What are the five most common congressional grants of subject matter jurisdiction?

1. Federal Question
2. Diversity Jurisdiction
3. Supplemental Jurisdiction
4. Removal Jurisdiction
5. Legislative Jurisdiction

Subject Matter Jurisdiction: Federal Questions Jurisdiction

What is the well-pleaded complaint rule?

Federal Question Jurisdiction exists only when the federal law issue is presented in the plaintiff's complaint

Subject Matter Jurisdiction: Federal Questions Jurisdiction: Well-pleaded complaint rule

How is jurisdiction determined?

Considering only the necessary elements of the plaintiff's cause of action and not potential defenses.

Not enough to establish jurisdiction that a plaintiff alleges some anticipated federal law defense.

Federal question must be on the face of the complaint. Actions for declaratory relief, which by their nature anticipates a future action cannot be brought under federal question jx unless it provides relief that is not available under state law.

Subject Matter Jurisdiction: Federal Questions Jurisdiction: Well-pleaded complaint rule

Are answers or counterclaims considered in determining the existence of federal question jurisdiction?

Does the well-pleaded complaint rule apply to original or removal jx?

No

BOTH

Subject Matter Jurisdiction: Diversity Jurisdiction

When do U.S. District Courts have jurisdiction over actions?

i. parties to the action are:

• citizens of different states
• citizens of a state and citizens or subjects of a foreign state are additional parties, or
• a foreign state as a plaintiff and citizens of a state or different state, and

ii. the amount in controversy exceeds $75,000

Subject Matter Jurisdiction: Diversity Jurisdiction

What are the state law exclusions from diversity jurisdiction?

Probate

Domestic relations

Subject Matter Jurisdiction: Diversity Jurisdiction

What are the exceptions to the complete diversity rule?

Interpleader

Class actions greater than $5M

Multiparty, Multiforum Trial Jurisdiction Act of 2002

Subject Matter Jurisdiction: Diversity Jurisdiction: Exceptions

Multiparty, Multiforum Trial Jurisdiction Act of 2002

Arising from a single accident:

75 natural persons have died at a discrete location, only 1 plaintiff need to be diverse from one defendant for a federal court to have jurisdiction

Subject Matter Jurisdiction: Diversity Jurisdiction: Domicile

What is the rule for liability insurers?

Wherever their insured party resides is their location for purposes of litigation

Subject Matter Jurisdiction: Diversity Jurisdiction: Domicile

What is the rule for partnerships?

Partnerships are citizens in each state in which each of its members if domiciled

Same for both limited and general partners

Subject Matter Jurisdiction: Diversity Jurisdiction: Amount in Controversy

In an action between a single plaintiff against a single defendant can the plaintiff's claims be aggregated to meet the amount in controversy requirement?

Yes

Subject Matter Jurisdiction: Diversity Jurisdiction: Amount in Controversy

In an action between multiple plaintiffs against a single defendant can the plaintiff's claims be aggregated to meet the amount in controversy requirement?

Yes, only if they are enforcing a single title or right in which they have a common or undivided interest.

Subject Matter Jurisdiction: Diversity Jurisdiction: Amount in Controversy

In an action between a single plaintiff against multiple defendants can the plaintiff's claims be aggregated to meet the amount in controversy requirement?

The value of a single plaintiff's claims against each defendant may not be aggregated if the claims are separate and distinct.

If the defendants are jointly liable to the plaintiff then aggregation to meet the amount in controversy is permissible.

Subject Matter Jurisdiction: Diversity Jurisdiction: Complete Diversity

What is Interpleader?

The holder of property that is claimed by two or more persons may deposit the property with a court to determine ownership

Needs to be two adverse claimants of diverse citizenship to establish federal jurisdiction.

Subject Matter Jurisdiction: Diversity Jurisdiction: Counterclaims

What kind of counterclaim is generally arising out of the same transaction of occurrence as the plaintiff's claim, does not need to meet the jurisdictional amount requirement to be considered by the court?

What type of jurisdiction does the court have?

Compulsory Counter claim

Supplement

Subject Matter Jurisdiction: Diversity Jurisdiction: Counterclaim

What type of counterclaim arises out of a transaction that is unrelated to the plaintiff's claim, and DOES HAVE to meet the statutory jurisdictional amount?

Permissive Counterclaim

Subject Matter Jurisdiction: Supplemental Jurisdiction

Supplemental Jurisdiction Test

(Usually State law claims against a nondiverse defendant)

Whether they arise out of a "common nucleus of operative fact" such that all claims should be tried together in a single judicial proceeding.

Subject Matter Jurisdiction: Supplemental Jurisdiction: Diversity Jurisdiction

Can permissive Joinder by a plaintiff be allowed by supplemental jurisdiction regardless of diversity?

Cannot violate complete diversity

Subject Matter Jurisdiction: Supplemental Jurisdiction: Diversity Jurisdiction

Permissive Joinder

Subject Matter Jurisdiction: Supplemental Jurisdiction: Diversity Jurisdiction

Does supplemental jurisdiction apply to defendants sought to be joined under the permissive joinder rule in a case based exclusively on diversity, in which exercising jurisdiction would destroy diversity 

NO, if claims are based solely on diversity there must be complete diversity between the plaintiffs and joined defendants. And the claims against each defendant must satisfy the amount in controversy.

Subject Matter Jurisdiction:

What is Removal?

Defendant can remove case from state court, if it could have been brought in Federal Court.

All Defendants must agree

No removal by P

If a D files permissive counterclaim in state court, he cannot remove

Personal Jurisdiction: Jurisdiction

What is the difference between specific and general jurisdiction?

