Term
| What 3 matter need to be resolved in order to determine which court (forum) is correct |
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Definition
Is there appropriate personal jurisdiction (does the court have power over the parties?)
Is there appropriate subject matter jurisdiction (does the court have power over the case?)
Is there appropriate venue (if there is federal jurisdiction, are we in the right federal court?) |
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Term
| What are the two ways in which personal jurisdiction can be determined |
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Definition
Statute: A state has PJ over anyone domicile in their state and may have a long-arm statute
Constitutionally permitted: PJ does not offend Due Process.
Statutory PJ is not likely to be asked on the Bar but mention it anyway |
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Term
| What is the gist of in personam jurisdiction? |
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Definition
| It answers the question to whether π can assert an obligation over ∆ or ∆’s property because of some contact between ∆ and the forum state. |
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Term
| What is the Constitutional test for in personam jurisdiction under International Shoe? |
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Definition
| Test: Does the ∆ have such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice? |
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Term
| What statutory arguments (personal jurisdiction) might you encounter on the Bar and how should you handle |
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Definition
| We are told that there shouldn’t be any statutory application for personal jurisdiction on the Bar but if we do, bear in mind that 1) all states have jurisdiction over domicile (including land) appropriate service of process and implied or actual consent. 2) In addition, the state will likely have a long-arm statute which allows it to assert jurisdiction over non-residents. You will ned to apply the statute to the facts. You will still argue constitutional applicability of personal jurisdiction |
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Term
| Briefly, what are the factors used to determine that personal jurisdiction satisfies the Constitutional requirements in International Shoe? |
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Definition
There must be some contact between the ∆ and the forum
The ∆ must have purposely availed himself to the forum so that suit in the forum would be foreseeable
It must be fair meaning that there is relatedness between the contact and the claim it is not overly inconvenient. The state’s interest in providing a legitimate forum to its citizens must be preserved.
My Parents Frequently Forgot to Read Children’s Stories |
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Term
| What two factors must be proven for minimum contacts for in personam jurisdiction? |
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Definition
The ∆ must have purposely availed himself to the forum – it must be shown e reached out to the forum
And the ∆’s contact with the forum was sufficient enough to foresee (put him on notice) that he would be hauled into court there. |
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Term
| What three factors must be address to sufficiently prove that the forum does not offend fair play and substantial justice? |
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Definition
The π’s claim must arise from the actual contact with the forum state (Relatedness) or the court has general jurisdiction over the ∆ (that is he has substantial ties).
The forum cannot be overly burdensome for the ∆ to defend. This is more than mere inconvenience, it means that the disadvantages were so sever that they denied ∆ due process.
Jurisdiction cannot interfere with a state’s interest in providing a just and legitimate forum for its citizens. |
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Term
| If the question involves personal jurisdiction do we care that the fact pattern involves a state court or federal court? |
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Definition
| Not directly – PJ not a question of which court in the state/forum is hearing the – but whether the forum is fair and just. This doesn’t mean that you don’t need to address subject matter jurisdiction (if the facts are in a federal court, i.e.) |
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Term
| What is the basic idea behind subject matter jurisdiction? |
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Definition
| Although state courts can hear any case, federal courts are limited to what type of disputes can be heard. The subject matter determines federal jurisdiction |
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Term
| What are the two types of cases that federal courts can hear? |
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Definition
Cases involving diversity of citizenship
Cases involving a “federal question” |
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Term
| What two requirements must be met for a court to hear a case in diversity of citizenship? |
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Definition
Opposing parties cannot be from the same state.
The dispute must involve an amount in controversy in excess of $75,000. |
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Term
| What is the “complete diversity rule”? |
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Definition
| There is no diversity of citizenship if any (p) is a citizen of the same state of any ∆ |
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Term
| What two factors must be examined to establish a party’s state of citizenry |
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Definition
Ask is the party domiciled in the state:
Is she physically present in the state (Physical element)
Was it her intent to make the state her permanent home (Mental element) |
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Term
| Can a person have more than one domicile at a time? |
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Definition
No.
