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					Civil Procedure MIG 1: Personal Jurisdiction

Introduction                What states can the P sue D? Not concerned with what court as that is subject matter

Two Step Process            Satisfy State Statute         Argue both ways – tort where made product or tort where injury
                                                          occurred. If arguably met go with constitutional analysis.

                            Satisfy Constitution          Does D have such minimum contacts with the forum so that
                                                          exercise of jurisdiction does not offend traditional notions of
                                                          fair play and substantial justice?
                                                          Forms          Personal Jurisdiction
                                                                         In Rem Jurisdiction
                                                                         Quasi In Rem Jurisdiction
                                                          With the exception of the bulge rule and interpleader, federal
                                                          court has same limits as the state.

In Rem Jurisdiction         Claim attached to property. Follow analysis below.

Quasi In Rem Jurisdiction   Claim not attached to property. Follow analysis below.

In Personam Jurisdiction    Easy to find: Domicile, consent, presence in forum at least if not forced or tricked into forum or
                            filing a special appearance.
                            Analysis               State Long Arm Statute
                                                   Minimum Contacts            Must result from purposeful availment
                                                                               (voluntary act) – such as ship goods, use
                                                                               roads, causes effect in forum. Look at
                                                                               where actions occur, where make money,
                                                                               third parties, benefits and protections of
                                                                               state, transactions giving rise to cause of
           Forseeable that D would be sued in this
           forum. Look at if it knows actions take
           place in the state.
Fairness   Relatedness between the contact and the
           claim. Dopes P claim arise from D contact
           with state? Especially important if D has
           small amount of contact with forum. Can
           help make up for small amount of contact.
           Quality over quantity. Not necessary if have
           substantial contacts – continuous business,
           served with process, domiciled. Then has
           general jurisdiction over business and can be
           sued in forum state for actions that happened
           anywhere in the world.
           Convenience D may complain that makes it
           tough to litigate because far from home.
           Forum is permissible unless puts D at severe
           disadvantage in litigation which is difficult
           to show.
           State Interest May have interest in
           providing forum for citizens.
Civil Procedure MIG 2: Subject Matter Jurisdiction

Are we going to state court or federal court?

Federal Courts       Diversity of Citizenship             Amount in controversy must exceed $75,000
                     Federal Question                     Must be between citizens of different states or a citizen against an

Diversity            No diversity of citizenship jurisdiction if any P is a citizen of the same state as any D. Make two columns
                     and if same state on both sides of the line.
                     What is citizenship?          Human          Citizen it is the state of your domicile
                                                                  Domicile established by        Presence (physical);and
                                                                                                 Need subjective intent to make
                                                                                                 permanent home (mental).
                                                                                                 No single factor determinable -Note
                                                                                                 that moving is not enough
                                                                  Cannot be domiciled in more than one state.
                                                                  At time of filing of lawsuit

                                                  Corporation Citizenship is            All states where incorporated.
                                                                                        The one state where the corporation has
                                                                                        its principal place of business. If don’t tell
                                                                                        you look at 1) headquarters (nerve center);
                                                                                        2) where the corporation does more
                                                                                        production or service than anywhere else
                                                                                        (muscle). Many courts use the nerve center
                                                                                        unless all activity is in one state.
                                                                 No domicile
                                                                 Can have more than one

                                                  UnIncorp       Citizenship of all the members, including general and limited
                        Reps         For decedents, minors, and incompetents, look to their
                                     citizenship, not the citizenship of their representative
                        Class Action See below

Amount in Controversy   Good faith allegation that the complaint alone exceeds $75,000 exclusive of
                        interests and costs.
                        Permissible in complaint unless clear to a legal certainty that cannot recover at
                        least $75,001.
                        If the P ultimately recovers less than $75,000, jurisdiction still OK; but may be
                        liable for costs even though won (not attorneys’ fees).
                        Aggregation             Permissible when one P against one D. Don’t have to be
                                                Joint Claims use the total value of the claim (i.e. joint
                                                tortfeasors). Use the word “joint.” Note though that if not
                                                the same claim, different causes of injury, may not be able
                                                to join.
                        Injunction              Plaintiff’s viewpoint: does the damage decrease the value
                                                of plaintiff by more than $75,000?
                                                Defendant’s viewpoint: would it cost defendant more than
                                                $75,000 to comply with the injunction?