Relatedness

General: Defendant had continuous and systematic ties with the forum

Specific: Defendant's specific contact with the forum.

Subject Matter Jurisdiction: Removal

How long after an action is removed to federal court must the removing party (if seeking a jury trial) file a jury demand?

Within 14 days of filing for removal

Non-removing party has 14 days to file, but countdown begins after service of notice of removal

Exception: When a party who, prior to removal, exercised his right to a jury trial, no need exists to make the same demand for removal.

Subject Matter Jurisdiction: Remand

If a party is motioning to remand the case on the basis of any defect other than lack of subject matter jurisdiction, how long to they have?

within 30 days after filing the notice of removal.

Subject Matter Jurisdiction: Remand

What is the remand procedure?

A certified copy of the remand order must be mailed by the district court clerk to the clerk or the state court. 

The state court may thereafter proceed with the case.

Personal Jurisdiction:

What are the three types?

1. In personam
2. In Rem
3. Quasi-in-Rem

Personal Jurisdiction:

what is the Effect of State Jurisdictional Statutes on Personal Jurisdiction in Federal Courts?

Under Rule 4(k)(1)(A), the service of summons in federal action establishes personal jurisdiction over a defendant "who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located."

Federal Court must generally determine personal jurisdiction as if it were a court of the State in which it is situated.

A federal court will look to state jurisdictional statutes (long-arm) to determine if it has PJx over the parties.

Personal Jurisdiction: Alternative Sources of PJx

How can a federal court (that is not generally vested with nationwide personal jurisdiction) obtain nationwide personal jurisdiction?

When authorized by federal statute:

Interpleader Actions

Personal Jurisdiction: Alternative Sources of PJx

What is the Bulge Provision under Rule 4(k)(1)(B)?

States that federal court has PJx over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued. (regardless of whether state law would not permit this service)

ONLY APPLIES TO:

Third party defendants joined under Rule 14 &

A required party joined under Rule 19

Personal Jurisdiction: Alternative Sources of PJx

What three conditions must be present for a federal court to have personal jurisdiction over a defendant under Rule 4(k)(2)?

1. Plaintiff's claims are based on federal law

2. No state court can exercise personal jurisdiction over the defendant

3. The exercise of jurisdiction must be consistent with the U.S. Constitution and laws.

Personal Jurisdiction: Due Process

What are the Due Process requirements for PJx?

A Could may not exercise Pjx over a D, unless the D has had minimum contacts with the state where the (forum state), and the exercise of jurisdiction is fair and reasonable.

A court must notify a party of the action and provide opportunity to be heard.

Personal Jurisdiction: Waiver

What are the basis for in personam jx?

Voluntary Presence 

Domicile

Consent

Long-arm statutes

Personal Jurisdiction: Basis for In Personam Jurisdiction

Explain voluntary presence and the two exceptions

Voluntary Presence: voluntarily in the state and is served with process while there.

Two exceptions: if P fraudulently brings a D into the state for the purpose of service

D is also immune if he is merely passing through the state to attend other judiciary proceedings.

Personal Jurisdiction: Basis for In Personam Jurisdiction

Explain long-arm statutes

In the states where the long-arm state only confers jx over certain activities (e.g., owning property, committing a tort, or entering into a contract to supply goods or services in the state), the Federal court must first determine whether the statutory requirements have been met, before determining whether the exercise of personal jurisdiction comports with the Due Process Clause.

Authorize PJx over nonresidents who engage in some activity in the state of cause some action to occur within the state.  

Federal court needs to determine whether the exercise of Pjx comports with Due Process.

Personal Jurisdiction: Basis for In Personam Jurisdiction: Long-arm statutes

How are long-arm statutes applied to states where the long-arm state only confers jx over certain activities (e.g., owning property, committing a tort, or entering into a contract to supply goods or services in the state)?

The Federal court must first determine whether the statutory requirements have been met, before determining whether the exercise of personal jurisdiction comports with the Due Process Clause.

Venue: 

What is the venue issue?

For cases in federal court, the issue is determining the proper geographic district (e.g., Central District of California) in which a trial should occur. 

Venue:

What are local and transitory actions?

Common law distinction to determine venue. Many states still use

Local actions: involve title to property and are required to be brought in a court where the property is located.

Transitory actions: involve a cause of action based on events that could have taken place anywhere

However, in federal court, venue is determined without these

Venue:

what is the general venue rule?

Where (in a federal civil action) is venue proper?

i. judicial district in which any D resides, if all Ds reside in the same state in which the district is located; or

ii. A judicial district in which a "substantial part of the events fo omissions" on which the claim is based occurred, or where a "substantial party of the property" that is the subject of the action is located.

Venue:

what is the fall back alternative if there is otherwise no judicial district where the action can be brought?

Judicial district in which any D is subject to personal jurisdiction with respect to such action.

Personal Jurisdiction: Basis for In Personam Jurisdiction: Attachment

What is attachment?

Under attachment (a type of quasi-in-rem jurisdiction), where a P asserting a personal claim against a D could use attachment of property owned by the D located in the forum state as a device to obtain jurisdiction, and satisfaction of the claim at least to the extent of value of the property attached.

However, there also has to be minimum contacts between D and the forum to establish jx. Mere ownership is usually not enough

Personal Jurisdiction: Basis for In Personam Jurisdiction: Due Process Requirements

What is the standard set forth in Internaiotnal Shoe Co. State of Washington?