And every person must have a domicile |
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Term
| Can a party destroy diversity simply by moving after the claim is filed in federal court? |
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Definition
| No. Citizenship is determined at the time that the case is filed in court. |
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Term
| Can a party move into a state for the purposes of establishing diversity for filing a claim in federal court |
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Definition
| Although we only care what the party’s domicile is AT the time of the filing of the case, mere physical presence in the state is only half of the inquiry (is it her intent to make the state her permanent home?) |
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Term
| If the party is a corporation, how is it’s domicile determined for citizenship? |
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Definition
A corporation’s domicile is BOTH 1) the state where it was incorporated, AND 2) where the corporation has its primary place of business
(Therefore, the corporation may likely have two domiciles) |
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Term
| Dunder-Mifflin Paper Co (incorporated in PA; primary place of business in NY) sues Jim Cramer Booyah Corp. (incorporated in PA; primary place of business in NJ). If the dispute is over $75,000, may D-M file their suit in federal court? |
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Definition
| No. Each corporation has two possible domiciles. Although D-M may do must of its business in NY and Cramer in NJ, they also share PA as their state of incorporation and therefore, are not diverse in citizenship. |
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Term
| What two tests are used to determine the principal place of business? |
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Definition
Nerve Center (HQ – where decisions are made)
Muscle Center (where it does most of its activity) |
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Term
| What’s the rule for determining citizenship of an unincorporated business – like a partnership or an LLC? |
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Definition
| One would use he domiciles of every member of the association. This includes limited as well as general partners. |
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Term
| How do we determine the citizenship of a represented party (minor, decedent) By the party’s domicile or the representative |
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Definition
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Term
| If the suit is for exactly $75,000 can it be brought into federal court? |
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Definition
| No it must be in excess of $75,000 ($75,000.01) |
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Term
| Can the π simply file suit for damages in excess of $75,000 to satisfy amount in controversy for federal subject matter jurisdiction? |
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Definition
| The π may ask for any damages in good faith unless there is a legal certainty they will not be awarded in excess of $75,000 if she wins. (This will have to be apparent – like a damage cap or the value of the damage goods are so below $75,000) |
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Term
| If the π files suit in federal court for more than $75,000 but ultimately recovers less, will that have an impact on the choice of federal jurisdiction? Any other consequences? |
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Definition
No. The actual damages awarded are irrelevant.
However, she may have to pay the other party’s litigation costs. |
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Term
| What are the rules concerning aggregation of claims for the purpose of diversity? |
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Definition
| Aggregation means the π has added two or more claims to meet the amount in controversy requirement. Claims may be aggregated if there is a single π suing a single ∆. The exception is when the ∆’s are joint tortfeasors (look for “joint) |
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Term
| Can a π bring a suit into federal court if he is only seeking equitable relief? |
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Definition
Possibly
There are two tests and if either is met, then the court will likely say “yes”:
From the π’s viewpoint, would the damage he suffered without injunction be greater than $75,000? (i.e. is his property value decreased).
From the ∆’s viewpoint, would the cost to comply with the injunction be in excess of $75,000? |
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Term
| What is the basis for bring a case to federal court under “federal question”? |
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Definition
The complainant must show a right or interest founded substantially on a federal law. The clam must arise from federal law.
ALWAYS ASK: Is π trying to enforce a federal right. |
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Term
| When the issue is federal question, does citizenship or amount in controversy make a difference? |
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Definition
| No. These inquiries are not relevant to federal question claims. |
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Term
| Mary sues John for tortious interference of contract when John convinced Bill to refrain from selling his business to Mary. John includes in his defense that Mary’s purchase of Bill’s business would violate federal anti-trust law. Mary brings suit in federal court in part refuting application of the federal statute. Will the court accept the case? |
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Definition
| Not on these facts alone, Mary’s case must assert a right under federal law. Right now she is only suing under state tort law. Her claim, therefore, does not arise from federal law. |
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Term
| Can a non-diversity, non-federal claim ever be neard in federal court |
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Definition
| Possibly, under supplemental jurisdiction. Under supplemental jurisdiction, this type of claim might be added to an existing (otherwise qualified) case in federal court. (However, supplemental jurisdiction may not be used to get a claim to court in the first place) |
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Term
| What is the test for supplemental jurisdiction? |
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Definition
| The non-qualifying claim must share a “common nucleus of operative fact” with the valid federal claim. This test is always met by claims that arise from the same transaction or occurrence as the underlying claim. You wold be expected to try such a claim in the same case. |
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Term
| Can a π use supplemental jurisdiction solely in order to overcome lack of diversity? |
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Definition
No.
For example, this would not be allowed:
P (MN) sues D1 (MN) for $76,000 and attempts to join D2 (IL) for his part in the same controversy. |
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Term
| Can a π use supplemental jurisdiction in order to overcome lack of diversity in a case that involves a federal question? |
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Definition
Yes
For example, this would be allowed:
P (MN) sues D1 (MN) for violation of a federal EPA statute. P also wants to expand his suit to violation of a similar state environmental protection law. Even though he lacks diversity and the second issue is not a federal question, he still can add the claim under supplemental jurisdiction |
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Term
| Can a π use supplemental jurisdiction in order to overcome a lack of amount in controversy in a diversity claim? |
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Definition
Yes.
For example, this would be allowed:
P (MN) sues D1 (IL) for $76,000 and now he can join D2 (IL) for his part in the same controversy – even though P’s claim against D2 is only $30,000. |
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Term
| Can a ∆ use supplemental jurisdiction in order to overcome either lack of complete diversity or amount in controversy in any case (diversity or FQ?) |
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Definition
Yes.
Any party other than the π can use supplemental jurisdiction in order to overcome either lack of complete diversity or amount in controversy in any case (diversity or FQ?) |
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Term
| Flowchart for determining supplemental jurisdiction |
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Definition
Is the non-federal, non-diversity claim asserted by ∆? No (Yes – OK)
Is the issue related to federal question? No (Yes – OK)
Would the case violate complete diversity? Yes
Then it cannot be heard. |
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Term
| If a court could hear a complaint under supplemental jurisdiction, n what bases might it use discretion not to |
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Definition
If the federal question is dismissed early in the proceedings
If the state law case or claim is complex
If state law issues would predominate |
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Term
Can a ∆ remove a case from state court to federal court?
