PERSONAL JURISDICTION Basic Rule: must satisfy statute & const. In Personam Jurisd.: over person not prop. 1. Statutory Analysis: must have either: (1) presence in state when personally served (so long as not by fraud or force); (2) domicile; (3) consent (K or implied); OR (4) long-arm statute—may give ct pwr to exercise jurid if not const. prohibited (usu specific acts) 2. Const. Analysis: “Does D have such minimum contacts in the forum so the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?” a. Contact: tie btwn. D and forum i. purposeful availment (voluntary) ii. foreseeability of suit in forum b. Fairness: does not offend traditional notions of fair play & subst. justice i. relatedness of contact & claim (not required if substantial ties w/ forum) ii. convenience-only if severe disad. iii. state’s interest: forum for citizen In Rem & Quasi in Rem Jurisd.: 1. In rem: pwr to adjudicate all rts of all people regarding item of property 2. Quasi in rem: pwr to determine the rights of particular indv regarding specific prop 3. Requirements: a. Statutory: attachment statute satisfied? b. Const. is dispute related to property attached? SUBJECT MATTER JURISDICTION Diversity: (1) >$75,000 and (2) Diff. States 1. Complete Diversity Rule: citizens of different states (or country); no Ps from same state as any Ds **Must look at each claim individually** 2. Individuals: citizenship = domicile a. (1) presence with (2) intent to make permanent home; tested at time of filing; state of represented NOT fiduciary; representative’s state in class action 3. Corporations: (1) state of incorp.; and (2) principal place of business (only 1 =HQ or muscle ctr.) 4. Uninc. Ass’n: each member counts 5. Amount in Controversy: a. Plead in good faith >$75K, unless clear to legal certainty can’t recover b. Aggregate claims only if 1 P & 1 D c. Joint tortfeasor claims: >75K is OK d. Each P must indep. reach $75K min.: class action only rep. >75K e. Injunctions: (Maj – P’s view): D’s action reduces value by 75K; (Min.D’s view): cost >$75K to comply? 6. Limitations a. No state issues: divorce, probate, etc b. No collusion: no agent for diversity 7. Erie Doctrine: ―fed ct. in DJ will apply fed pro law, but must apply subs law, & conflict of law rules of forum state.‖ Apply state law if (1) outcome determinative (2) balance of interest favors (3) would lead to forum shopping
Federal Question: enforcing fed right or c/a 1. Well Pleaded Complaint: federal issue must be stated in the original complaint. 2. Federal right of action may be implied Supplemental: normally no jurisdiction 1. Pendent: plaintiff adds claims in FQJ a) Elements: (1) claims joined by P in FQJ case and (2) claims have common nucleus of operative facts b) Pendent Parties: bring in diff. Ds c) Ct. Discretion: (1) FQJ gone early; (2) state law complex or dominates 2. Ancillary: a) Elements: (1) claim asserted by anyone but P in Div. or FQJ; (2) same transaction/occurance; (3) court discretion 3. In Div. cases: P can only sue diverse 3Ps Removal: D (only) can remove case from state court to federal court (one-way) 1. Removable if P could have filed in fed ct 2. If removal based on diversity, (1) no D can be a citizen of state where action filed (can dismiss) and (2) must be removed w/in one yr after commenced 3. All D’s must join petition for removal 4. D may remove separate and indep claim under FQJ. 5. May be remanded if removal improper 6. May only remove to state court embracing the federal court. VENUE 1. P may lay venue in any district where: (1) any D resides if all reside in the same state or (2) subst. part of claim arose (or where property is situated) 2. If above fails: (1) if only Div jurisdiction, where D subject to P (2) in others (i.e. FQ) where any D is found. 3. Residence: indiv. = domicile; corps = PJ 4. Actions over property = in that district 5. Ct. can transfer to another proper venue 6. Forum Non Conveniens: court may dismiss so P may proceed in another court (i.e. foreign); public & private factors weighed: rare if P is a resident. SERVICE OF PROCESS 1. Due Process require notice: service of summons & complaint w/in 120 days of filing, by any adult, non-party a) or else dismissed w/o prejudice 2. Personal Service: anywhere find D in st 3. Substituted Service: OK if (1) usual dwelling and (2) left with someone who resides there and is of suitable age and discretion; or (3) authorized agent (corp) or (4) state officer (by law) 4. Waiver by mail: D returns waiver form w/ 30 days, waiving formal service; if she doesn’t, she will have to pay 5. Service in other state: (1) only if state law (long-arm) allows; (2) regardless of state law of bulge rule or statutory interpleader applies. PLEADINGS Rule 11 atty’s signature certifies: (1) not for improper purpose; (2) warranted by law; (3) factual cont./denials have evidentiary support