Personal Jurisdiction: Basis for In Personam Jurisdiction: Due Process Requirements

What are the minimum contact requirements

Purposeful Availment: D should reasonably anticipate being taken to court 

Foreseeability: 

Personal Jurisdiction: Basis for In Personam Jurisdiction: Due Process Requirements

Once minimum contacts are established, courts must still examine facts to determine if maintenance of the action would "offend traditional notions of fair play and substantial justice, what are those factors?

1. Interest of forum in adjudicating the matter
2. Burden on the D to appear in the case
3. Efficient resolution of cases for judicial system
4. Shared interests of the states in promoting social policies

Personal Jurisdiction: Basis for In Personam Jurisdiction: Due Process Requirements

Absent exceptional circumstances, where can a P sue a corporation?

(3 places)

i. forum with specific jx because suit stems from d's contracts with forum

ii. D's place of incorporation

iii. D's principal place of business

Personal Jurisdiction: Jurisdiction over things

What is in rem jx?

Personal Jurisdiction: Jurisdiction over things: Due Process requirements:

When are due process notice requirements met? 

Due process is met if the notice is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present objections.

Personal Jurisdiction: Jurisdiction over things: 

What is Quasi-in-rem Jx?

In Rem judgment determines the interests of all persons in particular property.

Quasi-in-rem determines only the interests of the parties to the action regarding property located in the forum state.

Personal Jurisdiction: Notice: Due Process requirements:

If the identity and address of an interested party are known or obtainable through reasonable efforts, then what type of notice is required?

In-person delivery

registered mail

return receipt required 

or some other means likely to notify the particular individual

Personal Jurisdiction: Notice: Due Process requirements:

If the identity and address of an interested party are not known or obtainable through reasonable efforts, then what type of notice is required?

Personal Jurisdiction: Defenses to Jurisdictional Claims

If a court overrules a D's objection to PJx, do most states permit the D to defend the case on the merits and still preserve the objection to PJx as an issue for appeal.

Yes

Venue: Special Venue Provisions

Case against a federal official

Venue is proper in any judicial district in which:

i. A Defendant in action resides

ii. A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or

iii. The plaintiff resides, if no real property is involved in the action.

Venue: Special Venue Provisions

Case brought under the Federal Tort Claims Act

Proper in either the judicial district with the P resides or in the judicial district where act or omission occurred.

Venue: Change of venue when original venue is proper:

In a diversity case, if the court transfers the case, what law must the new district court apply?

The law that would have been applied in the district court that transferred the case

Venue: Change of venue when original venue is proper:

In a diversity case, if the court transfers the case, what law must the new district court apply?

The law that would have applied in the district court that transferred the case.

What is forum non-conveniens?

Allows a court to dismiss an action, even if personal jurisdiction and venue are otherwise proper.

If court finds that the forum would be too inconvenient for parties and witness and that another, more convenient, venue is available. 

D bears a burden to displace the P's chosen forum

What are the factors to be determined at common-law to apply forum non-conveniens?

i. the availability of alternative forum

ii. the law that will apply, and

iii. the location of parties, witnesses, and evidence

Choice of Law: The Erie Doctrine

What law controls in a federal question claim?

Federal Substantive & Procedural 

Choice of Law: The Erie Doctrine

What law controls in a federal diversity claim?

Substantive law: State law where DC is located 

Procedural: Hanna v. Plumer 

- if a procedural issue is addressed by a valid federal law, apply federal

- if no federal law applies, then the district court must follow state law with regard to substance, but can choose to ignore state procedure under certain circumstances.

Choice of Law: The Erie Doctrine

Use state substantive law and federal procedural laws.

Choice of Law: The Erie Doctrine

Substantive.

Choice of Law: The Erie Doctrine

Federal Common Law.

When federal interests warrant the application of federal common law, courts will use source materials since there is not general federal common law.

Federal question claim or procedural issue in diversity.

Choice of Law: The Erie Doctrine: Federal Common Law

When can federal common law apply to state courts?

When a state court runs afoul of Erie.

Choice of Law: The Erie Doctrine: Determining Applicable State law

In determining a state's substantive law, the U.S. district court will be bound by what court?

The State's highest Court

Choice of Law: The Erie Doctrine: Determining Applicable State law

In determining a state's substantive law, if the state's highest court has not yet ruled, what does the federal court do?

Try to determine how the state's highest court would rule on the issue, if it did consider it. 

Looking to lower court's views, unless it believes the highest court would not follow. 

Choice of Law: The Erie Doctrine: Determining Applicable State law

What happens if the state's highest court rules after the completion of a federal suit?

The federal appeals court is bound by the state court's ruling.

Choice of Law: The Erie Doctrine: Determining Applicable State law: Conflict of Laws: state v. state

What issues are considered procedural and controlled by the law of the forum state?

Klaxon

i. Proper court to bring an action;

ii. form of the action to be brought;

iii. the sufficiency of the pleadings;

iv. the effect of splitting the cause of action;

v. the proper or necessary parties to an action;

vi. whether a counterclaim may be brought;

vii. venue;

viii. the rules of discovery;

ix. right to a jury;

x. service of process;

xi. burden of proof; 

xii. trial procedure; and

xiii. the method of enforcing a judgement

Choice of Law: The Erie Doctrine: Determining Applicable State law: When Venue is transferred 

If the venue of an action is transferred, then what law must the court to which the action is transferred apply?

The law of the state of the transferor court, including state rules regarding conflicts of law

Pleadings: Commencement of Proceedings:

How does a civil complaint start?

Filing a complaint with the court clerk

Pleadings: Commencement of Proceedings: 

In a diversity action, which law applies to decide when the action is commenced for the purposes of statute of limitations?

