Subject Matter Jurisdiction - CODES

28 USC 1331: Federal Question 28 USC 1332: Diversity 28 USC 1367: Supplemental Jursidiction

Personal Jurisdiction - discussion

Citizenship determined at the time of filing

Forum Non Conveniens

There must be an alternative forum, if not issue is Forum non Conveniens dismissal Private Factors:
Plaintiffs choice of forum Convenience of parties and witnesses 3rd party defendants to enjoin

Public factors
Choice of law rules
Substantive laws and forum rule shave to be considered separately

Van Dusen v. Barrack Choice-of-law rules of the State from which the case was transferred have to be applied Klaxon v. Stentor Electric Manufacturing Federal courts use the choice of law rules of the state in which it sits Public policy exception
If new forum would be really unfair
Same-sex marriage recognition variance across states is an area of conflict under the public policy exception

Reyno Scotland case Substantial v. Procedural

Courts follow their own procedural rules but uses substantial rules/laws from the jurisdiction where claims arose
Choice-of-law rules determines which laws apply in a jurisdiction

Pleading - Cases
Dioguardi v. Durning ease of processing claims Conley v. Gibson the claim is one in which relief could be granted and the pleading was sufficiently plain
A claim on which relief could be granted is in good faith unless there is no set of facts in support of his claim which would entitle him to relief Has been misinterpreted to have to do with fair notice, but it has nothing to do with that

Doe v. Smith judge draws inferences of the elements from the well pleaded facts
Factors
Assume that well-pleaded facts are true Draw reasonable inferences All elements are pleaded or inferred

Twombly exclude conclusory allegations Iqbal twombly standard applies

Pleading - Rules
Rule 7
(a) Pleadings Allowed
Answer to copmlaint
Defenses (listed in Rule 9) Counterclaim, crossclaim

Answer to counterclaim Answer to cross claim Third party complaint Reply to an answer if court orders on

(b) Motions
No specific list of motions, a request for a large variety of court order

Rule 9(b) heightened pleading standard applies for fraud and mistake

Pleading - Discussion
Twombly standard for a well-pleaded complaint
Subtract out conclusory allegations Treat well-pleaded facts as true Plausible inference Every element is a well-pleaded fact or a plausible inference

Pleading Policy
Twombly and Iqbal innovation was to categorize conclusory versus non-conclusory allegations
Sachs believes this is a problematic categorization difficult to distinguish

Policy implications of Twombly and Iqbal

Twombly was a 7-2 decision, indicating that it was a response to the idea that discovery was becoming too cumbersome Pro-defendant in theory, but studies by Federal Judicial Center of the AOUSC dont show many more dismissals postTwombly

Responding to a Complaint- Cases

Virgin Records America V. Lacey Matos v. Nextran a complaint doesnt have to be a literary gem- standard is whether so vague and ambiguous that we cant figure out what's going on; motion to strike must show prejudicial material Hunter v. Serv-Tech 12(b)(2-5) motions cannot be reserved in the first motion; they most be assertively claimed. Without an assertive claim 12(h)(1)(A) applies with failure to join under Rule 12(g)(2) and the defendant waives defense 12(b)(2-5) Reis Robotics USA Inc., v. Concept Industries a denial of a copmlaints allegations is not an affirmative defense

Responding to the Complaint - Rules

Rule 12 Motions
(a)(1)(A) must respond to the complaint within 21 days of being served (a)(4) Motions Effect on Time
Motion denied- response pleading within 14 days after notice of courts action Motion granted: 14 days after new statement Only rule 12 motions are government by 12(a)(4)

(b) Motions to Dismiss

(1) SMJ, (2) PJ, (3) Venue, (4) Insufficient Process, (5) insufficient service of process, (6) failure to state a claim, (7) failure to join Can make any number of objections, they do not need to be consistent (1) can be made at any time (including appeal), (2-5) MUST be made at the time the defendant files a motion or his answer (whichever is first), (6-7) can be made at any time prior to trial or at the trial

(c) Judgment on the pleadings (e) More definitive statement

Standard is whether a complaint is so vague and ambiguous that we cant figure out what's going on

(f) Strike
Motion to strike is extreme and disfavored - have to show that material is prejudicial

Responding to the Complaint - Rules

Rule 55 Default
Plaintiff asks for entry for default by sworn affidavit (a) clerk enters default
Clerk has no discretion, must enter default if failure to plead or otherwise defend is shown by affidavit or other means Admitting factual allegations

(b) Default Judgment

For sum certain or sum that can be made certain by computation (1) requires affidavit and entry of default judgment by clerk for judgment and costs (2) party must apply for default judgment when sum is not certain

(c) Entry of default must be set aside for good cause If defendant puts in an appearance, the defendant is guaranteed at least 7 days before the default hearing
Appearance- filing a piece of paper in court acknowledging lawsuit and naming lawyer; filing a motion or answer usually meets appearance requirement

Rule 8
8(b)(1)(B) requires defendant to admit or deny 8(b)(5) allows statement of lack of knowledge with the effect of denial 8(b)(6) any allegations that are not answered is taken to be true
If not answer pleading, then all allegations are taken to be true Still need to determine appropriate damages or injunctive relief by hearing

Responding to the Complaint - Rules

Rule 12
(g)(2) omnibus motion rule must raise all available defense and objections in first motion, with exceptions; done for efficiency (h)(1) some defense are waivable
PJ, venue, process, service of process defense in 12(b)(2-5) are waivable Waivable by omitting from the first motion, not including in pleading, and not including it in any motion 12(b)(6-7) are not waivable due to the 12(g)(2) excpetions for 12(b)(6-7) can be reasied in pleading, 12(c) motion, or at trial 12(b)(6) failure to state a claim cant be waived because if it is wavied, a court could try a caise wher ethere is not claim 12(b)(7) failure to join a party cant be waived because the third aprty needs to be protected 12(b) motions can assert defenses 1-7
A responsive pleading can assert defense 1, 6, and 7; Can also assert 2-5 unless any were omitted in a previous motion 12(c) motions can assert defense 1, 6, 7; They can also assert 2-5 for a second time if previously raised At trial, defendant can assert defense 1, 6, 7; They can also assert 2-5 for a second time if previously raised