Erie                    Apply state substantive law Elements of a claim or a D.
                        Any federal law that conflicts apply the federal law as long as valid because of
                        Supremacy Clause.
                        Apply federal procedure law if arguably procedural.
                        Substantive State Law        Outcome determinative
                                                     Federal or state system have strong interest that its
                                                     rule be applied
                                                     Avoid forum shopping by asking if the federal court
                                                     ignores will it cause parties to flock to federal court
                        Substantive Examples         State of limitations and tolling
                                                     Choice of law.
                                                 If substantive but don’t know what it is then can certify to state court.

                   Collusion                     By statute, federal court is deprived of subject matter jurisdiction when a party
                                                 “has been improperly or collusively made or joined to invoke jurisdiction.”
                                                 Watch for an assignment to create diversity

                   Exclusions                    Even if diversity and the dollar requirements are met, federal courts will not hear
                                                 actions involving issuance of divorce, alimony or child custody decree or to
                                                 probate an estate

Federal Question   Complaint must show a right or interest founded substantially on a federal law (e.g., federal constitution,
                   legislation). Plaintiff is suing to enforce a federal right.
                   Exclusive Federal              Patent infringement, federal antitrust and securities claims
                   Well Pleaded Complaint         Plaintiff's claim, properly pleaded, must be based on federal law.
                                                  Properly pleaded means that the complaint sets forth only a claim, without any
                                                  extraneous stuff that has nothing to do with the claim itself. If P is enforcing
                                                  federal right can go to federal court (i.e. saying federal law does not apply is not

Supplemental       For every claim joined in federal court, we need to make sure there is a basis of subject matter jurisdiction.
                   So always ask whether the claim can get into federal court under diversity or federal question. If so, claim can
                   come into federal court easily. If such a claim does not meet diversity and does not meet FQ, try
                   General                        Claims must arise from common nucleus of operative fact Same
                                                  transaction/occurrence [T/O]) as the underlying claim
                                                  Court still has discretion If the federal question is dismissed early in the
                                                                                If the state law claim is complex; or
                                                                                State law issues would predominate.

                   Pendent (Plaintiff)           Only works for claims invoked by P in original federal question. Can be a
                                                 different D.
                   Ancillary (any)               Only works for claims joined by anybody but the plaintiff in any case
                                                 (diversity or federal question)
Removal   Allows Ds to have a case filed in state court removed to federal court. Plaintiffs can never
          remove even if Ds on counterclaim
          General                      Claims must arise from common nucleus of operative fact
                                       Same transaction/occurrence [T/O]) as the underlying claim
                                       Court still has discretion If the federal question is dismissed
                                                                    early in the proceedings
                                                                    If the state law claim is complex; or
                                                                    State law issues would predominate.
          Requirements                 Can only be removed to federal district embracing state court
                                       where case originally filed.
                                       Multiple Ds                  All Ds must agree.
                                                                    If there is a separate and
                                                                    independent federal question claim
                                                                    against one defendant, he can
                                                                    remove the whole case, but the court
                                                                    can remand state law issues.

                                       Special Diversity            No removal if any defendant is a
                                                                    citizen of the forum. So even
                                                                    though this case could have been
                                                                    filed in federal court under diversity,
                                                                    it is not removal under this special
                                                                    rule for diversity cases.
                                                                    Dismissal of D that prevents
                                                                    diversity The case then becomes
                                                                    removable because there is no
                                                                    defendant who is a citizen of the
                                                                    forum. So D-1 (the remaining
                                                                    defendant) has 30 days from service
                                                                    of the dismissal of D-2 in which to
                                                                    remove. But in a diversity case, no
                                                                    removal more than one year after the
                                                     case was filed in state court (even if
                                                     special diversity occurs one year
                                                     after removal possible)
Procedure   30 days after service (not filing) of first removable document.
            D files notice of removal in federal court, stating grounds of removal and
            do not need permission
            Signed under Rule 11
            Attach all documents served on D in state action
            Copy to all adverse parties.
            Then file copy of notice in state court.

