Federal Civil Procedure By Professor Richard D. Freer 1. Right court? 2. Learning about case 3. Multiparty cases Personal jurisdiction Service of process Party joinder Subject matter Pleadings Class action Venue Discovery

4. Adjudication Injunctions Pretrial Trial

5. Appellate Review Final judgment Interlocutory Standard of review

6. Preclusion Claim preclusion Issue preclusion

FIRST BIG TOPIC: ARE WE IN THE RIGHT COURT I. A.

PERSONAL JURISDICTION – “PJ”

Basic Idea. PJ is about the court’s power over ___________________________________ Because P filed the case, the court automatically has power over P. The big Q is PJ over D. PJ involves one question: can P sue D in this state? Whether there is PJ is a two-step analysis: 1. 2.

Satisfy a state statute AND Satisfy the Constitution (Due Process).

-- Does the analysis differ depending on whether the case will be filed in federal court or state court in the forum state? ___________________________________________ ______________________________________________________________________ -- So whether a federal court in MA has PJ over D is assessed exactly the same way as whether a state court in MA would have PJ. No difference. B.

In Personam Jurisdiction. P sues to impose a personal obligation on D. 1.

Statutory analysis. Each state is free to have its own statutes for in personam jurisdiction. Because they vary, the content of such a statute is not testable on the MBE. Anyway, in most states, the statute says jurisdiction is OK if the case meets the constitutional test. ______________________________________________________ ______________________________________________________________________

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2. FEDERAL CIVIL PROCEDURE 2.

Constitutional analysis: Does D have “such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice”? -- This is amorphous and unclear, except there are some easy cases: PJ is clearly constitutional if D is: (1) domiciled in the forum or (2) consents or (3) is voluntarily present in the forum when served with process. -- What if none of those is true? We must assess a set of factors under these headings: CONTACT – RELATEDNESS – FAIRNESS a.

Contact. There must be a relevant contact between D and the forum state. There are two factors to be addressed here. (1) The contact must result from purposeful availment: D’s voluntary act. _____________________________________________________________ _____________________________________________________________ – Maybe she tried to make money in the forum, or used the roads there, or marketed a product there, or sent a tortious e-mail to P there. -- Can D purposefully avail without setting foot in the forum? ___________ ______________________________________________________________ (2) Foreseeability. It must be foreseeable that: _________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________

b.

Relatedness between this contact and P’s claim. Ask this: _________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________

FEDERAL CIVIL PROCEDURE 3. -- If the answer is yes, the court might uphold PJ even if D does not have much contact with the forum (depending on whether PJ would be fair). Where the claim arises from D’s contact with the forum, it is called: ______ ______________________________________________________________ -- What if the claim does not arise from D’s contact with the forum? Then, jurisdiction is OK ONLY if the court has general PJ. If so, D can be sued there for a claim that arose anywhere in the world. -- To have general PJ, what must be true? D must be: _________________ ______________________________________________________________ -- Where is a human always “at home”? _____________________________ ______________________________________________________________ -- D is domiciled in VA. Can D be sued in VA on a claim that arose in Antarctica? __________________________________________________ ___________________________________________________________ -- Where is a corporation always “at home”? _________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ (Let’s abbreviate “principal place of business” as PPB.) -- Walmart is incorporated in DEL and has its principal place of business in ARK. It does business in every state. In TX, it has more than 200 retail stores and employs thousands. Is it subject to general PJ in TX? ________ ____________________________________________________________ ____________________________________________________________ -- So a D who is “at home” in the forum can be sued there for a claim that arose anywhere in the world; that is general PJ. But a D who is not “at home” in the forum can only be sued there for a claim arising from those activities; that is specific PJ.

4. FEDERAL CIVIL PROCEDURE c.

Fairness. Now we assess whether jurisdiction would be fair (or reasonable) under the circumstances. -- However, the fairness factors are only assessed in what kind of cases? __________________________________________________________ -- So fairness factors are NOT assessed if there is general PJ – once we find D is “at home” in the forum, that’s the end of it. In a specific PJ case, how do we determine whether jurisdiction is fair? (1) Burden on D and witnesses. Does due process guarantee that the suit will be in the most convenient forum for D? _____________________________ -- So even if it’s hard for D to travel to the forum and to get her witnesses to the forum, the forum is constitutionally OK unless D can show that it puts her at a severe disadvantage in the litigation. This is a very difficult burden to meet. One reason it’s so tough: _________________________________ ______________________________________________________________ ______________________________________________________________ (2) State’s interest. The forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters. ______________ ______________________________________________________________ (3) Plaintiff’s interest. Maybe injured and wants to sue at home.

SUMMARY OF THE CONSTITUTIONAL TEST – here’s the whole deal: Contact Purposeful availment Foreseeability

Relatedness General v. specific

Fairness (specific only) Burden/convenience State’s interest Plaintiff’s interest

HYPO: Doofus makes valves in PA and sells them to a company in MN. The MN company then puts the valves into its widgets and sells the widgets nationwide. A Doofus valve in one of these widgets explodes in NV. So the Doofus valve got into NV, but Doofus did not send it here. Is PJ in NV constitutional? 1.

Contact. Is there a contact between Doofus and NV? For starters, we know the Doofus valve blew up there.

--

But was this contact the result of purposeful availment by Doofus of NV?

FEDERAL CIVIL PROCEDURE 5. -- Maybe no: because a third party (the MN manufacturer) sent the valves to NV. _________________________________________________________ ______________________________________________________________ -- Maybe yes: because Doofus makes money from the sales by the MN company into NV. ______________________________________________ _____________________________________________________________ _____________________________________________________________ --

Is it foreseeable that Doofus could get sued in NV? Maybe: if Doofus knows its valves get to NV and that valves can explode and hurt people. ______________________________________________________________ ______________________________________________________________

2. Is there relatedness? Yes! The claim arises directly from the contact between Doofus and NV. So if Doofus had very little contact with NV, jurisdiction might be OK, depending on whether it would be fair. ________ ______________________________________________________________ 3.

Fairness/Reasonableness. -- Burden on D and witnesses. Doofus may complain that litigation in NV is difficult and expensive, and it’s tough to get its witnesses there from PA. But it has to show that it is so gravely inconvenient as to put it at a severe disadvantage in the litigation. _____________________________________ ______________________________________________________________ -- State’s interest. The forum state (NV) might have an interest in providing a courtroom for its people who are harmed by allegedly careless out-of-state manufacturers. _________________________________________________ ______________________________________________________________ -- Plaintiff’s interest. P is hurt and would find it tough to litigate in the D’s home state. ___________________________________________________

C.

In Rem and Quasi in Rem Jurisdiction. -- Here, power is not over D herself, but over D’s property in the forum. Property must be attached by the court at the outset of the case. To be constitutional, though, D’s contacts with the forum must meet the constitutional test we just applied in in personam.

6. FEDERAL CIVIL PROCEDURE II. SUBJECT MATTER JURISDICTION – “SMJ” A.

Basic Idea. This is about the court’s power over __________________________________ We know P will sue D in State X (there is PJ in State X). Now the question is: in what court do we go to in State X (state court or federal court)? State courts can hear any kind of case (minor exception below). They have “general” SMJ. -- A citizen of Bolivia sues a citizen of Australia concerning an automobile crash in China. Can a state court in NM hear this case? _________________________________ ________________________________________________________________________ -- Are there cases state courts cannot hear? Cases under a few federal laws must be brought in federal court – e.g., patent infringement, bankruptcy, some federal securities and antitrust claims. Most cases arising under federal law can be heard by state courts. -- Federal courts are different. They have “limited” SMJ. So they can only hear certain types of cases. What are the two main types of cases that can be heard in federal court? __ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ -- And diversity of citizenship includes “alienage.”

B.

Diversity of Citizenship (and Alienage) Cases. There are two requirements:

1.

1.

The case is either (a) between “citizens of different states” (diversity) or (b) between “a citizen of a state and a citizen of a foreign country” (alienage) and

2.

The amount in controversy exceeds $75,000.

Who are the right kinds of litigants for a diversity or alienage case? a. Complete diversity rule. No good if any P is a citizen of the same state as any D. DIV #1. P (OH) sues D-1 (MD) and D-2 (OH). Is this proper under diversity of citizenship? ______________________________________________________ __________________________________________________________________ __________________________________________________________________

FEDERAL CIVIL PROCEDURE 7. DIV #2. P (Spain) sues D (NY) in federal court. OK? _____________________ __________________________________________________________________ __________________________________________________________________ DIV #3. P (Spain) sues D (Canada) in federal court. OK? No. -- Is there alienage? _____________________________________________ ______________________________________________________________ ______________________________________________________________ -- Is there diversity of citizenship? _________________________________ ______________________________________________________________ ______________________________________________________________ DIV #4. Suppose we have an alien admitted to the U.S. for permanent residence (a so-called “green card” alien). She is domiciled in a U.S. state. Is she considered an alien or a citizen of that U.S. state? _________________________ -- So litigation with her might invoke alienage, but never diversity. DIV #5. There is a special rule, though, that prohibits alienage if a green card alien is domiciled in the same U.S. state as a litigant on the other side of the case. So if P (AZ) sues D (a green card alien who is domiciled in AZ) in federal court, it seems that there would be alienage. Is there? ___________ ______________________________________________________________ ______________________________________________________________ DIV #6. P (a U.S. citizen domiciled in Japan) sues D (CA) in federal court. OK? -- Is there alienage? _____________________________________________ ______________________________________________________________ -- Is there diversity of citizenship? No, because P is not a citizen of a U.S. state. Why not? ________________________________________________ ______________________________________________________________ ______________________________________________________________

8. FEDERAL CIVIL PROCEDURE b.

Citizenship of a natural person who is a U.S. citizen, what is the U.S. state of her citizenship? ____________________________________________________ __________________________________________________________________ __________________________________________________________________ -- Can a person have more than one domicile at a time? ________________ ______________________________________________________________ -- So a human can be a citizen of only one state at a time. -- How do you establish a new domicile? It takes two things: 1. ___________________________________________________________ ___________________________________________________________ 2. ___________________________________________________________ ____________________________________________________________ ____________________________________________________________ -- For intent, courts look to all relevant factors – like taking a job, buying a house, joining civic organizations, registering to vote, qualifying for instate tuition. DIV #7. P (CO) wants to sue D (CO) in federal court. P moves to FL and sues under diversity jurisdiction. That’s OK if P changed her domicile. Here we know he moved to FL, but we do not know if he has made FL his domicile. Why? __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ DIV #8. P (OH) decides to move permanently to GA. She accepts a job in GA and tells everyone that she intends to live the rest of her life in GA. While driving to GA, she is involved in an auto collision in KY. She is hospitalized in KY. If she sued now, what is P’s citizenship? __________________________________ _________________________________________________________________ _________________________________________________________________

FEDERAL CIVIL PROCEDURE 9. DIV #9. P (NJ) sues D (DC). After filing, P becomes a citizen of DC. Does that mean diversity is destroyed now that it’s DC versus DC? No – diversity is OK. There are two rules from this hypo: 1. __________________________________________________________ __________________________________________________________ 2. __________________________________________________________ ___________________________________________________________ ___________________________________________________________ -- So we do not care what happens to citizenships after the case is filed or what the citizenships were before the case was filed. c.

Citizenship of a corporation. What is/are the citizenship(s) of a corporation? __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ -- Though a corporation can be incorporated in more than one place, it is incredibly rare. Usually, there is one place of incorporation. -- Can a corporation be a citizen of two states at a time? YES! Example: -- XYZ Corp. (inc. in OR with PPB in UT) sues D (UT). Is there diversity? ______________________________________________________________ ______________________________________________________________ -- Where is the corporation’s PPB? It’s where managers: ____________________ __________________________________________________________________ __________________________________________________________________ (We call this the “nerve center.” It’s usually the headquarters.)

10. FEDERAL CIVIL PROCEDURE DIV #10. Acme Co. is incorporated in IN and has its headquarters in OH. It has enormous manufacturing plants in AL and SC, in which it employs tens of thousands of workers and does billions of dollars worth of business. Is Acme a citizen of AL or SC? ________________________________________________ __________________________________________________________________ __________________________________________________________________ d.

Citizenship of an unincorporated association (like partnership or limited liability company (LLC)). What is its citizenship? _______________________ __________________________________________________________________ __________________________________________________________________ DIV #11. XYZ Partnership has partners who are citizens of 18 states. What is XYZ Partnership’s citizenship? _______________________________________ __________________________________________________________________ -- Do we care where XYZ Partnership was formed or has its PPB? _______ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ -- If it’s a limited partnership, do you include the citizenships of the general and the limited partners? _________________________________________ ______________________________________________________________ DIV #12. LLC is formed in WI and has its PPB in MI. It members are (1) an individual, who is a citizen of NY and (2) a corporation, which is incorporated in TX with its PPB in CA. What are the citizenships of LLC? _________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

e.