Can the ∆ remove a case from federal court to state court?
Can a π remove a case from state court to federal court |
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Definition
Yes – if the case otherwise qualifies for federal subject matter jurisdiction the ∆ can remove.
No – removal is a “one-way street” – the federal court may remand
No – only the ∆ may remove. This goes even for a counterclaim |
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Term
| If a case is removed from state court to federal court what restriction is placed on venue of the federal court? How soon must the ∆ remove the state case to federal court |
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Definition
The case can only be removed to the federal district embracing the state court in which the case was originally filed
The case must be removed no later than 30 days after service of the document that made the case removable. Although this usually is service of process, be mindful that matters may be added to a case to change their subject matter jurisdiction. |
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Term
| If there are three co-defendants in a state case and the case is removable to federal court, how many defendants must agree to remove the case? |
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Definition
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Term
If all parties are diverse (and amount in controversy is satisfied) yet one defendant is a resident of the state in which the state case has been filed, can the defendants remove to federal court?
What would be the exception? |
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Definition
No. Even though this would qualify for federal SMJ, there is a special rule that prevents a defendant from removing a case from state court to federal court, if the defendant is a citizen of that forum.
This is not an issue for an instate defendant if he is removing on a federal question. |
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Term
P (MN) files suit against D1(IL) and D2(MN) in state court on 4/15/09 and process is served on D1 that same day. D2 is dismissed on 5/1/09 when is the latest that D1 can remove to federal court?
D2 is dismissed on 4/1/10, when is the latest that D1 can remove to federal court? |
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Definition
5/30/09
A defendant must remove within 30 days (so we might guess, 5/15/09); however, it is 30 days from the date the case can first be removed, so the answer is 5/30/09.
4/14/10
In a diversity case, no removal can be made more than one year after the case is filed in state court. |
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Term
| What procedural steps are necessary to remove a case from state court to federal court |
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Definition
D must file a notice in the federal court which states the grounds for removal, signed under Rule 11.
D must attach all documents served on D in the state action
D must serve notice to all adverse parties
D must file copy of notice in state court. |
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Term
| If a case has been removed to federal court improperly (procedurally), what can the π do? |
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Definition
| The π can move to remand it to state court – but must do so within 30 days of removal |
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Term
| If a case has been removed to federal court improperly (it has no federal SMJ), what can the π do? |
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Definition
| The π can move to remand it to state court. She may do so at any time – these is no time limit on raising lack of SMJ |
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Term
| Under the Erie Doctrine what determines whether the court uses federal law or state law |
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Definition
| Te federal court must apply state substantive law |
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Term
| What are some examples of state laws that are substantive (for when a federal court is considering which law to apply under Erie Doctrine) |
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Definition
Does the state law lay out the elements of a claim or defense?
Does the state law provide a (different) S/O/L?
Does the state law toll he S/O/L differently?
Does the state law specify conflict or choice of law? |
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Term
| Under the Erie Doctrine, which law does the court apply if the federal law directly conflicts with the substantive state law |
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Definition
Under Hanna, if the law directly conflicts, then apply the federal law.
Examples, U.S. Constitution, FRE, FRCP. |
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Term
| Under the Erie Doctrine, which law does the court apply if the federal law conflicts (though not directly) with the state law. What if its substantive state law? |
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Definition
Some tests:
Outcome determinative test: Would outcome be different under state law than under federal law – argue state law applies as substantive
Balance of interests test: Do either federal or state system have stronger interest in applying its rule. (ex. it’s important that a jury make the finding, Byrd).
Avoid forum shopping: If applying federal rules would result in all cases going to federal court, then apply state law.
Any time the state law is substantive it’s applied (unless federal law directly conflicts) |
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Term
| What are the two types of actions that determine venue? |
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Definition
“Local action”: This is action regarding land and must be filed in the district where the land lies (Eliminate this one first – unless applicable)
“Transitory action”: Any district where all defendants reside or where a substantial part of the claim arose. |
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Term
| How does the residence of a corporation differ when determining venue (versus determining citizenship for diversity) |
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Definition
A corporation resides in all districts where it is subject to person jurisdiction where the case is filed.
Ford Motor Co
District of state (DE) where incorporated: Both
District of state (MI) where the principal plae of business lies: Both
District of any state where it sells and services automobiles: Venue only |
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Term
| What is the rule for one federal court sending a case to another federal court |
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Definition
Transferring court can only send a case to a court where the “action could have been commenced or initiated.” Therefore, the receiving court must have all 3, even if the transferring court doesn’t:.
1. Subject Matter Jurisdiction
2. Personal Jurisdiction
3. Venue
(You get tested on venue and jurisdiction – usually PJ) |
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Term
| If a federal court can transfer venue to another federal court, what factors will it consider in doing so? |
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Definition
Convenience of parties & witnesses and
Interests of justice must substantially outweigh π’s interest in choice of forum.
