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28 USC 1331: Federal Question 28 USC 1332: Diversity 28 USC 1367: Supplemental Jursidiction
Public factors
Choice of law rules
Substantive laws and forum rule shave to be considered separately
Van Dusen v. Barrack Choice-of-law rules of the State from which the case was transferred have to be applied Klaxon v. Stentor Electric Manufacturing Federal courts use the choice of law rules of the state in which it sits Public policy exception
If new forum would be really unfair
Same-sex marriage recognition variance across states is an area of conflict under the public policy exception
Pleading - Cases
Dioguardi v. Durning ease of processing claims Conley v. Gibson the claim is one in which relief could be granted and the pleading was sufficiently plain
A claim on which relief could be granted is in good faith unless there is no set of facts in support of his claim which would entitle him to relief Has been misinterpreted to have to do with fair notice, but it has nothing to do with that
Doe v. Smith judge draws inferences of the elements from the well pleaded facts
Factors
Assume that well-pleaded facts are true Draw reasonable inferences All elements are pleaded or inferred
Pleading - Rules
Rule 7
(a) Pleadings Allowed
Answer to copmlaint
Defenses (listed in Rule 9) Counterclaim, crossclaim
Answer to counterclaim Answer to cross claim Third party complaint Reply to an answer if court orders on
(b) Motions
No specific list of motions, a request for a large variety of court order
Rule 9(b) heightened pleading standard applies for fraud and mistake
Pleading - Discussion
Twombly standard for a well-pleaded complaint
Subtract out conclusory allegations Treat well-pleaded facts as true Plausible inference Every element is a well-pleaded fact or a plausible inference
Pleading Policy
Twombly and Iqbal innovation was to categorize conclusory versus non-conclusory allegations
Sachs believes this is a problematic categorization difficult to distinguish
(f) Strike
Motion to strike is extreme and disfavored - have to show that material is prejudicial
(c) Entry of default must be set aside for good cause If defendant puts in an appearance, the defendant is guaranteed at least 7 days before the default hearing
Appearance- filing a piece of paper in court acknowledging lawsuit and naming lawyer; filing a motion or answer usually meets appearance requirement
Rule 8
8(b)(1)(B) requires defendant to admit or deny 8(b)(5) allows statement of lack of knowledge with the effect of denial 8(b)(6) any allegations that are not answered is taken to be true
If not answer pleading, then all allegations are taken to be true Still need to determine appropriate damages or injunctive relief by hearing
A new complaint resets the rule 12 requirements and omissions (h)(2) failure to state a claim or join a person required by 19(b) or state a legal defense to claim (h)(3) - SMJ
Joinder - Cases
Hohlbein v. Heritage Mutual fear of prejudice outweighed by practical benefits (efficiency) of joining parties claims Erkins v. Case Power court grants motion to file 3rd party complaints against contractors Torrington v. Yost court needs to consider whether its feasible to continue or discontinue
Four factors: (codified in 19(b))
Prejudice (to absent or present parties) If prejudice can be lessened by fashioning judgment to protect interest Adequacy of judgment for plaintiff in absence of required party Adequacy of alternative remedy for plaintiff if action dismissed
Republic of Phillippines v. Pimentel Rule 19 requires dismissal of interpleader action; sovereign immunity is a non-frivolous assertion;
Joinder - Rules
Rule 18 Joinder of Claims
Liberal approach to joining claims- party can assert ANY claim it has against opposing party, even if theyre unrelated; applies to any party who asserts claim, counterclaim, crossclaim, or 3d party claim; why? Promotes efficiency
Rule 17 Capacity
Capacity specifies who can sue; (a)(1)(A-G): party can sue on behalf of another if theyre administrator, guardian, executor, etc. (c) governs who can sue on behalf of minors/incompetents Public officers suing/being sued in their official capacity must be designated by title, not the name