Remand      If removal was procedurally improper, P moves to remand to state court;
            she must do so within 30 days of removal. But if there is no federal
            subject matter jurisdiction, P can move to remand anytime or the federal
            court can remand anytime it finds no subject matter jurisdiction.
Waiver      D who files a permissive counterclaim in state court probably waives the
            right to remove. Filing a compulsory counterclaim in state court probably
            does not waive the right to remove.
Civil Procedure MIG 4: Venue

Concern               We could make it to federal court, which federal court?

Two Basic Choices     P can choose in diversity or FQ        All Ds reside Note though that in cases where all Ds reside in
                                                             different districts of the same state can lay venue in the district in
                                                             which any of them resides.
                                                             A substantial part of the complaint arose

                      If above not met                       FQ in any district where any D is found.
                                                             Diversity where any D is subject to personal jurisdiction.

Where do Ds reside?   Humans                 Where domiciled (same as citizen)
                      Corporation            Residents in all jurisdictions where subject to personal jurisdiction when case
                                             is commenced (not the same as citizen for subject matter re: PPB and Inc.).
                                             Basically wherever it does business.
                      Land                   Where land is.

Transfer              Not like removal From one federal district court to another
                      Can only transfer to one where the case could have been filed:                 A proper venue
                                                                                                     With personal jurisdiction
                                                                                                     over D
                                                                                                     With subject matter
                      If venue valid, apply choice of law from original court (statute).
                      If venue in original forum is improper may transfer in interests of justice or dismiss for improper venue.

Forum Non             If there is a far more convenient court elsewhere, a court may dismiss (usually without prejudice) to
Conveniens            let P sue there. That other court is one to which transfer is impossible because it is in a different judicial
                      system (e.g., a foreign country). The decision is based upon (1) public factors (e.g., what law applies,
                      what community should be burdened with jury service, need for fact finder to visit site of events) and (2)
                      private factors (e.g., where witnesses and evidence are). Requires a very strong showing.
                      Doesn’t matter if can recover less in other court.
Almost never granted when P resident if current forum.
Civil Procedure MIG 5: Service of Process/Notice

Basics           In addition to personal jurisdiction, must give notice to D
                 Process              Deliver to D a summons
                                      A copy of the complaint.
                                      Serve within 120 days of filing case or case dismissed without prejudice (not dismissed if
                                      P shows good cause for delay in serving).

Process          Server              By another over 18 and not a party.
                 Personal Service    Given personally to D anywhere found in forum state (office or tennis court)
                 Substituted Service Permissible if d’s usual abode (i.e. summer home during summer time); and
                                     Serve someone of suitable age and discretion who resides there
                 Service on Agent    Process can be delivered to D’s agent. OK if receiving service is within the scope of
                                     agency, e.g., agent appointed by contract or by law (commissioner of motor vehicles
                                     under a nonresident motorist statute), or corporation’ss registered agent, managing agent
                                     or officer.
                 Waiver by Mail      Not service by mail. Process is mailed to D by first class mail postage pre paid
                                     permissible if D returns a waiver form within 30 days. By doing so only waives formal
                                     service of process. Doesn’t waive of, for example, lack of personal jurisdiction. Can
                                     refuse but may be required to pay costs of process.
                 State Methods       State where federal court sits or where service effected.
                 Another State       Only permissible if forum state allows with long arm state. Why federal court personal
                                     jurisdiction in federal court is the same as the state where it resides. Exceptions when
                                     can serve regardless of state law: 1) bulge rule; 2) cross interpleader (see below)
                 Immune              While served while instate to be a witness or party in another civil case
                 Later Documents     By mail, add three days for response.
Civil Procedure MIG 6: Pleadings

Definitions     Documents that set forth claims and defenses. FRCP use notice pleading, meaning that only required to
                convey enough of one’s intentions to put others on notice and allow a meaningful response.