Citizenship of decedents, minors, or incompetents. Such persons must sue or be sued through a representative. The representative’s citizenship is irrelevant. Use the citizenship of the decedent, minor, or incompetent.

FEDERAL CIVIL PROCEDURE 11. DIV #13. Executor (CA), on behalf of the estate of Elvis (TN), sues D (CA). It looks like CA versus CA. Is there diversity? _____________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ 2. Amount in controversy. In addition to complete diversity or alienage, P’s claim must exceed $75,000. AIC #1. P sues for exactly $75,000. OK? ________________________________ __________________________________________________________________ AIC #2. P sues for $74,000 for breach of contract and, if she wins, also wants to recover her legal “costs” and interest from the date of judgment to the date on which D pays the judgment. These costs and interest will clearly exceed $1,000. Is this OK? ___________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ -- You cannot count interest on the claim. But sometimes you might be suing to recover interest as the claim. P lends D money. D is supposed to pay $80,000 in interest on April 1. D fails to pay. P’s claim is $80,000. -- Whatever the plaintiff claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75,000. AIC #3. P sues D for $50,000 breach of contract and $60,000 punitive damages based on that breach of contract. Relevant authority holds that punitive damages cannot be recovered in contract cases. No jurisdiction. Why? ______ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ AIC #4. P sues for more than $75,000 but ultimately wins a judgment of $10,000. D now argues that there is no SMJ. D is wrong. Why? ______________________ ___________________________________________________________________ ___________________________________________________________________

12. FEDERAL CIVIL PROCEDURE -- So SMJ is OK. But a P who wins less than $75,000 may have one thing to worry about. She may be required to pay D’s litigation “costs.” This is notable because USUALLY, _______________________________________________ ________________________________________________________________ -- “Costs” are basic expenses of litigation, like filing and discovery fees. “Costs” do NOT include attorney’s fees. Each side pays its own attorney’s fees unless law provides otherwise. --Aggregation means adding two or more claims to meet the amount requirement. AIC #5. P sues D for $40,000 breach of contract and for $50,000 for a totally unrelated claim. The amount here is $90,000. Why? ______________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ -- Can we aggregate factually unrelated claims? __________________________ -- Is there any limit on the number of claims that can be aggregated? __________ AIC #6. Plaintiff #1 sues D for $50,000. In the same case, Plaintiff #2 sues D for $40,000. OK? NO! We cannot aggregate these two claims because the claims are not asserted by a single P against a single D. _____________________________ __________________________________________________________________ -- Assuming the claims do not invoke federal question jurisdiction, where can this case be heard? __________________________________________ ______________________________________________________________ AIC #7. P sues joint tortfeasors X, Y and Z for $75,000.01. OK? ____________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ -- With joint claims, the number of parties is irrelevant.

FEDERAL CIVIL PROCEDURE 13. -- Equitable relief. P sues D for an injunction to tear down part of his house that blocks P’s view. Two tests; if either is met, most courts say it’s OK:

3.

--

Plaintiff’s viewpoint: does the blocked view decrease the value of plaintiff’s property by more than $75,000?

--

Defendant’s viewpoint: would it cost defendant more than $75,000 to comply with the injunction?

Exclusions – even if the requirements for a diversity or alienage case are met, federal courts decline to hear some cases. -- What kinds of cases will federal courts not hear? _______________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ -- P (MT) sues Parent (WY), alleging that Parent had abused P when P was young, and seeking damages of more than $75,000. Can a federal court hear the case? ____________________________________________________________ _________________________________________________________________

C.

Federal Question Cases. The claim in P’s complaint “arises under” federal law (e.g., federal constitution, legislation). 1.

Is citizenship of the parties relevant? _______________________________________

2.

Is the amount in controversy relevant? ______________________________________

3.

“Well pleaded complaint” rule. It is not enough that some federal issue is raised by the complaint. The P’s claim itself must “arise under” federal law. So we look at the claim and ignore other material P alleged. -- Ask: ________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ ---

If the answer is yes, the case can go to federal court under FQ jurisdiction. If the answer is no, the case cannot go to federal court under FQ.

14. FEDERAL CIVIL PROCEDURE FQ #1. Sharon Stone hires David Epstein to build a house. Epstein fails to build, but argues that a federal environmental statute prohibits building where Sharon wants to build. Sharon sues Epstein for specific performance, and alleges that the federal statute does not apply. So her complaint mentions a federal law and raises a federal issue. But there is no FQ jurisdiction. Why? _________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ FQ #2. P (LA) sues D (LA), alleging that D violated P’s rights under federal employment discrimination laws. P’s claim is for $74,999. Can P’s case be heard in federal court? _________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ -- Unless the exam question says that the claim is based upon a federal law, are regular tort, contract, and property claims federal? __________________________________ _____________________________________________________________________ D. SMJ Over Additional Claims (Including Supplemental Jurisdiction). -- Diversity and FQ get cases into federal court. Once a case is there, though, additional claims might be asserted in that case – e.g., maybe P has additional claims, or maybe there’s a counterclaim or crossclaim, etc. -- Do we need to test each of these additional claims for federal subject matter jurisdiction? ___________________________________________________________ -- So each claim in federal court must have federal subject matter jurisdiction. If it does not, it cannot be asserted in the pending case in federal court. That means that each additional claim is tested to see if it invokes: __________________________________ _______________________________________________________________________ _______________________________________________________________________

FEDERAL CIVIL PROCEDURE 15. -- If an additional claim satisfies either diversity of citizenship or FQ, it can be heard in the federal court case. But what if the additional claim does NOT satisfy diversity of citizenship or FQ? The federal court can still hear the claim if it invokes: ___________ _______________________________________________________________________ -- So supplemental jurisdiction DOES NOT GET A CASE INTO FEDERAL COURT. THE CASE IS ALREADY THERE (UNDER DIVERSITY OR FQ). Supplemental jurisdiction gets claims into that case, even though the claims do not meet diversity of citizenship and do not meet FQ. -- P (NC) sues D (SC) for $100,000 damages from a car wreck. That invokes diversity of citizenship, so the case is in federal court. D files a counterclaim against P in that case. The counterclaim is a state-law claim for $125,000. Do you need supplemental jurisdiction for the counterclaim? _______________________ ___________________________________________________________________ ___________________________________________________________________ -- Instead, say the counterclaim by D against P asserted a federal-law claim for $50,000. Would you need supplemental jurisdiction for the counterclaim? ______ __________________________________________________________________ -- Instead, say the counterclaim by D against P asserted a state-law claim for $50,000. Would you need supplemental jurisdiction for the counterclaim? _____ __________________________________________________________________ __________________________________________________________________ When we need supplemental jurisdiction, how do we get it? Two steps: 1.

The test. The claim we want to get into federal court must share a “common nucleus of operative fact” with the claim that invoked federal SMJ (the claim that got the case into federal court). -- When is “the test” always met? ______________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ -- Let’s abbreviate transaction or occurrence as “T/O.”

16. FEDERAL CIVIL PROCEDURE SJ #1. P (FL) sues D (GA) on a state-law claim for $250,000. That invokes diversity of citizenship, so the case is in federal court. In that case, D asserts a state-law counterclaim against P for $50,000 (so it fails diversity). The counterclaim arises from a completely separate factual event from P’s claim. Can the counterclaim invoke supplemental jurisdiction? ____________________ __________________________________________________________________ 2.

The limitation. BUT by statute certain claims cannot invoke supplemental jurisdiction even though they meet “the test.” -- The limitation applies only in what kinds of cases? ______________________ __________________________________________________________________ SJ #2. P (PA) sues D (PA) for (1) a claim arising under federal antitrust laws, and joins a claim (2) under state antitrust laws. The claims arise from the same T/O (so we meet “the test”). OK? Claim (1) is OK because it’s a FQ, so the case gets into federal court. But claim (2) is not FQ (because it’s based on state law) and does not meet diversity. Can claim (2) invoke supplemental jurisdiction? (1) Claim 2 meets “the test” (same T/O). (2) The limitation does not apply. Why? ___________________________ ______________________________________________________________ ______________________________________________________________ -- And in diversity cases, the limitation takes away supplemental jurisdiction only for claims by whom? ________________________________________________ __________________________________________________________________ -- So the limitation does not take away supplemental jurisdiction over claims by defendants or third-party defendants. SJ #3. P (NC) sues D (SC) for $100,000 damages from a car wreck. That invokes diversity of citizenship, so the case is in federal court. D files a counterclaim arising from the same T/O against P in that case. The counterclaim is a state-law claim for $50,000. The counterclaim fails to invoke diversity of citizenship and fails to invoke FQ. Can it invoke supplemental jurisdiction? (1) It meets the test (same T/O). (2) The limitation does not apply. Why? ___________________________ ______________________________________________________________ ______________________________________________________________

FEDERAL CIVIL PROCEDURE 17. -- So the limitation is this: in a diversity case, claims by plaintiffs cannot invoke supplemental jurisdiction. -- There is only one exception to this limitation – when there are multiple plaintiffs and one of them does not meet the amount in controversy requirement. Here it is: SJ #4. P-1 (VA) and P-2 (VA) sue D (PA) on state-law claims. P-1’s claim is for $100,000. P-2’s claim arises from the same T/O, and is for $50,000. P-1’s claim meets the requirements for diversity, so gets the case into federal court. But P-2’s claim does not, because even though citizenship is OK, the claim does not exceed $75,000. Can the claim by P-2 invoke supplemental jurisdiction? (1) It meets “the test” (same T/O) (2) The limitation does not apply. Why? ___________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ -- Any other time P has a claim, it must meet diversity of citizenship or FQ. It cannot invoke supplemental jurisdiction. --

SUMMARY OF SUPPLEMENTAL JURISDICTION: So a non-federal, nondiversity claim can be heard in federal court if it meets “the test” UNLESS it is: a. Asserted by a plaintiff b. In a diversity of citizenship (not FQ) case AND c. It’s not like hypo SJ #4.

3.

Discretionary factors. Even if we meet the requirements for supplemental jurisdiction, the court has discretion to decline jurisdiction. It can do so if the state law claim is complex or state law issues would predominate in the case. But the more likely one is this: it can decline supplemental jurisdiction if ____________________ ____________________________________________________________________ ____________________________________________________________________

E. Removal. D sued in state court might be able to “remove” the case to federal court. Removal transfers the case from a state trial court to a federal trial court. If removal was improper, the federal court can “remand” the case back to state court. 1.

When? D must remove within 30 days of service (not filing) of the first paper that shows the case is removable. Usually, that means within 30 days of service of process.

18. FEDERAL CIVIL PROCEDURE R #1. P sues D in state court and has process served on July 1. D makes a motion to dismiss on July 15. The court denies the motion to dismiss on August 1. D removes the case to federal court on August 2. ________________________________________ ______________________________________________________________________ 2.

Who must join in the removal? ____________________________________________ ______________________________________________________________________ ______________________________________________________________________ _____________________________________________________________________ R #2. P sues D-1 and D-2 on June 1. D-1 is served with process on June 1. Can D-1 alone remove the entire case? _____________________________________________ ______________________________________________________________________ ______________________________________________________________________ R #3. Suppose D-1 does not remove within 30 days. Then D-2 is served with process on August 1. Can she and D-1 now remove the case? __________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ R #4. P sues D in state court. D files a counterclaim against P in that case. Can P remove? NO! Why not? _________________________________________________ ______________________________________________________________________

3.

What cases can be removed? a.

General rule: D can remove a case that meets the requirements for diversity of citizenship or FQ.

b.

There are two big exceptions to this – but these exceptions apply only if we are removing on the basis of diversity of citizenship jurisdiction. 1. No removal if any D is a citizen of the forum (instate D rule) AND 2. No removal more than one year after the case was filed in state court.