Joinder - Rules
Rule 13 Counterclaims/Cross claims
Counterclaims are asserted when party sues a party who has already asserted claim against him 2 types
(a)(1) Compulsory Counterclaim
Must assert counterclaim if: Claim arrises from the same transaction/occurrence as the original claim, and Doesnt rquire adding party the court has no jurisdiction over, and Claim existed at the time the original claim was served If you dont ring the claim you can be rule-precluded from brining the claim later Doesnt have to meet jurisdiction amount Party may assert any counterclaims it has against opposing party; party could wait to assert it in a future, separate action Must meet jurisdictional amount Can bring action against a co-party (aka people on the same side of the v) if: Claim arises out of the same transaction/occurrence of original action/coutnerlcaim, or Claim relates back to property at issue in original action/counterclaim party must already by part of the suit
(b) Permissive
(g) Crossclaims
(h) you need to look to rule 19 or 20 to join before asserting a 13(g) counterclaim
Joinder - Rules
Rule 19 Joinder of Required Parties
Party is required for resolution of action if:
(a)(1)(A) Court cant afford complete relief without that party present (a)(1)(B)(i) partys absence may impair/impede their interests (a)(1)(B)(ii) party absence leaves him subject to multiple/inconsistent obligations
If joinder of party is required, court then considers whether its feasible (b) governs whether courts should continue if its infeasible to join required party
Rule 24 Intervention
Intervention when non-parties want to get involved in suit (a) Intevention of Right
Court must permit part to interven if:
Right to intervene is provided by statute, OR Party has interest in subject matter of suit, which would be imparied and which existing parties wouldnt be able to adequately protect Motion must be timely Court considers: Stage of the trial Purpose of intervention When intervening party knew about claim vs. when they filed motion Prejudice to original party
Joinder Rules
28 USC 1335 Statutory Interpleader
Joinder for interpleader allowed if:
Amount in controversy is equal to $500 or more AND Minimal diversity is met (at least two claimants are from different states) AND The stakeholder deposits contested property for interpleader claims
28 USC 2361 Provides nationwide personal jurisdiction for interpleader claims 28 USC 2361 governs venue for interpleader
Any district where one or more of the claimants reside
Joinder - Discussion
Interpleader statute and rule
Plaintiff holding property on behalf of someone and facing conflicting claims over its ownership can compel parties with interest in property to litigate disput
Plaintiff is a stakeholder who doesnt have interest in property Judgment of ownership issued will bind everyone in the suit
Owen v. Kroger no basis for federal jurisdiction for claim since the claim was independent of/didnt rely on claim within the original jursdiciton; need to pass common nucleus test and meet statutory requirements under 1332
(c) court has discretion to decide whether to hear claim with supplemental jurisdiciton
Synfuel v. Airborne in class actions, court must be more proactive and exercise more scrutiny in inquring into fairness, lawyer quality, adequacy of representation in order to protect absent parties who are not at the negotiating table
(2) Injunctive/declaratory relief : class action permitted if injunction would only be relevant/enforceable if it could be applied to class as a whole not just the party in suit; injunctive relief must by the primary relief sought (3) Damages/catchall class : class action is certified if two factors are met: predominance (whether common questions of law/fact predominate the issue) and higher standard than commonality factor (common question must by the most important issue) and superiority (whether the class action is superior method of adjudicating issue)
(e) Plaintiff could opt out either before trial or at settlement stage
(2) court must determine settlement is fair, reasonable, and adequate (5) absent parties can object to settlement and become party to a suit
Due process?
