CIV PRO II 1. JOINDER RULE 13 13(a) Compulsory Counterclaim: Claim by D against P that arises out of the same transaction or occurence (STO) as P's claim. Must be brought or is waived. TEST FOR STO: 1) Same common nucleus of operative facts (SCNOOF) 2) Common Q of law or fact 3) RJ would subsequently bar later suit 4) Same Evidence 5) Logical relation test (judged by the above) 13(b) Permissive CC: May be unrelated but must have independent SMJ. No supplemental for (b) 13(f) Ommitted CC: If pleader forgets to bring cc then he can amend to include it by leave of the ct 13(g) Cross-Claim: Suit by co-party if arises out of the STO as original claim. Test: Is there logical relationship between main claim that would save the ct. time?
RULE 14 Impleader: By person being sued (P or D). Discretionary unless 3P claim is filed w/in 10 days after the answer is filed, or else leave of ct is required. Ct will look at the following in determing if they will allow impleader: 1) Inconvenience, delay or prejudice 2) economics of a single trial Supplemental must exist over 3P claim
28 USC 1331: Federal Questions
28 USC 1332: Diversity 1. Parties must be from different states no P from the same state as a D 2. Amt in controversy +75,000
28 USC 1367: SUPPLEMENTAL: STEPS FOR SUPP. Q 1) Can claim get in on its own, if not, make sure.. a) there's an anchor (original) claim b) Does claim we are trying to get supp on arise from the same case or controversy as original c) Will judge allow it (discretionary factors) Rule 42 says judge can sever if he elects to do so. a) Cts will have supplemental if the claim is from the same case or controversy EXCEPT as provided in 1367 b & c. b) In a DIVERSITY case, the judge can't give supplemental if the named parties are from the same state (No supp. if main claim is diversity claim + it's a P trying to get supp + P is suing a person made a party under rule 14, 19, 20 or 24 = no supp) c) Even if Supplemental is ok by a) & b), it is judges discretion, he will look at: 1) does the claim raise a novel or complex issue of state law 2) Does the claim substantially predominate over claim which district ct has original SMJ 3) Did dist. ct dismiss all claims over which they have original SMJ 4) Exception circumstances or other compelling reason to decline
RULE 18: Permissive Joinder of claims: allows unlimited joinder OF CLAIMS by P under 1 cause of action & don't need to be related, but P should join all related claims so they're not later barred. D can cross-claim and counter-claim. RULE 19: 3-STEP ANALYSIS: *If P doesn't join an indisp. party, D can file a 12(b)(7) 1) Is the person neccessary (if not go on w/out them) 2) Nesscessary = they should be joined if feasible (talk about which joinder rule) 3) If not feasible, should ct dismiss? 1) Necessary: A person is neccessary if a) In the person's absence, complete relief can't be accorded among those already parties OR b) The person claims an interest relating to the subject of the the action and is so situated that the disposition of the action in the person's absence may:
* as a practical matter impair or impede the person's ability to protect that interest OR * leave any of the persons already parties subject to a substantial risk of incurring double or multiple inconsistent obligations b/c of claimed interest 2) If feasible: If necessary, the party must be joined unless no PJ, SMJ, or it would destroy diversity. If he can be joined = join. If he can't be joined = ct must in equity and good conscience, determine if suit can continue or if it must be dismissed b/c necessary party is indispensable 3) Indispensable: In deciding if ct should dismiss, it will look at: (TOC) a) Prejudice to all b) Ability to shape relief to lessen prejudice c) adequate remedy for P if case is dismisssed (alt. forum)? d) Ability to render an adequate judgment in the person's absence RULE 20 Permissive joinder of parties: All persons may join as Ps or be joined as Ds if... 1) They have rights or liabilities arising out of the STO AND 2) If any Q of fact or law common to all of them will arise in action