FEDERAL CIVIL PROCEDURE 19. R #5. P (GA) sues D-1 (MN) and D-2 (AL) on claims arising under federal law in an Alabama state court. D-1 and D-2 are served with process. Can they remove the case to federal court? YES. The case invokes FQ. Why does it not matter that D-2 is an instate D? ___________________________ ______________________________________________________________ ______________________________________________________________ R #6. P (GA) sues D-1 (MN) and D-2 (AL) on state-law claims for $500,000 in an Alabama state court. Can D-1 and D-2 remove? __________________ ______________________________________________________________ ______________________________________________________________ -- So though the case meets the requirements for diversity, it cannot be removed. BUT THE CASE MIGHT BECOME REMOVABLE IF THE CLAIM AGAINST THE INSTATE D (D-2) IS DROPPED. R #7. Same facts, but six months later P voluntarily dismisses the claim against D-2. Can D-1 now remove? Yes – within 30 days of the dismissal of D-2. Why? ___________________________________________________ ______________________________________________________________ ______________________________________________________________ R #8. Instead, say P voluntarily dismissed the claim against D-2 a year and a day after P had filed the case in state court. The instate D is now gone and there is diversity. But can D-1 remove? _____________________________ ______________________________________________________________ ______________________________________________________________ (Unless the federal judge finds that P acted in bad faith by originally joining D-2 to prevent removal.) 4.

D removes to the federal district “embracing” the state court where the case was filed. R #9. P sues D in state court in San Diego, which is in the Southern District of California. Can D remove the case to federal court in San Francisco, which is in the Northern District of California? ____________________________________ __________________________________________________________________ __________________________________________________________________

20. FEDERAL CIVIL PROCEDURE 5.

How do Ds remove a case? -- P sues D in state court. D wants to remove to federal court. Must she get permission from the federal or state courts? _____________________________ _________________________________________________________________ -- D files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ). -- P sues D on a state-law claim in state court for exactly $75,000. P and D are of diverse citizenship. It appears that D cannot remove because the case does not invoke FQ (it’s a state-law claim) and does not meet the amount in controversy for diversity (it does not exceed $75,000). BUT in many states what P claims in the complaint does not limit what she can recover, so in such a state, D can remove by alleging that the amount in fact exceeds $75,000. -- The federal court will hold a hearing and the burden is on D to show by preponderance of the evidence that the amount does exceed $75,000. -- In all cases, D attaches all documents that were served on her in state action. She serves a copy of the “notice of removal” on adverse parties. Then she files a copy of the “notice of removal” in state court.

6.

If P thinks the case should not have been removed, she moves to remand to state court. -- If P thinks removal was improper for some reason other than lack of SMJ (e.g., D did not attach relevant papers to her notice of removal), she must move to remand no later than: _______________________________________________ __________________________________________________________________ -- If P thinks removal was improper because the federal court lacks SMJ, when can she move to remand to state court? _________________________________ __________________________________________________________________ -- D removes a diversity case but there was an instate D. P moves to remand. This is NOT considered to be a problem of SMJ, so P must move to remand: ___ __________________________________________________________________

F.

In Federal Court, What Law Applies? 1.

The Erie Doctrine. Here, we have a diversity of citizenship case in federal court. The federal judge must decide a particular issue. When she decides that issue, must she follow state law or is she free to ignore state law? Approach this in steps:

FEDERAL CIVIL PROCEDURE 21. STEP 1. Ask: is there some federal law (like federal constitution or statute or FRCP or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid. What is this based on? _____________________ ______________________________________________________________________ -- State law says a particular claim must be asserted individually, and not in a class action. In a diversity case, FRCP 23 would allow it to proceed as a class action. What does the federal court do? ________________________________________________ ______________________________________________________________________ -- How do we know if a FRCP is valid? It does not modify substantive rights. This is probably met if the Rule is “arguably procedural.” None has ever been held invalid. STEP 2. If there is no federal law on point, the federal judge must apply state law if the issue to be determined is “substantive.” Four issues are clearly “substantive”: (1) elements of a claim or defense, (2) statute of limitations, (3) rules for tolling statutes of limitations, and (4) conflict (or choice) of law rules. -- So on these four issues, the federal court does what in a diversity case? ______ __________________________________________________________________ STEP 3. If there is no federal law on point and the issue is not one of the four just listed, the federal judge must determine whether the issue is “substantive.” The law is very unclear, consisting of some factors that no one knows how to weigh: a. b. c.

2.

Outcome determinative: would applying or ignoring the state rule affect outcome of case? If so, it’s probably a substantive rule, so should use state law. Balance of interests: does either federal or state system have strong interest in having its rule applied? Avoid forum shopping: if the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law.

Federal Common Law. Erie means there is no GENERAL federal common law. So the general common law of contracts, torts, and property is STATE law, and federal courts must apply that state substantive law in a diversity case. But there are areas in which federal courts are free to make up common law on their own. -- Congress passes a statute that creates a new claim but fails to provide a statute of limitations for that claim. What can federal courts do to fill this “gap” in the statute? ______________________________________________________________________

22. FEDERAL CIVIL PROCEDURE -- Other examples: international relations, admiralty, disputes between states, the right to sue a federal officer for violating one’s federal rights. -- There is a federal common law claim to sue federal officers who violate P’s federal rights. Can P file her case asserting such a claim in federal court? ________________ ______________________________________________________________________ III. VENUE A.

Basic Idea. Subject matter jurisdiction told us we can take a case to federal court. Venue tells us exactly which federal court. The country is divided into federal districts. P is suing in federal court and wants to lay venue in a proper district.

B.

Basic Choices. P may lay venue in any district where: ---

all defendants reside* (special rule below in hypo V #2) or a substantial part of the claim arose. V #1. P (D. MA) sues D-1 (N.D. CA) and D-2 (W.D. TEX) for $200,000 for breach of contract occurring in the District of Wyoming. What are proper venues? -- One choice: any district where all defendants reside. What’s wrong? _________ __________________________________________________________________ __________________________________________________________________ -- Other choice: ____________________________________________________ __________________________________________________________________ __________________________________________________________________ _________________________________________________________________ -- Does it matter for venue where P resides? ______________________________ __________________________________________________________________ -- For venue, does it matter whether it’s a diversity case or a FQ case? ________ __________________________________________________________________ -- If D does not reside in the U.S., venue is OK: __________________________ __________________________________________________________________

FEDERAL CIVIL PROCEDURE 23. V #2. Wayne Newton (D. Nev.) sues D-1 (N.D. Cal.) and D-2 (E.D. Cal.). SPECIAL RULE if all Ds reside in different districts of the forum state: P can lay venue in the district where any D resides. So here P could sue both Ds where? _____________ _____________________________________________________________________ _____________________________________________________________________ C.

Where Do Defendants “Reside” for Venue Purposes? 1.

Where does a human “reside”? In the district where: __________________________

2.

Where does a business (corporation or non-incorporated) reside? In all districts where: ______________________________________________________________________ ______________________________________________________________________

D.

Transfer of Venue. A federal district court may transfer the case to another federal district court. The original court is the “transferor” and the one to which the case is sent is the “transferee.” IMPORTANT: It can only transfer to a district where the case could have been filed. What does that mean? _____________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ -- P sues D in the District of Minnesota. D moves to transfer the case to the District of Hawaii. There is no PJ over D in Hawaii, and venue is not proper in Hawaii, but D is willing to waive those matters. Can the case be transferred to the District of Hawaii? _________________________________________________________________________ __________________________________________________________________________ – Exception: the court can transfer to any district (even an improper venue) if all parties consent (unlikely that P will do so) and the court finds cause for the transfer. There are two transfer statutes. 1. If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and on the interest of justice. -- Is there ever a right to transfer? ______________________________________ __________________________________________________________________

24. FEDERAL CIVIL PROCEDURE -- Because transfer overrides P’s choice of forum (and because P chose a proper venue), the burden is on the person seeking transfer. What factors does the court look to in deciding whether to transfer the case? __________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ -- Public: things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in the local court. -- Private: convenience. For example: _____________________________ ______________________________________________________________ -- One important factor in favor of transfer is the existence of a valid forum selection clause. If the parties entered a K saying that a dispute will be litigated in a particular district, the court will almost always transfer to that district. The parties are agreed that the private factors support litigation in that district. 2. If the original district is an improper venue, what may that court do? It may transfer in the interest of justice OR ________________________________________ ______________________________________________________________________ E.

Forum Non Conveniens. Like transfer, there is another court that is the center of gravity, that makes more sense than the present court. But here, the court does not transfer to the more convenient court. What does it do? _____________________________________ __________________________________________________________________________ -- To stay means hold in abeyance; nothing happens in the case. It just sits there. Whether it dismisses or stays, the idea is that P will then sue in the other court. -- Why does the court dismiss or stay? Because the more convenient court is in a different judicial system (e.g., a foreign country), so transfer is impossible! -- The decision is based on the same public and private factors as transfer in D.1. above. This requires a strong showing, though, since this results in dismissal or stay. -- FNC dismissal almost never granted if P is resident of the present forum. -- The other court must be available and “adequate.” Suppose the foreign court does not permit jury trial or recovery of certain remedies. Do things like that make the foreign court inadequate? ________________________________________________ ______________________________________________________________________

FEDERAL CIVIL PROCEDURE 25. SECOND BIG TOPIC: LEARNING ABOUT THE CASE I. A.

SERVICE OF PROCESS

Basic Idea. D is entitled to notice that she has been sued. Usually, this consists of (1) a summons (formal court notice of suit and time for response) and (2) a copy of the complaint. – Together, these two documents are called: _____________________________________

B.

Who Can Serve Process? Any nonparty who is at least 18 years old. -- Does the process server have to be appointed by a court? _________________________

C.

How is Process Served? 1.

The basic choices: (a) Personal service. Papers are given to D personally. Where? ____________ __________________________________________________________________ (b) Substituted service. Process is left with D’s butler at D’s summer home. OK if: ___________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ -- Must D reside there every day of the year for it to qualify as his “usual abode”? __________________________________________________________________ __________________________________________________________________ -- Must the person on whom service is made be related to D? ________________ (c) Service on D's agent. Process can be delivered to D’s agent. OK if receiving service is in scope of agency, e.g., corporation’s registered agent, managing agent, or officer.

26. FEDERAL CIVIL PROCEDURE -- In federal court, can P use substituted or agent service even if personal service would be possible? _________________________________________________ __________________________________________________________________ 2.

Others. In addition, we can use methods for serving process that are permitted by state law of the state where the federal court sits or where service is made. -- What is a good example of how state law might apply? ___________________ __________________________________________________________________

3.

Waiver by mail. Mail to D a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (e.g., stamped envelope for sending it back to P). If D executes and mails waiver form to P within 30 days, D waives formal service of process. -- If D waives formal service of process, does she waive any defense like lack of PJ? ______________________________________________________________________ -- When D signs and mails the waiver form back to P, what does P do? ____________ ______________________________________________________________________ -- Suppose D fails to return the waiver form. P then has D served personally or by substituted service. If D did not have good cause for failing to return the waiver form is there a penalty for D? _________________________________________________ ______________________________________________________________________

D.

“Return” of Service. The person who serves process files a report with the court detailing how service was made. If the server was a civilian, the report is by affidavit (sworn statement, under oath). -- If the process server fails to file this report, does that affect the validity of service? ____ _________________________________________________________________________

E.

Service of Other Documents. Other documents (e.g., answer, other pleadings, motions, discovery), get served, but we don’t need a summons or to do it so formally. We serve these documents by delivering or mailing the document to the party’s attorney (or pro se party – a pro se party is one without a lawyer). -- Can you serve these documents by e-mail? ____________________________ __________________________________________________________________

FEDERAL CIVIL PROCEDURE 27. -- Suppose we mail interrogatories to the other party. Service is deemed complete when they are mailed. The other party has 30 days in which to respond to the interrogatories. Does she get extra time to respond because the interrogatories were mailed? ______________________________________________________ __________________________________________________________________ II. A.

PLEADINGS

Complaint. Filing this commences an action. 1.

Requirements: a. Statement of grounds of subject matter jurisdiction; b. Short and plain statement of the claim, showing entitled to relief; c. Demand for relief sought (e.g., damages, injunction, declaratory judgment) -- Must P allege grounds of PJ or venue? ____________________________________ -- In stating the claim, federal courts traditionally used “notice pleading,” which means you only need enough detail to put the other side on notice. Now, though, the Supreme Court requires more detail. What is the standard? _____________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ – To determine plausibility, the judge uses her own experience and common sense. -- D can challenge the complaint by making a Rule 12(b)(6) motion – page 56.

2.

What three matters must be pleaded with even more detail -- with particularity or specificity? ____________________________________________________________ ______________________________________________________________________

B.

Defendant’s Response. Rule 12 requires D to respond in one of two ways: (1) by motion or (2) by answer. -- To avoid default, when must D do one of these two things? ______________________ __________________________________________________________________________ -- If you waived service, you get 60 days from when P mailed you the waiver form.

28. FEDERAL CIVIL PROCEDURE 1.

Motions (Rule 12). Motions are not pleadings; they are requests for a court order. a.

Issues of form: (1) motion for more definite statement – so vague D can’t respond (rare); (2) motion to strike, which removes immaterial or scandalous things.

b.