Safe Harbor: motion served on violator by other partynot filed, ―violator‖ has 21 days to cure b) Sanctions: discretionary, to deter Complaint: (1) state SMJ; (2) short statement of claim (X: fraud, mistake, special damages, securities, RICO pleaded w/ particulatity); (3) demand judgment D’s Response: motion or answer w/in 20 days 1. Motions: request ct order, not pleading a) Issues in form -must be in 1st response:(1) more definite statement (unintelligible); (2) motions to strike b) Matters of abatement: [waived if not in first response] (1) lack of PJ; (2) improper venue; (3) bad process; (4) bad service; [not waived] (5) no SMJ;(6)indispensible party unjoined c) Matter re merits: [diff. stages- see below] (1) 12b6-failure to state a claim; (2) 12 judg. on pleadings; (3) 56 summ. judg. 2. Answer: pleading a) 20 days if no motions, 10 days after motions, 60 days if D waive service b) Respond: (1) admit (incl. silence); (2) deny;(3)no info to admit or deny; X: dn’t have to deny damages c) Raise aff. defenses or else waived ! Counterclaim: D vs. P, filed w/ answer 1. Compulsory: arises from same T/O as P’s claim; must be filed or else waived a) Can use Div., FQJ, or Ancillary Supp. 2. Permissive: arises from different T/O, can be raised now or later; NO ancillary Cross-claim: offensive claim vs. co-party 1. Claim must arise from same T/O 2. NOT compulsory 3. Can use Div., FQJ, or Ancillary Supp. Amending Pleadings 1. P can amend once before D serves answ. 2. D can amend once w/in 20 days of answ. 3. Defeat SOL if (a) relates back to T/O (b) wrong D & right notice 4. Ct discr if justice req. & no delay/prej JOINDER OF PARTIES AND CLAIMS Joinder of Parties 1. Permissive: Co-Ps & co-Ds: (1) all Ps’ claims against all Ds arise from same T/O; (2) at least 1 common Q of fact/law. a) Then remember SMJ for each 2. Must: Necessary & Indispensable Parties (1) W/o absentee ct can’t grant complete relief (worry of mult. suits); or (2) absentee’s interest may be harmed; or (3) absentee claim subjects Ds to mult. oblig. a) Joint tortfeasors are not ―necessary‖ b) BUT CAN’T IF: (1) court can’t exercise PJ; or (2) presence would destroy diversity; or venue c) If joinder is not feasible: court must (1) proceed w/o absentee; or (2) dismiss whole case. Factors: (1) alt. forum available?; (2) likelihood of prejudice/ ability to shape jdgmnt to avoid prejudice; (3) harm to interests of P’s claim 3. Impleader: 3P D in vicarious liability a) Derivative claim against 3P D for indemnity or contrib.; must be brought w/in 10 days.
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OK for joint tortfeasors—contribut After impleading, P can sue 3PD if claim arises from same T/O d) After impleading, 3PD can counterclaim P if under same T/O e) Run through each suit for SMJ i) Div., Ancillary, Pendent (if FQJ) ii) If P asserts, there must be either complete diversity or the claim b/t the original P & D was FQJ. 4. Bulge Rule: absentees w/in 100 miles (in any st.) may be served despite st law a) Only: necessary parties & impleaders 5. Intervention: absentee timely joins as plaintiff or defendant a) Intervention of Right: absentee’s interest harmed if not joined i) don’t need indep. SMJ b) Permissive Intervention: absentee’s claim or defense has at least 1 common question (ct’s discretion) i) Need indep. SMJ & can’t ruin div. 6. Interpleader: D brings in new [all] Ps a) Stakeholder (D) wants all claimants (Ps) in one place for efficiency b) Rule Interpleader: normal div. & fqj c) Statutory Interpleader: (1) ―minimum diversity‖—one claimant must be diverse from one other claimant (stakeholder irrel.); (2) amt. = $500 or more; (3) venue = any dist. where claimant resides; (4) nationwide service available 7. Cross-claim: see above (suit vs co-party) Joinder of Claims 1. Basics: (1) once a party can assert a claim by complaint, counterclaim, crossclaim or impleader; (2) in div.: can aggregate even unrelated claims; (3) if FQJ: must be same T/O 2. Class Actions Class Acttion N. Reiter; All Initials Questioned a) Elements: (1) Common question of law or fact (2) Adequacy & fairness of representation (3) Too numerous for practical joiner (4) Rep is typical of the class b) And one of 3 types: (1) To avoid prejudice to parties (asbestos); (2) Inj./Dec.rel. appropriate because class treated alike by D (employment discrimination); or (3) Damages— common Qs predominate and class action is superior method (mass tort) c) Notice only required in type 3/ damages/mass tort type; b/c all members bound & ct.; must give an option to opt out. DISCOVERY Required Disclosures 1. Must be produced w/o asking 2. Initial Disclosures: Unless local rule: req. w/in 10 days (1) Info. on people w/ disc. info.; (2) documents w/ relevant info; (3) computations of damages; (4) relevant insurance agreements 3. Experts: 90 days before trial unless rebuttal then 30 days. Must ID experts, quals, data, compensation, opinions, etc. 4. Pretrial: 30 days before trial. Give witness lists, trial ev. Object w/in 14 day.