THESE ARE IMPORTANT TO CITE:
Then add “public interest factors”: choice of law, the burden of jury service, court docket, community interest in having dispute resolved.
Then add “private interest factors”: where witnesses and evidence are located, etc. |
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Term
| When venue is transferred, which venue’s law applies? |
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Definition
| The court to which the case is transferred applies the choice of law rules of the original court (even if π sought the transfer). |
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Term
| What two documents comprise process? |
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Definition
| Summons (a formal court notice o the suit and time for response) and a copy of the complaint. |
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Term
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Definition
Any:
Non-party
Who is at least 18 years old |
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Term
| What are the three methods to serve process on a party? |
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Definition
Personal service: Papers given to the party directly
Substituted service: Papers physically provided to one other than the party provided:
Process is served at a location that is the party’s usual abode and
Process was served to one who is of suitable age and discretion and resides there.
Service on the party’s agent: Either one who is serving on the scope of an agent of the party or identified as a registered agent for accepting servce of process. |
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Term
| Can a party waive personal service of process? What must he do to waive? What happens if he does not respond to a request to waive personal service of process? |
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Definition
Process may be mailed to a party by first-class mail with postage pre-paid for acknowledgement/acceptance of waiver. The party may either accept (executes and mails back the waiver) or reject waiver within 30 days. If accepting waiver, he only waives hi right to receive formal service of process. The π then files the waiver with the court
If the receiving party fails to return the form, then the π must personally serve process. Unless she can show good cause ( don’t forget this), then she must pay the reasonable expense for service of process. |
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Term
| What is “notice pleading”? How has this changed recently? (Expect this to be tested) |
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Definition
Pleadings are documents that set forth the claims and defenses. Under notice pleading you only need to provide enough detail to allow the other side to be on notice and make a reasonable response.
In 2007, SCOTUS seemed to impose a stricter standard whereby you must plead facts supporting a plausible claim |
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Term
| What does Rule 11 require of the pleadings and the person entering them? |
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Definition
| Rule 11 requires the attorney (or party if pro se) to sign all pleading, written motions, and papers. By signing, the party certifies that the paper was not entered for an improper purpose, that the legal contentions are warranted by law, and that the factual contention have evidentiary support or likely to upon further investigation |
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Term
| If someone is held to have violated Rule 11, what sanctions can be imposed. Are sanctions imposed immediately upon a finding of such violation? |
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Definition
Sanctions are intended simply to deter any knowing violation of Rule 11. They can be monetary or non-monetary, but the party must be given opportunity to be heard ($$ sanction are paid to the court).
Rule 11 motions are served first. The opposing party is entitled to 21 days in which to fix the documents or withdraw them – and if doing so satisfactorily risks no sanctions. |
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Term
| What is the principal pleading of the plaintiff? What does it consist of? |
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Definition
The Complaint
Statement of grounds of SMJ
Short and plain statement of the claim showing entitled to relief
Demand for relief sought |
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Term
| What three matters must be pleaded with particularity and specificity? |
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Definition
Fraud
Mistake
Special damages |
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Term
| What are two ways in which a ∆ can respond to a complaint (under Rule 12) |
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Definition
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Term
| What motions might a ∆ make under Rule 12? |
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Definition
Pleadings too vague (motion for more definite statement) 12(e)
Motion to strike (because of immateriality)
The following can be included in a motion or an answer
Lack of SMJ (12b1)
Lack of PJ (12b2)
Improper venue (12b3)
Insufficient process (12b4, 12b5)
Failure to state a claim (12b6)
Failure to join an indispensable party (12b7) |
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Term
| Can any of the Rule 12 responses be waved? How are they waived? |
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Definition
Lack of PJ (12b2)
Improper venue (12b3)
Insufficient process (12b4, 12b5)
ALL can be waived – and will be waived if ae NOT included in the first response or answer |
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Term
| What’s the difference between a defendant’s motion (say, under Rule 12) and an answer |
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Definition
| A motion is not a pleading. An answer is a pleading. |
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Term
| What are the three responses that a ∆ can make in their answer? What could happen if he doesn’t answer a specific complaint? |
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Definition
Admit
Deny
Neither admit nor deny (because of lack of information – this amounts to a “deny” and cannot be made if the information is public or within the ∆’s control)
Failure to deny can constitute an admission on any matter other than damages. |
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Term
| Aside from the responding to the allegations in the complaint – what else can the defendant include in the Answer? |
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Definition
| The ∆ can raise affirmative defense – usually include S/O/L, SOF, res judicata, self defense |
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Term
| What is the risk of waiting to raise affirmative defense until after the Answer |
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Definition
| You might end up waiving them. So plead them in your Answer |
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Term
What is a counterclaim?
What are the two types of counterclaims |
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Definition
A claim against the opposing party – as in defendant filing a claim against a plaintiff. We are told in the pleadings that it must be asserted at the time of the answer
Compulsory counterclaim: It is a claim that arises in the same transaction or occurrence as the π’s claim and it must be filed in the pending case (<- what is that?) or it’s waived. (Watch for jurisdictional issues they are likely OK but get points for raising them. If supplemental jurisdiction is involved must follow those rules!!)