A new complaint resets the rule 12 requirements and omissions (h)(2) failure to state a claim or join a person required by 19(b) or state a legal defense to claim (h)(3) - SMJ

Responding to the Complaint - Forms

Form 30 - Answers
Assert Unwaived Defenses Admit or Deny Allegations Raise Affirmative Defenses
8(d)(3) A party may state as many separate claims or defenses as it has, regardless of consistently

Assert Counterclaims or Crossclaims

Amending Claims - Cases

Beeck v. Aquaslide n dive corp defendant may amend answer to deny a fact previously admitted Moore v. Baker requirements for relation back not met since it did not arise out of the same transaction/occurrence

Amending Claims - Rules

Rule 15
(a)(1) - dont have to get opposing partys consent/courts permission if you amend your complaint within 21 days of service of either the pleading OR motion to dismiss/strike/more definite statement (a)(2)
by written consent of the parties By leave of the court (court grants leave when justice so requires)

(b) Amendments During Trial

Parties can amend pleadings if opposing party introduces evidence during trial that wasnt raised by pleadings
Need to object to new claim brought out during trial; otherwise its treated as implied consent Court grants leave to amend during trial if: It aids in presenting merits of case AND There's no prejudice to the party on the merits

(c) Relation Back

When amending complaints, date of original complaint holds IF amendment relates back
Important cases where statute of limitation has passed since filing original complaint Relation back is allowed when: Statute allow relation back Amendment arose out of the same transaction/occurrence OR Amendment changes parties against who claims asserted if: Arose out of the same transaction/occurrence AND Proper notice/summons is served to the new party

Joinder - Cases
Hohlbein v. Heritage Mutual fear of prejudice outweighed by practical benefits (efficiency) of joining parties claims Erkins v. Case Power court grants motion to file 3rd party complaints against contractors Torrington v. Yost court needs to consider whether its feasible to continue or discontinue
Four factors: (codified in 19(b))
Prejudice (to absent or present parties) If prejudice can be lessened by fashioning judgment to protect interest Adequacy of judgment for plaintiff in absence of required party Adequacy of alternative remedy for plaintiff if action dismissed

Republic of Phillippines v. Pimentel Rule 19 requires dismissal of interpleader action; sovereign immunity is a non-frivolous assertion;

Joinder - Rules
Rule 18 Joinder of Claims
Liberal approach to joining claims- party can assert ANY claim it has against opposing party, even if theyre unrelated; applies to any party who asserts claim, counterclaim, crossclaim, or 3d party claim; why? Promotes efficiency

Rule 17 Capacity
Capacity specifies who can sue; (a)(1)(A-G): party can sue on behalf of another if theyre administrator, guardian, executor, etc. (c) governs who can sue on behalf of minors/incompetents Public officers suing/being sued in their official capacity must be designated by title, not the name

Rule 20 Joinder of Parties

More restrictive approach than 13 For parties to join, their claims/defense must:
Arise out of the same transaction/occurrence AND Raise a common question of fact

(a)(1) plaintiffs (a)(2) defendants mirror requirements for each other

Joinder - Rules
Rule 13 Counterclaims/Cross claims
Counterclaims are asserted when party sues a party who has already asserted claim against him 2 types
(a)(1) Compulsory Counterclaim
Must assert counterclaim if: Claim arrises from the same transaction/occurrence as the original claim, and Doesnt rquire adding party the court has no jurisdiction over, and Claim existed at the time the original claim was served If you dont ring the claim you can be rule-precluded from brining the claim later Doesnt have to meet jurisdiction amount Party may assert any counterclaims it has against opposing party; party could wait to assert it in a future, separate action Must meet jurisdictional amount Can bring action against a co-party (aka people on the same side of the v) if: Claim arises out of the same transaction/occurrence of original action/coutnerlcaim, or Claim relates back to property at issue in original action/counterclaim party must already by part of the suit

(b) Permissive

(g) Crossclaims

(h) you need to look to rule 19 or 20 to join before asserting a 13(g) counterclaim

Rule 14 Impleading 3rd Parties

If P1 sues D1, and D1 wants to assert that a different party is responsible, D1 cn implead that party that party becomes a 3rd party defendant, they are liable to 3rd party plaintiff (D1) Mechanics of impleading: file complaint, serve the new party with complaint and summons

Joinder - Rules
Rule 19 Joinder of Required Parties
Party is required for resolution of action if:
(a)(1)(A) Court cant afford complete relief without that party present (a)(1)(B)(i) partys absence may impair/impede their interests (a)(1)(B)(ii) party absence leaves him subject to multiple/inconsistent obligations

If joinder of party is required, court then considers whether its feasible (b) governs whether courts should continue if its infeasible to join required party

Rule 24 Intervention
Intervention when non-parties want to get involved in suit (a) Intevention of Right
Court must permit part to interven if:
Right to intervene is provided by statute, OR Party has interest in subject matter of suit, which would be imparied and which existing parties wouldnt be able to adequately protect Motion must be timely Court considers: Stage of the trial Purpose of intervention When intervening party knew about claim vs. when they filed motion Prejudice to original party

(b) Permissive Intervention

Court may permit intervention to party if:
Motion is timely, AND Statute gives conditional rigght or intervening party has claim/defense that raises common question AND Dont need same transaction/occurrence like you would in 20(a) claims Intervention wont cause undue delay or prejudice to existing parties

Joinder Rules
28 USC 1335 Statutory Interpleader
Joinder for interpleader allowed if:
Amount in controversy is equal to $500 or more AND Minimal diversity is met (at least two claimants are from different states) AND The stakeholder deposits contested property for interpleader claims

28 USC 2361 Provides nationwide personal jurisdiction for interpleader claims 28 USC 2361 governs venue for interpleader
Any district where one or more of the claimants reside

Rule 22 Rule Interpleader

If you cant use statutory interpleader (i.e. all claimants from the same states) look to 22 Joinder for interpleader in federal courts allowed if general jursidctional requirements are met

Joinder - Discussion
Interpleader statute and rule
Plaintiff holding property on behalf of someone and facing conflicting claims over its ownership can compel parties with interest in property to litigate disput
Plaintiff is a stakeholder who doesnt have interest in property Judgment of ownership issued will bind everyone in the suit

Why statutory interpleader?