Courts can bend the rules on notice/due process/personal jurisdiction concerns
Discovery - Cases
McPeek v. Ashcroft tapes case, VERY large discovery Chadasama v. Mazda Motor Corp information was deemed to be unreasonable to be obtained Hickman v. Taylor when the proponent of discovery can obtain the desire information elsewhere, it has not met the burden of showing such special circumstances
Discovery - Rules
Rule 26
26(a) Required disclosures
Must include: name, address, telephone number of each individual likely to have discovery; copy of all documents the disclosing party may s to support its claims or defenses; computation of each category of damages claimed by the disclosing party; any insurance agreement Must make initial disclosure within 30 days after being served or joined; must make a reasonable effort Expert testimony most disclose info (name, opinions, facts/data used to form opinions, exhibits, qualifications cv, publications in the last 10 years, other cases they testified in over the last 4 years, statement of compensation) (2) limitations of frequency and extent (3) attorney work-product immunity (4) limitations on deposing experts not used at witnesses (5)(A) privileges must be claimed (5)(B) mistaken production of informationt hat was priveleged If the court denies a motion for a protective order, then the court may order any person or party to privde or permit discovery (must be done in accordance with 37(a)(1) Cannot seed discovery before 26(f) meeting Can use discovery in an sequence Must supplement discovery given to other party as soon as learn that it is incomplete Parties must confer at least 21 days prior to conference At conference
Consider claims and defenses, possibility of settling Make arrangements for discover under 26(a)(1) Develop a proposed discovery plan Must submit discovery plan to the court with 14 days after the conference Timetable for when initial disclosures will be made Subjects on which discovery may be needed Issues of discovery re: electronic info Form in which to produce discovery Any change necessary to be made to rule
26(b) Limitations
26 (d-e)
26 (g)
Every discovery request must be signed by an attorney (for the party themselves if they are unrepresented) who certifies that discovery is complete, accurate, and in accordance with the rules Court will strict discovery without a signature
Must produce documents as they are kept in the usual course of business or how they are ordinarily maintined An objection to part of a request must specify the part and permit insepction of the rest No silent objects
Procedure
If deposition to an organization
Examination and cross examination
Must serve notice of deposition on every other part, with notice stating deponents name and address May use a deposition against another party when
The party was present or represented at the deposition or had reasonable notice of it If admissible under the federal rules of evidence as if the deponent were present and testifying Depositions may be used to contradict witnesses Depositions may be used when
Witness is dead The witness is more than 100 miles away from the place of the hearing or outside the US Witness cannot attend or testify due to illness, infirmity or imprisonment Witness was unable to be reach by subpoena Exception circumstances in the interest of justice
Impeachment
Unavailable witnesses
Objections
An objections may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving notice May also object to the officers qualifications, but must be done before the deposition begins or promptly after the disqualification becomes known Objection to an error of irregularity waived if not timely
A matter is admitted unless explicitly denied (must include grounds for objection May assert a lack of knowledge or information as a reason for failing to admit or deny (this ha the effect of a denial) The requesting party may more to determine the sufficiency of an answer or objection
If amended answer does not comply, then the allegation is admitted
Examiners report must be in writing and state findings, including diagnosis, conclusions, and test results Requesting party entitled to receive all prior and subsequent findings on the same condition by other examinations Form of subpoena requirements
Issuing court Title of the action, pending court, case number Command the person to appear or produce documents/tangible items at a specific time and place If commanding attendance at a deposition, must state the method for recording testimony
Rule 45 Subpoena
Objections - May file an objection within 14 days after the subpoena is served Must quash a subpoena when
Fails to allow a rasonable time to comply Requires a person who is neither a party nor a partys officer to travel more than 100 miles from where that pesrson resides or is employed (EXCEPTION rule 45(c )(3)(B)(iii)) Requires disclosure of privilged or other protected matter, if not exception or waiver applies Subjects an individual to an undue burden Disclosing a trade secret or other confiidential research development or commerical infomration Disclosing an retained experts opinion A person who is neither a party nor a partys officer to incur substantial expense to travel more than 100 miles ot attend trial
The issuing court may hold in contempt the person who, having been served, fails without adequate excuse to obey the subpoena