RULE 22/28 USC 1335 Interpleader: Where you have competing claims for 1 item; allowed b/c it may open a person up to multiple/inconsistent judgements w/out it Statutory Interpleder 1335 2 claimants from different states (5 Ds = 2 Ds have to be from diff. states Nationwide Residence of one or more claimants $500+ YES Enjoins other claims Rule Interpleader 22 Stakeholder can't be from same citizenship as any claimant (must get into fed ct independently) Normal Civ Pro Rules: need PJ and Rule 4 to serve reg. venue rule Normal Civ Pro amt = $75,000 NO/ Optional Can enjoin other claims
DIVERSITY
SERVICE VENUE AMOUNT DEPOSIT
Rule 21: Misjoinder of parties: 1. Misjoinder of parties is not grounds for dismissal. Parties can be dropped or added by motion of parties by court order RULE 24 24(a) Intervention (as of right): A person can intervene as of rt if: Upon timely application (not set time): 1) statute gives unconditional rt (rare) OR if no statute, you need... a. A timely motion by applicant that has b. Significantly protected interest in SM of suit c. Interest will be impaired or impeded as a practical matter d. No adequate representation by another 24(b) Permissive Intervention: if upon timely application... 1) statute gives conditional rt to intervene OR 2) Common Q exists between the applicant's claim or defense and the main action (judicial discretion)
2. CLASS ACTIONS RULE 23 23(a) 5 Prerequisites to a Class Action (ICANT) (I) Indentifiable class (C) Commonality: There are common Q of law or fact (CQLF) concerning the claim of each class member (A) Adequacy of Representation: representatives will adequately represent and protect the interest of the absent class members (N) Numerosity: Class is large enough to make joinder impracticable unsually at least 30-40 = discuss rule 20 to show it won't work (T) Typicality: Claims or defenses of the rep. of the class are typical of each class member. 23(b) 3Types of Class Action (1&2 don't have to get notice but may 23(c)) 23(b)(1): Adverse effects on class members or opposing party (limited funds – small store) (A) When prosecution of separate actions might result in inconsistent judgements OR (B) When separate actions might result in judgment that would be depositive of the interests of the non-party class members
23(b)(2): Actions for injuntive or declaratory relief (suing over grade) -permits class action for declaratory or injunctive relief where "the party opposing the class has acted or refused to act on grounds generally applicable to the class (civil rts) 23(b)(3): Common Q's predominate over individual Q's (Mass Tort) - To qualify under (b)(3) class must meet both req's: (need notice) 1) Common Q's must predominate over any Q's affecting indiv. members 2) Class resolution must be superior to other available methods for fair, efficient adjudication of the controversy (look at...) a) interest of members of class in individually controlling the prosecution or defense of separate actions b) extent and nature of any litigation concerning the controversy already commenced by or against class members c) desirability of concentrating the litigation of claims in the particular forum d) difficulties likely to be encountered in the management of a class action 23(c)(2) Notice: says that 23(b)(3) class gets best notice practicable under the circumstances; if you have name & address you must notify. Notice must advise class members: 1) rt to opt out 2) binding effect of judgment if they don't opt out (RJ analysis maybe) 3) rt to appear by counsel if the member remains in suit 23(d) Order in Conduct of Actions: Grants ct broad power to issue "appropriate orders" required to guide litigation 23(e) Settlement/Voluntary Dismissal or Compromise (S, VD, or C) Ct approval: Req's ct approval of S, VD, or C Hearing: Mandatory when judgement is binding on class members; req's finding that S, VD, or C is "fair, reasonable and adequate." Statement of agreement: Req's all agreements between parties to be filed w/ ct Notice: Mandatory for all who will be bound by S, VD, C Rule 23(b)(3) classes: ct may refuse approval unless new opportunity to opt-out is provided Objections: May be filed by any class member for any S, VD, C which req's ct approval. Objections can only be withdrawn w/ ct approval.