Statute confers much broader jurisdiction than rule interpleader Without statute, difficult to join parties
May not be a common question or same occurrence (rule 20)and May not be able to show parties is required under rule 19

Personal jurisdiction/venue/SMJ complete diversity may not be met

Supplemental Jurisdiction - Cases

United Mine Workers v. Gibbs for federal court to have supplemental jurisdiction over state law cause of action, claims must arise from common nucleus of operative fact and the plaintiff must expect to try all claims at once
Missing factors!!

Owen v. Kroger no basis for federal jurisdiction for claim since the claim was independent of/didnt rely on claim within the original jursdiciton; need to pass common nucleus test and meet statutory requirements under 1332

Supplemental Jurisdiction Codes

28 USC 1367 Supplemental Jurisdiction
(a) codified Gibbs test; grants supplemental jurisdiction for additional claims that on their own wouldnt get into federal court if they meet the Gibbs test (b) exceptions to (a)
Cant use (a) when:
Original case got into federal court on diversity grounds and the claims brought by the plaintiff (including those joined under 14, 19, 20 , and 24) when doing so breaks diversity Does not apply to claims brought by defendants

(c) court has discretion to decide whether to hear claim with supplemental jurisdiciton

Supplemental Jurisdiction - Discussion

Dont need supplemental jurisdiction if the court has original jurisdiction

Class Actions - Cases

Hansberry v. Lee parties arent bound by earlier judgment because their interests werent adequately represented In re Teflon 23(a) must be a clear definition of class, court has to know who is bound by the judgment who should be awarded damages; representative party must be a member of the defined class (so they fight hard and represent class interest)
Fails to meet predominance test and superiority test

Synfuel v. Airborne in class actions, court must be more proactive and exercise more scrutiny in inquring into fairness, lawyer quality, adequacy of representation in order to protect absent parties who are not at the negotiating table

Class Actions - Rules

Rule 23
(a) prerequisites for class action pre-certification
Numerosity (its impractical to join all parties) Commonality (question of fact of law raised by claims) Typicality (of claim or defense asserted by parties) Adequacy (of procedures/counsel in order to fairly protect interest of parties) *class considered putative until it becomes certified under 23(c)

(b)Types of Class Actions

(1) Prejudice: class action version of 19(a)(1) required party joinder rule, class action is permitted if, without absent class members, there is
(A) Risk of incompatible/inconsistent verdicts

(2) Injunctive/declaratory relief : class action permitted if injunction would only be relevant/enforceable if it could be applied to class as a whole not just the party in suit; injunctive relief must by the primary relief sought (3) Damages/catchall class : class action is certified if two factors are met: predominance (whether common questions of law/fact predominate the issue) and higher standard than commonality factor (common question must by the most important issue) and superiority (whether the class action is superior method of adjudicating issue)

(c) Procedures for class actions

Must provide notice for (b)(1-2) but not for (b)(3) (b)(3) situation where plaintiff is most likely to want to sue on their own

(e) Plaintiff could opt out either before trial or at settlement stage
(2) court must determine settlement is fair, reasonable, and adequate (5) absent parties can object to settlement and become party to a suit

Class Actions - Discussion

Purpose/definition members of class who are similarly situation can sue as representative members to collectively bring claim against opposing party; usually plaintiff forms the class action, but rules allows for vice versa All members of the class are bound to the judgment unless
The suit is directly overturned Member has oped out under 23(b) rules to pursue individual action

Why class action?

Encourages settlement (due to the high-stakes natre) Encourages efficiency of court resources Alternative piecemeal litigation which could create inconsistent verdicts/obligations

Due process?
Courts can bend the rules on notice/due process/personal jurisdiction concerns

Discovery - Cases
McPeek v. Ashcroft tapes case, VERY large discovery Chadasama v. Mazda Motor Corp information was deemed to be unreasonable to be obtained Hickman v. Taylor when the proponent of discovery can obtain the desire information elsewhere, it has not met the burden of showing such special circumstances

Discovery - Rules
Rule 26
26(a) Required disclosures
Must include: name, address, telephone number of each individual likely to have discovery; copy of all documents the disclosing party may s to support its claims or defenses; computation of each category of damages claimed by the disclosing party; any insurance agreement Must make initial disclosure within 30 days after being served or joined; must make a reasonable effort Expert testimony most disclose info (name, opinions, facts/data used to form opinions, exhibits, qualifications cv, publications in the last 10 years, other cases they testified in over the last 4 years, statement of compensation) (2) limitations of frequency and extent (3) attorney work-product immunity (4) limitations on deposing experts not used at witnesses (5)(A) privileges must be claimed (5)(B) mistaken production of informationt hat was priveleged If the court denies a motion for a protective order, then the court may order any person or party to privde or permit discovery (must be done in accordance with 37(a)(1) Cannot seed discovery before 26(f) meeting Can use discovery in an sequence Must supplement discovery given to other party as soon as learn that it is incomplete Parties must confer at least 21 days prior to conference At conference
Consider claims and defenses, possibility of settling Make arrangements for discover under 26(a)(1) Develop a proposed discovery plan Must submit discovery plan to the court with 14 days after the conference Timetable for when initial disclosures will be made Subjects on which discovery may be needed Issues of discovery re: electronic info Form in which to produce discovery Any change necessary to be made to rule

26(b) Limitations

26(c)(2) orders to compel discovery

26 (d-e)

26(f) Discovery and Scheduling Conference

26 (g)
Every discovery request must be signed by an attorney (for the party themselves if they are unrepresented) who certifies that discovery is complete, accurate, and in accordance with the rules Court will strict discovery without a signature

Discovery Rules (Cont.)