Rule 12(b) defenses: (1) lack of subject matter jurisdiction (SMJ); (2) lack of PJ; (3) improper venue; (4) improper process (problem with the papers); (5) improper service of process; (6) failure to state a claim; (7) failure to join indispensable party.

These defenses can be put either in a motion to dismiss or in the answer. -- Which of these are “waivable”? ______________________________________ __________________________________________________________________ -- "WAIVABLE" DEFENSES MUST BE PUT IN THE FIRST RULE 12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY'RE WAIVED. DR #1. P sues D. D files a timely motion to dismiss for improper service of process. The court denies the motion, after which D files and serves his answer, asserting lack of PJ and improper venue. OK? No. D has waived both defenses. Why? ____________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

DR #2. P sues D in a district that is an improper venue and lacks PJ over D. D files an answer in which he raises neither defense. Two months later, D moves to dismiss for improper venue and lack of PJ and, in the alternative, to transfer to a proper venue that has PJ over him. He has waived PJ and venue, but can the court order transfer? _____________________________________________________ __________________________________________________________________ __________________________________________________________________

FEDERAL CIVIL PROCEDURE 29. DR #3. At trial, D moves to dismiss for failure to join an “indispensable party” and for failure to state a claim on which relief can be granted. OK? __________ __________________________________________________________________ __________________________________________________________________ DR #4. After trial, D asserts for the first time that the court lacks SMJ. Is that OK? _____________________________________________________________ __________________________________________________________________ DR #5. P (FL) sues D in federal court for $500,000, trying to invoke diversity of citizenship jurisdiction. P thinks (and alleges) that D is a citizen of GA. It turns out that when the case was filed, D was a citizen of FL. The court finds out about this a year after the case was filed. The litigation has proceeded. The parties and the court have done a great deal of work. What must the court do? ___________ __________________________________________________________________ __________________________________________________________________ -- If that case had been removed from state court, and it turns out that the federal court lacked SMJ, would the federal court dismiss? _____________ ______________________________________________________________ 2.

The Answer. It is a pleading. D does two things in the answer: a.

Respond to allegations of complaint: (1) Admit; (2) Deny; (3) State that you lack sufficient information to admit or deny. -- Number (3) has the effect of a denial, but can you use (3) if the answer is in your control? NO – you have a duty to investigate things in your control. -- So if P alleges something and D knows that the answer is in D’s records, D must look it up. She cannot say that she does not know. -- In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” Did D make a mistake? ____________________________________________________ ______________________________________________________________ -- What is D never deemed to admit? ________________________________

30. FEDERAL CIVIL PROCEDURE b.

Raise affirmative defenses. These inject a new fact into the case, which will allow D to win. Classic affirmative defenses are statute of limitations, statute of frauds, res judicata, self-defense. -- P sues D for breach of contract. D answers, denying material allegations. At trial, D introduces evidence that the contract was procured by P's fraud, and is therefore unenforceable. P objects. D has waived the affirmative defense. Why? ________________________________________________ ______________________________________________________________

C.

Counterclaim. A claim against an opposing party. Once somebody asserts a claim against you, you are opposing parties. Your claim back against that person is a counterclaim. Usually, this is a claim by D against P. The counterclaim is part of D’s answer. -- After D serves a counterclaim against P, what does P have to do? __________________ __________________________________________________________________________ There are two types of counterclaim: 1.

Compulsory: arises from the same T/O as P’s claim. Unless you have already filed the claim in another case, YOU MUST FILE THIS IN THE PENDING CASE, OR THE CLAIM IS WAIVED. -- Is this unique? YES. THIS IS THE ONLY COMPULSORY CLAIM. NO OTHER CLAIM IN THE UNIVERSE IS COMPULSORY. -- Lois and Meg, each driving her own car, collide and each is injured. Lois sues Meg. Meg answers and defends the suit. Then Meg files a new case against Lois concerning the same wreck. This case is dismissed. Why? _______________________________ ______________________________________________________________________ ______________________________________________________________________ -- When Lois sued Meg, Meg moved to dismiss for improper service of process. Motion granted and case dismissed. Is Meg barred from suing Lois because of the compulsory counterclaim rule? ____________________________________________ -- Why? Meg was not required to answer (because she got the case dismissed), so she did not have to assert the counterclaim.

2.

Permissive: does not arise from same T/O as P’s claim. Permissive means you are not required to file it in this case. You may sue on it in a separate case.

Subject matter jurisdiction. We must assess whether it invokes diversity or FQ jurisdiction. If so, it’s OK in federal court. If not, we try supplemental jurisdiction.

FEDERAL CIVIL PROCEDURE 31. D.

Crossclaim. This is a claim against a co-party. It must arise from the same T/O as the underlying action. But it is not compulsory – you may assert it here or sue separately. -- P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled. 1.

Sterling should file a compulsory counterclaim against P. It’s against an opposing party and arises from the same T/O as P’s claim, so it’s a compulsory counterclaim. Now, is there subject matter jurisdiction over the compulsory counterclaim? _____________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

2.

Sterling may file a crossclaim against Draper. It’s against a co-party and arises from the same T/O as the underlying case, so it’s a crossclaim. What about subject matter jurisdiction? ___________________________________________ __________________________________________________________________ __________________________________________________________________ (Draper (NY) ( (Aunt

Andy

(NC) --------------P (CA) ----------------------------( ( (Sterling (NY) -- Would there be supplemental jurisdiction over this crossclaim? (1) Does it meet “the test”? Yes -- it arises from the same T/O as the case. (2) The limitation does not apply to take away supplemental jurisdiction. Why? __________________________________________________________________ __________________________________________________________________ -- Rando question: Say Sterling files a crossclaim against Draper. If Draper had a claim he then wants to file against Sterling, what would it be? ______________________________________

32. FEDERAL CIVIL PROCEDURE

______________________________________________________________________________ E.

Additional Claims. Once you file a counterclaim or crossclaim (or any claim) you can join an additional claim to it – even if that claim has nothing to do with the others. -- This additional claim (like any claim in federal court) must invoke federal SMJ. So you assess whether it invokes diversity or FQ. -- If neither diversity nor FQ is met, then what do you try? ______________________ ______________________________________________________________________

F.

Amended Pleadings – four fact patterns. 1.

Right to amend. -- Plaintiff has a right to amend once within _________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- Defendant has a right to amend once within 21 days of serving his answer.

2.

If there’s no right to amend, seek leave of court. It will be granted if “justice so requires.” What factors do courts look to in ruling on this? _____________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

3.

Variance. That’s where the evidence at trial does not match what was pleaded. -- P sues for breach of contract. D answers. At trial, P introduces evidence that D assaulted him. D doesn’t object. OK? Evidence of assault is admitted into evidence (because D didn’t object). At or after trial, P can move to amend the complaint to conform to the evidence. What does that mean? ______________________________ ______________________________________________________________________ -- This ensures that the pleadings match what was actually tried.

FEDERAL CIVIL PROCEDURE 33.

4.

-- Same case, but D does object. Evidence of assault is inadmissible because it is at “variance with the pleadings.” Amendment after the statute of limitations has run (“relation back”). a. To join a new claim. P files his complaint and has process served on July 1. The statute of limitations runs on July 10. In August, P seeks leave to amend to add a new claim. Is the new claim time-barred because the statute ran on July 10? -- Rule: Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading. -- Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem. So on this hypo, we would treat the August amendment as though: _________________ __________________________________________________________________ __________________________________________________________________ b. To change a defendant after the statute has run. This will relate back if: (1) It concerns the same conduct, transaction, or occurrence as the original; (2) The new party knew of this case within 120 days of its filing; and (3) She also knew that, but for a mistake, she would have been named originally. -- This applies when P sued the wrong D first, but the right D knew about it. -- P is injured in a Sam’s Store. He sues “Sam Store, Inc.” before the statute runs and has process served on Sam within 120 days. P should have sued “Samco Ltd.” Sam is president of Samco Ltd. and is authorized to receive service. P discovers the problem after the statute runs, and seeks leave to amend to name Samco Ltd. _______________________________________________________ __________________________________________________________________ __________________________________________________________________

G. Supplemental Pleadings. These set forth things that happened after the pleading was filed. (Amended pleadings are about things that happened before the pleading was filed but were not asserted until later.) -- P sues D for breach of contract. After the case is filed, D punches P in the nose. P wants to add a tort claim to the existing case. __________________________________________ __________________________________________________________________________ -- Is there ever a right to file a supplemental pleading? _____________________________

34. FEDERAL CIVIL PROCEDURE

__________________________________________________________________________ H. Rule 11. Applies to all documents except discovery (which are treated by another rule). -- When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry: (1) The paper is not for an improper purpose, and (2) The legal contentions are warranted by law (or nonfrivolous argument for law change), and (3) The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation). -- In addition, you make this certification every time you “present” a position to the court (e.g., when you later advocate a position taken in the document). _____________ ______________________________________________________________________ -- If there is a violation (e.g., assertion of a baseless claim), against whom may Rule 11 sanctions be ordered? ___________________________________________________ ______________________________________________________________________ -- Before imposing a sanction on you, the court must give you chance to be heard. -- What is the purpose of Rule 11 sanctions? _________________________________ ______________________________________________________________________ ______________________________________________________________________ -- Often, courts impose non-monetary sanctions (e.g., require lawyer to attend professionalism classes). Monetary sanctions, if imposed, are often paid to court, not to the other party. -- If the other party violates Rule 11, can you make a motion for sanctions immediately? __________________________________________________________ -- You serve the motion on other parties but cannot file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed. -- Can the court raise Rule 11 problems on its own (“sua sponte”)? _______________ -- To do so, the court usually issues an “order to show cause” why sanctions

FEDERAL CIVIL PROCEDURE 35. should not be imposed. The court must give a chance to be heard before imposing a sanction on anyone. III. A.

DISCOVERY

Required Disclosures. These materials must be produced even though no one asks for it. 1.

Initial disclosures. Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference (page 58), what must each party disclose? (a) Identities of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses. -- What info do you give about these people? Name and telephone number and __ __________________________________________________________________ RD #1. P knows that W, a nonparty, has information that would be harmful to P’s case. Is P required to disclose the identity of W? __________________________ __________________________________________________________________ __________________________________________________________________ -- What happens if a party fails to identify someone she was required to identify? The party cannot use that witness in the case (unless the failure to identify was substantially justified or harmless). (b) Documents and things that you may use to support your claims or defenses. You may produce copies or a description of these things. RD #2. P sues Company, alleging that Company wrongfully fired P on the basis of race. Company has an internal memo suggesting that race was the basis for the firing. Must Company disclose the existence of this memo? _________________ __________________________________________________________________ __________________________________________________________________ RD #3. Same facts, but P has in her possession a copy of the internal memo suggesting that she was fired on the basis of race. Must P disclose the existence of this memo? ________________________________________________________ __________________________________________________________________ __________________________________________________________________ -- Does the info to be disclosed include photographs, recordings, and electronically

36. FEDERAL CIVIL PROCEDURE stored info (ESI)? ___________________________________________________ __________________________________________________________________ -- So it includes things on your computer, videos and photos taken on your smartphone, etc., as well as good old-fashioned papers. -- Does the info to be disclosed include tangible things? _____________________ -- P sues D, alleging that D manufactured a defective tire that blew out, causing injury to P. P has the remnants of the tire. P must disclose this fact and provide to D a description of the tire remnants. -- What happens if a party fails to disclose something she was required to disclose? You cannot use that material in the case (unless the failure to disclose was substantially justified or harmless). -- What if you know about such documents, ESI, or things that support your case, but they are not in your custody or control? Do you have to disclose them? ____ __________________________________________________________________ __________________________________________________________________ (c) Computation of monetary relief and documents/ESI supporting it. -- Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought. (d) Insurance coverage. D must disclose any insurance that might cover all or part of the judgment in the case. -- Is this true even though existence of such insurance will not be admissible at trial? ____________________________________________________________ _________________________________________________________________ 2.