Rule 11         Requires the attorney or a pro se party to sign all pleadings written motions and papers (everything
                except discovery infra) Certifying that to the best of her knowledge and belief, after reasonable inquiry:
                (1) the paper is not for an improper purpose, (2) the legal contentions are warranted by law (or nonfrivolous
                argument for law change), (3) that factual contentions and denials of factual contentions have evidentiary
                support (or are likely to after further investigation).
                Continuing Certification Certification effective every time position is “presented” to the court

                Sanctions             Discretionary and are to deter, not to punish. Can be nonmonetary.
                                      Motion for violations Served on adversary and has 20 days to withdraw and fix problem
                                      Motion Filed with court No correction within safe harbor
                                      Court can raise on its own

Complaints      By P and commences action
                Must include      (1) statement of subject matter jurisdiction
                                  (2) short and plain statement of the claim, showing entitled to relief
                                  (3) demand for judgment.
                                  Even though courts tend to be more forgiving or lenient with pro se litigants, these
                                  requirements must be met.
                Special Matters   Must be pleaded with particularly and specificity as notice pleading above is not enough:
                                  fraud, mistake, and special damages (those that do not normally flow from an event)

D Response      Rule 12              Respond either within 20 days of service of process with a motion or answer
                                     Motion        Not pleadings, but requests for action
                                                   Issues of form:       (1) 12(e) motion for more definite statement –
                                                                         pleadings so vague D can’t frame a response
                                                                         (2) 12(f) motion to strike - aimed at immaterial
               things, e.g., demand for jury when no right
               exists; any party can bring.

Rule 12(b):    (1) lack of subject matter Jurisdiction
               (2) lack of personal jurisdiction
               (3) improper venue
               (4) insufficiency of process
               (5) insufficient service of process
               (6) failure to state a claim
               (7) failure to join indispensable party.

12(b) Timing   First Response (b) 2-5 must be in first response or
               Any time through trial Failure to join an
               indispensable party and for failure to state a claim
               on which relief could be granted.
               Never Waived Lack of subject matter jurisdiction
               is never waived.

 Answer        Timing Serve within 20 days after service of
               process if D makes no motions; if D does make a
               Rule 12 motion, and it is denied, she must serve her
               answer within 10 days after court rules on motion.
               If D waives service, has 60 days from P’s mailing
               of waiver form in which to answer. (Waiver of
               service does not waive personal jurisdiction or
               Must raise affirmative Ds in answer. Even if did
               all the terrible things, P still cannot win (SOL,
               RJ, SD, SOF)
               Respond to allegations of complaint: (1) admit;
               (2) deny; (3) state that you lack sufficient
               information to admit or deny; # 3 acts as a denial,
                                                                             but can’t be used if the information is public
                                                                             knowledge or is in D’s control. Failure to deny can
                                                                             constitute an admission on any matter except
                                                                             Counter Claims (see below)

                   Counter Claims             Offensive claims that go against an opposing party (someone who has sued
                                              us). Filed with D’s answer.
                                              Compulsory Because arises from same transaction or occurrence as it must be
                                              filed in pending case or is waived. The only one that is use it or lose it. Only if
                                              had opportunity to answer (i.e. motion to dismiss granted before answer). If does
                                              not have subject matter jurisdiction, can receive ancillary jurisdiction. Only
                                              works for compulsory.
                                              Permissive does not arise from same T/O and can be asserted later.
                                              If procedurally permissible, do subject matter jurisdiction and start with diversity.

