admissions and denials must be specific to the related questions
E. A party may not give “lack of knowledge and information” as a reason for not
answering a request UNLESS:
1. The party made a reasonable inquiry AND
2. There is not enough information to enable the party to admit or deny
F. If court does not like an objection it can order that an answer be made.
G. Leave of court is needed for early questions.
b. Scope of Discovery and Limitations. Protective Orders and Sanctions
i. Rule 26(b)(1)(2) (Scope and Limits of Discovery)
A. A party may obtain discovery regarding any matter that is:
1. Not privileged AND
2. Relevant to the claim or defense of any party
UNLESS GOOD CAUSE CAN BE SHOWN FOR SUCH DISCOVERY
B. Relevant information need only appear REASONABLY calculated to lead to the
discovery of admissible evidence; it does not necessarily have to be admissible
itself.
C. Relevant information can include information about:
1. Books, documents, or other tangible things OR
2. The identity of people with knowledge of any discoverable matter.
D. The court may also order discovery of any matter “relevant to the subject matter
involved in the lawsuit,” but only for good cause.
E. Local Rules or Courts may change these rules by setting limits on the number of
requests for admissions, but only Courts (not local rules) can set limits on the
length and number of depositions and interrogatories.
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F. Discovery shall be limited if the court determines that:
1. The discovery sought is:
-Unreasonably cumulative or duplicative OR
-Obtainable from a more convenient or less expensive source
2. OR the party seeking discovery had ample opportunity to obtain the
information sought
3. OR such discovery would be unduly burdensome or expensive in comparison
to:
-The needs of the case
-The amount in controversy
-The limitations on the parties’ resources
-The importance of the issues at stake in the litigation
-The likely benefit of discovery
G. Court may act on its own OR pursuant to a motion to limit discovery.
H. The greater the burden and expense of producing discovery, the more important
the information sought must be for it to be discoverable.
ii. Rule 26(c) (Protective Orders) (Parties should always try to settle disputes
between themselves before involving the court)
A. Requirements for requesting a protective order:
1. Motion for protection must be made
2. Showing good cause
3. Certification of good-faith effort or attempt to settle the matter w/o court
B. A court may make any order which justice requires to protect any party from:
1. Annoyance OR
2. Embarrassment OR
3. Oppression OR
4. Undue burden or expense
C. Controls which court may use to protect parties include ONE OR MORE of the
following:
1. That disclosure or discovery is not to be had
2. Disclosure or discovery may be had only on SPECIFIED terms/conditions
3. Discovery be had by a CERTAIN METHOD
4. Discovery scope be limited to CERTAIN MATTERS, prohibiting inquiry into
other matters
5. Discovery be conducted in the privacy of a court designee
6. Sealed depositions only to be opened by court order
7. Trade secrets or confidentiality not to be revealed, or to be revealed in a
specified manner.
8. Parties file simultaneous specified documents and information in sealed
envelopes to be opened with a court order.
iii. Rule 37 (Failure to Make Disclosures or to Cooperate in Discovery; Sanctions)
A. (a) Motion for Order Compelling Disclosure of Discovery
1. Appropriate Court:
-Where action pending: motion required where deponent is a party
-Where deposition is pending: motion required if deponent is not a party
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2. Motion:
-If failure to disclose, the court may grant a motion to compel disclosure, upon
showing a good faith effort to obtain w/o the court’s help
-If a deponent refuses to answer, a party may make a motion for an order
compelling an answer. if the court denies the motion, the deponent may be
granted a protective order (under Rule 26(c)).
3. Evasive or Incomplete Answer: Considered a failure to answer.
4. Expenses and Sanctions:
-If the motion is granted, or disclosure is made after the motion is filed, the
party/deponent must pay reasonable fees spent to make the motion
-If the motion is denied, and not substantially justified, the party making the
motion must pay reasonable fees spent to oppose the motion.
-If the motion is denied in part and granted in part, expenses may be
reasonably approportioned.
-All sanctions will be determined by a court hearing.
B. (b) Failure to Comply With Order
1. Sanctions by court in district where deposition is taken: Failure to be sworn or
provide an answer is considered contempt of court
2. Sanctions by court in district where action is pending: The Court may:
-Conclude that matters sought to be discovered by a party are to be found in
that party’s favor
-Refuse to allow the disobedient party to support or oppose designated claims
or defenses
-Render a default judgment or strike a pleading
-Hold the disobedient person in contempt of court
-Require the opposing party to pay reasonable attorney’s fees resulting from
his disobedience, UNLESS the court finds the disobedience substantially
justified.