Expert witnesses (EW). Later in the case, at a time directed by the court, each party must identify expert witnesses “who may be used at trial.” -- Suppose a party hired an expert to help it prepare the case, but does not intend to call that expert to testify at trial. Is this an expert witness? _______________ ________________________________________________________________ -- Facts known and opinions held by consulting experts are generally not discoverable – only in “exceptional circumstances.” -- As to an expert witness (EW) “who may be used at trial,” what must each party

FEDERAL CIVIL PROCEDURE 37. generally disclose to the other parties? __________________________________ __________________________________________________________________ -- The written report must include (1) opinions EW will express, (2) bases for the opinions, (3) facts used to form the opinions, (4) EW’s qualifications, and (5) how much EW is being paid. -- Thereafter, may a party take the deposition of EW? ______________________ -- That party should subpoena EW to compel her attendance. -- That party must pay the EW a reasonable fee per hour (set by the court). -- Earlier drafts of the EW report are work product. So are communications between the lawyer and the EW. -- An EW is someone who, because of special skill or training, may give opinion testimony. And she is hired to render an opinion in this case. There may be other people with expertise who testify but who are not EW under this rule. -- P is injured by D and goes to the hospital. Doctor treats P at the hospital. P sues D and wants Doctor to testify in the case. Is Doctor an EW as to whom we go through required disclosures? No. Doctor observed and treated P and developed opinions for purposes other than this litigation. So P does not have to identify Doctor as an EW. -- What happens if a party fails to identify an EW and to provide the required information? ______________________________________________________ __________________________________________________________________ 3.

B.

Pretrial required disclosure. No later than 30 days before trial, must give detailed information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial.

Discovery Tools. Assuming no court order or stipulation provides otherwise, when can a party first request discovery from other parties? _________________________________________________ _________________________________________________________________________ _________________________________________________________________________ One huge issue in discovery: _________________________________________________ _________________________________________________________________________ 1.

Depositions. Here, a person gives live testimony in response to questions by counsel

38. FEDERAL CIVIL PROCEDURE or pro se parties. The questions are usually oral, but can be written (if written, they are read by the court reporter)). Deponent testifies under oath. The deposition is recorded by sound or video or stenographically and a transcript can be made. -- Is the deponent required to review all her relevant files and notes before being deposed? _____________________________________________________________ _____________________________________________________________________ -- Can you “notice” the deposition of a party or of a nonparty? ___________________ ______________________________________________________________________ ______________________________________________________________________ -- You don’t need to subpoena a party; just serve “notice of deposition.” -- A subpoena “duces tecum” requires the deponent: ___________________________ ______________________________________________________________________ -- Unless a nonparty agrees, what is the farthest she can be required to travel to have her deposition taken? ___________________________________________________ _____________________________________________________________________ -- P sues Car Co., alleging that defective design of a fuel tank led to P’s injuries. P wants to take the deposition of Car Co.’s engineer responsible for design of the tank. P could request identification of the engineer in interrogatories to Car Co. and then depose that person. What other option does P have? __________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ -- Limits on depositions: you cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

2.

-- Use of depositions at trial (all subject to rules of evidence): (1) impeach the deponent; (2) any purpose if the deponent is an adverse party; (3) any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence. Interrogatories. These are written questions, to be answered in writing under oath.

FEDERAL CIVIL PROCEDURE 39. -- To whom can you send interrogatories? ___________________________________ ______________________________________________________________________ -- How long does the party have in which to respond with her answers or objections? _ ______________________________________________________________________ ______________________________________________________________________ -- Can you respond by saying you don’t know the answer? ______________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- What is the maximum number of interrogatories you can send to a party (unless there is a court order or stipulation for more)? ________________________________ -- And that includes subparts, so no more than 25 actual questions. -- If the answers to interrogatories can be found in business records and the burden of finding them would be equally burdensome to find the answers, the responding party can allow the requesting party to have access to the records. -- At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence. 3.

Requests to produce. These request that someone make available for review and copying documents or things, including ESI, or to permit you to enter designated property to inspect, measure, etc. The person must respond in writing within 30 days of service, stating that the material will be produced or asserting objections. -- Can you make these requests of parties and of nonparties? ____________________ _____________________________________________________________________ _____________________________________________________________________ -- In what form is ESI to be produced? ______________________________________ ______________________________________________________________________ ______________________________________________________________________

4.

Medical exam (physical or mental).

40. FEDERAL CIVIL PROCEDURE -- What is unique about this? _____________________________________________ ______________________________________________________________________ -- To get the court order, you must show: that the person’s health is in actual controversy and “good cause.” -- Who can be ordered to undergo a medical exam? A party or someone in the party’s custody or legal control. This is narrow (e.g., parent is in control of child). -- P sues Bus Co. regarding injuries suffered in a bus crash. P thinks Bus Driver caused the wreck because of his bad eyesight. Can P get a court order that Bus Driver undergo a medical exam? ______________________________________ _________________________________________________________________ _________________________________________________________________ -- The party seeking the order chooses the licensed person to perform the exam. -- Suppose the court orders a medical exam of Joe. The doctor examines Joe and writes her report and gives it to the party who requested the exam. Joe would like to see that report. Can Joe get a copy of it? ______________________________ __________________________________________________________________ -- If Joe requests and obtains the report, he waives any privilege he might have concerning testimony about all examinations of that medical condition. So Joe would have to produce reports of his own doctors concerning this medical condition. 5.

Request for admission. This is a written request that someone admit things. -- On whom may these be served? ________________________________________ -- P sends D a request for admission saying “admit or deny that you were drinking alcohol while driving your car.” If D fails to deny specifically (or to object to the request) in writing within 30 days, what happens? _____________________________ ______________________________________________________________________ -- Can the responding party say she does not know the answer? __________________ ______________________________________________________________________ ______________________________________________________________________ -- Often used to authenticate documents – “admit that this is the contract.”

6.

Parties sign substantive answers to discovery under oath. Rule 11 does not apply to

FEDERAL CIVIL PROCEDURE 41.

7.

discovery documents. By another Rule, every discovery request and response is signed by counsel certifying (1) it is warranted, (2) it is not interposed for improper purpose, and (3) it is not unduly burdensome. Duty to supplement. -- After you respond to discovery, suppose circumstances in the real world change. In light of these new circumstances, your response to a required disclosure, interrogatory, request for production, or request for admission is now incomplete or incorrect. Must you do anything? _______________________________________________________ ______________________________________________________________________ ______________________________________________________________________

C.

Scope of Discovery. 1.

Standard. What can you discover? _______________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- Is “relevant” broader than admissible at trial? __________________________ SD #1. In discovery, D asks P about hearsay that would not be admissible at trial. P objects and refuses to answer, asserting that the information would not be admissible at trial. Is this a proper objection? ___________________________________________ ______________________________________________________________________ ______________________________________________________________________ SD #2. In discovery, one party asks the other to produce millions of pages of material in a case asserting a claim for $25,000. Is there a problem? _____________________ ______________________________________________________________________ ______________________________________________________________________

SD #3. Witness, using his cellphone, records Driver hitting P. Witness sells the recording to Driver. P sues Driver and sends a request for all items showing or describing the accident. Must Driver provide the recording to P (even though it is obviously harmful to Driver)? ____________________________________________

42. FEDERAL CIVIL PROCEDURE

______________________________________________________________________ -- Remember, something harmful to you need not be disclosed in required disclosures, but may well be discoverable using the regular discovery tools. SD #4. P sues D for compensatory damages. P sends D discovery asking about D’s net worth. D objects and refuses to answer, arguing that the information is not relevant. P brings a motion to compel D to answer. Is the evidence of D’s net worth relevant in this case? ____________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- Would it be relevant if P sued for punitive damages (which are intended to punish D for egregious behavior)? ______________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

SD #5. P seeks discovery from D of relevant e-mails. The e-mails have been deleted from D’s server. They can be recovered only at enormous cost. D asserts that the material is “not reasonably accessible because of undue burden or cost.” D seeks a protective order (or P could move to compel discovery). If the court finds the ESI is not reasonably accessible, the other side may show good cause for discovery anyway. Then what may the court do? _________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ 2.

Privilege. You can object to discovery on the basis of evidentiary privilege – like confidential communications between attorney and client.

3.

Work product or “trial preparation materials” (material prepared in anticipation of litigation). Generally protected from discovery. -- Does work product have to be generated by a lawyer? _______________________

FEDERAL CIVIL PROCEDURE 43.

____________________________________________________________________ WP #1. Howell sues Skipper for injuries caused when a boat sank. Skipper, fearing the suit, hired Private Investigator (PI), who interviewed Gilligan, who was a witness to the sinking. PI writes a memo to Skipper, with the following: (a) A statement by Gilligan regarding what happened; (b) PI’s conclusion that based on what Gilligan says, there appears to be no defense; and (c) PI’s opinion that Gilligan is stupid and would be a lousy witness at trial. -- Howell wants to discover this memo. Skipper objects and claims that the memo is protected work product. Is it? _________________________________ __________________________________________________________________ __________________________________________________________________ -- Would it be work product if it were in electronic format? _________________ -- Though the memo is work product, Howell may be able to discover some of it. -- Item (a) (the witness statement by Gilligan) is discoverable if Howell shows: _______________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ -- This is called “qualified work product.” -- BUT there is also “absolute work product,” which cannot be discovered. Here, items (b) and (c) are absolutely protected because they are (1) mental impressions, (2) opinions, (3) conclusions, and (4) legal theories. Usually referred to as “opinion work product.” WP #2. Suppose a memo is generated solely because the state requires a report of the issue discussed in the memo. Then litigation is filed concerning the incident discussed in the report. Would this memo be work product? ____________________ _____________________________________________________________________ _____________________________________________________________________

44. FEDERAL CIVIL PROCEDURE

_____________________________________________________________________ WP #3. P sues D regarding an auto collision between them. D asks Private Investigator to find the identities of the eyewitnesses to the wreck. Doing so costs thousands of dollars in investigation fees. P serves an interrogatory on D asking for the names of all persons who have information relevant to the case. Is the identity of the witnesses work product? _____________________________________________ _____________________________________________________________________ _____________________________________________________________________ WP #4. After the wreck between P and D, D asked P to make a statement. P writes out his version of the facts, signs it, and gives it to D. P sues D. P asks for discovery of his own statement. D refuses, and claims that it is work product. Is it? _________ _____________________________________________________________________ _____________________________________________________________________ 4. Asserting privilege or work product. If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail. You do this in a document that lists the materials protected by date, author, recipient, and privilege or protection claimed. It must be in enough detail to allow the judge to determine whether the material is protected. What is this document called? _________ ______________________________________________________________________ – If you inadvertently produce privileged or protected material, you should notify the other party promptly. The other party then must return, sequester, or destroy it pending decision by the court about whether there has been a waiver. D.

Enforcement of Discovery Rules. 1.

There are three ways courts get involved in discovery disputes: a.

Protective order. -- If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden, or expense (e.g., ESI is not reasonably accessible (e.g., deleted files) or the request is cumulative and not proportional to the case) what can she do? ___________________________________________________ __________________________________________________________________

FEDERAL CIVIL PROCEDURE 45. -- She must certify that she tried in good faith to get the info without court involvement – that she asked the other side to “meet and confer.” -- If the court agrees, it can (1) deny discovery or (2) limit it or (3) permit it on certain terms. -- P and D are involved in litigation over a trade secret held by D. D is worried that if P discovers the trade secret, P might exploit it in the marketplace. Can D request a protective order that the trade secret be used only in litigation and not used in the market? _________________________ ______________________________________________________________ ______________________________________________________________ b.

Partial response to discovery request. -- Here, the responding party answers some questions but objects to others. Requesting party will make a motion to compel answers, and the court will decide whether the objections were legitimate.

c.

No response to discovery request. -- Here, the responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production.

2.

Sanctions against a party. (The party seeking sanctions must certify that she tried in good faith to get the info without court involvement.) a.

b.

Partial response: __________________________________________________ (1)

You move for an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.

(2)

IF the party violates the order compelling him to answer, “merits” sanctions plus costs (and attorney’s fees re the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam).

No response: ______________________________________________________ “Merits” sanctions plus costs (and attorney’s fees for the motion). No need to get an order compelling answers. Go directly to “merits” sanctions. MERITS SANCTIONS (choices available to judge): ---

Establishment order (establishes facts as true) Strike pleadings of the disobedient party (as to issues re the discovery)

46. FEDERAL CIVIL PROCEDURE -- Disallow evidence from the disobedient party (as to issues re the discovery) -- Dismiss plaintiff’s case (if bad faith shown) -- Enter default judgment against defendant (if bad faith shown) -- If a party fails to produce ESI because it was lost in the good faith, routine operation of an electronic info system, are there sanctions? __________________ __________________________________________________________________ __________________________________________________________________ THIRD BIG TOPIC: MULTIPARTY LITIGATION A.

Proper Plaintiffs and Defendants. Many cases are brought by one P against one D. Here, P is planning the case and wants to have multiple Ps or multiple Ds. -- Three people are injured when the taxi in which they are riding crashes. May they sue together as co-plaintiffs? Yes, because their claims: 1.

______________________________________________________________ ________________________________________________________ AND

2.