23(f) Appeals: 1) Appeals ct may in its discretion permit appeal granting or denying class certification 2) Application for appeal must be filed w/in 10 days of entry of District court's order, granting or denying class cert. 3) Appeal will not stay dist ct proceedings unless ordered by D.C. or A.C. 23(g) & (f): Class Counsel & Fees 23(g): set standards for appointment of class counsel and procedure for appoint of counsel 23(h): authorizes fees and costs in "certified" class action. Allows for objections to be filed and hearing on request for fees and costs 3. DISCOVERY RULE 26: 26(a): Req'd Disclosures: (3 categories) (work product/privileged info exempt) 1) Initial Disclosure: given to the other party at discovery conference or w/in 14 days thereafter unless otherwise agreed. If party is served or joined after discovery conf then w/in 30 days of being served or joined. The following are req'd: a) Name, address, etc of person w/ discoverable relevant info b) Computation of damages claimed c) Copy/description of all documents d) Copy of ins agreement 2) Disclosure of Expert Testimony: 90 days before trial, list of expert witnesses must be disclosed, including: a) All opinions to be expressed b) Data that expert used in forming his opinion c) Exhibits to be used by the witness d) Qualifications of the expert: publications. comp, other cases 3) Pre-trial Disclosure of non-expert witnesses and exhibits to be made w/in 30 days before trial. Party must disclose: a) All witnesses expected to testify b) All witness who will testify via deposition c) A list of documents or exhibits to be used at trial
26(b) Scope and Limitation 1) Standard: Limited to material relevant to claim or defense. "Good cause" showing for add'l discovery "relevant to the SM involved in the action." Relevancy not premised on admissibility, but discovery must "reasonably calculated" to lead to admissible evidence. 2) Limitations: Permits ct to alter aspects of discovery. Ct limits: i. discovery request that are duplicative or overly expensive ii. party has already had opportunity to get info iii. burden outweighs benefit 3) Trial Prep Materials: (26(b)(3)) protects any memos, notes or working papers created by atty in anticipation of litigation. Exception: party has substantial need for material and he can't obtain the substantial equivilent w/out undue hardship 4) Trial Prep Experts: (26(b)(4) two types of experts: Testifying expert 26(b)(4)(A): can make a party answer interrogatory asking him to: 1) identify each person the party expects to call as an expert witness at trial 2) state the SM on which the expert is expected to testify 3) state the facts and opinions the expert will testify on and grounds for opinion Non-testifying expert: Can only be discovered under exceptional circumstances where it is shown that a party can't get info any other way 26(c): Protective orders: Permits ct to make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense Requires motion by either party or person form whom discovery is sought Motion to be accompanied by certification , demonstrating: 1) Movant has in good-faith conferred or attempted to confer w/ other affected parties AND 2) good cause If motion is denied, ct may order person or party to provide or permit discovery and an award of cost incurred may be given (37(a)(4))
26(d): Timing and Sequence of Discovery: Except for proceedings exempt from initial disclosures under 26(a)(1)(E), directed by Rules or ct order, or by party agreement, parties may not seed discovery until after Rule 26(f) conference Sequence of discovery: Unless ct rules otherwise, discovery methods my be used in any sequence & parties are to conduct discovery simultaneously 26(e): Supplentation of Disclosures & Responses: Supplements to required disclosures: Party has duty to amend if she learns that some aspect of response is materially incomplete or incorrect and corrective info is otherwise not provided to other parties during other aspects of the discovery process. Specific amendments required for required disclosures of expert testimony. (Supplementation is the same for interrogatories, request for production or admission). 26(f) Conference and Planning (**Starting place for discovery) Conference: Except in exempted proceedings, requires parties to confer at least 21 days before Rule 16(b) scheduling conferece to: 1) 2) 3) 4) discuss nature and basis of claims and defenses discuss possibility of settlement or resolution make or arrange for required disclosures make discovery plan