C. (c) Failure to Disclose
1. Penalty for a party that does not disclose information (i.e. mandatory
disclosures):
-The non-disclosing party is not allowed to use the undisclosed information as
evidence at trial or at a hearing
2. Sanctions may be imposed if:
-There is no substantial justification not to disclose the information AND
-The failure to disclose was harmful
3. This applies to a failure to disclose, and also to a failure to amend a prior
response
4. The court may also impose other sanctions, including:
-Payment of reasonable expenses and/or attorney’s fees caused by failure
-Informing the jury of the failure to disclose
iv. Blank v. Sullivan & Cromwell: Historical information regarding D’s employees at a
law firm who became partners was deemed to be related to P’s claim that women at
the firm were discriminated against by D on account of their sex. Court held that the
information might be proof of an illegal pattern in hiring.
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c. Privilege/Trial Preparation Materials
i. Rule 26(b)(3)(5) (Trial Prep: Materials [Work Product]; Claiming Privilege or
Protecting Trial-Prep Materials)
A. Disclosure: A party may obtain discovery gathered by another party only upon a
showing that he:
1. Has substantial need for the materials to prepare his case AND
2. He cannot obtain the substantial equivalent w/o undue hardship
B. Disclosure is limited to materials themselves. Courts will protect another party’s
work product (mental impressions, conclusions, opinions, legal theories of a
party’s attorney or representation)
C. If a party “previously made a statement” concerning the action or subject matter,
he does not have to present a new one when obtaining another party’s materials.
1. If the other party denies materials: The party seeking discovery may:
-Move for a court order to obtain the other party’s materials AND
-Apply for expenses incurred in relation to the motion.
2. A “previously made statement” is:
-A written statement signed or adopted by the person making it
-A recorded transcript or recording of an oral statement by the person making
the showing
D. In order to claim materials as “privileged” or to classify them as “trial preparation
material” a party must:
1. Expressly claim the reason for protection AND
2. Describe the nature of the documents and communications specifically
enough to allow court to assess the applicability of the privilege or protection
ii. Privilege
A. 5th Amendment privilege against self-incrimination applies in civil litigation
ONLY if the witness faces a serious threat of CRIMINAL prosecution
B. ONLY documents prepared with the expectation that it would be kept confidential
will be accorded privilege.
C. Main elements of Attorney-Client Privilege:
1. Communication
2. From the client to the lawyer
3. Without the presence of others
4. For the purpose of seeking legal advice
D. Work-product protection extends to documents created for the primary purpose of
informing a business decision where the business decision is influenced by
anticipated litigation.
E. If a document was prepared based on an actual subjective and objectively
reasonable belief that litigation was a real possibility, or prepared for a specific
case, it will be protected by the work-product privilege
F. “Dual-purpose” documents (created both in preparation of litigation AND for
independent purposes) ARE protected by work-product privilege.
iii. A PARTY HAS AN OBLIGATION to preserve relevant evidence once is is
reasonably anticipated that litigation may occur.
A. Once litigation is likely, counsel must:
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1. Issue a litigation hold.
2. Communicate directly with the key players in the litigation
3. Instruct employees to produce electronic copies of relevant active files.
iv. Hickman v. Taylor: Opposing counsel wanted access to other lawyer’s notes on
witness testimony. Court denied, holding that a document is privileged IF:
A. Document or thing (not just factual information) AND
B. Prepared in anticipation of litigation or trial AND
C. By party or representative
THEN NOT DISCOVERABLE, UNLESS:
D. Substantial need AND
E. Can’t obtain substantial equivalent w/o undue hardship
d. Appealability of Discovery Orders
i. Discovery orders themselves are not appealable right away, because they are not a
FINAL JUDGMENT.
ii. Parties may settle or suffer dismissal rather than disclose under what they view as a
wrong but ruinous discovery order.
iii. A lawyer can refuse, be held in contempt, and then appeal the contempt order.
iv. Only extraordinary paths are available to gain review of discovery orders and it is rare
for discovery issues to survive beyond a final order in the case.
e. Constitutional Right to Trial by Jury
i. Constitution Amendment VII
A. At common law, there is a right to trial by jury.
B. Does NOT apply to state courts. Most state courts have dealt with issues
regarding the reach of the jury trial right under state constitutions/statutes
C. Construed liberally by the Supreme Court, finding the right in new statutes/
ii. This right is WAIVABLE by the D.