Discoveries - Discussion
Attorney-Client Privlege
Absolute privilege- even communication between lawyers Client possess the privilege Doesnt protect communications in front of 3d parties Only the client can waive the privilege Rationale: we want to encourage clients to give their attorneys as much information as possible so that their attorneys can represented them effectively
Interogatories- Discussion
Procedure
The lawyer seeking discovery prepares and serves a party with up to 25 written questions The responding party must object or answer within 30 days Answers are made in writing under oath by the party who signs them (usually the attorney prepares them) Must be anwered with all information available to the party; must at least make an attempt to find the info No such thing as a silent objection
Advantages
Relatively inexpensive discovery tool (compared to depositions)
Disadvantages
Usually preared by attorney who drafts vague answers
Depositions - Discussion
Noticing a Deposition
Must specify method of recording of deposition Serve notice of the time and place of deposition, with copies to other parties to the action Location is within the district where the civil action is pending or a place agreed by the parties
Objections may be made by opposing counsel, but examination still proceeds If deposition is later used at trial, the judge will have to rule on all objections before the testimony is admitted into evidence
If deponent is a corporation
Must designate knowledgeable about those matters to testify on its behalf
Use of Deposition
Discovery; used as a preview of what witness may say at trial Possible impeachment material Substitute for live testimony because witness is unavailable for trial Note that a deposition is hear-say (out of court statement offered in court for its truth)
Dismissal - Cases
In Re Bath and Kitchen Fixtures Antitrust Litigation point of no return when defendant files answer or motion for summary judgment; prior to that point, notice of voluntary dismissal is automatic and immediate (court doesnt mess with it)
Dismissal - Rules
Rule 41(a) Voluntary Dismissal
With or without court order (by plaintiff)
Without a court order notice to dismiss must be filed before: opposing party service either an answer or MSJ OR a stipulation of dismissal signed by all parties who have appeared With a court order at the plaintiffs request on terms that the court deems proper, plaintiff files a motion instead of notice, judge looks for plain legal prejudice
Factors include: whether the suit is still in pretrial state or further along, if the parties have attended many pretrial conferences, there are prior court rulings adverse to plaintiffs position, hearings have been held, , that parties have undertaken substantial discovery, court can force the plaintiff to pay some of the defendants costs in 0rder to get the case dropped, 2 dismissal rule does not apply
With prejudice
Exceptions
Lack of jurisdiction Improper venue Failure to join a party under rule 19
Dismissal - Discussion
Reasons for Seeking Voluntary Dismissal
To correct or redraft pleadings To facilitate consolidation with another action To defeat diversity jurisdiction by joining non-diverse parties and refiling in state court To preserve subject matter jurisdiction by dismissing the action as against non-diverse parties To avoid unfavorable state law by refiling in a state or federal court in a different jurisdiction To refile in a different jurisdiction with a longer statute of limitations To delay or avoid an anticipated adverse determination on the merits To delay or avoid discovery To change federal judges by refiling in a state court with the hope that a different judge will be assigned to the case on removal
A party may file a MSJ at any time until 30 days after the close of all discovery A party moving for summary judgment must support this assertion by
Citing to material in the record (that are admissible under the rules of evidence, though affidavits are okay) Showing that these materials do not establish the presence of a genuine need only look at cited materials, but can consider other materials in the record
Standard of Proof
Clear and convincing evidence The summary judgment standard is not whether a reasonable jury would find for the nonmoving party, but that it COULD
Types
Proof-of-the elements summary judgment must present undisputed facts supporting each and every element of the claim or defense in order to obtain summary judgment; moving party has the burden of proof Disproof-of-an-element motion of summary judgment present undisputed facts proving the non existence of an essential element to the non-moving partys claim; does not have the burden of proof Absence of proof motion for summary judgment no evidence in the record by which the non-moving party could establish the existence of an essential element or claim; does not have the burden of proof
(a)
Defendant cant argue that no reasonable jury could find the fact necessary for defendant to win and the judgment therefore should be entered in defendants favor as a matter of law Plaintiff is given the opportunity to amend, but generally plaintiff does not have any other evidence to prove claim Often called a directed verdict
Court does not weigh the evidence (not supposed to determine which sides case is more credible) If court does not grant a 50(a) motion