Who must attend: Attys and unrepresented parties responsible for arranging the discovery conference. Ct may require in-person attendance at discovery conf. Discovery plan: Discovery plan to address items set forth in 26(f)1-4 Written report outlining discovery plan to be submitted to ct w/in 14 days of conference Note: Local rules may trump timing set forth in 26(f) 26(g) Signing of Disclosures: 26(a) Required disclosures: Initial and pretrial disclosures and all other discovery to be signed by at least one atty or by unrepresented party. Signature constitutes certification as set forth in Rule 26(g)(1) Certification: that all discovery request, responses, or objections are made in good faith, for proper purpose, etc. Effect of no signature: if no signature; request, response, or objection shall be stricken unless signed promptly by aty/party in error Violations: Ct may impose appropriate sanctions which may include atty fees
RULE 37: Failure to Make disclosure or cooperate in discovery 37(a): Motion for order compelling disclosure or discovery: Permits party to make motion w/ a reasonable notice to other parties. Party making motion must show that they made a good-faith conference or attempt to confer w/ nondisclosing party w/out ct action. A motion to compel can be made against a party that: 1) fails to comply w/ disclosure or discovery orders; 2) provides false or misleading disclosure; 3) refuses to admit 37(a)(4) Expenses and sanctions: A) If motion is granted: or if request of discovery is provided, then ct may sanction the party, atty, or both: the reas expense occured including atty fees, to pay to moving party, unless ct finds motion wasn't made in good faith. B) If motion is denied: ct may enter protective order & require moving party, atty, or both to pay the reas. expenses occured + atty fees; unless motion was justified C) If motion is granted in part and denied in part: ct can apportion fees according to motions made. 37(b): Failure to comply w/ order: Failure to comply w/ ct order or subpoena: 1) Contempt: fined and/or jailed until a response is made BUT NOT for refusing to take an examination 2) Dismissal of all or part of a complaint or defense: MAY NOT allow a party to introduce some evidence also 3) Payment of expenses of obtaining sanctions may have to be paid for other party as well as reasonable atty fees 37(c): Failure to disclose or Misleading disclosure; Refusal to admit: 1) If a party w/out substantial justification fails to make required disclosures, or to supplement, a party won't be allowed to use that info unless the non-disclosure was harmless. A ct may issue other sanctions, including payment of expenses and fees; issuance of orders, telling jury of non-disclosure. 2) If party fails to admit, party making request may seek order for expenses of motion. Court shall make order unless there was a good reason for not admitting 37(d): Failure of party to attend own depo or serve answers to interrogatories or respond ot request for inspection: If a party fails to (above) a motion can be made, showing a good faith conference or attempt to confer w/ non-disclosing party w/ out ct action; and ct shall order expenses and fees occured b/c of failure unless ct finds failure was substantially justified. 37(g): Failure to participate in framing discovery plan: Permits ct to impose reasonable expenses including atty fees, when party fails to participate in goodfaith w/ development and submission of discovery plan.
Rule 27: Depos Before Action or Pending Appeal Rule 28: Persons Before Whom Depos May be Taken: Depo shall be taken before an officer authorized to administer oaths by US laws and can't be a relative, employee, or atty of any party. Rule 29: Stipulations Regarding Discovery Procedures: Parties may in written stipulation modify procedures or limitation placed on discovery Rule 30: Depos upon oral exam: (prefered over written b/c of flexibility & doesn't allow witness to confer w/ lawyer much.) Who: Any person, including a party How Many: Up to 10 w/out leave of ct. When: After Rule 26(f) conference, unless stipulated by parties Leave of ct: Usually not required, but leave required if deponent is incarcerated or under other circumstances set forth in Rule 30. Notice: Mandates notice to all parties. Subpoena non-parties to make them come, parties have to come