Permissive counterclaim: It does not arise out of the same transaction or occurrence as the π’s claim and may be filed in a separate acton |
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Term
| What is a cross-claim? How dos it differ from a counterclaim? How does it differ from impleader. |
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Definition
A cross claim is a claim against a co-party (i.e. ∆ against ∆,) and must arise from the same transaction and occurrence of the claim.
It differs from the counterclaim because it’s agaist parties on the same side. It differs from impleader which is simply joining that the impleaded party who has indemnified or is otherwise obligated to the party by contribution. |
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Term
| When and how frequently may a π amend his complaint |
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Definition
| Only once and it must be amended before the ∆ submits her answer |
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Term
| When and how frequently may a ∆ amend her complaint |
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Definition
| Only once and it must be amended with 20 days after she submits her answer |
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Term
| If the parties no longer have right t amend, is it possible to amend any way? How is the court likely to decide? |
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Definition
Parties may seek leave of the court to amed the pleading.
Generally, the court will grant leave to amend “if justice so requires” and it does not lead to undue delay or prejudice. |
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Term
| What is a variance? When can it be performed? When can’t it be performed |
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Definition
When evidence offered at trial does not match the complaint – and the ∆ does not object - the complaint may be amended to conform. It’s largely a formality to ensure the pleadings match the evidence.
If the ∆ objects evidence if inadmissible as being at variance with the pleadings. |
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Term
| If a complaint is filed within the S/O/L but and attempt is made to amend after the S/O/L has run, will the amendment relate back to the original complaint date? |
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Definition
Depends
If the amendment concerns the same cinduct, transaction or occurrence as the original pleading, then it will “relate back”. This will avoid any problem related to S/O./L. |
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Term
| What type of discovery requests are required? |
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Definition
These materials must be produce even though no one asks for it:
- Initial disclosures: Within 14 days of a 26(f) conference must identify persons, electronicallu stored information, and documents that are likely to have discoverable information that the disclosing party may use to support its claims or defenses, computation of damages, and insurance for any of judgment.
- Experts: Must identify experts “who may be used at trial” and produce written reports containing opinions, data used, qualifications, compensation for study.
- Pretrial: No later than 30 days before trial, must give detailed information about trial evidence, includes documents, witnesses to testify live and by deposition.
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Term
| What must take place before discovery can commence? |
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Definition
| Discovery tools may not be used until after the Rule 26(f) conference. |
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Term
| What is a deposition? Is a deposition limited to use with parties? |
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Definition
An inquiry at which the deponent gives sworn oral testimony in response to questions from counsel. A record is made of the deposition.
Can depose nonparties or parties – however nonparties may not be compelled to be deposed unless subpoenaed and cannot be compelled to travel more than 100 miles. (Parties are compelled without subpoena) |
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Term
| Are there any limits to using depositions |
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Definition
| Cannot take more thn 10 depositions or depose the same person twice. A deposition cannot exceed one day of seven hours |
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Term
| What are interrogatories? Are interrogatories limited to use with parties? |
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Definition
Inquiries in which written questions are submitted to parties to be answered – also in writing – under oath. Interrogatories must be either answered or objected to within 30 days. Cannot serve more than 25 interrogatories (includes the subparts) unless court permits
They are to be used only with parties. |
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Term
| What are requests to produce? Limited to use with parties? |
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Definition
Request made for submission, copies or for review. Includes physical and electronic documents or entry to inspect premises. Must be either answered or objected to within 30 days.
Requests may be made to nonparties but only by subpoena. |
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Term
| Can a party request another to submit to a physical or mental examination? On what basis will a request for physical or mental examination be granted? |
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Definition
The request can be made ONLY by order of the court.
On showing that party’s health is an actual controversy and “good cause”. |
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Term
| What are Requests for Admission? |
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Definition
A request from one party to another party to admit to the truth if any discoverable matters. Typcally used to authenticate documents.
Responses within 30 days – may admit, deny, or respond that not enough information is known to make a response. |
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Term
What requirements are made with regard to answers to discovery under oath?
Are discovery items subject to Rule 11? |
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Definition
Every discovery request and response are signed by counsel certifying 1) it is warranted, 2) not interposed for improper purpose, 3) not unduly burdensome.
Discovery items are not subject to Rule 11 |
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Term
| What must a party do if they later discover that their responses during a particular discovery request are incomplete? |
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Definition
| It must supplement its response |
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Term
| What is included under the scope of requested discoverable material |
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Definition
| Discovery requests are broad – not limited to just admissible material – but can discover anything relevant to a claim or defense (contained within the pleadings). Relevant is defined as anything reasonably calculated to lead to the discovery of admissible evidence. |
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Term
| What is “work product”? What are the rules for discovering “work product” What is the scope of work product |
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Definition
Work product is any material prepared in anticipation of litigation.