State Law

So if state law says an action states by service of process on D, rather than filing that is the rule.

Pleadings: Commencement of Proceedings:

Under Rule 6(c), when must a written motion and notice of a hearing be served by?

When must an opposing affidavit be served before the hearing?

At least 14 days prior to the hearing, unless

(i) the motion can be heard ex parte,

(ii) the Rules provide for it, or

(iii) the court orders otherwise

At least 7 days before, unless otherwise ordered.

Pleadings: Commencement of Proceedings:

Under Rule 6(d), how many days are added to the prescribed period when the rule otherwise provide a time period for responding to a service or filing and the service or filing is made electronically or otherwise nontraditionally under Rule 5(b)?

3 days added

Pleadings: Service of Process:

Under Rule 4 (c), who must serve the summons and complaint upon the defendant?

The plaintiff is responsible.

Service may be made by any nonparty who is at least 18

Pleadings: Service of Process:

When must the plaintiff serve the summons and complaint?

Within 90days after filing the complaint.

Pleadings: Service of Process:

How can service of process be made on individuals?

within USA

i. Personally serving the summons and complaint on the D

ii. leaving the summons and complaint at the D's usual abode with a person of suitable age and discretion who resides there; or

iii. Delivering the summon and complaint to an agent appointed by the D or otherwise authorized by law to receive service.

*Service made following a state law for serving a summons brought in courts of general jx in the state where the court is located or service is made is ok too

Pleadings: Service of Process:

How can service of process be made on individuals?

outside USA

Pleadings: Service of Process:

How can service of process be made on corporations and associations within the US?

Delivering summons and complaint to:

officer

managing agent

general agent

agent appointment or authorized by law to receive process (if law says so, P must also mail a copy of the summons and complaint to the D)

Pleadings: Service of Process:

How can service of process be made on corporations and associations outside the US?

using any methods available for service on an individual outside the US except personal delivery 

Pleadings: Service of Process:

How can service of process be made on US government agencies and officers?

Service on US government

i. Delivery copy of the summons and complaint to the US attorney (or designee) for the district where the action si brought, or send a copy by registered or certified mail to the civil-process clerk at the US attorney's office;

ii. send a copy by registered or certified mail to the US attorney general; and

iii. service on a US agency, officer, or employee sued in an official capacity.

Pleadings: Service of Process:

How can service of process be made on US government agencies and officers?

Service on US agency

Pleadings: Service of Process:

How can service of process be made on US government agencies and officers?

Service on US agency

Pleadings: Service of Process:

How can service of process be made on US government agencies and officers?

Service on US officer or employee sued individually

Normal rules for serving an individual

Pleadings: Service of Process:

What is the effect of a Defendant timely returning a waiver of service before being served with process?

What is the normal time period in which an answer must be served after service of process?

Defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside of the US.

21 days

*waiver of service does not waive personal jurisdiction or venue

Pleadings: Service of Process:

What happens if a defendant located within the US fails, without good cause, to sign and return a waiver requested by a plaintiff located in the US?

The Court MUST impose on the defendant the expenses that are incurred in making service and the reasonable expenses, including attorney;'s fees, of any motion required to collect such service expense.

Pleadings: Injunctions:

What are injunctions? 

What are the two types?

Equitable relief that mandates a defendant from performing a specified act

These are considered an extraordinary remedy

Mandatory and Prohibitory -- determining factor is the type of conduct that is affected by the injunction.

Pleadings: Injunctions:

What is a mandatory injunction and what does it require?

Specific relief

Requires a person to engage in an affirmative act that typically changes the status quo.

Moving party burden is heavy

Pleadings: Injunctions:

What is a prohibitory injunction and what does it require?

Preventative relief

restrains or prohibits a party from engaging in a specified behavior.

Pleadings: Injunctions:

What are injunction types?

Temporary Restraining order

Preliminary Injunction

Permanent Injunction: determination on the merits, once issues, it continues until dissolved by the court.

Pleadings: Injunctions:

What should be stated in a TRO?

i. data and time issues

ii. irreparable harm suffered by the p

iii. the reasoning behind the ex parte issuance

Pleadings: Injunctions:

What needs to be established in a preliminary injunction?

i. likely to succeed on the merits;

ii. likely to suffer irreparable harm in absence of relief;

iii. the balance of equities is in his favor

iv. the injunction is in the best interest of the public

Pleadings: Complaint

What are the required elements in a complaint?

i. short plain statement of the grounds that establish the court's subject matter jx;

ii. a short plain statement of the claim establishing entitlement to relief; and

iii. A demand for judgment for the relief sought by the pleader

Pleadings: Complaint

What must a complaint in federal court contain?

An allegation of the subject matter jx of the court, unless the court already has jx and the claim needs no new jx support.

Pleadings: Complaint: Statement of the claim

What must a party alleging fraud or mistake state with particularity?

The circumstances constituting fraud or mistake: malice, intent, knowledge, and other conditions of a person's mind

Pleadings: Complaint

What are 

Pleadings: Complaint: Statement of the claim

What must a party seeking special damages state?

Pleadings: Motions Against the Complaint:

Under rule 12, howe many days does a defendant have to respond to a complaint?

Within 21 days of service of process, a D must respond to a complaint either by an answer or by a pre-answer motion, or she must seek additional time to answer. 

If a D does not take these steps she risk default.