Objections: object as to form (hostile leadings) but all other questions must be answered but objections remain preserved for trial. If you don't object here, the objection is waved. Failure to attend or serve subpoena: Ct may order reasonable expenses & atty fees Rule 31: Depos upon written questions: (questions are written & read to witness by examining officer & answers are recorded; less expensive, but less flexible): Who: any person including a party How many: Up to 10 w/out leave of ct When: after Rule 26(f) conference, unless otherwise stipulated by parties Leave of ct: Usually not required unless deponent is incarcerated or other special circumstances exist Notice: Mandates notice to all parties Add'l Q: Cross, re-direct, & re-cross Q may be served by other parties Filing w/ ct: When required, party deposing to file and give notice to all parties Rule 32: Use of Depos in ct proceedings 10 per side, w/out leave of ct. Depos can be used: 1) Impeach the testimony of the deponent as witness if he made any prior inconsistent statement 2) Adverse party may use the depo for any purpose (read to jury) 3) Depo of an unavailable witness may be used by any party for any purpose BUT not by the deposed person
Rule 33: Interrogatories to Parties: Who: Parties only How Many: Not more than 25 Q to each party, including subparts, w/out leave of ct When: After Rule 26(f) conference Leave of ct: Not required unless party wants to serve interrogatories in excess of what's permitted by ct Answers: Under oath, signed by party answering and atty, w/in 30 days of service. Time can be altered by ct or by stipulation Rule 34: Production of Document and things: Who: Parties only Scope: Allows party to request to produce, inspect, and copy items, or enter property for reason set forth in Rule 34 When: After Rule26(f) conference or if otherwise stipulated Responses: Written response to be filed w/in 30 days of service of request. Time may be altered by ct or by stipulation Production of documents: May be provided as docs are kept in the regular course of business or organized and label to correspond w/ request. If responding party would be greatly burdened by searching for such docs, the requesting party might have to do the searching. Rule 35: Physical and Mental Examination: Who: Parties or person in custody under legal control of a party When: If mental or physical condition of that person is in controversy. Motion Required: party requesting exam must show good cause Ct's Order: Order for exam must give notice to person to be examined and all parties Examiner: Must be suitably licensed or certified Examiner's report: May be requested by examined party & other party Privilege: If report is requested or examiner is deposed by examined party, the medical privilege as to all prior exams or reports regarding the same medical cond is waived. Rule 36: Request for Admission Who: Parties only Nature of request: Admission for truth of matters w/in scope of Rule 26, including authenticity of docs Failure to respond: Matter is admitted unless party responds w/in 30 days of service of request. Time may be extended by ct or by stipulation. Party may admit, deny, object or state that admission or denial can't be made. Explanation of response is required. Effect of admission: Matters admitted are conclusively established unless ct permits amendment or w/drawl Note: Admissions may be used for pending action only and can't be used in any other proceeding
Rule 45: Subpoena Who: non-parties (usually) Nature of request: Works like production of doc but it's available to nonparties. If you want to subpoena a party and make them bring doc w/ them it's called a subpoena duces tecum. It can be quashed if... 1) fails to allow reasonable time for compliance 2) requires a non-party to travel more than 100 miles 3) requires disclosure of privileged info 4) subjects a person to undue burden -However, if party getting the subpoena issued shows substantial need for testimony or material that can not otherwise be met w/out undue hardship and assures the person subject to subpoena that they will be reasonably compensated, the ct still may order appearance or production 4. RESOLUTION W/OUT TRIAL During a lawsuit, a party will have Rule 41: Dismissals (2 types 41(a) Voluntary dismissal: 1) by notice, w/out permission, before responsive pleading or motion is filed 2) by stipulation at any time (parties agree) 3) by order of ct after first responsive pleading is filed *Theses are w/out prejudice the FIRST time. If you dismiss voluntarily a 2nd time then no more law suit. If you dismiss the 1st time voluntarily and re-file the same claim, according to 41(d) the ct may make the P pay the costs of the previously dismissed action and not allow him to proceed w the 2nd until payed. 