iii. Historically, the test is whether the claim would be tried on the law (remedy by
money), versus equity (remedy by special performance, injunctions, equitable
remedy, etc), side of English courts of law.
iv. Curtis v. Loether: P claimed that D refused to rent her an apartment b/c she was
black, in violation of federal code. Question of whether or not this required a jury
trial. Court held that the 7th amendment DOES apply to actions enforcing statutory
rights and requires a jury trial upon demand.
f. Jury selection/Race and Gender Bias
i. Process:
A. Each potential juror has a chance to offer a personal excuse
B. Judge then questions/excuses potential jurors for cause (ex: friendship with one of
the lawyers)
C. Lawyers from each side can pre-emptorily strike other jurors
ii. Edmonson v. Leesville Concrete Co.: Court held under the equal protection
component of the 5th Amendment’s Due Process Clause, that a lawyer may not
exclude jurors based solely on their race.
iii. J.E.B. v. Alabama ex rel. T.B.: Court held that under the Equal Protection Clause of
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the 14th Amendment, a lawyer may not exclude jurors based solely on their sex.
VI. Pre-trial Disposition
a. Summary judgment (SJ)
i. Rule 56 (Summary Judgment)
A. (a) For P: A party may move for SJ, with or without supporting affidavits,
AFTER either:
1. 20 days from commencement of the action OR
2. Service of a motion for SJ by the adverse party.
B. (b) For D: May move for SJ at ANY TIME, with or without supporting affidavits
C. (c) Motions and Proceedings:
1. A motion for SJ must be served to the adverse party at last 10 days before the
scheduled hearings.
2. Adverse party may serve affidavits AT ANY TIME before the hearing.
3. SJ must be based upon:
-Pleadings
-Depositions
-Interrogatories
-Admissions
-Affidavits
4. SJ shall be rendered if, based on the above:
-NO genuine issue of ANY material fact shown (discretionary) AND
-The moving party is entitled to judgment as a matter of law
D. (d) Case Not Fully Adjudicated on the Motion:
1. If only part of the case is adjudicated, the court shall determine which facts
remain at issue for trial.
2. The Judge shall file an order establishing the “adjudicated facts” and how they
affect the amount in controversy.
E. (e) Defending Motion for SJ:
1. Requirements for Affidavits:
-Must include personal knowledge of facts
-Shall show that the affiant is competent to testify
-The court may permit the affidavit to be supplemented by depositions,
interrogatories, or other affidavits.
2. Responding to a Motion for SJ:
-The adverse party must set forth SPECIFIC facts showing that there IS a
genuine issue for trial (cannot rely on the pleadings)
-If the adverse party cannot show that there is a genuine issue, SJ shall be
granted IF APPROPRIATE (given an opportunity for discovery).
F. (f) When Affidavits are Unavailable:
1. If a party opposing a motion for SJ can show in its affidavit that it cannot
obtain affidavits containing facts ESSENTIAL to justify it’s opposition to SJ,
then the court may:
-Refuse the application for SJ OR
-Order a continuance to permit affidavits to be obtained (or other depositions
or discovery to be had) OR
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-Make such order as it deems just
G. (g) Affidavits Submitted in Bad Faith (to delay the proceeding):
1. A party making an improper affidavit shall pay the other party’s reasonable
expenses associated with the motion for SJ.
2. Offending party or attorney may be guilty of contempt.
ii. Adickes v. S. H. Kress & Co.: P was refused lunch service at D’s lunch counter. P
alleged collusion between D and local police to prevent her service, because she was
white and the people she was with were black. D moved for SJ. It was denied
because D had burden to PROVE that a policeman WAS NOT in the store at the time
of the refusal, which a jury MIGHT find to be evidence of collusion.
iii. Celotex Corp v. Catrett: P alleged that D’s asbestos caused her husband’s death. D
moved for SJ. Court held that D had to prove that the P CAN’T prove a connection
between the D’s asbestos and the P. They could ask the P, “What is your evidence
that your husband ever had contact with our asbestos?” D must make some
affirmative showing that there was no contact with the D’s asbestos. But if there isn’t
anything to point to, D must still point to the lack of connection somehow (lack of
evidence), so the D must do some discovery of its own (unless it can accomplish this
through affidavits).
iv. BIG ISSUE: Whether reasonable jurors would be able to find for the plaintiff. Must
be evidence upon which the jury could REASONABLY find for the P.