_____________________________________________________________ ______________________________________________________________

-- May they (or any one of them) sue the taxi driver and the cab company as codefendants? Yes, because the claims against the two (1) arise from the same T/O and (2) raise at least one common question. -- Then, with these parties, assess whether the case invokes diversity or FQ. B.

Necessary and Indispensable Parties. The case has been filed. Now the court might force some nonparty (“absentee”) to join in the case. -- Why would a court force a nonparty into the case? ____________________________ ________________________________________________________________________ 1.

Who’s necessary? An absentee (A) who meets any of these tests: a. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits); OR b. A’s interest may be harmed if he is not joined (practical harm); OR c. A claims an interest that subjects a party (usually D) to a risk of multiple obligations. -- Which is probably most likely on the bar exam? ________________________

FEDERAL CIVIL PROCEDURE 47.

-- BTW, are joint tortfeasors necessary? _________________________________ -- You hold 1000 shares of stock in XYZ Corp. Rich claims that he and you bought the stock jointly and that he paid for half the stock. Rich sues XYZ Corp., seeking to have your stock canceled and the stock reissued in the joint names of you and Rich. Are you necessary? Yes. You probably meets all three tests for necessary. Which one is clearest? _____________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ 2.

Can A be joined? So you are necessary. NOW see if your joinder is “feasible.” It is feasible if: (1) there is PJ over you and (2) joining you will not goof up diversity jurisdiction (the court determines whether you would come in as a P or a D to see if bringing you in will goof up diversity). -- If your joinder is feasible, what happens? ______________________________ __________________________________________________________________ __________________________________________________________________

3.

If A cannot be joined. What happens if you (A) cannot be joined (e.g., no PJ over you)? The court must do one of two things. What are the choices? _______ __________________________________________________________________ __________________________________________________________________ -- How does the court make that decision? It looks at these factors: (a) Is there an alternative forum available? (maybe some state court); (b) What is the actual likelihood of harm to you? (c) Can the court shape relief to avoid that harm to you? -- What happens if the court decides to dismiss rather than to proceed without you (A)? _____________________________________________________________ __________________________________________________________________

HINT: WE SAW TWO JOINDER RULES STARTING WITH "C": COUNTERCLAIM AND CROSSCLAIM. THEY ARE CLAIMS BETWEEN EXISTING PARTIES. CLAIMS STARTING WITH "I” INVOLVE JOINING SOMEONE NEW TO THE CASE.

48. FEDERAL CIVIL PROCEDURE C.

Impleader (third-party practice). Here, a defending party (usually D) is bringing in someone new. The new party is the third-party defendant (TPD). -- If you have an impleader claim, must you assert it in this case? ___________________ ________________________________________________________________________ -- D can only do this only to shift the liability that he will owe to P to the TPD. So if D is found liable to P, he will try to get TPD to pay all or part of his own liability. -- So an impleader claim is usually for indemnity (TPD has to cover the full claim) or contribution (TPD has to cover a pro-rata portion of the claim). I #1. P is badly hurt in a bar fight. P sues Patron, and claims that Patron beat him up. Patron says he did not touch P, and that it was Bouncer who did it. Can Patron implead Bouncer? ____________________________________________ __________________________________________________________________ __________________________________________________________________ I #2. P hires D to treat her house for termites. D hires Sub to remove dirt around the house so D could treat for termites. While removing dirt, Sub damages the house. P sues D. Can D implead Sub? _________________________________ __________________________________________________________________ __________________________________________________________________ -- Steps for impleading the TPD in the pending case: a. b.

D files a third-party complaint naming the TPD; and Serve process on the TPD. (So must have PJ over TPD.)

-- There is a right to implead within 14 days of serving your answer. After that, you need court permission. TPD

Plaintiff --------------- Defendant -- After TPD is joined, may plaintiff assert a claim against TPD? Yes, if the claim arises from the same T/O as the underlying case. -- After TPD is joined, may TPD assert a claim against plaintiff? Yes if the claim arises from the same T/O as the underlying case.

FEDERAL CIVIL PROCEDURE 49. -- Subject matter jurisdiction. Remember to assess each claim separately for subject matter jurisdiction. Try diversity and federal question. If neither works, try supplemental jurisdiction. I #3. P (MO) sues D (KN) in federal court for $100,000, invoking diversity. D impleads TPD (MO) for indemnification of the full $100,000. Is there SMJ over the impleader claim? ____________________________________ ______________________________________________________________ ______________________________________________________________ TPD (MO)

P (MO) --------------------- D (KN) -- Does it matter that P and TPD are citizens of the same state? NO – P is not a party to this claim, so P’s citizenship is irrelevant to this claim. I #4. Suppose D’s impleader claim against TPD was for contribution (and therefore only for $50,000)? That would not invoke diversity. (And there appears to be nothing federal here, so no FQ.) Can the impleader claim invoke supplemental jurisdiction? (1) The claim meets the test (T/O). (2) The limitation does not apply. Why? _______________________ _________________________________________________________ _________________________________________________________ D.

Intervention. Here, the nonparty brings herself into the case. She chooses to come in either as P (to assert a claim) or as D (to defend a claim). The court may realign her if it thinks she came in on the “wrong” side. Application to intervene must be “timely.” -- Intervention of right. A’s interest may be harmed if she is not joined and is not adequately represented now. Why does this sound familiar? ________________ __________________________________________________________________ __________________________________________________________________ -- So for the same reason that you were necessary in the hypo on the top of page 47, you would also have a right to intervene. -- Permissive intervention. A’s claim or defense and the pending case have at least one common question. Discretionary with court. Usually OK unless intervention will cause delay or prejudice to someone.

50. FEDERAL CIVIL PROCEDURE

E.

Subject matter jurisdiction. Assess claim by/against the intervenor for subject matter jurisdiction (diversity or FQ. If neither applies, then try supplemental). Class Action. Representative(s) (“Rep”) sues on behalf of group. 1.

2.

Initial requirements. Must demonstrate all four of these: a.

Numerosity: Too many class members for practicable joinder. Is there a magic number? __________________________________________________________

b.

Commonality: There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.

c.

Typicality: Rep’s claims are typical of those of the class; and

d.

Representative adequate: The class representative will fairly and adequately represent class.

Next step. Must fit the case within one of three types: a.

TYPE 1: “Prejudice”: class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party. -- Many people have claims to a limited fund of money. If they sue individually, the fund will be depleted before all claimants get to court. That would leave those later claimants with nothing. To avoid this harm, a class would allow everybody to recover at least a portion of her claim. ________________________________ __________________________________________________________________

b.

TYPE 2: Class seeks an injunction or declaratory judgment because D treated the class members alike. Example: _______________________________________ __________________________________________________________________ -- Can a Type 2 class seek damages? ___________________________________ _________________________________________________________________

c.

TYPE 3: “Damages”: (1) common questions predominate over individual questions; AND (2) class action is the superior method to handle the dispute. Example: _________________________________________________________ -- So if a bus crash injures 80 people, there will be individual questions about damages, but the common questions (like whether the driver was negligent) may predominate. And the class action may be superior to 80 separate suits.

FEDERAL CIVIL PROCEDURE 51. 3.

Rep’s complaint will say “class action.” But a case is not a class action until what? ___ ______________________________________________________________________ -- And when it certifies the class action, the court must "define the class and the class claims, issues, or defenses." -- What else must the court do if it certifies the class action? _____________________ ______________________________________________________________________ ______________________________________________________________________ -- Class counsel must fairly and adequately represent the interests of the class.

4.

In the Type 3 class, the court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. The notice tells them various things, including: (a) they can opt out; (b) they’ll be bound if they don’t; and (c) they can enter a separate appearance through counsel. -- Is this notice required in Type 1 or Type 2 classes? __________________________ ______________________________________________________________________ -- Who pays to give this notice? ___________________________________________

5.

Who is bound by the judgment in a certified class action? _______________________ ______________________________________________________________________ ______________________________________________________________________ -- There is no right to opt out of a Type 1 or Type 2 class action.

6.

Can the parties settle or dismiss a certified class action? ________________________ ______________________________________________________________________ -- And, in all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed. (Decision is up to the court.) If it's a Type 3 class, the court might give members a second chance to opt out.

7.

Subject matter jurisdiction.

52. FEDERAL CIVIL PROCEDURE

-- Rep (NJ) sues on behalf of a class of 1,000 citizens of NJ to enforce a federal right. Can this class action proceed in federal court? Yes – it invokes FQ. -- What about a class action asserting state-law claims, brought under diversity of citizenship? For citizenship, consider only the rep (ignore other class members’ citizenships). What about amount in controversy? ____________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- That means: As long as the rep is diverse from all defendants, and as long as the rep’s claim exceeds $75,000, the class action will invoke diversity. 8.

Class Action Fairness Act (CAFA). This grants subject matter jurisdiction separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action (of at least 100 members) if any class member (not just the representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5,000,000. This makes it easier for interstate class actions to go to federal court. -- There are complicated provisions to ensure that local classes (where most class members and the primary defendants are citizens of the same state) do not stay in federal court; they get dismissed (or, if they were removed from state court, are remanded to state court). FOURTH BIG TOPIC: ADJUDICATING THE DISPUTE I.

A.

PRELIMINARY INJUNCTIVE RELIEF

Basic Idea. P is planning to file suit (or has sued). P is worried that before suit can go to trial, D may do (or fail to do) something that will prejudice P’s case. P wants injunctive relief – a court order that D either (1) do something or (2) refrain from doing something. The court is nervous about doing this because the merits of the underlying dispute have not been decided. -- D worked for Employer for years. D learned Employer’s trade secrets and had extensive contact with Employer’s clients. D quit his job with Employer and is starting a rival business. Employer claims that D is misappropriating its trade secrets and soliciting its clients in violation of a valid covenant not to compete. Employer sues D and wants the court to enjoin D from using the trade secrets and soliciting clients in the meantime, pending resolution of the underlying dispute. -- An order that maintains the status quo until trial is a: __________________________

FEDERAL CIVIL PROCEDURE 53. _______________________________________________________________________ -- Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek: _____________________________________ _______________________________________________________________________ B.

Temporary Restraining Order (TRO). -- Whenever a court does something without giving notice to the other party, it may be called: ________________________________________________________________ -- Can the court issue a TRO ex parte? _______________________________________ ______________________________________________________________________ -- Ex parte TRO is proper only if: (1) Applicant files a paper under oath clearly showing that if the TRO is not issued, he will “suffer immediate and irreparable harm” if: _________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ (2) Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer (or why such notice should not be required under the circumstances). -- If the court issues the TRO, applicant must post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful. -- The TRO must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued, and why the threatened injury to P was irreparable. -- If the court issues the TRO, the order must be served on D as soon as possible. -- If the court issues the TRO, what can D do? ________________________________ ______________________________________________________________________ ______________________________________________________________________

54. FEDERAL CIVIL PROCEDURE -- TRO is effective for no more that 14 days (or lesser time stated by court). If Applicant shows good cause before expiration, it can be extended for up to another 14 days. So a TRO cannot extend beyond 28 days. C.

Preliminary Injunction. -- Maintains status quo until the court can adjudicate the underlying claim on the merits. -- Can a preliminary injunction be granted ex parte? _____________________________ -- The burden is on the Applicant to show: (1) He is likely to suffer irreparable harm if the injunction is not issued; (2) He is likely to win on the merits of the underlying case; (3) The balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); and (4) The injunction is in the public interest. -- Is there ever a right to an injunction? ______________________________________ ______________________________________________________________________ -- If court grants the preliminary injunction, Applicant must post a bond. -- The court may consolidate the hearing on the motion for preliminary injunction with trial on the underlying case. It may advance trial on the calendar to do so. -- The preliminary injunction must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued. -- In granting or denying the preliminary injunction, the court must make specific findings of fact and separate conclusions of law. -- Is an order granting or denying a preliminary injunction immediately appealable? __ ______________________________________________________________________ II.

PRETRIAL ADJUDICATION

A. Voluntary Dismissal. P wants to withdraw the case. P can make a motion for voluntary dismissal anytime, which the court has discretion to grant. -- P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must do so before: ______________________________________________________________ __________________________________________________________________________ -- If P files a timely notice of dismissal, the case is dismissed “without prejudice.” What

FEDERAL CIVIL PROCEDURE 55. does that mean? ____________________________________________________________ __________________________________________________________________________ -- But you only get to do it without prejudice once. What if P files a notice of dismissal in the second case? That dismissal is “with prejudice.” What does that mean? ____________ __________________________________________________________________________ B.