                   Cross Claims               Offenses claims that go against co-party not compulsory so need not arise from
                                              same T/O. Review, diversity, FQ, and supplemental on the basis of the individual
                                              case at issue

Amend Complaints         Right to Amend         Right to amend once before D serves answer
                                                D has right to amend once within 20 days of serving answer.
                         If there’s no right to amend                 Seek leave of court; it will be granted if “justice so
                                                                      requires.” Courts usually allow unless there’s delay or
                                                                      If a claimant amends, D must respond within 10 days or
                                                                      remaining 20 days, whichever is longer.
                         Complaint says nothing about claim but raises at trial and no objection, have to file a motion to
                         amend complaint after After trial, move to amend the complaint to conform to the evidence to show the
                         assault claim.
                         Complaint says nothing about claim but raises at trial. Can object for variance with pleadings and
                         keep it out.
                         Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the
original pleading. Treat as if filed when original complaint was filed and thus can avoid statute of
limitations problems. If adds a new D will only relate back if       (1) it concerns the same conduct,
                                                                     transaction, or occurrence as the
                                                                     (2) the new party knew of the action
                                                                     within 120 days of filing; and
                                                                     (3) the new party knew that but for a
                                                                     mistake, it would have been named
Civil Procedure MIG 7: Joinder

Co-P        Arise from same T/O
            Raise at least one common question

Co-D        Arise from same T/O
            Raise at least one common question

Necessary & Indispensable................................         Some absentees (persons not originally in the suit) should be joined because
                 ..............................................   have some relationship with the action. Their joinder will be compelled if
                 ..............................................   feasible
                 ..............................................   Who’s necessary? (1) without absentee, the court cannot accord complete
                                                                                      relief (worried about multiple suits);
                                                                                      (2) absentee’s interest may be harmed if she isn’t joined
                                                                                      (practical harm); or
                                                                                      (3) absentee claims an interest which subjects a party
                                                                                      (usually defendant) to multiple obligations.
                                                                  If impossible       Suppose necessary but not personal jurisdiction, would
                                                                                      destroy diversity, or valid objection to venue, then the court
                                                                                      must either proceed without him or dismiss the whole case.
                                                                                      Look at whether alternative forum available, the actual
                                                                                      likelihood of prejudice, shape relief to avoid injury.

Impleader                Claims involving third party D (TPD) by defending party Not a cross claim because not between existing
                         Claim must be for indemnity or contribution
                         Right to implead within 10 days and after that need leave from court
                         Process File third party complaint and must serve process so must have personal jurisdiction
                         After joined      P can assert claim if arises from T/O
                                           TPD can assert claim against P if arises from same T/O.
                         Bulge Rule.       Absentees joined as necessary parties or for impleader may be served outside the forum state
                                           (even without a state long-arm statute), but only within 100 miles of the federal courthouse. Not
                                           available to serve process on original defendants.
Intervention     Absentee wants to join as P or D. Court may realign if came in on wrong side.
                 Must be timely
                 Types        Intervention of Right The absentee’s interests may be harmed if she is not joined and her
                              interest is not adequately represented now.
                              Permissive intervention. D’s claim or defense and the pending case have at least one common
                              question. Discretionary with court; OK unless delay or prejudice.

Interpleader     One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and
                 inconsistency. Stakeholder is not sure who really owns the property and wants to avoid multiple liability or
                 suits. The types have different standards for diversity of citizenship, amount in controversy, venue, and service
                 of process. In each, the court can enjoin claimants from suing elsewhere. Remember: rule interpleader is a
                 regular diversity case.
                 Diversity       Under rule interpleader: stakeholder must be diverse from every claimant.
                                 Under statutory interpleader: one claimant must be diverse from one other claimant (don’t care
                                 about stakeholder’s citizenship).
                 Amount          Under the Rule, must exceed $75,000.
                                 Under the statute, $500 or more.
                 Service         Under the Rule, treated as a regular lawsuit.
                                 Under the statute, nationwide service (so no personal jurisdiction problems over claimants in
                 Venue           Rule, like a regular case.
                                 Statute, any district where any claimant resides.