Can file again under Rule 50(b) renewed motion for JMOL Must be made no later than 28 days after the entry fo the judgment or after the jury was discharged In ruling on the renewed motion, the court may:
Allow judgment on the verdict Order a new trial Direct the entry of judgment as a matter o law
In reviewing the rule 50(b) motion, the court will also conditionally rule on grating or denying the motion for a new trial if the judgment is later vacated or reversed When judge grants motion, signifies that the party has offered so little evidence that the facts can be determined as a matter of law Judicial reluctance to grant 50(a) motions because of the possibility of appeal and appellate court my remand for a new trial Same standard of evaluation used for a 50(a) and 50(b) motions (sufficient evidence exists for a reasonable jury to render a verdict for the plaintiff
Burden of Production refers to a partys burden to produce sufficient evidence to avoid an adverse ruling on a particular matter
Compare to burden of persuasion
Scintilla Alternative
Has been rejected or minimized in most courts Under scintilla alternative the court only considers the non-moving partys evidence and will deny a JMOL if the non-moving party has offered a scintilla of evidence in support of its position
Waiver a party waives a jury trial unless its demand is property served and filed. A proper demand may be withdrawn only if the parties consent
Parties may also waive jury trial rights through contracts If one party requests a jury trial and other party waives jury trial rights jury trial still happens
If accidentally waived jury trial right, can make a motion to the court to request a jury trial for any issue in which a jury trial might have been demanded Advisory jury if there is not right to a jury trial, but the judge wants advice from ta jury
Jurys verdict is nonbiding in an advisory jury
Motion for new trial must be filed no later than 28 days after entry of the judgment Motion to alter or amend must be filed not later than 28 days after the entry of judgment
Fraud, misrepresentation, misconduct by an opposing party Judgment is void The judgment has been satisfied, released, or discharged; based on earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable Any other reason that justified relief
Timing reasons 1-3 must be asserted within 1 year ;everything else must be made within a reasonable time Rule 61 Harmless Error
Prejudicial testimony Improperly granted Rule 50 motion and take case away from jury when dont have to Improperly argument to jury Witness misconduct Evidentiary errors Instructional erros
Remedies - Cases
Fuentes v. Shevin due process requires a hearing before property is taken from an individual, cannot do it ex parte University of Texas v. Camenisch - ?? Zenith v. Hazeltine Research need to serve notice
Remedies Rules
Rule 69 execution for money judgments use state law procedure Rule 64 seizing a person or property
Garnishment having a 3d party who owed the Defendant money to pay the creditor Arrest Attachment- property is secured for a judgment Replevin return your own property (defendant has to post 2x the value of the property to seize it) Sequestration property is removed pending outcome Any other remedies available under state law (a) Preliminary Injunction, Notice, Hearing
Must establish: likelihood of success on the merits, irreparable harm, balance of equities, public interest Only In place for 14 (can be extended for an extra 14 but that is it, total 28) Must submit an affidavit that is sworn Need to show immediate and irreparable injury (2) persons bound: parties, officers, agents, servants, employees, and attorneys (plus other persons who are in active concert) If youre bound by an injunction and you violate it you can be held in contempt Only applies to people who are in concert and are given actual notice of the injunction
Rule 65 Injunctions
(b) temporary restraining order (can happen without notice)
Remedies - Code
28 USC 2201 Declaratory Judgment Act
There must be an actual controversy, declare whether or not future relief is or could be sought mirror image where the parties switch sides in a suit (Rule 57), makes sure if it happens, jury rights are preserved
Appeals - Cases
MacArthur v. UT Health Center - Need to have preserved below and presented above In Re Recticel Foam Corp you cannot get a review of a discovery order until the trial court has the final judgment
Because: it avoids confusion, costs money and delays trials, does not want a piecemeal review Collateral order doctrine- things that can be appealed separately
Appeals Rules/Code
FRAP: Federal Rules of Appellate Procedure
Rule 3: notice of appeal has to be filed with the district court clerk; need to have: who is appealing, what is being appealed, and where you are appealing to Rule 4: 30 dates after judgment;
(a)(5) district court can give limited extension If you miss the deadline for not good reason, you waive your right to appeal 30 days is subject matter jurisdictional limit
FRCP
Rule 54: must resolve everything and have a final judgment for appeal to go through (Final Judgment Rule) Rule 59: new trial motion based on weight of the evidence Rule 50(b): Judgment on a Matter of Law
These motions toll the time limit for the appeal (time for appeal is in effect after these motions are disposed by the court)
Rule 42:
28 USC
1291: appellate courts only have subject matter jurisdiction over final decisions; can appeal everything at the end 1292: interlocutory Decisions
Includes injunctions (a)(1) court of appeals has jurisdiction over all injunctions (b) district court can certify something for apeal
Appeals - Discussion
Writ of Mandamus telling the court to do its job
No other adequate means of relief AND clear and indisputable right to relief
Timeline
Notice of appeal Initial filings (Local Rule
Send up the record Statement of issues Corporate discolsures Opening Response Reply Joint appendix (selection of stuff that is relevant from the trial record)
Briefs
3 Ps of Appeals
Prejudicial cant be Rule 61 (harmless error) Preserved below (objected to below) Presented above (presented in the appeal
Jury Trial
Abuse of discretion
If judge were not to know what the rule actually was = de novo If the just makes an error of law = abuse of discretion
Jury Verdicts
Reasonably jury no legally sufficient evidentiary basis
Both are considered affirmative defenses under FRCP 8(c ) Quality of previous judgment
Default judgments are always given res judicata on the ultimate claim decided
Rules
Mirror of Rule 13(a)(1)(A) compulsory counter claim
The parties in the subsequent actions must be identical to the parties in the first action
Can have claim preclusion ONLY if you have original parties or those who were in privity to the original parties Privity must be close, essentially need an agency relationship in order to demonstrate control over the lawsuit
Applies to claims that were actually litigated or could/should have been litigated in the first action Scope of Relief Test- if relief in the subsequent action would be inconsistent with the relief awarded in the prior action then a court may give preclusive effect to the first judgment; VERY narrow Primary Rights Test: a second court will apply preclusion to prevent mutliple successive lawsuits on the same grounds for the same wrong/injury Same Evidence test- if the same evidence is used for the subsequent lawsuit, preclusion applies (rarely used) Transaction test requires application of preclusion doctrine to any injury arising out of the same acts; have to present all claims in one lawsuit
The claim in the subsequent action must include matters properly considered in the first action
Parties have to aligned in the second suit as they were in the first
Void judgments if something turns up well after a suit that would otherwise void the judgment, it may be held valid for claim preclusive purposes
As long as the issue was fairly litigated, and There was no manifest abuse of authority
Valid, final judgment on the merits Issue was essential to the judgment Same Party/privity Exceptions
No appeal available in lawsuit 1 Question of law very different or a change in the law Change in procedures between courts of the two suits Burden of persuasion is relevantly different Would hurt third parties, couldnt foresee new action, or didnt have full opportunity or incentive to litigate
Defensive
If a plaintiff loses against one defendant, then brings a suit based on the same issue against another defendant, the second defendant may use the results of the first suit as a defense Encourages plaintiffs to join as many defendants as possible in one lawsuit, rather than bringing repeated claims
Offensive
Asserted by the plaintiff against the defendant Non-mutual offensive issue preclusion factors to consider:
Foreseeability of subseuqent lawsuit Sideline sitters- could the parties have just joined? Aberrational first judgment Different procedural opportutnies
Non-Mutual
Adversarial v. inquisitorial view of the legal system
Adversarial resolve controversies Inquisitorial answers questions
Tyson v. Swift state law binding on federal courts, BUT fed cts can interpret it as they please Black and White Taxi Cab v. Brown and Yellow Taxi Cab company reincorporate in a different state so it could use the law it liked Erie v. Tompkins overruled Tyson; said there is such a thing as federal common law; Lays out Twin Aims: 1) Prevent forum shopping and, 2) encourage equal application of the law; Federal courts should predict how the state supreme court would rule on the case Klaxon Co v. Stentor Electric federal courts must follow state of law rules in which they sit (reflective of Erie policy of fed courts ruling like state courts US v. Standard Oil Co of CA there may be federal common law in some areas, but there isnt a general federal common law Guaranty Trust Co of NY v. York abolishes substantive/procedural test for determining whether state law should apply; Creates new test: uses strong retrospective analysis, strong preference for uniformity between systems Hanna Creates its own test (see separate slide) Shady Grove: there is a lot of disagreement; Rule 23 is valid; plurality in determining a rules validity, the court looks only at a federal rule and not at the state law to be displaced by it
Plurality- if its arguably procedural, its procedural and thus not substantive Stevens consider states intent to determine if it substantive, have a high bar for finding an REA problem Dissent evaluate states intent, but not with a high bar
Hanna Test
If there is a federal rule or statue on point, and its valid, USE IT
Validity: hinges on 2072(b) (FRCP cant abridge, expand or modify substantive rice) (Shady Grove)