Pleadings: Motions Against the Complaint:

Prior to filing an answer, what defenses may a D raise under 12(b)

i. lack of subject matter jx

ii. personal jx

iii. improper venue

iv. insufficient process

v. insufficient service of process

vi. failure to state a claim upon which relief can be granted; and 

vii. failure to join a necessary or indispensable party under rule 19

Pleadings: Motions Against the Complaint:

under Rule 12(h)(1), when do the defenses of lack of PJx, improper venue, insufficient process, and insufficient service of process have to be raised?

IN pre-answer motion or, if no pre-answer motion is made, in the answer, or the defenses will be waived.

Pleadings: Motions Against the Complaint:

Under Rule 12(h)(2), when do the defenses of failure to state a claim upon which relief can be granted and failure to join a necessary party or indispensable party under Rule 19 have to be raised?

May be raised in any pleading, in a motion for judgment on the pleadings, or at trial.

Pleadings: Motions Against the Complaint: Motions to dismiss for failure to state a claim upon which relief can be granted

What can be dismissed under a Rule 12(b)(6) motion?

How is it decided? 

A claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim

Courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the P's favor and view the pleading in the light most favorable to the P 

Pleadings: Motions Against the Complaint: Motions to dismiss for failure to state a claim upon which relief can be granted

In ruling on a motion to dismiss under Rule 12(b)(6) what may a court consider?

Only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice.

Anything outside the pleadings like...affidavits, presented to the court and is not excluded by the court in its review, then the motion must be treated as a motion for summary judgment under Rule 56, and all parties must be given an opportunity to present all material information for the court's consideration.

Pleadings: Motions Against the Complaint: Motions to dismiss for failure to state a claim upon which relief can be granted

What is SCOTUS 2 step analysis for adjudicating a motion to dismiss under Rule 12(b)(6)?

1. Court must identify and reject legal conclusions unsupported by factual allegations (including mere conclusory statements and assertions devoid of facts)

2. The court should assume the truth or veracity of the well-pleaded factual allegations and should include "content specific" analysis that "draws on the courts judicial experience and common sense" to determine whether the allegations "plausibly give rise to an entitlement of relief"

Pleadings: Motions Against the Complaint: Motions to dismiss for failure to state a claim upon which relief can be granted

If a claim is dismissed, can the P amend the pleading and continue the action?

Yes, if P does not want to, judgment is entered and P can appeal

Pleadings: Motions Against the Complaint: Motions to dismiss for failure to state a claim upon which relief can be granted

If a motion to dismiss under Rule 12(b)(6) is denied what can D do?

Pleadings: Motions Against the Complaint: Motion for judgment on the pleadings

What does a motion for judgment on the pleadings allow a court to do?

What must a motion under 12(c) be made?

A court can dispose of a case when the material facts are not in dispute and a judgment on the merits can be achieved based on the content of the pleadings.

after the answer is filed

Pleadings: Motions Against the Complaint: Motion for a more definite statement

When must this motion be made?

Pleadings: Motions Against the Complaint: Motion to strike

What is a 12(f) motion to strike?

If a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, then the court, upon motion or upon its own initiative, may order that such defense or material be stricken.

Must be made within 21 days of the service of the pleading.

Answer:

What is included?

What is specific and general denial?

Admission or denial of the allegations of P's complaint 

Specific: denial of a particular paragraph or allegation in the complaint or other claim for relief (counterclaim, cross-claim)

General: denial of every allegation in complaint, only can be done in good faith, with the intention to controvert all allegations.

Answer: Affirmative Defenses

What are the affirmative defenses under Rule 8(c)?

Accord and satisfaction

arbitration and award

assumption of the risk

contributory negligence

duress

estoppel

failure of consideration

fraud

illegality

injury by fellow servant

laches

license

payment

release

res judicata

statute of frauds

statute of limitation; and

waiver

Answer: Time for service of answer

When must a D answer if NO motion is made under Rule 12?

D must serve an answer within 21 days after being served with summons and complaint

IF D timely waived, 60 days in US 90 if out.

Answer: Time for service of answer

When must a D answer if motion is made under Rule 12?

D does not have to file an answer while motion is pending. 

If court denies or postpones disposition of motion until a  trial on the merits, the answer must be served within 14 days after notice of the court's action. 

If a court grants a more definite statement under Rule 12(e), then the answer must be served within 14 days after service of a more definite answer.

Reply

What is it?

When does it have to be made?

Repose by the P to the D's answer, also D's response to P's counterclaim answer, a third party answer, or a cross-claim answer

21 days after being served with an order to reply.

Amendments and Supplemental Pleadings:

How many times and when can a party amend a complaint as a matter of right?

Under Rule 15(a) a party may amend a pleading once as matter of right within 21 days if no responsive pleading is required, or,

if a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served a 12(b) motion, which is earlier.

Party can amend pleading during and after a trial if doing so will conform to the evidence and as long as the opposing party had an opportunity to prepare.

Due process is required for amending the pleading. 

Amendments and Supplemental Pleadings:

When should a court freely give leave to amend a pleading?

What is the effect of an amended pleading?

When justice so requires.

Supersedes the prior pleading.

Amendments and Supplemental Pleadings: Relation back doctrine: new claim

Under Rule 15(c)(1), what date does an amendment to a pleading relate back to?

The date of the original pleading when the amendment asserts a claim of defense that arose out of the conduct, transactions, or occurrence set out, or attempted to be set out, in the original pleading. 

Amendments and Supplemental Pleadings: Relation back doctrine: new party

Under Rule 15(c)(1)(C), if the amendment changes the party or the naming of the party against whom a claim is asserted, then it will relate back to the original pleading if:

i. asserts claim or defense arising out of conduct, transaction, or occurrence set out, or attempted to be set out in the original pleading.
ii. within 90 days after the filing of the original complaint, the party to be brought in by amendment receives notice

iii. the party to be brought in knew or should have known that the action would have been brought against him, but for a mistake concerning the proper parties ID

What is Rule 11?