Class Action   Representatives sue on behalf of a group
               Must demonstrate all of these:                 (1) Too numerous for practicable joinder;
                                                              (2) some questions of law or fact in common to class;
                                                              (3) representative’s claims/defenses typical of those of the class;
                                                              (4) representative will fairly and adequately represent class.

               Must fit case within one of the following      (1) Prejudice class action to P or Ds (i.e. individual suits would
                                                              deplete funds and leave some without damages).
                                                              (2) Injunction or DJ because class treated alike by other party (i.e.
                              employment discrimination)
                              (3) Damages which has both               Common questions
                                                                       Class action the superior
                                                                       method for resolving the
Court Certification           Court must determine at early practicable time whether to certify
                              as a class action. If certifies the class, must define the class and the
                              class claims issues or defenses as well as appoint class counsel that
                              fairly and adequately represents intereset of class
                              For (3) must notify all members including a) can opt out; b) the
                              binding effect of a class judgment; c) can enter separate
                              appearance via counsel. No notice for (1) or (2). Representative
                              pays costs of notice.

Bound                         All members except those who opt out in

Settlement                    For a certified class requires court approval.
                              Court gives notice to class members to receive feedback.
                              If (3) must give second opportunity to opt out

Subject Matter Jurisdiction   FQ
                              Diversity       Only look to rep.
                                              For amount in controversy. Split as some say each
                                              class member must exceed, others say class
Civil Procedure MIG 8: Discovery

Mandatory     Initial Disclosures (see outline)

Effect        May not be used until after Rule 26(f) conference unless court order or stipulation allows.
              Information from a (non)party         Depositions (questions can be oral or written). Sworn oral statements by
                                                    deponent responding to questions by counsel (or pro se parties), recorded
                                                    by sound or video/sound or stenographically. Transcript can then be
                                                    made. Can depose nonparties or parties. Nonparty should be subpoenaed,
                                                    however, or she is not compelled to attend. Subpoena could be “duces
                                                    tecum,” which requires the deponent to bring material (e.g., documents)
                                                    with her. Party need not be subpoenaed; notice of the deposition, properly
                                                    served, is sufficient to compel attendance.
                                                    Interrogatories written questions to parties
                                                    Requests to Produce to another party or a non party if accompanied by a
                                                    subpoena (like a deposition).
                                                    Physical or Mental Exams Only available through court order upon
                                                    showing that party’s (or person in party’s control, e.g., parent in control of
                                                    child) health is in actual controversy and good cause, which means you
                                                    need it and can’t get it elsewhere. Person examined may obtain copy of
                                                    report without making this showing, but by doing so waives his doctor-
                                                    patient privilege re reports by his doctors re that condition.
                                                    Request for Admission Only can go to parties
                                                    Parties sign substantive answers under oath Every discovery request
                                                    and response is signed by counsel certifying it is warranted, not interposed
                                                    for improper purpose and not unduly burdensome. Remember, Rule 11
                                                    does not apply to discovery documents, so this is a separate certification
                                                    for them.)
                                                    Duty to supplement If a party learns that its response to required
                                                    disclosure, interrogatory, request for production or request for admission
                                                    is incomplete or incorrect, it must supplement its response.
Scope         Can discover anything relevant to claim or defense, not just relevant to case. Relevance means reasonably
              calculate to lead to the discovery of admissible evidence. Broader than admissibility.
              Privileged Matter not discoverable.
              Work Product Material prepared in anticipation of litigation, not routine matters, and generally protected unless
              a) substantial need; b) not otherwise available; c) but not mental impressions, conclusions, and legal theories (does
              not have to be generated by a lawyer)
Enforcement   Presented to court when                             Receiving party seeks protective order (26(c), e.g., overburdensome, or involves
              .........................................           trade secrets and we want an order limiting use to the litigation);
              ........................................            Receiving party answers some and objects to others. At worst, if the objections
              ........................................            are not upheld, this is a partial violation, so we expect a light sanction.
              ....................................................Receiving party fails completely to attend deposition, respond to interrogatories
              ....................................................or to respond to requests for production. This is a total violation, so we expect a
              .................................................... heavy sanction.