41(b) Involuntary dismissal: Any dismissal either on a motion by the opposing party or on the cts own motion to which the non-moving party objects: 1) failure to prosecute 2) failure to comply w/ ct rules or order (judicial sanction) 3) favorable ruling on an opponent's motion to dismiss based on any proper ground (12(b)(6) etc): on the merits unless jurisdiction, venue, failure to join (these may be remedied by subsequent pleadings) Rule 55: Defaults and Default Judgements: Granted against people who fail to plead or other wise defend w/in the time limits set by the rules. In default judgement, ct will usually only grant amount P asks for in complaint. 2 steps in defaults: 1) P requests that clerk enter an entry of default 2) get a default judgement entered (if party has shown up some time during suit, they must be given written notice at least 3 days before hearing when the judgment will get entered
Who may enter a default judgment: 1) clerk, if... a) claim is for a certain sum AND b) person defaulting has failed to appear AND c) an affidavit has been filed stating the amt due and the fact that the defaulting party is not an infant or incompentent Setting aside a default: (not mandatory) but a ct may set aside a default for good cause (the ct wants the case decided on the merits) Usually set aside for: mistake, inadvertence, excusable neglect, new evidence, fraud Rule 12: Motions to Dismiss 1) 12(b) motions to dismiss must be raised in D's answer except 2) 12(b) 1, 6, 7 may be raised at any time, but all others are waived if not raised in first response 3) 12(c) motion for a judgment on the pleadings a. filed at the close of the pleadings on all the pleadings Rule 56: Summary Judgment 1) Complaint + Answer + Other docs 2) P can make motion when 20+ days after action commenced and D can make motion anytime, up to the end of discovery 3) No genuine issue of material fact exists: a) so party is entitled to SJ b) reasonable minds can't differ 4) Judge can't weigh the evidence or evaluate the credibility of witnesses 5) All evidence must be viewed in light most favorable to non-moving party 6) If the party w/ the burden of production on the issue has failed to produce enough evidence to take the Q to the jury. a) Who has the burden? Look at statute. P=claims; D=Defenses
Rule 60: Relief from Judgment or Order: Usually seen in default judgment case, but it is whenever a party tries to get out of the judgment rendered. GROUNDS FOR DOING SO: 1) Clerical mistakes in the judgment 2) Mistake, surprise, or excusable neglect 3) Newly discovered evidence that would probably change the result and couldn't have been discovered before 4) Fraud, misrep, other party misconduct 5) judgment is void 6) judgment has been satisfied, released or vacated 7. any other grounds justifying relief **#1 can be made at any time; #2-4 must be made w/in year of entry of judgment & #5-7 w/in a reasonable time.
Trial Remedies Rule 16: Pretrial conferences; Scheduling and management 16(b) Scheduling conference: Meeting w/ attys and judge assigned to case. Results in scheduling order that may include: 1) limitation on time to join other parties and amend pleadings 2) limits on time to file motions 3) Cut-off for discovery 4) Mods to times for disclosures 5) Date(s) of conferences, final pretrial conference and trial 6) Any other appropriate matter under the circumstance **Scheduling order is due w/in 90 days after appearance of D and w/in 120 days after complaint has been served on D 16(f) Sanctions If a party or party's atty doesn't appear or is prepared for scheduling conference in good faith, the party/atty can be sanctioned the reasonable expenses inccured + atty fees 28 USC 144: Bias or Prejudice of Judge 1. Judge should disqualify himself if he has substantial interest or is so related to one of the parties or their counsel as to be unable to be totally free from bias. If judge doesn't excuse himself, an atty may challenge the judge by filing an affidavit of prejudice not less than 10 days before beginning of term. If later than 10 days, good cause must be shown.