Rule 33 Interrogatories to Parties
May serve up to 25 written questions (including all discrete subsections) May related to any matter under 26(b) Responding party
Must be answered within 30 days by party or representative of corporation or agency Each question must be answered separately and fully Objections must be stated with specificity Answers signed by party; objections signed by attorney

Rule 34 Request for Documents, E-Discovery, Entry Onto Land

Can request almost any type of document including: writings, drawings, graphs, charts, photos, sound recordngs, images, other data/data compilations if necessary translation Procedure
Request
Must describe with reasonable particularlity Must specifiy reasonable time, place, and manner May specify the form in which electronc documents be produced

Must produce documents as they are kept in the usual course of business or how they are ordinarily maintined An objection to part of a request must specify the part and permit insepction of the rest No silent objects

Discovery Rules (Cont.)

Rule 30 Depositions by Oral Examination
With or without leave Leave required when
The parties have not stipulated to the deposition AND The deposition would result in more than 10 depositions being taken The deponent has already been deposed in the case The time specified is before the time specified in 2(d) The deponent is in prison Must give reasonable notice to every other party stating time, place, deponents name and address Party must state method for recording deposition Deposition must be conducted before an officer appointed or designated under Rule 28 Notice or subpoena must state with reasonable particularity the matters for examination The responding org. will then designate an officer or managing agent to testify Proceed as would in trial An objection will be noted in the record, but the examination will proceed An objection must be stated in a nonargumentative manner A deposition is limited in duration to 1 day of 7 hours Sanctions are available to a misbehaving party Deponent must be allowed 30 days after being notified that the record is complete to review the transcript or record If there are changes to be made, can sign a statement listing the changes and the reason for making them Transcript or recording of final proceedings available to all witness after a reasonable fee???

Procedure

If deposition to an organization
Examination and cross examination

Review by the witness

Discovery Rules (cont)

Rule 31 Depositions by Written Question
With or without leave of the court Must obtain leave when
The parties have not stipulated to the deposition The deposition would result in more than 10 depositions being taken The deponent has already been deposed The party seeks to take a deposition before the time specified in 26(d)

Must serve notice of deposition on every other part, with notice stating deponents name and address May use a deposition against another party when
The party was present or represented at the deposition or had reasonable notice of it If admissible under the federal rules of evidence as if the deponent were present and testifying Depositions may be used to contradict witnesses Depositions may be used when
Witness is dead The witness is more than 100 miles away from the place of the hearing or outside the US Witness cannot attend or testify due to illness, infirmity or imprisonment Witness was unable to be reach by subpoena Exception circumstances in the interest of justice

Rule 32 Using Depositions in Court Proceedings

Impeachment

Unavailable witnesses

Objections
An objections may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving notice May also object to the officers qualifications, but must be done before the deposition begins or promptly after the disqualification becomes known Objection to an error of irregularity waived if not timely

Discovery Rules (cont)

Rule 36 Request for Admission
Party may request that the opposing party admit or deny the truth of statements 30 days after being served to respond Usually this request is made after other discovery (so there is time to formulate statement) However, party does not always respond with truth, usually deny Scope
Inquiry of other party
Facts The application of law to fact The opinions regarding the two above Genuineness of any described documents

A matter is admitted unless explicitly denied (must include grounds for objection May assert a lack of knowledge or information as a reason for failing to admit or deny (this ha the effect of a denial) The requesting party may more to determine the sufficiency of an answer or objection
If amended answer does not comply, then the allegation is admitted

Discovery Rules (cont)

Rule 35 Physical and Mental Examinations
Ordered by the court Must be medical condition that is in controversy Must be fore good cause, send notice to all parties Order must specify
Time, place, manner, conditions, scope, person performing the examination

Examiners report must be in writing and state findings, including diagnosis, conclusions, and test results Requesting party entitled to receive all prior and subsequent findings on the same condition by other examinations Form of subpoena requirements
Issuing court Title of the action, pending court, case number Command the person to appear or produce documents/tangible items at a specific time and place If commanding attendance at a deposition, must state the method for recording testimony

Rule 45 Subpoena

Issued by clerk of the court Service

May be served by any person who is at least 18 years old and is not a party May be served at any place
That is within the district of the issuing court Outside the district but within 100 miles of location specified Within the state of the issuing court if a state statute or court rule allows service to that place Wherever authorized by the court

Service in a foreign country to a US resident 28 US 1783

Objections - May file an objection within 14 days after the subpoena is served Must quash a subpoena when
Fails to allow a rasonable time to comply Requires a person who is neither a party nor a partys officer to travel more than 100 miles from where that pesrson resides or is employed (EXCEPTION rule 45(c )(3)(B)(iii)) Requires disclosure of privilged or other protected matter, if not exception or waiver applies Subjects an individual to an undue burden Disclosing a trade secret or other confiidential research development or commerical infomration Disclosing an retained experts opinion A person who is neither a party nor a partys officer to incur substantial expense to travel more than 100 miles ot attend trial

May quash subpoena when

The issuing court may hold in contempt the person who, having been served, fails without adequate excuse to obey the subpoena

Discoveries - Discussion
Attorney-Client Privlege
Absolute privilege- even communication between lawyers Client possess the privilege Doesnt protect communications in front of 3d parties Only the client can waive the privilege Rationale: we want to encourage clients to give their attorneys as much information as possible so that their attorneys can represented them effectively

Work Product Immunity

Covered under 26(b)(3) Documents/tangible things prepared in anticipation of litigation may be privileged as ordinary work product if they are not facts

Interogatories- Discussion
Procedure
The lawyer seeking discovery prepares and serves a party with up to 25 written questions The responding party must object or answer within 30 days Answers are made in writing under oath by the party who signs them (usually the attorney prepares them) Must be anwered with all information available to the party; must at least make an attempt to find the info No such thing as a silent objection

Advantages
Relatively inexpensive discovery tool (compared to depositions)

Disadvantages
Usually preared by attorney who drafts vague answers

Depositions - Discussion
Noticing a Deposition
Must specify method of recording of deposition Serve notice of the time and place of deposition, with copies to other parties to the action Location is within the district where the civil action is pending or a place agreed by the parties