Work product may be discoverable but only on 1) showing of substantial need and 2) undue hardship prevents acquiring substantially similar information (usually been destroyed or the person died) . In any event, “opinion work product” (mental impressions, opinions, conclusions, and case or legal theories are never discoverable.
Scope documents and other tangible things otherwise discoverable prepared in anticipation of litigation and by a party or his representative. |
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Term
| What can a party do if they feel they have just cause not to honor a discovery request? On what grounds? |
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Definition
| They may seek a protective order. Some reason include over-burdensome requests, material is not reasonably accessible, or involves trade secrets. |
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Term
| What are the consequences for only partially complying with discovery requests? |
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Definition
If the receiver party answers some requests but not others there is a 2-step procedure:
The requesting party may get an order to compel the party to answer – the attorney/court costs are covered by the answering party.
If the answering party still doesn’t comply, then they may be subject to RAMBO sanctions, requester’s court costs, and face contempt for violating a court order |
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Term
| What are the consequences for totally disregarding the discovery requests? |
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Definition
| No requirement that requester obtain order to compel. Go straight to RAMBO and court costs |
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Term
| So – what are RAMBO sanctions? |
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Definition
These come from the court:
Establishment orders. (Presumes the facts in question are true – in favor of the requester)
Strike pkeadings of the disobedient party
Disallow evidence of the disobedient party
Dismiss π’s case (if bad faith is shown)
Enter default judgment against ∆ |
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Term
| What are the general circumstances for joining parties to the case. What MUST you also confirm |
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Definition
There are no limits to adding parties provided they arise from the same transaction and occurrence and share at least one common question at trial
Does the joinder create any concerns about subject matter jurisdiction and if so can it be remedied with supplemental jurisdiction? |
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Term
What is a “necessary” party?
What is an “indispensable” party? |
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Definition
An absent party is a necessary party is he meets any of these three tests:
Without absent party, the court cannot accord complete relief (we are staving off multiple suits)
Absent party’s interests may be harmed if he isn’t joined?
Absent party claims in interest which subjects a party (usually ∆) to a risk of multiple obligations
The absent party will be indispensable when the court concludes that the case would have to be dismissed if the absent party is not joined. |
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Term
| What three step process does the court need to employ when confronted with a necessary party? |
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Definition
Is it feasible for the party to be joined? (Can the court assert PJ, would diversity be destroyed, etc.)
Then If the court can feasibly join the absent party it will do so
If the court cannot join the party it will determine if it’s possible to hear the case without the party |
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Term
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Definition
| Impleader action occurs when the ∆ wishes to bring in someone new specifically because that party may owe indemnity ot contribution to the ∆. This party is commonly referred to a third-party defendant. |
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Term
| When must a defendant assert a right to impleadr? |
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Definition
Within 10 days after serving answer.
The ∆ could add an impleder after then but would need court permission. |
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Term
| If an third party defendant is added (under impleader), could the plaintiff assert a claim against him? |
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Definition
Yes under joinder if the claim arises out of the same transaction or occurrence and there is at lesdt common question. Under the same circumstances, the TPD can also counterclaim against the π
Can’t say this enough – REMEMBER in these cases to consult SMJ and supplemental jurisdiction |
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Term
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Definition
| An intervenor is an absent party who wants to join a pending suit. She chooses to come in either as π or a ∆. |
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Term
| What are the two types of intervention: |
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Definition
Intervention by right: When the absent party’s interests may be harmed if she isn’t joined?
Permissive intervention: When the absent party’s claim or defense have at least one common question and allowed at the intervention of the court. |
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Term
| If an intervenor destroys diversity, would a court typically find supplemental jurisdiction? |
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Definition
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Term
| Before certifying “class” for a class action suit what 4 requirement MUST be met |
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Definition
The class must satisfy these criteria:
Numerosity – the number of possible class members is too great to make joinder practical or possible
Commonality: There are at least some questions of law and fact in common in the class
Typicality: The representative’s claims/defenses are typical of those of the class
Representative adequacy: The class representative will fairly and adequately represent class. |
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Term
| What are the three “types” of class actions |
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Definition
Class 1: {Potential for “prejudice” class – as when the number of possible class members is so great that it may deplete available relief.
Class 2: Injunction or declaratory judgment to a class since they resemble a particular party (ex: employment discrimination claim).
Class 3: Common question predominate over individual questions AND class action is the superor method to handle dispute |
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Term
| What is accomplished when the court certifies a class for class action? |
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Definition
| The court defins the class, the claims issues, defene, and appoints class counsel |
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Term
| In a Class 3 class action, what notice requirements exist? |
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Definition
All reasonably identifiable class members must receive individual notice (usually by mail). Notice must tell class member 1) they can opt out, 2) they will be bound to the judgment or settlement is they don’t opt out and 3) they can enter a separate appearance.