Establishes the standards that attorneys and individual parties must meet when filing pleadings, motions or other papers.

1. signatures

2. certification to the court

3. Sanctions against attorneys

Rule 11: Sanctions

What are the types of sanctions?

i. nonmonetary directives;

ii. an order to pay a penalty into court; or 

iii. imposed on motion and warranted for effective deterrence, an order directing payment to the movant for part or the entirety of reasonable attorney's fees and other expenses directly resulting from the violation.

Multiple Parties & Claims: Joinder of Parties: Plaintiffs

Under Rule 20(a)(1), when can persons join in one action as plaintiffs?

i. assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions and occurrences

ii. Any questions of law or fact common to all plaintiffs will arise in the action

Multiple Parties & Claims: Joinder of Parties: Defendants

Under Rule 20(a)(2), when can persons join in one action as defendants?

i. Any right to relief asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions and occurrences

ii. Any questions of law or fact common to all defendants will arise in the action

Multiple Parties & Claims: Joinder of Parties: SUpplemental Jx: Joinder of D

Under 28 U.S.C. 1367(b) does supplemental jx apply to defendants sought to be joinder under the permissive joinder rule in a diversity case, when exercising would destroy diversity?

NO

Multiple Parties & Claims: Joinder of Parties: SUpplemental Jx: Joinder of P

If multiple Ps join together under Rule 20 can supplemental jx exist for a claim that does not meet diversity requirements for statutory amount?

Yes, as along as parties are completely diverse

Multiple Parties & Claims: Joinder of Parties: Compulsory Joinder: necessary parties

Under Rule 19(a) who must be joined as a party?

i. Complete relief cannot be provided to existing parties in the absence of that person; or

ii. Disposition in the absence of that party may impair the person's liability to protect his interest; or

iii. The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.

Multiple Parties & Claims: Intervention

What is intervention under Rule 24?

The circumstances where a nonparty may join in a lawsuit.

Sometimes a nonparty may intervene as a matter of right, or must have permission of the court

Either way motion to intervene has to be timely.

Multiple Parties & Claims: Intervention

When does a party have a right to intervention?

An action when a federal statute confers the right, and the nonparty timely moves to intervene.

i. nonparty has a property interest or interest in transactions that is the subject matter of the action;

ii. disposition of the action may, as a practical matter, impair the nonparty's interest; and

iii. the nonparty's interest is no adequately represented by existing parties,.

Multiple Parties & Claims: Intervention

When is intervention permissive?

i. the movant has a conditional right to intervene under a federal statute; or

ii. the movant's claim or defense and the original action share a common question of law or fact

Court should consider whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Multiple Parties & Claims: Intervention

What factors are considered for the timeliness of a nonparty intervention?

Is there supplemental jx?

i. length of time the movant knew or should have known that interest were threatened

ii. the prejudice to existing parties if intervention is permitted and

iii. the prejudice to the movant if intervention is denied.

No, supplemental

Multiple Parties & Claims: Interpleader

What is interpleader?

Instituted by P to determine who has a valid claim to the stake.

Under Fed Rule: interpleader must follow regular federal question or diversity rules.

Under statutory rules: interpleader has special, simpler standards – diversity between one claimant and $500 in issue, service nationwide and venue properly where any claimant resides.

Multiple Parties & Claims: Interpleader

What is the federal interpleader rule?

Persons with claims that may expose a P to double or multiple liability may be joined as Ds and required to interplead. 

Primary standard: whether the party bringing the action legitimately fears multiple claims against the property.

Does not create subject matter jx.

Under Fed Rule: interpleader must follow regular federal question or diversity rules.

Multiple Parties & Claims: Interpleader

What is the statutory interpleader rule?

What is the bulge provision?

Federal Court has PJx over a party who is served within a US judicial district not more than 100 miles from where the summons is issued, even if state law would not otherwise permit such service.

Applies to third party Ds even if the service is outside of the state and beyond its long-arm statute jx.

In general, where is venue proper in a federal civil action?

i. judicial district in which any D resides, if all D reside in the same state in which the district is located, or

ii. a judicial district in which a "substantial part of the events or omissions" on which the claim is based occurred, or

ii where "substantial party of the property" that is subject to the action is located.

Class actions:

What are the basic requirements?

Numerosity

Commonality

Typicality

and Representative is Adequate

Class Actions:

What are the three situations when a class can be certified?

Prejudice -- class treatment necessary to avoid harm to class member or party opposing class;

Injunction/Declaratory judgment -- class members are treated like any other party (mass tort)

Common legal/factual questions -- 

i. common questions predominate

ii. class action is superior

Class Actions: Class Actions under the Class Action Fairness Act 2005

How to satisfy subject matter jurisdiction?

i. any class member is diverse from any D

ii. more than 100 class members

iii. exceeds $5M

Class Actions: Notification

How to notify in class action?

Pretrial Procedure and Discovery: 

What are the mandatory disclosures?

i. initial disclosures

ii. disclosures of expert testimony 90days before trial, and 

iii. pretrial disclosures 30 days before trial.

Must be made, even without request.

Pretrial Procedure and Discovery: mandatory disclosures

What are initial disclosures, when do they have to be made?

Must disclose information regarding individuals having discoverable information, documents supporting claims/defenses, computation and backup damages, or relevant insurance agreement for satisfying judgment. 