Subpoena Duces Tecum

A document that orders the deponent to bring documents with him Attached in notice of deposition, or in an attachment
Must list materials requested

During the deposition

Oral deposition live examination of a witness under oath without a judge present
Differs in that questions are served on the deponent in advance and then read to him by a court reporter Answers are live and under oath; coaching of a deponent is not permitted

Objections may be made by opposing counsel, but examination still proceeds If deposition is later used at trial, the judge will have to rule on all objections before the testimony is admitted into evidence

If deponent is a corporation
Must designate knowledgeable about those matters to testify on its behalf

Use of Deposition
Discovery; used as a preview of what witness may say at trial Possible impeachment material Substitute for live testimony because witness is unavailable for trial Note that a deposition is hear-say (out of court statement offered in court for its truth)

Dismissal - Cases
In Re Bath and Kitchen Fixtures Antitrust Litigation point of no return when defendant files answer or motion for summary judgment; prior to that point, notice of voluntary dismissal is automatic and immediate (court doesnt mess with it)

Dismissal - Rules
Rule 41(a) Voluntary Dismissal
With or without court order (by plaintiff)
Without a court order notice to dismiss must be filed before: opposing party service either an answer or MSJ OR a stipulation of dismissal signed by all parties who have appeared With a court order at the plaintiffs request on terms that the court deems proper, plaintiff files a motion instead of notice, judge looks for plain legal prejudice
Factors include: whether the suit is still in pretrial state or further along, if the parties have attended many pretrial conferences, there are prior court rulings adverse to plaintiffs position, hearings have been held, , that parties have undertaken substantial discovery, court can force the plaintiff to pay some of the defendants costs in 0rder to get the case dropped, 2 dismissal rule does not apply

Without prejudice, unless court states otherwise

2 dismissal rule can only dismiss once before it serves as an adjudication on the merits; only applies when voluntary dismissal without court order

Rule 41(b) Involuntary Dismissal

Motion made by defendant Grounds for involuntary dismissal
12(b) motion to dismiss Plaintiff's failure to prosecute Party fails to comply with the rules

With prejudice
Exceptions
Lack of jurisdiction Improper venue Failure to join a party under rule 19

Dismissal - Discussion
Reasons for Seeking Voluntary Dismissal
To correct or redraft pleadings To facilitate consolidation with another action To defeat diversity jurisdiction by joining non-diverse parties and refiling in state court To preserve subject matter jurisdiction by dismissing the action as against non-diverse parties To avoid unfavorable state law by refiling in a state or federal court in a different jurisdiction To refile in a different jurisdiction with a longer statute of limitations To delay or avoid an anticipated adverse determination on the merits To delay or avoid discovery To change federal judges by refiling in a state court with the hope that a different judge will be assigned to the case on removal

Dismissal of Counterclaim, Crossclaim, or 3d Party Claim

Plaintiffs voluntary dismissal must be made
Before a responsive pleading is served If there is no responsive pleaded, before evidence is introduced at trial

Summary Judgment - Cases

Slaven v. City of Salem non-moving party must set forth specific facts showing that thee is a genuine issue for trial Duplantis v. Shell Offshore, Inc. example of absence of proof motion for summary judgment Celotex v. Catrett the burden on the moving party may be discharged by showing that there is an absence of evidence to support the nonmoving partys case

Summary Judgment - Rules

Rule 56
In the outline from chrissy (zachs) Has flow chart!!!

Summary Judgment Discussion

No genuine dispute as to any material fact Usually decided before trial and based on documentary evidence
Evidence is so one-sided that a reasonable fact-finder could dispute the existence or non-existence of certain facts

A party may file a MSJ at any time until 30 days after the close of all discovery A party moving for summary judgment must support this assertion by
Citing to material in the record (that are admissible under the rules of evidence, though affidavits are okay) Showing that these materials do not establish the presence of a genuine need only look at cited materials, but can consider other materials in the record

Standard of Proof
Clear and convincing evidence The summary judgment standard is not whether a reasonable jury would find for the nonmoving party, but that it COULD

Types
Proof-of-the elements summary judgment must present undisputed facts supporting each and every element of the claim or defense in order to obtain summary judgment; moving party has the burden of proof Disproof-of-an-element motion of summary judgment present undisputed facts proving the non existence of an essential element to the non-moving partys claim; does not have the burden of proof Absence of proof motion for summary judgment no evidence in the record by which the non-moving party could establish the existence of an essential element or claim; does not have the burden of proof

Summary Judgment - Checklist

Checklist (page 991)
What is the rule of substantive law applicable to the motion? (always the starting point) Which facts matter- are material-to apply the rule of law What is the proper record for summary judgment? That is, what evidence may the court consider in ruling on such a motion? Has the moving part met its burden of showing that there is no genuine dispute of material fact in that record and that it is entitled to judgment under the applicable rule of law? If the movant has met its burden, has the non-moving party met its burden of showing specific facts in the record that create a genuine dispute of material fact under the applicable rule of law? What is the proper disposition of the motion?

Judgment as a Matter of Law - Cases

Baltimore and Carolina Line v. Redman upheld 50(b) motion Pennsylvania RR Co. v. Chamberlain there was not a legally sufficient evidentiary basis to support a verdict for the plaintiff
Determining whether evidence is legally sufficient:
Ask whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but on conclusion as to the verdict that reasonable person could have reached The court does not make credibility determinations

Outcome would have been different under the scintilla standard

Judgment as a Matter of Law - Rules

Rule 50
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
Resolve the issue against the party Grant a motion for judgment as a matter of law
May be made at any time before the case is submitted to the jury (50(a))

(a)
Defendant cant argue that no reasonable jury could find the fact necessary for defendant to win and the judgment therefore should be entered in defendants favor as a matter of law Plaintiff is given the opportunity to amend, but generally plaintiff does not have any other evidence to prove claim Often called a directed verdict