28 USC 455: Disqualification of Justice, Judge, Magistrate or Referee a. Judge must disqualify himself when his impartiality could be questioned b. He shall also disqualify himself when 1. he has personal knowledge or connection w/party 2. he was a lawyer concerning such matter 3. if as gov employee, he advised witnesses or expressed opinions regarding merits of case 4. He, wife, or kid has financial interest in case (his duty to know) 5. If he has a 3rd degree of relationship w/ anyone involved in case **(a) can be waived (b) can't Rule 60: Injunctions: 65(a) Preliminary injunction 1) Notice: must be served on adverse party 2) Consolidation: permits consolidation of hearing on preliminary injunction w/ trial on the merits. Even absent consolidation, evidence received at hearing for injunctive relief that would be admissible at trial will become part of the record and need not be reintroduced at trial If consolidation does occur, party can still have trial by jury
65(b): Temporary restraining orders, notice, hearing, duration 1) TRO w/out notice to adverse party may be granted only when affidavit or verified complaint clearly show irreparable injury would result if time was alloted for notice and applicant's atty certifies in writing attempts at notice and reasons supporting why notice should not be required 2) TRO w/out notice to be time & date stamped; forthwith filed and entered on record; and will expire by the term of order, not to exceed 10 days. Time may be extended upon showing of good cause or by consent; reasons to time extensions to be placed on record. Order issuing TRO w/out notice to include specific findings by ct. 3) Adverse party enjoining w/out notice may appear to request dissolution or mod of the TRO w/in 2 days notice to party who requested TRO w/out notice 4) Subsequent motion for preliminary injunction to be set for earliest possible time and to take precedence over other matters. Failure to do so will dissolve the TRO. 65(c): Security 1) Mandated that party moving for TRO or injunction must provide security in such sum as the ct deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. 2) No security required for the US or its agents or officers 65(d): Form and Scope of injunction or restraining order 1) Orders granting injunctions and TROs shall: a) set forth reasons for issuance b) Be specific in terms c) Shall describe (not by reference to complaint or other docs) acts to be enjoined d) Be binding only upon the parties or their reps who receive actual notice by personal service or otherwise 65(e): Employer and Employee; interpleader; Constitutional cases 1) States that Rule 65 does not modify a) any US statute relating to TROs or preliminary injunctions between employer and employee b) Provisions relating to 28 USC 2361 (setting forth process and procedure for statutory interpleader c) 28 USC 2284(setting forth procedures for 3-judge cts)
5. JURY TRIALS: You can get a jury trial for legal claims ($) but not for equitable (injunction, etc.) If you have both types of claims you get jury at least to answer the legal questions. LEGAL CLAIMS replevin ejectment writ of mandamus habeus corpus EQUITABLE CLAIMS TRO Preliminary injunction recission reformation action for quiet title specific performanc
Rule 38: Jury Trial of Right A jury trial is waived if no timely demand is made (put in your complaint) You get up to 10 days after service of the last pleading directed to the issue on which a jury trial is demanded Party must specify what issues they want tried by jury Rule 39: Trial by Jury or Court If jury trial is requested, if shall be given for specified issues unless federal law says jury is not allowed for issue. Issues not tried to jury will be tried by ct.
Rule 40: Assignment of Cases for Trial Cases shall be assigned on trial ct either by ct's inititive or by request of parties Rule 42: Consolidation/ Separate Trials 1) If actions involving common Q of law or fact are pending, ct may consolidate actions to avoid add'l costs or delay. 2) However, when consolidation could cause prejudice, or when it wouldn't be cost efficient, the ct will order separate trials. Rule 47: Selection of Jurors: 1) Voir Dire: Attorneys check out potential jurors 2) Challenges: a. For Cause: No limit on how many you have; usually used if a bias or relation to one of the parties b. Peremptory: Certain number (usually 3) For no reason!! 1. Peremptory can not be used on the basis of race or gender
28 USC 1870: Challenges 1. Each party is entitled to 3 peremptory challenges, if multiple parties, sometimes the ct will make P's and D's share (3 each) and sometimes ct will give more
28 USC 1862: Jury discrimination 1) No citizen shall be excluded from service as a juror in federal ct on account of race, color, religion, sex, national origin or economic status.
Rule 48: Jury Verdicts 1) Must have at least 6 jurors & no more than 12. Unanimous decision is required unless otherwise stipulated by parties.