Timing: within 14 days after the parties discovery conference

Pretrial Procedure and Discovery: mandatory disclosures

When does expert testimony have to be disclosed?

At least 90 days before trial or 30 days after disclosure of opposing party's expert evidence on same subject matter

Pretrial Procedure and Discovery: mandatory disclosures

What are pretrial disclosures, when must they be made, when can they be objected to?

Witness list by testimony or deposition, and documents and exhibits

Timing: at least 30 days before trial

Objections: within 14 days after disclosures are made or else waived unless excused by the court for good cause

Pretrial Procedure and Discovery: Discovery Scope and Limits

Does information need to be admissible in evidence to be discoverable?

NO, but privileged information is not discoverable.

Pretrial Procedure and Discovery: Discovery Scope and Limits

Are expert witness report drafts, disclosures, communications between expert and attorney (unrelated to compensation), and facts/data used or assumptions relied upon the expert in forming his opinion protected?

Yes

Pretrial Procedure and Discovery: 

When must parties confer to consider nature and basis of their claims/defenses and possibility of settlement, automatic disclosures, preserving discoverable info, and developing a discovery plan?

At least 21 days before scheduling conference

Pretrial Procedure and Discovery: Devices

What are the discovery devices?

Oral Depositions

Interrogatories

request to produce documents

physical mental exams

Requests for admission

Pretrial Procedure and Discovery: Discovery Devices

When can oral depositions take place?

Pretrial Procedure and Discovery: Discovery Devices

Interrogatories

25 written per party relating to non-privileged matters 

Pretrial Procedure and Discovery: Discovery Devices

When should requests to produce documents happen?

Pretrial Procedure and Discovery: Enforcement

How can discovery rules be enforced?

3 ways

i. motions to compel

ii. sanctions

Pretrial Procedure and Discovery: Discovery Devices

What standard of review, are sanctions given>?

Pretrial Procedure and Discovery: Adjudication without trial: Dismissal

Describe voluntary and involuntary

Voluntary: can be filed without prejudice (unless same claim dismissed by P in prior action) any time before opposing party serves answer, motion for summary judgment, or dismissal

Involuntary: When P fails to prosecute or comply with the Rules or court order, D can move to dismiss, which if granted is with prejudice and operates as an adjudication on the merits.

Pretrial Procedure and Discovery: Adjudication without trial: Dismissal

What is default judgment?

When can oral depositions take place?

When a party fails to defend an action, P may seek default judgment which can be set aside for good cause by the court, depending upon

whether movant's failure to act was willful,

setting aside default would prejudice non-moving party, and

the movant presented a meritorious claim.

Pretrial Procedure and Discovery: Adjudication without trial: Dismissal

What is summary judgment?

Standard: moving party must show that there is no genuine dispute of material fact

Opposing Party: show triable issues exists

Evidence looked at in light most favorable to the nonmoving party.

Maybe filed anytime until 30 days after close of all discovery.

Pretrial Procedure and Discovery: Adjudication without trial: Dismissal

What is a declaratory judgment?

Trial Procedure:

When is there a right to a jury trial?

7th Amendment: right to jury trial in civil cases as to legal relief

Court decides equitable relief.

Federal: determines whether there is a right to jury trial and whether an issue is legal or equitable

State Law: feds apply state law when taking into account a motion for a new trial based on excessiveness of the verdict.

Trial Procedure: Jury Trial

When must a party make a demand for a jury?

Must be served within 14 days after service of the last pleading directed to the issue that is to be tried by the jury.

Must be in writing

May be filed separately from pleading.

A party can withdraw a jury trial demand with the consent of other parties.

Trial Procedure: Jury Trial

What is the size of the jury?

At least 6, no more than 12

Once selected, a juror must participate in the verdict unless dismissed for good cause

No provisions for alternate jurors.

Trial Procedure: Jury Trial

What are the rules for jury instructions?

i.  party may request the court to give specific instructions at the close of evidence (or earlier if court ordered)

ii. prior to final arguments, the court must inform the parties of any instructions if proposes to give to the jury; the parties may object to the court's proposed instructions on the record and out of the jury's hearing

iii. Have to object to preserve for appeal.

Trial Procedure: Jury Trial

Unless parties stipulate otherwise, how must jury verdicts be?

Trial Procedure: Jury Trial

What are the jury verdict forms?

Special: written finding by jury on each issue of ultimate fact, judge determines the legal consequences of those findings

General: decision by the jury to the prevailing party, and if the P is the prevailing party, the amount of damages

General with special Interrogatories: combines general and special, used to ensure that the jury independently considered the material facts of the case in arriving at its verdict.

Trial Procedure: Jury Trial

When does juror misconduct lead to a new trial?

Party must demonstrate that not only did the jurors fail to answer honestly a material question on voir dire but also show that a proper response would have provided a valid basis for a challenge for cause

Juror violates confidentiality of deliberations

improperly influenced by non-jurors

takes it upon himself to investigate facts outside of those presented at trial

Trial Procedure: Jury Trial

What is Judgment as a matter of law (directed verdict)?

Court view evidence in light most favorable to the opposing party and draw all reasonable inferences from evidence in favor of opposing party.

Must be made any time before the case is submitted to the jury.

Trial Procedure: 

Renewed motion for judgment as a matter of law (JNOV)

Trial Procedure: 

Motion for a new trial

The court may grant a new trial, with respect to some or all issues, to prevent a miscarriage of justice.