Court does not weigh the evidence (not supposed to determine which sides case is more credible) If court does not grant a 50(a) motion
Can file again under Rule 50(b) renewed motion for JMOL Must be made no later than 28 days after the entry fo the judgment or after the jury was discharged In ruling on the renewed motion, the court may:
Allow judgment on the verdict Order a new trial Direct the entry of judgment as a matter o law

In reviewing the rule 50(b) motion, the court will also conditionally rule on grating or denying the motion for a new trial if the judgment is later vacated or reversed When judge grants motion, signifies that the party has offered so little evidence that the facts can be determined as a matter of law Judicial reluctance to grant 50(a) motions because of the possibility of appeal and appellate court my remand for a new trial Same standard of evaluation used for a 50(a) and 50(b) motions (sufficient evidence exists for a reasonable jury to render a verdict for the plaintiff

 Burden of Production refers to a partys burden to produce sufficient evidence to avoid an adverse ruling on a particular matter
Compare to burden of persuasion

Judgment as a Matter of Law Rules (Cont)

Scintilla Alternative
Has been rejected or minimized in most courts Under scintilla alternative the court only considers the non-moving partys evidence and will deny a JMOL if the non-moving party has offered a scintilla of evidence in support of its position

Judgment as a Matter of Law Discussion

Jury Trial Cases

Dairy Queen v. Wood can have a jury trial whether legal issue are incident to equitable issues or not; expansion of rights in Beacon Theatres v. Westover (in main outline) Markman v. Westview Instruments
Patents are an issue of law for the judge
too complex for the jury

Jury Trial - Rules

Rule 38 and 39 Jury Trial Rights
A jury trial protect under the seventh amendment or federal statute May demand a jury trial by:
Serving the other parities with a written demand (may be included in the pleading), no later than 14 days after the last pleading direct at the issue is served Filing the demand in accordance with 5(d) If demanding a jury trial on only some issues, must specify which issues; other party may assert jury trial rights on certain issues within 14 days of being served

Waiver a party waives a jury trial unless its demand is property served and filed. A proper demand may be withdrawn only if the parties consent
Parties may also waive jury trial rights through contracts If one party requests a jury trial and other party waives jury trial rights jury trial still happens

If accidentally waived jury trial right, can make a motion to the court to request a jury trial for any issue in which a jury trial might have been demanded Advisory jury if there is not right to a jury trial, but the judge wants advice from ta jury
Jurys verdict is nonbiding in an advisory jury

Rule 42 Consolidation or Separation of Trials

May consolidate if a common question of law or fact
Avoid unnecessary cost or delay

Claims can also be delineated into separate trials if necessary

Jury Trial - Discussion

7th Amendment
Only applies to federal courts Parties are not required to try their cases to juries even if they have a right to preserved Jury goes first when an issue raise both a law claim and an equity claim Look to the remedy
If the statute gives you money = legal If the statute gives you an injunction = equitable If both, mixed bag

Merger of Law and Equity

Statutory Jury Rights

Cut-backs on the Right to a Jury Trial

Administrative agencies (no jury rights) Size of the jury (from 12, now 6 is the minimum) Direct verdit (rule 50)/motion for summary judgment (Rule 56)
Judge can direclty implement the verdict

Desirability of Jury Trials

Juries may be unable to comprehend complex material Congress has upheld jury trial right, even in complex cases, make material more understandable to juries by educating them, narrowing issues, and restructuring trials Jury trials take longer (up to 2x longer than judge) and more expensive, must be all tried at once Removing party must file a demand for a jury trial within 14 days of notice of removal is filed Non-removing party must file for a jury trial within 14 of service of notice of remoal A party who, prior to removal, made an express demand for a trial by jury does not need to make the demand after removal to have a jury If state law does not required the demand to be made, in federal court the demand doesnt need to be made unless the court says so

When removing to federal court:

New Trial - Cases

Trivedi v. Cooper cannot appeal remittitur because it is not a final judgement

New Trial - Rule

Rule 59 New Trial
New trial may be granted when a verdict is clearly erroneous, manifest injustice, definite and firm conviction of error
Judgment is clearly wrong b/c it is not supported by the weight of the eidence Judge finds that an error occurred in the coduct of trial or the jury deliberation Losing party finds evidence after the trial (within 28 days) that would have materially affected the outcome

New Trial - Discussion

Procedure
A new trial is granted :
After a jury trial, for any reason which a new trial has heretofore been granted n an action at law in federal court After anonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court

Motion for new trial must be filed no later than 28 days after entry of the judgment Motion to alter or amend must be filed not later than 28 days after the entry of judgment

Combined motions for Judgment as a Matter of Law and New Trial

May move for both pursuant to Rule 50(b) If grant JMOL, court will conditionally rule on motion for new trial (Rule 50(c)) in case judgment is later vacated or reverse

Relief from Judgment

Rule 60 Relief from Judgment or Order
Used sparingly Grounds for relief from final judgment or order (60(b))
Mistake, inadvertence, surprise or excusable neglect (includes default judgment) Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under rule 59(b)
Must be asserted within 28 days after the judgment

Fraud, misrepresentation, misconduct by an opposing party Judgment is void The judgment has been satisfied, released, or discharged; based on earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable Any other reason that justified relief

Timing reasons 1-3 must be asserted within 1 year ;everything else must be made within a reasonable time Rule 61 Harmless Error
Prejudicial testimony Improperly granted Rule 50 motion and take case away from jury when dont have to Improperly argument to jury Witness misconduct Evidentiary errors Instructional erros

Remedies - Cases
Fuentes v. Shevin due process requires a hearing before property is taken from an individual, cannot do it ex parte University of Texas v. Camenisch - ?? Zenith v. Hazeltine Research need to serve notice