Rule 49: Special Verdicts and Interrogatories: a. Special Verdicts: The ct may require the jury to answer specialized issue questions (written) for them to answer in their verdict b. General Verdict w/ Special Interrogatories: The interrogatories are for the ct to confirm that they are logically reaching their decision (not a mistake) If inconsistent, judge may: 1. enter judgment in accordance w/ the answer 2. ask the jury to consider its answers further 3. order a new trial
Rule 51: Instructions to Jury; Objections; Preserving a claim of error 1) A party can at the close of evidence or earlier, file and furnish the other party w/ proposed jury instructions or w/ ct permission file untimely instructions 2) Ct must inform all parties of proposed jury instructions before final arg and give party chance to object to instruction 3) Objections: An objection is timely if made before jury is instructed and before final arg OR if party hasn't been informed until after time for objection, then party must object promptly after learning of instructions 4) A party can assign an error if objection is proper
Rule 52: Findings by the court; judgment on partial findings 1) Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous 2) On a party's motion filed no later than 10 days after entry of judgement the ct can amend its findings
Rule 50: Judgment as a matter of law in jury trials; alt motions for new trial; Conditional rulings request for new trial must be made 10 days after judgment if late = too bad, but can be made into Rule 60 motion 1. JML/DV: May be made by D at close of P's case in chief or by either party after all the evidence is submitted. a. Burden of production: requires party to find and present evidence. b. After P and D put on evidence c. Granted if reasonable minds can't differ d. Judge doesn't weigh evidence e. Evidence viewed most favorably to opponent 2. JML/JNOV: must be made after the verdict is rendered a, Burden of persuasion: extent to which a trier of fact must be convinced of some proposition to render a verdict for the party who bears the burden b. Verdict is against the GREAT WEIGHT OF EVIDENCE c. Reasonable minds should not have come to this decision d. Judge weighs the evidence Rule 57: Declaratory Judgments
Rule 58: Entry Of Judgment
Rule 59: New Trials; Amendments of Judgments 1) Procedures for motions for new trial a. Must be made w/in 10 days of the entry of judgment b. Even if no motion for new trial, ct may grant one at its inititive 28 USC 1291: The AC shall have jurisdiction of appeals of final decision of the district cts of the US except where a direct review may be had in the SC Does 2 things: 1. Defines the moment an appeal is proper = when there's a final decision 2. Grants jurisdiction for the AC to hear the appeal 28 USC 1292: Interlocutory Decisions: talks about different cases that can be brought under interlocutory order and where the US Ct of Appeal will have exclusive jurisdiction. a) Allows appeals from interlocutory (not final) orders of the district ct's "granting, continuing, modifying, refusing, or dissolving injunctions or refussing to dissolve or modify injunctions." This is b/c the nature of injunctions and their potential for harm. b) Does not apply to TRO, probably b/c the short duration of TRO (10days) Another way to get around the final judgment rule is 1292(b): if there is an issue of law which people will most likely differ on, and sending it up for appeal would help end this case in the trial ct.
Res Judicata (watch for collateral estoppel, joinder, and summary judgment) Affirmative defense: parties are precluded from relitigating the same cause of action or from splitting a cause of action (compulsory CC); Will bar whole action (claim preclusion) 1. 3 Requirement (need all) a. Same party or party in privity in the 1st and 2nd lawsuit 1. Was party's interest in the 1st action legally represented? b. Same claim or cause of action involved in 1st and 2nd proceeding Common Core of operative facts: STO c. The judgment in 1st proceeding must have been final and on merits All are judgements on merits: 1. Directed verdict 2. JNOV 3. Summary Judgment 4. Dismissal for failure to state claim Collateral Estoppel: Issue only, not whole claim; brought by party who was happy w/ outcome of 1st suit. Most states don't allow offensive CE b/c it encourages multiple suits Non-Mutual Offensive= New P in 2nd suit bringing up CE Mutual Offensive = P in 1st action bringing up CE Non-Mutual Defensive = New D in 2nd suit bringing up CE Mutual Defensive = D in 1st action bringing up CE 1. Factual issue in 2nd suit must be identical to 1st suit and must arise from the same set of circumstances precluded: Make sure BOP is same 2. Issue fully and fairly and actually litigated: If holding is ambiguous to decision on certain issues, you can re-litigate. 3. Issue absolutely necessary (essential) a. If necessary, ct knows it must have been actually litigated b. Fairness: won't hold somebody to it unless tries 4. Party was in 1st action 5. Final judgment on merit in first action 6. Fairness Factors: (usually used for non-mutual CE) a. Did party we're precluding have opportunity to litigate (DUE PROCESS) b. Did D have incentive to litigate the 1st action c. Are there any diff. in the proceedings, making person trying to use CE not want to join 1st one (discuss joinder) d. Any prior inconsistent judgments e. Did party trying to use CE sit out and wait