The cost of notice is borne by the class representative |
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Term
| Can class members opt out of class action? |
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Definition
| Only Type 3 class actions |
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Term
| How is citizenship determined in a class action dispute? (For federal SMJ) |
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Definition
| By looking at the class representative’s citizenship ONLY |
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Term
| How is amount in controversy determined in a class action dispute? (For federal SMJ) |
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Definition
| By looking at the class representative’s claim ONLY |
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Term
| What was accomplished in the Class Action Fairness Act of 2005? |
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Definition
| It grants SMJ separate from regular diversity. Specifically, it allows a federal court to hear a class action of any class member (not just the representative) is of diverse citizenship of any defendant and the aggregated claims exceed $5 million. In reality it forces “local” class actions to the state court (or are dismissed in federal court). |
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Term
| What occurs in a Rule 12(b)(6) action? What role does evidence play in this action? |
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Definition
A case is dismissed by the ∆ because the π has failed to state a claim for which the π can obtain relief. Also known as a demurrer. It essentially tests the π’s claim by asking if the π was able to sufficiently prove all her allegations, would she win a judgment? Also look to se if the π presents anything that also shows a complete bar or defense.
The court does not consider any evidence – only the face of the complaint. |
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Term
| What is a variation of 12(b)(6) motion made after the ∆ has presented his answer? |
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Definition
| Motion for judgment on the pleadings (who can enter???) |
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Term
| What are the two elements that must be show in a motion for summary judgment? What role does evidence play in this action |
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Definition
1) that there is no genuine dispute of material issue of fact (b/c that’s the reason we have trials!)
2) And the party is entitled to a judgment as a matter of law.
The court reviews the evidence presented in the light most favorable to the non-moving party. Common element in fact pattern – non-moving party provides no evidence in response to motion – “pleadings are not evidence” (other than admissions – or verified pleadings) |
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Term
| What is a Rule 26(f) Conference |
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Definition
| Where parties discuss claims, defenses and settlement. The discover plan is formed and presented in writing to the court (no later than 14 days after). MUST be held at least 21 days from the scheduling conference |
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Term
| What is a Scheduling Order? |
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Definition
| An order entered by the court scheduling cutoffs for discovery, joinder, amendment, motions, etc. |
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Term
| What is the significance of the final pre-trial conference |
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Definition
| It is the roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. |
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Term
| Does the 7th amendment preserve a right to jury trial in civil matters? |
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Definition
| Only in the federal court and not in suits of equity |
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Term
| Does the 7th amendment preserve a right to jury trial in civil injunctions? |
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Definition
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Term
| What occurs when a case involves both legal matters (ex., claim for damages) and equity matters (ex., injunctive relief) |
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Definition
| A jury trial is held first on the damages, then a bench trial is held on the equitable relief |
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Term
| Requirement of demand for a jury trial |
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Definition
| Must demand a jury trial in writing no later than 10 days after service of last pleading raising a jury-triable issue |
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Term
| How many strikes (voir dire) does each side get for cause? How many peremptory strikes? |
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Definition
In voir dire, each side gets unlimited strikes for cause (bias, prejudice); but each side only gets 3 peremptory strikes.
Peremptory strikes must be race and gender neutral. (This is because of due process – jury selection is a “state action”) |
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Term
| What does a judgment as matter of law accomplish? What is the standard for which JMOL will be granted? |
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Definition
Formerly known as “directed verdict”. This is an exceptional order, the effect of which is to take the case away from the jury and decide the case on the motion. It is brought by one side, after the other side has been heard: ∆ would bring at the close of π’s case and at the close of all evidence.
The standard for granting the motion is that reasonable people could not disagree on the results |
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Term
| What does a renewed judgment as matter of law accomplish? |
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Definition
Formerly know as JNOV – judgment not withstanding the verdict.
Similar to JMOL, but this time the case is sent to the jury to decide. The losing party files JNOV within 10 days of the entry of the verdict. Standard is still that reasonable people could not disagree on the results. (Jury were not reasonable – or nullified the rule/standard of law).
Motion for JMOL during trial IS A PREREQUISITE! |
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Term
| What is a motion for new trial and on what grounds would one be granted? |
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Definition
Despite judgment being entered, errors at trial require that a new trial take place. The losing party must file within 10 days of the entry of the verdict. This all appears like JNOV but less radical – let’s just do it over.
Grounds include:
1) prejudicial error at trial makes judgment unfair (ex., bad evidentiary ruling or witness testimony)
2) new evidence BUT ONLY that could not have been obtained with due diligence at trial
3) prejudicial misconduct of party, attorney, other participant, or juror.
4) Judgment against the great weight of the evidence (he jury just blew it) |
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Term
| What is THE rule for appealing a case |
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Definition
| The “final judgment rule” : As a general rule, one can appeal only from final judgment – this means the ultimate decision by the trial court of the merits of the entire case (the whole and final enchilada – watch for tricky questions here – so ask has the court made the final order, after which there is nothing more to consider on the merits of the case) |
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Term
| What is an interlocutory appeal – and under what conditions would it be granted |
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Definition
An interlocutory appeal is a non-final appeals (remember most appeals must comport with the “final judgment rule”).