VII. Trial and Beyond
a. Alternative Dispute Resolution
i. 28 U.S.C. § 651(a)(b) (Authorization of Alternate Dispute Resolution)
A. (a) ADR is:
1. Any process or procedure
2. In which a neutral 3rd party participates
3. To assist in the resolution of issues
4. Through processes such as early neutral evaluation, mediation, mini-trial, and
arbitration.
B. (b) Each United States district court shall devise/implement its own ADR program,
by local rule, to encourage and promote the use of ADR in its district.
ii. 28 U.S.C. § 652(a)(b)
A. (a) Each district court shall require that litigants in all civil cases CONSIDER the
use of an ADR process at an appropriate stage in litigation. Any district court that
elects to REQUIRE the use of ADR in certain cases may only do so with respect
to:
1. Mediation
2. Early neutral evaluation
3. Arbitration
B. (b) Each district court may exempt from these requirements specific cases or
categories of cases in which the use of ADR would not be appropriate.
iii. Categories of ADR:
A. Private judges:
1. “Rent-A-Judge.” A private judge that parties can hire to decide a case. Can be
one or a panel. Can be binding.
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B. Arbitration:
1. Arbitrator can be someone who has expertise on the subject. Can be one or a
panel. Usually binding.
C. Mediation:
1. Less formal/expensive than arbitration. Facilitator helps parties reach their
own agreement. Does not issue a decision.
D. Negotiation:
1. The parties negotiate among themselves for a settlement.
E. Court-Annexed Arbitration:
1. Required as an alternative to, or prerequisite to, judicial consideration.
F. Summary Jury Trials and Mini-Trials
1. Judicial proceedings whose goal is to facilitate the private settlement of civil
actions. In a Sum. Jur. Trial, the lawyers are given a limited amount of time
to summarize their case ON THEIR OWN. In Mini-Trials, there can be more
evidence (also can be expert testimony).
G. Judicial Mediation and Settlement Facilitation
1. See above. Different b/c it is required.
iv. Strandell v. Jackson County, Illinois: A court cannot require summary jury trials.
Most courts do not find this persuasive and CAN REQUIRE summary jury trials.
v. Gilmer v. Interstate/Johnson Lane Corp.: A court can subject a claim, under the Age
Discrimination in Employment Act, to compulsory arbitration pursuant to an
arbitration agreement.

b. Judgment as a matter of law


i. Rule 50 (Judgment as a Matter of Law [JNOV; Directed Verdict])
A. (a) Judgment as a Matter of Law
1. The court may great a JNOV, if, after being heard, there is no legally
sufficient evidentiary basis for a REASONABLE jury to have found for a
party on a certain issue (because it would be contrary to controlling law)
2. Requirements for Motion for JNOV:
-Must be BEFORE the case is submitted to the jury
-Must specify the judgment sought
-Must state the applicable rule of law and its relationship to the facts
-Must be made AFTER the non-movant has been FULLY HEARD
B. (b) Renewal for Judgment After Trial; Alternative Motion for New Trial
1. Renewal of Motion for Judgment after Trial:
-If the original motion is denied, the court is deemed to have submitted the
case to the jury
-A jury verdict will be subject to a later determination of the legal questions
raised by the motion
-The motion may be renewed after the verdict by filing and serving it within
10 days after entry of judgment.
2. Alternative Motion for a New Trial: May be requested in the alternative or
joined with renewal of the motion.
3. Judgment on the Renewed Motion:
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-If a Verdict is returned, the court may:
•Allow the original judgment to stand OR
•Direct entry of JNOV OR
•Order a new trial
-If no verdict is returned, the court may:
•Direct entry of JNOV OR
•Order a new trial
C. (c) Conditions of Granting JNOV:
-If a motion for judgment is granted, the court must also rule on a motion for a
new trial (if it was made) as follows:
•Decide whether a new trial should be granted if the judgment is
vacated or reversed after the JNOV
•Must describe specific grounds for granting or denying the motion for
retrial
•Even if the motion for a new trial is conditionally granted, the
judgment is still final. If the JNOV is later reversed on appeal, the
new trial goes forward (unless the appellate court ordered otherwise)
•If the motion for retrial is denied, the denial may be appealed. If the
JNOV is later reversed on appeal, the appellate court determines what
subsequent proceedings take place.