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Discovery Tools: used after 26(f) meeting [ ID MAPS for Discovery] 1. Interrogatories: 25 party-to-party only 2. Depositions: sworn oral statements in response to counsel’s questions a) Parties or subpoenaed non-parties 3. Mental or Physical Exam: (1) court order; (2) health in issue; (3) good cause 4. Requests for Admission: party-to-party, like an answer in terms of response 5. Requests to Produce: docs or property a) Parties or subpoenaed non-parties 6. Signature: parties sign substantive Answers Under Oath 7. Duty to Supplement: honor code Substantive Scope of Discovery 1. G/R: Can discover anything relevant (reas. calculated to lead to admissible evidence) (broader than admissible ev) 2. Privileged Matter: not discoverable 3. Work Product: material generated in anticipation of litigation by atty. or rep. a) Absolutely protected: conclusions, mental impressions, theories, opinions b) Some discoverable if: (1) substantial need; and not otherwise available c) Experts: discoverable if expected to testify otherwise only exceptional need Enforcement of Discovery Rules 1. Discovery usually resolved by parties, but court intervenes for: a) Protective orders: overburdensome requests, trade secrets, etc. b) Partial Violation: answers some & objects to otherslight sanction c) Total Violation: fails completely to attend depo or answer interrogs, etcheavy sanctions 2. Sanctions a) Against Party: motion to compel or get sanctions only after gd faith attempt to get material; must certify (X: immediate if party doesn’t A any interrog or attend his depo) b) Options for Court c) Establish facts as true; d) Strike pleadings of bad party e) Disallow ev from bad party f) Hold in contempt g) Dismiss Ps case (bad faith req) h) Default judgment (bad fth req) i) Costs & Atty’s fees j) Total Violation: any of above k) Partial Violation: 1st order compelling answers plus costs & atty fees; 2nd if violation of order any of the above options (X: no contempt for refusing to submit to mental/physical exam) l) Against Non-Party: contempt for violating subpoena or court order m) Against Atty: if counseled, liable TERMINATION OF CASE W/O TRIAL Pre-Answer Motions: see above Voluntary Dismissal: file written notice 1. P may dismiss once w/o prejudice by: (a) filing written notice of dismissal; (b) before D serves answer; or D moves for summary judgment (2nd is w/ prejudice)
Default and Default Judgment 1. Default: ministerial entry & prerequisite to default judgment a) Clerk enters default after 20 days if: i. No response at all from D ii. Claim for sum certain + costs iii. P gives affidavit sum is owed iv. D is not a minor or incompetent 2. Default Judgment: needed to enforce and recover money or other relief a) If damages are uncertain have a hearing (D gets no notice unless D made some appearance) 3. Relief from default / default judgment a) Motion to set aside default or default judgment requires (1) showing of good cause (excusable neglect) and (2) viable defense. Dismissal for Failure to State a Claim 1. Rule 12(b)(6) motion tests only the sufficiency of P’s allegations, and does not address evidenceif all of P’s allegations in complaint are true, would she win judgment? No? 12(b)(6) 2. Motion for Judgment on the Pleadings: California term for same type of dismissal, but after D files answer. Summary Judgment 1. Elements moving party must show: (1) no dispute as to material issue of fact; and (2) entitled to judgm as matter of law 2. Court will examine pleadings, affidavits and discovery material a) Viewed in light fav. to non-mover b) Evidence must be admissible c) Court will not judge credibility of evidence if it creates any dispute as to a material issue of fact 3. Timing a) D may file at any time b) P may file 20 days after commencement of action CONFERENCE AND MEETINGS Note: ―unless local rule/ct order