These are reviewable as of right: injunction (grant or refuse to grant), appointment of receivers (grant or refuse to grant), fndings of patent infringement OR
It involves a non-final order of a judge that it involves a controlling issue of law as to which there is substantial ground for difference of opinion. The trial court must certify it for appeal and the appeals court would have to agree to hear it. (Interlocutory Appeals Act ?) |
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Term
| What is a “collateral order” and under what conditions can an appeals court hear it on an interlocutory appeal? |
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Definition
This is another exception to the “final judgment rule” in which the appellate court has discretion to hear a ruling on an issue is:
1) it is distinct from the merits of the case
2) involves an important legal question AND
3) it would be essentially unreviewable if parties waited until the final judgment was issued (classic example is immunity from suit, say a state’s claim for immunity under the 11th Amendment) |
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Term
| Can parties appeal a court’s decision to grant or deny certification of a class in a class action suit? |
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Definition
| Yes if review by the appeals court is soyght within 10 days of the certification. This appeal does not stay the trial. |
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Term
| What are the two types of preclusion? What facts exist to make you alert to the issue on the Bar? |
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Definition
res judicata (claim preclusion)
Collateral estoppel (issue preclusion)
Watch for an earlier trial and ask – is there any matter adjudicated at the earlier trial that precludes consideration at this trial? |
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Term
| What are the elements of res judicata? |
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Definition
Two cases:
Both cases are brought by the same claimant against the same defendant – notes say “not just same parties, but same guy suing the same guy in both cases”
Case #1 ended in a valid final judgment on the merits. (We must assume that in the fact pattern UNLESS jurisdictional venue, indispensable parties.
Case #1 and Case #2 asserted the same claim (claiming a right or relief arising from the same transaction or occurrence) Note: some courts (minority) may consider two different claims in same T/O if one is property damage and one is PI. |
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Term
| What is issue preclusion (collateral estoppel) What are the elements of collateral estoppel? |
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Definition
It precludes relitigation of a particular issue litigated and determined in the earlier case. In such case, this issue is deemed established in the second action.
1) Case #1 ended in a valid, final judgment on the merits
2) The same issue was actually litigated and determined in Case #1. Needs to have been litigated.
3) The issue was essential to the judgment in Case #1. This means without this issue, the judgment in Case #1 would (may?) have been different.
4) And in Case #2, the issue is being asserted against the same party in which it was asserted in Case #1.
5) Optional (per court): The party asserting the issue must be the same party who asserted in Case #1 (“mutuality”).
a. Other courts will allow non-mutuality (asserter not a party in Case #1) if he is a ∆ in Case #2. I DON”T GET THIS YET |
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Term
| What issues should you dispatch with before a engaging in a personal jurisdiction analysis |
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Definition
Decide if there really is a PJ issue in the 1st place:
1. Is the D present in the forum was was properly and personally served?
2. Is the D domiciled in the forum
3. Did the D consent to jurisdiction?
Afterwards consider the constitutional or statutory analysis |
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Term
| What is a "long-armed statute"? |
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Definition
| Gaves courts of the state power over any person or property over which the state can constitutionally exercise jurisdiction. Look for specifics ("tort occurred in the state") |
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Term
| Aside from in personam jurisdiction, what other personal jurisdiction cases might a court rule on |
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Definition
In rem - the court has jurisdiction over everyone in the world with regard to property located in the state
Quasi in rem: As in rem, there is property in the jurisdiction but the court may not necessarily be resolving a specific issue regarding (disposition of ) the property - e.g. need minimum contacts analysis. |
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Term
| Sharon is suing David for $69,000 but she is also seeking interest and attorney fees which will, themselves, exceed $10,000. If they are diverse citizens, can she file in federal court? |
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Definition
| The $75,000 canNOT include interest in costs. But watch for statutory right to attorney fees (ex. a state civil rights claim) or the suit involved interest as part of the controversy (not simply interest for delayed judgment). |
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Term
| The federal court is trying a federal question SMJ case, must it apply the state's substantive law? |
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Definition
| No. Erie Doctrine applies only to diversity cases. This only makes sense, federal issues should be subject to federal laws. |
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Term
| Son lives in WI, his father's estate was probated in Minnesota and son is bringing a complaint against the executor for $100,000. Can he bring his case in federal court? |
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Definition
| This is a dicey situation. Start with the basic rule: the federal courts will refuse to hear cases - even in diversity - on matters like domestic relations and probate. The outline states, however, that a federal court might consider a case that involves "actual probate" |
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Term
| Can improper venue be waived? |
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Definition
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Term
| When can Rule 12 be raised (3 Times) |
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Definition
Only at Answer: Person Venue Process
At Trial: State Claim Joined Party
Anytime: SMJ |
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Term
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Definition
| You may take no more than 10 depos, may not depose the same person 2x, a depo may not last longer than 1 day and no longer than 7 hours. |
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Term
| What three types of disclosures must be made under Rule 26? |
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Definition
1. Initial disclosures (14 days)
2. Experts (90)
3. Pre-trial disclosures (30 days prior to start of trial) |
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Term
| What is the "well pleaded complaint rule" |
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Definition
| A claim, properly pleaded, that is based on federal law - specifically assertion of a right under federal law. Look to see if the federal claim is only a distraction from the actual, state-based complaint. |
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