°If JNOV has been rendered against a party, that party may
serve a motion for a new trial no later than 10 days after the
judgment was entered.
D. (d) Denial of a Motion for JNOV
1. The successful party may, on appeal, request a new trial, IF the motion was
denied and the appellate court finds that the trial court ERRED in denying the
JNOV.
2. If the appellate court reverses the trial court’s judgment, it may also find that:
•The appellee is entitled to a new trial OR
-The trial court shall determine if a new trial should be granted.
ii. In ruling on a JNOV, the judge should determine the EXISTENCE of the required
standard of evidence, NOT the WEIGHT of the evidence.
A. The judge is to leave issues of credibility to the jury, unless no reasonable jury
could believe one side of contested testimony.
iii. A party may motion for JNOV at:
A. Opening statements (Rare)
B. P’s Case Presented (D may at the close. So may P, but rare)
C. D’s Case Presented (either or both may)
D. At the close of evidence (either or both may)
iv. A party should always renew the motion for JNOV if he wishes to appeal the denial
of an earlier motion for JNOV.
c. Post-Trial Motions and Appeal
i. Rule 59(a)(b) (New Trials and Judgment Amendments)
A. (a) Grounds:
1. A new trial may be granted on all or some of the issues in the following
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instances:
-Trial by Jury: Allowed for any reason courts have allowed a new trial
-Trial w/o a Jury:
•Allowed for any reason courts have allowed a new trial
•Upon a motion for new trial, courts may:
°Open judgment (if one has been entered)
°Take additional testimony
°Amend a finding of fact
°Amend a finding/conclusions of law
°Make new findings of fact or law
°Direct entry of a new judgment (or affirm the original
judgment
B. (b) Time Limitations: The motion must be served no later than 10 days after entry
of judgment.

ii. Rule 60(b)


A. Relief from Judgment or Order:
1. Court may relieve a party from a final judgment, order, or proceeding IF:
-There was a mistake, inadvertence, surprise, or excusable neglect OR
-Newly discovered evidence was found, which by due diligence could not
have been discovered in time to move for a new trial OR
-There was fraud, misrepresentation, or other misconduct of an adverse party
OR
-The judgment is void (ex: jurisdiction is not appropriate) OR
-Either:
•The judgment was satisfied OR
•The judgment has been released or discharged OR
•A prior judgment, on which the judgment is based, is reversed OR
•It is no longer equitable that the judgment should have prospective
application OR
-There exists any other reason justifying relief from the judgment
B. Time to Make Motion:
1. For reasons 1, 2, and 3, a motion must be made within 1 YEAR
2. For reasons 4, 5, and 6, a motion must be made within a reasonable time
iii. Rule 61 (Harmless Error)
A. (a) The following are not grounds for granting a new trial, setting aside a verdict,
or otherwise altering a judgment, UNLESS refusal to do so appears to be
inconsistent with substantial justice:
1. Error in admission or exclusion of evidence
2. Error or defect in ruling or order in anything done or omitted by the court (or
any of the parties)
B. (b) At every stage of the proceedings, the court must disregard any error or defect
in the proceedings which does not affect the substantial rights of the parties.
iv. 28 U.S.C. § 1291 (Final Decisions of District Courts)
A. The courts of appeals have jurisdiction of appeals from all final decisions of the
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district court UNLESS a direct review may be had in the Supreme Court.
v. 28 U.S.C. § 1292(a)(b) (Interlocutory Decisions)
A. (a) Appellate court has the power to hear a case before final judgment when:
1. Injunctions: There is an interlocutory order granting, continuing, modifying,
refusing, or dissolving an injunction.
2. Receivers: There is an interlocutory order appointing a receiver
3. Admiralty Cases
B. (b) Judge’s Request to Appeal:
1. If not included in (a), a district judge may request an interlocutory order
appeal if he/she believes there is a controlling question of law where there is
substantially ground for difference of opinion, an appeal may materially
advance the ultimate termination of the case.
2. The appellate court has discretion to accept such a request.

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