Grounds: prejudicial error making judgment unfair; new evidence that couldn't have been obtained with due diligence; prejudicial misconduct; judgment is against the weight of the evidence; excessive/inadequate damages that shocks the conscience

remittitur: jury award too large, P chooses lesser figure or new trial

Post-Trial Procedure: Alteration of relief from judgment

How long after can the court relieve a party of final judgment?

Post-Trial Procedure: Appeals

When is the notice of appeal in a civil case required to be filed with the district clerk?

30 days after the judgment or ordered appealed from is entered.

Post-Trial Procedure: Appeals

What is the final judgment rule?

Decision by court on the merits, leaves nothing to do by execute the judgment. 

No Federal question Jx: Denial of a new trial: grant or deny renewed motion for judgment as a matter of law

Federal Question Jx: default judgment that does not dispose of all claims among all parties

No Federal Questions unless directed by Court.

Post-Trial Procedure: Appeals

Interlocutory Review

As of right: orders regarding injunctions, receivers, property possession, admiralty, patent infringement, granting or denying class certification

Discretionary: but court may review interlocutory orders only if:

i. order involves controlling questions of law

ii. substantial ground for different opinion;

iii. immediate appeal may advance ultimate termination of case; 

iv. Court of appeals allows appeal

Post-Trial Procedure: Appeals

Collateral Order Doctrine

Post-Trial Procedure: Appeals

Under mandamus review, when can a court of appeals review an order that is an abuse of judicial authority?

Immediately.

Orders beyond the trial court's jurisdiction or an order that violates a mandatory duty of the trial court, by such review does not extend to all orders that constitute an error of law

Compel lower Court to do something law requires

Claim Preclusion: Res Judicata:

What is it?

Provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action

Courts must have nothing further to do but order the entry of judgment, and decision must be made on merits of claim/defense (rather than technical grounds)

Claimant won Case #1 -- res judicata merges cases

Claimant lost Case #1 -- res judicata bars the case

Requires:

i. same parties

ii. ended in valid final judgment on the merits

iii. assert the cause of action/claim

Issue Preclusion (collateral estoppel)

What are the requirements?

i. against someone who was a party in Case 1;

ii. Case 1 ended invalid, final judgment on the merits;

iii. Issue actually litigated and determined;

iv. issue essential to the judgment

Who asserts--

Traditionally: mutuality is required 

Modern: non-mutuality

Defensive: D can assert if P was party to prior case, but only if P had full change to litigate

Non-mutuality Offensive: P can assert against D if not "unfair" full and fair opportunity to litigate; party could foresee multiple suits; P couldn't' have been joined easily; no inconsistent judgments on record.

Difference between claim and issue preclusion?

Issue preclusion does not require STRICT MUTUALITY of parties, but only that the party against whom the issue is to be precluded must have been a party in the original action. 

Allowing "offensive" use of collateral estoppel.

What are issue preclusion requirements?

same issue

actually litigated

final, valid judgment

essential to the judgment 

Personal Jurisdiction

How is personal jurisdiction obtained traditionally?

(3 ways)

D is domiciled in forum

personally served while present in forum

express or implied consent to jx

Personal Jurisdiction

Long-arm statute

A court in one state asserting personal jurisdiction over an out-of-state party

Personal Jurisdiction

What are the two long arm jurisdiction types?

specific = D's specific contact with the forum

general = D had continuous and systematic ties with the forum

Personal Jurisdiction

What is the constitutional analysis for personal jurisdiction?

My Parents Frequently Forgot to Read Children's Stories

Explain Relatedness

Minimum Contacts: Purposeful availment + Foreseeability

Fairness: Relatedness + Convenience + State's Interest

Relatedness: Specific = D's specific contact with the forum

General = D had continuous and systematic ties with the forum

Subject Matter Jx

When can a D NOT remove a case to federal court?

Once D files a permissive counterclaim in state court.

Subject Matter Jurisdiction

When can a P not remove a case?

Venue

Where do you sue? 

1 D v. 1 P

Where the D resides or where the incident happened

Venue

Where do you sue? 

P v. D(IL) & D(IN)

Can only due in a district where D resides, if all Ds reside in the same state.

Sue in the place where the substantial part of claim arose.

Venue

Where do you sue? 

P v. D(IL) & D(IL)

Sue in district where one of the D's resides, OR in the place where a substantial part of the transaction happened.

What is an Erie question?

Erie:

If you're in federal court, and there is a question whether to apply state or federal law.

Is this thing that I see, a constitutional provision, statutory provision, or is it a Federal rule of civil procedure?

If it is, the court applies the law.

Supremacy clause says to apply it.

Erie:

If you're in federal court, and there is a question whether to apply state or federal law.

Is this law a federal practice policy, precedent, habit, or anything that courts do on a regular basis that is not enshrined in a text of a statute, FRCP, or the constitution.

I will stick with this practice unless sticking with it causes forum shopping.

Question whether or not forum shopping will happen.

What does the P need to include in their claim in a civil case?

Enough facts to show that the claim is plausible

- legal conclusions are not enough

What is an affirmative defense?

Impleader

In considering a motion for judgment as a matter of law, may the court consider the credibility of witnesses or evaluate the weight of the evidence?

NO, credibility or witnesses and wright given to evidence must be made by a jury.

If a court with diversity jurisdiction over an action issues a judgment, must a state court give such judgment the same claim-preclusion effect that the courts in the state where the federal court is located would have given the judgment?

Joinder of Ds

Pretrial Procedure and Discovery: Mandatory Disclosures: Expert Testimony

What must be disclosed?

Must identify expert witnesses and produce expert report subject to certain requirements.

At least 90 days before trial or 30 days after disclosure of opposing party's expert evidence on same subject matter.