              Sanctions against a party...                     To seek, the party must certify to the court that he tried in good faith to get
              ..............................................   info without court involvement.)
                                                               Partial Violation order compelling the party to answer the unanswered questions,
                                                               plus costs of bringing motion (including attorney’s fees).
                                                               Violation of order compelling: RAMBO plus costs (and attorney’s fees re the
                                                               motion) and could be held in contempt for violating a court order (except no
                                                               contempt for refusal to submit to medical exam);
                                                               Total violation: RAMBO plus costs (and attorney’s fees re the motion);
                                                               False denial of request to admit: recover only costs (and attorney’s fees) of
                                                               having to prove the issue.
                                                               Failure to make required disclosure: other side can choose to treat as situation
                                                               as total or partial and the party failing to make disclosure cannot use the info at
                                                               trial, unless failure was justified or harmless.
                                                               RAMBO SANCTIONS (choices available to judge):                  Establishment order
                                                               ...........................................................    (establishes facts as
                                                               ...........................................................    true)
                                                                                                                              Strike pleadings of
                                                                                                                              the disobedient party
                                                                                 (as to issues re the
                                                                                 Disallow evidence
                                                                                 from the disobedient
                                                                                 party (as to issues re
                                                                                 the discovery)
                                                                                 Dismiss plaintiff’s
                                                                                 case (if bad faith
                                                                                 Enter default
                                                                                 judgment against
                                                                                 defendant (if bad faith
Sanction against nonparty   Contempt (for violating subpoena or court order).
Sanction against attorney   Liable for all expenses (including attorneys’ fees) incurred by the other
                            side if she counseled one of these bad acts.
Civil Procedure MIG 9: Pretrial Adjudication

Right    Plaintiff may dismiss once without prejudice (which means she can re-file the claim) before defendant serves an answer or
         moves for summary judgment.
         But if P files a written notice of dismissal in the second case, it is with prejudice (so the claim cannot be re-filed).
         Includes later state filings.

Default Judgment            Default is a notation made by the court clerk on the docket sheet for the case. A claimant gets a
                            default by showing the clerk of the court that the defendant failed to respond within 20 days after being
                            served with process. Defendant can respond anytime before the default is entered on the docket.
                            Having a default does not entitle the claimant to recover. She needs a judgment to enforce and
                            recover money or other remedies. The clerk of the court can enter judgment if: a) there has been no
                            response at all by the defendant; b) the claim itself is for a sum certain; c) claimant gives an affidavit
                            that that sum is owed; and d) defendant is not a minor or incompetent.
                            If any of those four things is not true, the claimant must go to the court itself (not the clerk) to get
                            the judgment. The judge will hold a hearing and has discretion about whether to enter the judgment. D
                            gets notice of that hearing only if she has made some appearance in the case.
                            A default judgment cannot exceed what the claimant demanded in her complaint (or be a different
                            type of relief. This is different from when a case goes to trial. There, the claimant can recover more
                            than she claimed in the complaint (or a different type of relief).
                            After default, D can move to set aside the default, usually by showing good cause and a viable
                            defense. Good cause usually means excusable neglect..

Failure to State a Claim/Demurrer Assumes if all allegations are true, would the P win a judgment? Never looks at evidence, looks
                                  only at complaint.

Motion for Judgment on the          Does the same thing but filed after D’s pleadings are closed

Summary Judgment ............       Moving party must show no genuine dispute on material issue of fact and is entitled to
                                    judgment as a matter of law. Can be for partial summary judgment, as to one of several claims.
                                    Views the evidence in the light most favorable to nonmoving party. The whole idea is to weed
                                    out where don’t need a trial. Have a trial to resolve a dispute of fact.
                                  Affadavits are sworn statements and therefore are evidence.
                                  Verfiied pleadings are like affidavits. Otherwise pleadings are not evidence.
              .................   Apply FRE so evidence must be admissible.