sts otherwise‖ Rule 26(f) Meeting 1. Parties meet to discuss discovery, claims, settlement, & initial disclosures 2. Must form discovery plan and submit it to the court w/in 14 days. 3. Cannot use discovery prior to meeting Scheduling Order Meeting w/in 120 days of service to blueprint litigation; sets cut-off for joinder, amendment, motions. Pretrial Conference 1. Held as needed to expedite case and foster settlement 2. Final pretrial conference order supercedes pleadings (lists all contentions, witnesses, evidence) & may be amended to prevent manifest injustice (eg amend to conform with evidence)
TRIAL, JUDGMENT & POST-TRIAL Jury Trial 1. Requirement of Demand: in writing w/in 10 days of last pleading w/ triable issue 2. 7th Amend. Right to jury trial in fed ct: in civil case, on law issues only; not on equity (only factual questions on legal issues will go to the jury)—legal issues tried 1st, then the equitable issues (ct.) 3. Jury Selection: unlimited strikes for cause; 3 peremptories; race/sex neutral Motion for Judgment as a Matter of Law 1. Directed Verdict (takes case from jury) 2. When raised: (1) D can move twice: (a) close of P’s ev; and (b) close of all ev; (2) P can only move at close of all ev 3. Standard: Reasonable people could not disagree on the result (rare) a) Viewed in light fav. to non-mover Renewed Motion for Judg. Matter of Law 1. JNOV or judg. notwithstanding verdict 2. Situation: losing party (after jury verdict) raises w/in 10 days of entered judgment a) For P and D: Motion for Judgment as matter of Law at close of all evidence is a prerequisite (so if D moved at close of P’s evidence, he must do it again). 3. Standard: Reasonable people could not disagree on the result (rare) a) Viewed in light fav. to non-mover Motion for New Trial 1. Situation: (1) judg. entered; (2) errors require new trial; (3) move w/in 10 days after entry of judgment 2. Possible Grounds: (1) unfair error at trial; (2) new ev; (3) prejudicial misconduct of party or juror; (4) judgment is against weight of evidence (5) inadequate or excessive verdict. 3. Less radical than JNOV—just start over
APPEAL Final Judgment Rule 1. General Rule: can only appeal from final judg. (ultimate decision on merits) 2. Key: ask if anything left to do on merits (Not s/j, d/v, grant of a new trial, etc) Interlocutory Review (Xs to final judg. rule) 1. Review as of right: orders re: (1) injunctions; (2) receivers; (3) attachment 2. Class Action: if filed w/in 10 days, App. Can hear appeal on order granting or denying certification of class. PRECLUSION Res Judicata: claim preclusion 1. Elements: (1) Same claimant against same defendant; (2) 1st suit ended in valid final judg. on merits (3) cases involve same claim 2. Does not require the same issue litigated. 3. NOT dismissals on: (a) jurisdiction or venue; (b) indispensible party; (c) without prejudice; not on merits 4. ―Claim‖ : Maj: any right to relief from same T/O (X: p.i. manifests later); Min: prop. & p.i. claims sep. even if same T/O Collateral Estoppel: issue preclusion 1. Elemments a) DP: can only be asserted against prior party or someone in privity w/ a former party, (licensor, beneficiary, holder of FI, members of class, transferees of property) b) 1st suit ended in valid final judg. on merits c) Same issue was actually litigated (no c/e for default or summ. judg.); d) Issue essential to 1st judgment; 2. Who can use collateral estoppel: a) Mutual (trad. rule): assered by former party or someone represented—not req by d/p b) Non-mutual CE: the party asserting CE was not a party to Case 1. c) Nonmutual defensive: the defendant in Case 2, who was not in Cast 1 is asserting collateral estoppel. d) Nonmutual offensive: asserted by P in Case 2, who was not in Case 1 (most courts don’t allow unless, and if they do requires that D had full chance to litigate & P didn’t; D could forsee multiple litigation).