Default and Default Judgment. D does not respond to the complaint in time (21 days after being served with process; 60 days from mailing of waiver if you waived service). 1. Default is a notation by the court clerk on the docket sheet of the case. -- Does the court enter default automatically on the 22nd day after service of process on D? ___________________________________________________________________ ______________________________________________________________________ -- P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion or answer (even beyond 21 days). -- What is the effect of entry of default? _____________________________________ ______________________________________________________________________ -- Entry of default does not entitle P to recover. What does P need to do before she can recover from D? ________________________________________________________ 2. How to get a default judgment. (a) The clerk of court can enter judgment if: -- D made no response at all; -- The claim itself if for a sum certain in money; -- Claimant gives an affidavit (sworn statement) of the sum owed; AND -- D is not a minor or incompetent. (b) If any of those is not true, though, where does P go for default judgment? _______ ______________________________________________________________________ -- The judge will hold a hearing and has discretion to enter judgment. Does D get notice of this hearing? _______________________________________________ __________________________________________________________________ -- P sues D for $100,000. What is the most she can recover on a default

56. FEDERAL CIVIL PROCEDURE judgment? ________________________________________________________ _________________________________________________________________ -- P sues D for damages and not an injunction. On default judgment, can the court enter an injunction? _________________________________________________ __________________________________________________________________ __________________________________________________________________ -- If the case goes to trial, P can recover more (and a different kind of relief) than she put in her complaint. 3. Motions to set aside. D may move to have the court set aside a default or default judgment by showing good cause (like excusable neglect) and what else? ____________ ________________________________________________________________________ C.

Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)). This is about whether the case belongs in the litigation stream at all. If P’s complaint fails to state a claim, the case can be dismissed. -- In ruling on this motion, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks: _____________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ -- If the answer is no, there is no sense letting the case proceed, because the law does not recognize a claim on these facts. Court might let P amend to try to state a claim, though. -- In ruling on this motion, does the court look at evidence? ________________________ _________________________________________________________________________ -- Remember, the facts alleged must support a “plausible” claim. The judge uses her experience and common sense to see if they do. -- The same motion, if made after D has answered, has a different name. What is the name? ______________________________________________________________ ____________________________________________________________________ D. Motion for Summary Judgment (FRCP 56). Here, P stated a claim, so we’re in the

FEDERAL CIVIL PROCEDURE 57. litigation stream. But we might not need a trial. Summary judgment weeds out cases in which we don’t need trial. Why do we ever have a trial? _________________________ _______________________________________________________________________ -- Party moving for summary judgment must show: (1) There is no genuine dispute on a material fact and (2) That she is entitled to judgment as a matter of law. -- If the moving party shows these things, must the court enter summary judgment? _____ _______________________________________________________________________ -- Any party can move for this no later than 30 days after close of discovery. -- Can the motion be for “partial” judgment – say, on one of several claims? ___________ _______________________________________________________________________ -- In summary judgment, can the court look at evidence? ___________________________ ________________________________________________________________________ -- The court views the evidence in the light most favorable to the nonmoving party. -- The parties proffer the evidence, usually (1) affidavits or (2) declarations or (3) deposition testimony or (4) interrogatory answers. Why can these things be considered “evidence”? ___________________________________________________________ ______________________________________________________________________ -- P was hit by a car driven by D. P sues D, alleging D ran a red light while P was in the crosswalk and crossing the street on a green light. D answers and denies these allegations. D moves for summary judgment, attaching affidavits from three witnesses saying that they saw the accident, D had the green light, and that P jumped in front of D’s car. (1)

In response, P relies on his complaint, which said D ran the red light. Summary judgment for D is probably granted. Why? Pleadings (like P’s complaint) are not evidence. So based on the evidence presented, there is no material dispute of fact AND ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- Can a pleading ever be treated as evidence? ___________________________

58. FEDERAL CIVIL PROCEDURE _________________________________________________________________ -- Usually, pleadings are not under oath and so are not considered evidence. – But pleadings might be relevant for summary judgment in this way: if D failed to deny an allegation by P, it can be treated as fact on summary judgment. (2)

Instead, P responds with an affidavit from somebody who swears that he heard about the accident and was told that D ran a red light. Summary judgment for D is probably granted here too – the court will ignore P’s affidavit. Why? _____________________ ______________________________________________________________________

(3)

Instead, P responds with deposition testimony from an alcoholic, drug addicted, convicted swindler who swears he saw the accident and that D ran a red light. Summary judgment must be denied. WHY? The evidence for P is first-hand knowledge and creates a dispute on a material fact. ____________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- Suppose an authenticated videotape of the accident scene discredits P’s witness’ version of the facts. The court can ignore P’s evidence and grant summary judgment. III. CONFERENCES AND MEETINGS

A. Rule 26(f) Conference. Unless court order says otherwise, at least 21 days before scheduling conference, parties “meet and confer.” They discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information. In addition, what must they present to the court? ________________________ __________________________________________________________________________ __________________________________________________________________________ -- The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g., deleted files), etc. B.

Scheduling Order. Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc. This is a roadmap for how the litigation proceeds up to trial.

C.

Pretrial Conferences. The court may hold “pretrial conferences” to process the case and foster settlement.

FEDERAL CIVIL PROCEDURE 59. -- The final pretrial conference will determine the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order, which supersedes the pleadings. This order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. SO THERE ARE NO SURPRISES AT TRIAL! IV. TRIAL, JUDGMENT, AND POST-TRIAL MOTIONS A.

Jury Trial. If we have a jury, it determines the facts and returns the “verdict.” If we don’t have a jury, the judge determines the facts (in a “bench trial”). – Rando question: what is a motion in limine? A pretrial motion to decide whether the jury should hear certain evidence. 1.

Right to jury trial in federal court. Seventh Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity. What if a case involves both law and equity? Suppose a case involves a claim for damages (legal relief) and for an injunction (equitable relief). ______________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- In what order will the trial usually proceed? _______________________________ ______________________________________________________________________ -- Does the Seventh Amendment apply in state court? __________________________ -- Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issue. If you don’t, you waive the right to a jury.

2.

Selection and composition of the jury. -- In the jury selection process (“voir dire”), each side might ask the court to strike (remove) potential jurors. There are two kinds of challenges to jurors: (a) “For cause” – e.g., potential juror will not be impartial. How many motions to strike “for cause” can a party make? _________________________________ _________________________________________________________________ (b) “Peremptory” – historically, one did not need to state a reason – you just dismiss the potential juror. Is there a limit on the number of these strikes? _____ __________________________________________________________________

60. FEDERAL CIVIL PROCEDURE -- Peremptory strikes may only be used in a race and gender-neutral manner. Why? ________________________________________________ ______________________________________________________________ -- How many jurors are on a civil jury in federal court? ____________________ _________________________________________________________________ -- Generally, all jurors participate in the verdict unless excused for good cause. -- Six jurors are empaneled and during trial one is excused for good cause because of health problems. Can the remaining five return a verdict? ________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ -- Unless the parties agree otherwise, what jury vote is required for a verdict? ___ __________________________________________________________________ 3.

Jury instructions. The jury decides facts, but is instructed on the law by the judge. -- Parties submit proposed jury instructions to the judge. They do this at the close of all evidence (or earlier if the court says so). -- Before final argument and instruction, the court informs the parties of what instructions it will give and of its rejection of any proposed jury instructions. -- Must the parties be allowed to make specific objections to the instructions and to the rejection of proposed instructions? _________________________________________ ______________________________________________________________________ -- If objections are not made before the jury is “charged” (given the instructions), the party cannot raise a problem with jury instructions on appeal. -- One exception: if a party did not object timely, a court can consider a jury instruction if it contained: ____________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

FEDERAL CIVIL PROCEDURE 61. 4.

Types of verdicts. The judge determines what verdict form the jury will use. (a) General. This just says who wins and, if P wins, what the relief is. The clerk of court then enters the judgment on the general verdict. (b) Special. Here, the jury answers specific questions about the facts in dispute. The judge then reaches legal conclusions based on the facts found. (c) General verdict with special interrogatories. Here, the jury gives a general verdict but must also answer specific questions submitted to it. The questions ensure that the jury considered the important issues.

5.

Entry of judgment. -- If the jury returns a general verdict, who enters the judgment? _________________ ______________________________________________________________________ -- If the jury returns a special verdict (or general verdict with special interrogatories) and the answers are consistent with each other and with the verdict, what happens? __ ______________________________________________________________________ ______________________________________________________________________ -- What happens if the verdict shows that the jury did not follow instructions or it is internally inconsistent (e.g., answers to questions are inconsistent with result)? ______ ______________________________________________________________________ -- The court can then instruct the jury to reconsider its answers or, if reconsideration won’t fix the problems, it can order a new trial.

6.

Juror misconduct. The court can set aside the verdict and order a new trial. -- A verdict may be “impeached” based upon “external” matters. So if jurors were bribed, or based the verdict on their investigation of matters outside of court instead of the evidence at trial, a new trial can be ordered. Non-jurors may give first-hand evidence of such things. -- BUT a juror cannot testify about things occurring or statements made during jury deliberations – except to show “extraneous prejudicial information” or “outside influence.” Can a new trial be ordered on the basis of a juror’s testimony that another juror was on drugs during deliberations or lied during jury selection to hide his bias? ____________________________________________________ __________________________________________________________________ __________________________________________________________________

62. FEDERAL CIVIL PROCEDURE

-- And a verdict will not be set aside if the misconduct was harmless – juror chatted for a moment with P about the weather (not the case). B.

Nonjury (“Bench”) Trial. 1.

When there is no jury (either Seventh Amendment did not apply or the parties waived the right to jury trial), who determines the facts at trial? ________________________ -- Must the judge record her “findings of fact”? Yes – she must state them on the record or in writing.

2.

What else must the judge record? __________________________________________ ______________________________________________________________________

3.

What else must be entered? _______________________________________________ -- The judgment is very short – just telling who wins and (if P won) the relief.

C.

Motions at and After Trial. 1.

Motion for judgment as a matter of law (JMOL). For centuries, this was called “directed verdict.” It applies in jury trial. If the judge grants JMOL, the case will not go to the jury – the judge simply rules for a side. -- The motion is based upon evidence presented at trial. Why would a judge grant JMOL and refuse to let the jury decide the case? ______________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- It’s like summary judgment (where there was no dispute of material fact), except that this comes up at trial instead of before trial. -- Like summary judgment, the court views the evidence in the light most favorable to the non-moving party. -- When can a party move for JMOL? ______________________________________ _____________________________________________________________________ -- P presents her evidence at trial and rests. At that point D may move for JMOL. Why? ____________________________________________________________ __________________________________________________________________

FEDERAL CIVIL PROCEDURE 63. 2.

Renewed motion for judgment as a matter of law (RJMOL). THIS IS THE SAME AS JMOL BUT COMES UP AFTER TRIAL. -- The elements of P’s claim are W, X, Y, and Z. At trial, P puts on evidence of W, X, and Z. She puts on no evidence of Y. D moves for JMOL. The court should grant it, because reasonable people could not disagree – it is clear that D should win. But the judge denies JMOL (probably figures the jury will get it right). The case goes to the jury, which returns a verdict for P! D can move for RJMOL. It may be granted because: ______________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ – If RJMOL is granted, the court enters judgment for the party that lost the jury verdict! (As with JMOL, the court views the evidence in the light most favorable to the non-moving party.) -- When do you move for RJMOL? Within 28 days after entry of judgment. -- What is an absolute prerequisite to bringing RJMOL? ________________________ ______________________________________________________________________ ______________________________________________________________________ -- Failure to do so waives RJMOL.

3.

Motion for a new trial. -- Judgment is entered, but some error at trial requires that we should start over and have a new trial. Can be based on any (non-harmless) error that makes the judge think we should have a do-over. Party moves for this within 28 days after judgment. -- Examples: (1) Judge gave an erroneous jury instruction; (2) New evidence that could not have been gotten before with due diligence; (3) Misconduct by juror or party or lawyer, etc. (4) Judgment is against weight of the evidence (serious error of judgment); (5) Inadequate or excessive damages. -- Maybe a party met the standard for RJMOL but waived it by not moving for JMOL at trial. She could move for new trial. -- Ordering new trial is less drastic than ordering RJMOL. Why? New trial results in starting over, so: _______________________________________________________

64. FEDERAL CIVIL PROCEDURE

______________________________________________________________________

4.