Conferences   .................   26(f)
              .................   Pretrial Conferences court may order as needed to expedite the case and foster settlement.
              .................   Final decides evidence to be tried – recorded in pretrial conference order which supercedes
                                  pleadings and may be amended to avoid manifest injustice. Or could amend by conforming to
                                  evidence if evidence beyond the pretrial conference order is proffered and not objected to. The
                                  final pretrial conference order is an important document -- it is a roadmap of issues to be tried,
                                  evidence to be presented at trial, witnesses, etc. So there are no surprises at trial
Civil Procedure MIG 9: Trial, Judgment and Post-Trial Motions
Jury Trial     Must demand within 10 days of service of pleading that creates jury triable issue.

               Seventh Amendment Right to jury trial in civil court, federally and at-law. If involves both split responsibilities,
               trying the jury issues first. Damages issue requires it as matter of law (anything over $20). Can’t be denied on
               ground that it is incidental

               Voir Dire              Unlimited strikes for cause
               .................      Only three peremptory strikes which must be used in a race and gender neutral way
               .................      because jury selection is state action

               Directed Verdict/Motion for Judgment as a Matter of Law (JMOL) Exceptional case because take away from
               jury after the other side has been heard. Defendant can move twice. Plaintiff only after close of all the evidence.
               Standard that reasonable people could not disagree on the result. Generally view evidence in light most favorable
               to non moving party.

               Judgment Notwithstanding the Verdict (JNOV)/Renewed Motion for JMOL Same except comes up after jury
               gives a verdict, within 10 days after entry of judgment. Standard same as above. Must move at close of all the
               evidence (only D can screw up) or else cannot bring renewed motion.

               Motion for New Trial Judgment entered but prejudicial error or new evidence that could have not been obtained
               with due diligence during trail, prejudicial misconduct of anyone, serious error of judgment by jury. Move within
               10 days after enter judgment. It is less radical than RJMOL.

Appeal         Final Judgment Rule As a general rule, can appeal only from final judgments – an ultimate decision by the trial
               court on the merits of the entire case. File notice in trial court within 30 days after entry of final judgment. After
               making this order does the trial court have anything left on merits of case? Not grant of motion for a new trial,
               Denial of a motion to remand to state court (after case was removed)?. Yes: Denial of motion for a new trial,
               Grant or denial of renewed motion for judgment as a matter of law

Res Judicata   Claim Preclusion       Same claimant against same defendant.
                 .............        Ended in valid final judgment on the merits (unless court said otherwise when entered,
                                any judgment on merits unless based on jurisdiction, venue, or indispensable parties).
                                Default judgment on the merits
                                Asserted same claim Define it transactionally – any right to relief arising from a T/O. But
                                some courts say separate claims for property damage and personal injuries because different
                                primary rights.

Collateral   Issue Preclusion   Ended in a valid, final judgment on the merits
Estoppel          ........      Same issue litigated and determined (i.e. not default judgment because didn’t litigate)
                  ........      Essential to resolving first case
                  ........      Against whom? One who was a party to the first party or represented by a party. Required
                  ........      by DP
                                By whom? Traditional view of mutuality. Now non-mutuality that can be the P or D in
                                case two and need not been a party to first case as long as the person it is being used against
                                had a full and fair opportunity to litigate. If P was not a party and nonmutual, cannot do
                                under mutuality rule but most courts would not allow this either but there is a trend which
                                would allow this nonmutual offensive as long as it is not unfair: 1) full and fair opportunity
                                to litigate; 2) could foresee multiple suits; 3) could not have joined easily in first case; 4) no
                                inconsistent judgments on record
                                Also consider notice, shield versus sword, fair opportunity to be heard.
Civil Procedure Tips

Very likely to be an essay
Not picky on timing usually except removal (practice writing 10, 20, 30 so look like others).

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