Remedies Rules
Rule 69 execution for money judgments use state law procedure Rule 64 seizing a person or property
Garnishment having a 3d party who owed the Defendant money to pay the creditor Arrest Attachment- property is secured for a judgment Replevin return your own property (defendant has to post 2x the value of the property to seize it) Sequestration property is removed pending outcome Any other remedies available under state law (a) Preliminary Injunction, Notice, Hearing
Must establish: likelihood of success on the merits, irreparable harm, balance of equities, public interest Only In place for 14 (can be extended for an extra 14 but that is it, total 28) Must submit an affidavit that is sworn Need to show immediate and irreparable injury (2) persons bound: parties, officers, agents, servants, employees, and attorneys (plus other persons who are in active concert) If youre bound by an injunction and you violate it you can be held in contempt Only applies to people who are in concert and are given actual notice of the injunction

Rule 65 Injunctions
(b) temporary restraining order (can happen without notice)

(d) contents and scope of injunction

Rule 57 Declaratory Judgments are Ok

Preserves Jury Rights (a) automatic stay execution of judgment cant happen until 14 days after judgment (d) stay with bond on appeal not pay money if you post a bond guaranteeing tha tyou are good for the money later, have to think that there is some chance you will win

Rule 62 Stay of Proceedings

Remedies - Code
28 USC 2201 Declaratory Judgment Act
There must be an actual controversy, declare whether or not future relief is or could be sought mirror image where the parties switch sides in a suit (Rule 57), makes sure if it happens, jury rights are preserved

Appeals - Cases
MacArthur v. UT Health Center - Need to have preserved below and presented above In Re Recticel Foam Corp you cannot get a review of a discovery order until the trial court has the final judgment
Because: it avoids confusion, costs money and delays trials, does not want a piecemeal review Collateral order doctrine- things that can be appealed separately

Appeals Rules/Code
FRAP: Federal Rules of Appellate Procedure
Rule 3: notice of appeal has to be filed with the district court clerk; need to have: who is appealing, what is being appealed, and where you are appealing to Rule 4: 30 dates after judgment;
(a)(5) district court can give limited extension If you miss the deadline for not good reason, you waive your right to appeal 30 days is subject matter jurisdictional limit

FRCP
Rule 54: must resolve everything and have a final judgment for appeal to go through (Final Judgment Rule) Rule 59: new trial motion based on weight of the evidence Rule 50(b): Judgment on a Matter of Law
These motions toll the time limit for the appeal (time for appeal is in effect after these motions are disposed by the court)

Rule 42:

28 USC
1291: appellate courts only have subject matter jurisdiction over final decisions; can appeal everything at the end 1292: interlocutory Decisions
Includes injunctions (a)(1) court of appeals has jurisdiction over all injunctions (b) district court can certify something for apeal

Appeals - Discussion
Writ of Mandamus telling the court to do its job
No other adequate means of relief AND clear and indisputable right to relief

Timeline
Notice of appeal Initial filings (Local Rule
Send up the record Statement of issues Corporate discolsures Opening Response Reply Joint appendix (selection of stuff that is relevant from the trial record)

Briefs

Oral Arguments 3 judge panel Opinion judgment

Affirm, reversing, vacating, dismiss

Rehearing different 3 judge panel (or en Banc)

3 Ps of Appeals
Prejudicial cant be Rule 61 (harmless error) Preserved below (objected to below) Presented above (presented in the appeal

Plain Error Rule (exception to preservation)

Was there an error? Was that error plain? (clear or obvious)? Substantial rights are at stake

Appeal Standard of Review

De Novo questions of law Bench Trial findings of fact by the judge clearly erroneous
Need a clear error because the appeals court is reading the trial record (cold record) and so they cant see everything that happened in the court

Jury Trial
Abuse of discretion
If judge were not to know what the rule actually was = de novo If the just makes an error of law = abuse of discretion

Jury Verdicts
Reasonably jury no legally sufficient evidentiary basis

Claim and Issue Preclusion

There must be two or more lawsuits
Look to the most recent lawsuit to determine if a claim or issue has already been decided

Both are considered affirmative defenses under FRCP 8(c ) Quality of previous judgment
Default judgments are always given res judicata on the ultimate claim decided

Claim Preclusion Cases and Rules

Claim Preclusion = Res Judicata Cases
River Park Inc. v. City of Highland Park Taylor v. Sturgell virtual representation will not preclude non-parties from claims; there must be a relevant legal relationship between party and nonparty to preclude non-party from future claims

Rules
Mirror of Rule 13(a)(1)(A) compulsory counter claim

Claim Preclusion Discussion

In order for a claim to be precluded you need:
A final judgment
Represents the completion of all steps in the adjudication of a claim short of execution Unaffected by appeal- if a courts subsequent action is pending, the court could stay proceedings or dismiss Need valid personal jurisdiction and subject matter jurisdiction Can have a collateral attack ONLY if it was not consented on the merits Pre-trial dismissals unrelated to the merits = no claim preclusion Pre-trial dismissals related to the merits = claim preclusion
Plaintiff may be able to avoid claim preclusion if they change the pleadings including new facts/legal theories or by amending the pleadings Majority rule: claim preclusion Minority rule: no claim preclusion

The judgment must be valid

The judgment must be on the merits

Involuntary pre-trial dismissal

The parties in the subsequent actions must be identical to the parties in the first action
Can have claim preclusion ONLY if you have original parties or those who were in privity to the original parties Privity must be close, essentially need an agency relationship in order to demonstrate control over the lawsuit
Applies to claims that were actually litigated or could/should have been litigated in the first action Scope of Relief Test- if relief in the subsequent action would be inconsistent with the relief awarded in the prior action then a court may give preclusive effect to the first judgment; VERY narrow Primary Rights Test: a second court will apply preclusion to prevent mutliple successive lawsuits on the same grounds for the same wrong/injury Same Evidence test- if the same evidence is used for the subsequent lawsuit, preclusion applies (rarely used) Transaction test requires application of preclusion doctrine to any injury arising out of the same acts; have to present all claims in one lawsuit

The claim in the subsequent action must include matters properly considered in the first action

Parties have to aligned in the second suit as they were in the first

Claim Preclusion - Test

Determining if a claim was properly considered in the first case
Transaction Test (more restrictive, modern doctrine) claim is precluded in lawsuit 2 if it arose from the same nucleus of operative facts as the claim in lawsuit 1; claim preclusion for any injury arising out of the same acts; have to present all claims in one law suit Evidence Test (less restrictive, historic doctrine) claim is precluded in lawsuit 2 if it require the same evidence to prove as an issue in lawsuit 1; rarely used Others (not discussed by Sachs)
Scope of Relief Test- if relief in the subsequent action would be inconsistent with the relief awarded in the prior action then a court may give preclusive effect to the first judgment; VERY narrow Primary Rights Test: a second court will apply preclusion to prevent multiple successive lawsuits on the same grounds for the same wrong/injury

Claim Preclusion - Policy

Designed to Promote Efficiency
Generally interpreted expansively
On the merits, valid, and final, etc.