-- RJMOL results in taking judgment away from one party and giving it to the other. Remittitur and additur. -- One ground for new trial is that the jury’s damages figure is excessive or inadequate. What is the standard for ordering new trial on this ground? ______________________ ______________________________________________________________________ ______________________________________________________________________ -- But new trial is a lot of work. To avoid a new trial, the court might suggest remittitur or additur. -- Remittitur – playing hardball with the P. -- P suffered minor damage, but the jury awarded $200,000. The court finds the damages figure shocks the conscience. It can order new trial or suggest remittitur. This gives P a choice: take a lesser amount (say, $20,000) or go through new trial. Is remittitur OK in state and federal court? ___________ _____________________________________________________________ -- Can the court simply lower the figure that was set by the jury? _________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ -- Additur – playing hardball with the D. -- P suffered very serious harm, but the jury awarded only $30,000. The court finds the damages figure shocks the conscience. It can order new trial or suggest additur. This gives D a choice: pay a greater amount in damages (say $400,000) or go through new trial. Is additur OK in state and federal court? ________________________________________________________ ______________________________________________________________ ______________________________________________________________ -- Additur violates the Seventh Amendment. Because that applies only in federal court, state courts are free to recognize additur.

FEDERAL CIVIL PROCEDURE 65. D.

E.

Offer of Judgment. At least 14 days before trial, let’s say D offers to pay $50,000 to settle P’s claim. P can accept and judgment will be entered for that amount. Suppose P rejects it and goes to trial and wins a judgment that is not more favorable than the offer, P is liable to D for D’s costs incurred after the offer was made. Motion for Relief from Order or Judgment. Here, we ask the district court to set aside an order or judgment it entered. Grounds

Timing

1. Clerical error 2. Mistake, excusable neglect (including viable defense) 3. New evidence that could not have been discovered with due diligence for a new trial motion 4. Judgment is void (e.g., no SMJ)

Anytime Reasonable time (never more than 1 year) Reasonable time (never more than 1 year)

Reasonable time (no maximum)

-- P sues D. After trial, judgment is entered for D. Six months later, P finds new evidence – that D concealed before – that would likely show that P should win. The evidence must be truly new and not simply cumulative of what we had before. P moves to set aside the judgment so the court can hold a new trial. It may be granted if: _____________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ FIFTH BIG TOPIC: APPEAL A.

Final Judgment Rule. Seeking review of district court rulings by the U.S. Court of Appeals. Starting point: can appeal only from final judgments. That means an ultimate decision by the trial court of the merits of the entire case. File notice of appeal in district court within 30 days after entry of final judgment. To determine if a ruling is a final judgment, ask one question – after making this ruling: __ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________

66. FEDERAL CIVIL PROCEDURE -- If the answer is yes, it is not a final judgment. Are these final judgments? -- Denial of a motion for summary judgment? No. After denying summary judgment, the trial court still has the entire case before it. -- Grant of a motion for new trial? _____________________________________ __________________________________________________________________ -- Denial of a motion for new trial? ____________________________________ _________________________________________________________________ _________________________________________________________________ -- Grant of a motion to transfer the case to another district? _________________ _________________________________________________________________ -- Grant of a motion to remand to state court? ____________________________ __________________________________________________________________ __________________________________________________________________ B.

Interlocutory (Non-Final) Review. May be appealable even though not final judgments. 1.

Interlocutory orders reviewable as of right: orders granting, modifying, refusing preliminary or permanent injunctions.

2.

Interlocutory Appeals Act. Allows appeal of nonfinal order if (a) trial judge certifies that it involves a controlling issue of law (b) as to which there is substantial ground for difference of opinion and the (c) court of appeals agrees to hear it.

3.

“Collateral order” exception. Appellate court has discretion to hear ruling on an issue if it (a) is distinct from the merits of the case, (b) involves an important legal question, and (c) is essentially unreviewable if parties must await a final judgment. -- P sues State Highway Department (SHD) for damages. SHD claims it is an “arm of the State” and thus immune from suit under the Eleventh Amendment. Trial court rejects the argument and orders SHD to litigate. Can SHD try to appeal this ruling as a collateral order? __________________________________ __________________________________________________________________ __________________________________________________________________

FEDERAL CIVIL PROCEDURE 67.

4.

When more than one claim is presented in a case, or when there are multiple parties, the district court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay. -- P sues D. D files a counterclaim against P. The court enters summary judgment in favor of D on the first claim. This is not appealable as a final judgment because the counterclaim is still pending. Could the district court expressly direct entry of a final judgment on the first claim and allow appeal of that issue now? ____________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

C.

5.

Class action. Court of appeals has discretion to review an order granting or denying certification of class action. Must seek review at the court of appeals within 14 days of order. Appeal here does not stay the proceedings at district court unless the court of appeals or district court says so. ___________________________________________

6.

Extraordinary writ (mandamus or prohibition). An original proceeding in the court of appeals to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only if the district court is violating a clear legal duty.

Standard of Review by Appellate Court. 1.

When the district judge decides questions of law, by what standard does the court of appeals review? _______________________________________________________ _____________________________________________________________________ _____________________________________________________________________ -- District judge gave a jury instruction that put the burden of proof at trial on the wrong side. Why does the court of appeals review that de novo? ________________ _____________________________________________________________________

2.

In a non-jury trial, when the district judge determines questions of fact, the court of appeals will affirm unless: _______________________________________________ _____________________________________________________________________ _____________________________________________________________________

3.

In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless: _______________________________________________________________

68. FEDERAL CIVIL PROCEDURE

_____________________________________________________________________

4.

_____________________________________________________________________ On discretionary matters (e.g., whether to grant a motion to amend pleadings, to allow permissive intervention, case management orders), the court of appeals will affirm unless: _______________________________________________________________ _____________________________________________________________________ -- Suppose the court of appeals decides “I would have ruled the other way on this, but what the district judge did is in the ballpark – it’s not goofy.” Must it affirm? ______ _____________________________________________________________________ _____________________________________________________________________ -- We saw above that the content of jury instructions is reviewed de novo. But what about review of the district judge’s decision whether to give a particular instruction? _____________________________________________________________________ _____________________________________________________________________

5.

Not every error (even an error of law) requires reversal on appeal. No reversal is required if the error is: __________________________________________________ _____________________________________________________________________

SIXTH BIG TOPIC: PRECLUSION A.

Basic Idea. Whenever there has been an earlier case, watch for these issues, which concern the preclusive effect of a prior judgment on the merits. The question is whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2). -- If Case 1 and Case 2 are in different judicial systems (e.g., state and federal), the court in Case 2 applies the preclusion law of the judicial system that decided Case 1. -- Case 1 is litigated in federal court in Kentucky. Case 2 is litigated in state court in Arkansas. What preclusion law does the state judge in Case 2 use to determine whether there is claim or issue preclusion? ___________________________________________ _______________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

FEDERAL CIVIL PROCEDURE 69.

B.

Claim Preclusion (Res Judicata). You only get to sue on a claim once. So you only get one case in which to vindicate all rights to relief for that claim. Requirements: 1.

Case 1 and Case 2 were brought by the same claimant against the same defendant. CP #1. A and B are involved in a car collision. Case 1: A sues B. The case is litigated and goes to final judgment. Case 2: B sues A to recover for his injuries from the same crash. Why does claim preclusion not apply? _________________________ ______________________________________________________________________ ______________________________________________________________________ -- But Case 2 might be dismissed – why? ____________________________________ ______________________________________________________________________

2.

Case 1 ended in a valid final judgment on the merits. General rule: Unless the court said otherwise when it entered the judgment, any judgment is “on the merits” UNLESS it was based on: ________________________________________________________ ______________________________________________________________________ CP #2. Case 1: P sues D. Judgment is entered for D because of lack of PJ. Case 2: P sues D in a court with PJ, asserting the same claim asserted in Case 1. D argues that Case 2 should be dismissed under claim preclusion. Wrong. Why? ______________ _____________________________________________________________________

3.

Case 1 and Case 2 asserted the same “claim.” Majority view (including federal law): a claim is any right to relief arising from a transaction or occurrence (T/O). -- Important minority view: There are separate claims for property damage and for personal injuries because those are different “primary rights.” CP #3. Case 1: P sues D for personal injuries sustained in an auto collision. A valid final judgment on the merits is entered. Case 2: P sues D, for property damage from the same crash. Should the court dismiss Case 2 under the doctrine of claim preclusion? (1) Were Case 1 and Case 2 brought by the same claimant against the same defendant? ________________________________________________________ __________________________________________________________________

70. FEDERAL CIVIL PROCEDURE (2) Did Case 1 end in valid final judgment on merits? _____________________ __________________________________________________________________ (3) Did Case 1 and Case 2 assert the same claim? Split of authority. -- Majority view: Yes, because both cases involve the same T/O. So dismiss Case 2 for claim preclusion. ______________________________________ ______________________________________________________________ -- Minority view: _______________________________________________ ______________________________________________________________ C.

Issue Preclusion (Collateral Estoppel). This is narrower. An issue was litigated in Case 1. The same issue comes up in Case 2. But if issue preclusion applies, we will not allow the issue to be relitigated in Case 2. We deem it established in Case 2. Requirements: 1.

Case 1 ended in a valid, final judgment on the merits. (Same as above.)

2.

The same issue was actually litigated and determined in Case 1. _________________ _____________________________________________________________________

3.

That issue was essential to the judgment in Case 1. That means the finding on this issue is the basis for the judgment. IP #1. P sues D for negligence. Assume that under applicable law, contributory negligence would bar P from recovery. D asserts the affirmative defense of contributory negligence. The case is tried and the jury makes the express finding that P was contributorily negligent. Judgment is entered for D. Is the finding on P’s negligence “essential?” __________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ -- Under contributory negligence, once P was found negligent, D had to win!

4.

Against whom can issue preclusion be asserted? It can only be used against somebody who was a party to Case 1 or in “privity” with a party. “Privity” means that a party to Case 1 represented someone who was not a party to Case 1. Example: class action, where Rep represents members, who are bound even though they were not parties. -- Why can a judgment in Case 1 only bind parties to Case 1 (or people in privity with

FEDERAL CIVIL PROCEDURE 71. a party to Case 1? ______________________________________________________ ______________________________________________________________________ 5.

By whom can issue preclusion be asserted? -- Every court agrees that issue preclusion can be used by someone who was a party to Case 1 (or represented by a party). The big question is whether it can be used by someone who was not a party to Case 1 (or represented by a party). -- When someone who was not a party to Case 1 tries to use issue preclusion in Case 2, it is called “nonmutual” issue preclusion. It comes up in two ways: (a) Nonmutual defensive issue preclusion (the one using it was not a party to Case 1 and is D in Case 2). IP #2. Roommate, driving your car, is involved in a car collision with Joey. You are vicariously liable for Roommate’s acts. Case 1: Joey sues Roommate. Roommate wins, based on a finding that Joey was negligent, which caused the wreck. The court enters final judgment for Roommate. Case 2: Joey sues you. Can you assert issue preclusion as to the finding of Joey’s negligence? (1) Did Case 1 end in a valid, final judgment on the merits? ________________ (2) Was the same issue litigated and determined in Case 1? _________________ ______________________________________________________________ ______________________________________________________________ (3) Was that issue essential to the judgment in Case 1?_____________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ (4) Is issue preclusion being asserted against one who was party to Case 1? ___ ______________________________________________________________ ______________________________________________________________ (5) BUT, is it being asserted BY someone (you) who was NOT party to Case 1, and you are D in Case 2. Federal law and most states say it’s OK so long as: ______________________________________________________________

72. FEDERAL CIVIL PROCEDURE

______________________________________________________________ ______________________________________________________________ (b) Nonmutual offensive issue preclusion (the one using it was not a party to Case 1 and is P in Case 2). IP #3. Same facts, except Case 2 is brought by you against Joey. You sue to impose upon Joey liability for damage to your car from the wreck Joey had with Roommate. You want to assert issue preclusion on the finding in the first case that Joey was negligent. Can you? (1)-(4) As above, the first four requirements are all met. (5) The only tough part is the fifth, because issue preclusion is asserted nonmutually. And here, the person asserting it is a plaintiff. Most states today probably say no. --

BUT A CLEAR TREND (INCLUDING FEDERAL LAW) WILL ALLOW NONMUTUAL OFFENSIVE IF IT IS NOT “UNFAIR.” Factors: (a) Joey had a full and fair opportunity to litigate in Case 1. (b) Joey had an incentive to litigate strongly in Case 1 (he did because he knew that you owned the car, so he did not want to lose Case 1 because you might then sue him). (c) You could not have joined easily in Case 1 (if you could have, maybe you should have, and been bound by that judgment). (d) __________________________________________________________ __________________________________________________________ __________________________________________________________ – So if there had been multiple cases about this wreck, and sometimes Joey was found negligent and sometimes not, it would be unfair to let you get issue preclusion on a negligence finding. *******

LAST POINT (I promise): If you have questions, call me. Please do not e-mail. Call and leave your specific question(s) and phone number. I’ll call you back (before the exam). My phone number is: _______________________________________________________________