Void judgments if something turns up well after a suit that would otherwise void the judgment, it may be held valid for claim preclusive purposes
As long as the issue was fairly litigated, and There was no manifest abuse of authority

Issue Preclusion - Cases

Felger v. Nichols same issue cannot be litigated twice even if the claims are different Cambria v. Jeffery non-prejudicial findings arent appealable Panniel v. Diaz has to do with privity Parklane Hosiery Co. Inc., v. Shore -

Issue Preclusion - Discussion

In order for a court to collaterally estop the parties from retrying the same issue, it must be:
An identical issue Actually litigated, and Necessarily determined and essential the judgment
Whether the fact on which issue precusion is asserted was necessary and imprtant in the first litigation rather than merely evidence

Mutual Issue Preclusion

Generaly: asserted by a party who is involved in the prior suit, can have offensive and defensive Identical issues Actually litigated and decided
Full opportunity to litigate, adequate incentive to fully litigate, not constrained to trial (may be arbitrated),

Valid, final judgment on the merits Issue was essential to the judgment Same Party/privity Exceptions
No appeal available in lawsuit 1 Question of law very different or a change in the law Change in procedures between courts of the two suits Burden of persuasion is relevantly different Would hurt third parties, couldnt foresee new action, or didnt have full opportunity or incentive to litigate

Issue Preclusion Discussion (Cont.)

Non-Mutual Issue Preclusion
Not asserted by a party who was involved in the prior lawsuit Same party who lost must be in both suits Offensive
Left largely to the discretion of the judge to determine if its fair (predictability of future lawsuits, incentive/opportunity to litigate first case fully); allowed in federal courts but not in most state courts; cant be used if there was a prior inconsistent judgment

Defensive
If a plaintiff loses against one defendant, then brings a suit based on the same issue against another defendant, the second defendant may use the results of the first suit as a defense Encourages plaintiffs to join as many defendants as possible in one lawsuit, rather than bringing repeated claims

Offensive
Asserted by the plaintiff against the defendant Non-mutual offensive issue preclusion factors to consider:
Foreseeability of subseuqent lawsuit Sideline sitters- could the parties have just joined? Aberrational first judgment Different procedural opportutnies

Issue Preclusion - Policy

Mutual
Not intended to correct errors made in the first trial, thats what appeals are for

Non-Mutual
Adversarial v. inquisitorial view of the legal system
Adversarial resolve controversies Inquisitorial answers questions

Erie Doctrine Cases

Tyson v. Swift state law binding on federal courts, BUT fed cts can interpret it as they please Black and White Taxi Cab v. Brown and Yellow Taxi Cab company reincorporate in a different state so it could use the law it liked Erie v. Tompkins overruled Tyson; said there is such a thing as federal common law; Lays out Twin Aims: 1) Prevent forum shopping and, 2) encourage equal application of the law; Federal courts should predict how the state supreme court would rule on the case Klaxon Co v. Stentor Electric federal courts must follow state of law rules in which they sit (reflective of Erie policy of fed courts ruling like state courts US v. Standard Oil Co of CA there may be federal common law in some areas, but there isnt a general federal common law Guaranty Trust Co of NY v. York abolishes substantive/procedural test for determining whether state law should apply; Creates new test: uses strong retrospective analysis, strong preference for uniformity between systems Hanna Creates its own test (see separate slide) Shady Grove: there is a lot of disagreement; Rule 23 is valid; plurality in determining a rules validity, the court looks only at a federal rule and not at the state law to be displaced by it
Plurality- if its arguably procedural, its procedural and thus not substantive Stevens consider states intent to determine if it substantive, have a high bar for finding an REA problem Dissent evaluate states intent, but not with a high bar

Erie Doctrine- Significant Cases

Erie R.R. v. Tompkins Federal courts must apply both state statutory and decisional law Guaranty Trust Outcome determination test to see if a state law is substantive or procedural when it is in conflict with a federal law Byrd v. Blueridge Electric Byrd balancing test to see when federal law in conflict with state law pre-empts state law Hanna v. Plummer Rules Enabling Act branch, states that federal procedural law pre-empts state procedural law. Federal procedural law deemed facially constitutionally valid.

Erie Doctrine Codes/Rules

28 USC 1447: Substantive law for joinder on (or?) removal

Erie Doctrine Discussion

Substantive Law: need a conflict of state and federal law to conduct Erie analysis; if there is a state law on point, state law controls; Rules and Decision Procedural Law: federal procedural law preempts state procedural law; Rules Enabling Act

Erie Doctrine - Tests

Outcome Determination Test
is the issue one which is tightly or loosely bound up with the creation of rights being sued on? Would application of a different rule in federal court determine the outcome of the litigation differently (and more favorably) than the application of state rule? Would the application of the federal rule be outcome determinative because it would induce forum shopping in favor of the federal courts and result in unequal administration of the law

Balancing Test (from Byrd)

What is the federal interest in avoiding state law or the federal policy to be fostered in applying state law? Would the use of a federal stand have an adverse impact of federalism? Would the application of the federal rule intrude on the states ability to regulate a legitimate area of state interest?

Hanna Test
If there is a federal rule or statue on point, and its valid, USE IT
Validity: hinges on 2072(b) (FRCP cant abridge, expand or modify substantive rice) (Shady Grove)

If no federal law applies, look to policy

Twin Aims of Erie Strong Protection of Jury Right (Bryd)