Federal Jurisdiction and Civil Procedure

Card Set Information

Author:
apgiering
ID:
161135
Filename:
Federal Jurisdiction and Civil Procedure
Updated:
2012-07-07 16:00:46
Tags:
CT Bar Exam
Folders:

Description:
CT Bar Exam
Show Answers:

Home > Flashcards > Print Preview

The flashcards below were created by user apgiering on FreezingBlue Flashcards. What would you like to do?


  1. Personal Jurisdiction
    Court's power over the person, 2 step inquiry:

    • 1) Satisfy a statute (e.g., a state's long-arm statute) AND
    • 2) Satisfy the Constitution (due process clause)
  2. Personal Jurisdiction - statutory analysis
    State statutes allow personal jurisdiction over defendants who are served with process in the forum or reside in the forum and over nonresidents who do certain things in the forum.  If they give you a statute, argue whether it is satisfied.
  3. Personal jurisdiction - constitutional analysis
    Does the defendant have such minimum contacts with the forum so that the exercise of personal jurisiction does not offend traditional notions of fair play and substantial justice?
  4. Minimum contact (personal jurisdiction; constitutional analysis)
    • Purposeful Availment: there must be some contact between the defendant and the forum state and it must result from his reaching out to the forum; it cannot be accidental
    • Forseeability: It must be forseeable that the defendant could get sued in the forum
  5. Purposeful availment (personal jurisdictuon; constitutional analysis; minimum contact)
    There must be some contact between the defendant and the forum state and it must result from his reaching out to the forum; it cannot be accidental.
  6. Forseeability (personal jurisdiction; constitutional analysis; minimum contact)
    It must be forseeable that the defendant could get sued in the forum.
  7. Fair Play and Substantial Justice
    • Specific Personal Jurisdiction -- Defendant has very little contact with the forum, need relatedness (relatedness = does plaintiff's claim arise from defendant's contact with the forum?)
    • General Personal Jurisdiction -- Defendant has continuous and systematic contact with the forum.  Does not need relatedness.
    • Convenience -- Forum cannot put defendant at a severe disadvantage in the litigation
    • State interest -- i.e., provide a forum for its citizens
  8. Subject Matter Jurisdiction
    Power over the case.

    • 1) Diversity of Citizenship
    • 2) Federal Question Cases
    • 3) Supplemental Jurisdiction
  9. Diversity of Citizenship
    • The action must be between "citizens of different states" and
    • The amount in controversy must exceed $75K
  10. Complete Diversity Rule (subject matter jurisdiction, diversity of citizenship)
    No diversity if any plaintiff is a citizen of the same state as any defendant.
  11. How do you determine the citizenship of a natural person (subject matter jurisdiction, diversity of citizenship)?
    A natural person is a citizen of the state of her domicile.

    • Domcile:
    • 1) Presence in the state, AND
    • 2) Intent to make it your permanent home
  12. How do you determine a person's domicile (subject matter jurisdiction, diversity of citizenship)
    • Presence in the state, AND
    • Intent to make it your permanent home
  13. How do you determine the citizenship of a corporation (subject matter jurisdiction, diversity of citizenship)?
    A corporation is a citizen of both:

    • 1) State where incorporated, AND
    • 2) State where the corporation has its principal place of business.
  14. How do you determine the citizenship of an unincorporated association?
    The citizenship of all members (including general and limited partners).
  15. How do you determine the citizenship of decedents, minors, or incompetents?
    Use their citizenship, not the citizenship of their representative/guardian.
  16. Amount in Controversy requirement (subject matter jurisdiction, diversity of citizenship)
    P's good faith claim must exceed $75K (not counting interest on the claim or the cost of litigation)
  17. What is sufficient to show that the amount in controversy is $75K (subject matter jurisdiction, diversity of citizenship)?
    Plaintiff's good faith assertion is enough unless it is clear to a legal certainty that she cannot recover more than $75K.
  18. Can you aggregate claims to reach the $75K amount-in-controversy requirement?
    • Can aggregate claims against joint tortfeasors
    • Cannot aggregate claims by different plaintiffs
  19. When you seek an injunction in order to satisfy the amount-in-controversy requirement (subject matter jurisdiction, diversity of citizenship)?
    • Plaintiff's viewpoint - the activity they want to get an injunction for injures the plaintiff in an amount greater than $75K
    • Defendant's viewpoint - cost to comply with the injunction would cost more than $75k
  20. Federal question case (subject matter jurisdiction)
    Complaint must show a right or interest founded substantially on a federal law.

    Well-pleaded complaint rule -- it is not enough that some federal issue is raised by the complaint; the plaintiff's claim itself must "arise under" federal law.

    Q: Is the plaintiff enforcing a federal right?
  21. Well-pleaded complaint rule (subject matter jurisdiction, federal question case)
    • It is not enough that some federal issue is raised by the complaint
    • The plaintiff's claim must "arise under" federal law
    • Q: Is the plaintiff enforcing a federal right?
  22. Supplemental jurisdiction (subject matter jurisdiction)
    An additional claim we want to add to a case that is already in federal court.

    TEST: The claim we want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction.  This test is always met by claims that arise from the same transaction or occurence as the underlying claim.

    EXCEPTION: In a diversity case, the plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity.
  23. How do you determine if a non-federal claim gets into federal court under supplemental jurisdiction?
    The claim we want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction.  This test is always met by claims that arise from the same transaction or occurence as the underlying claim.

    EXCEPTION: In a diversity case, the plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity.
  24. Can the plaintiff in a diversity case use supplemental jurisdiction to overcome a lack of diversity?
    No. This is an exception to supplemental jurisdiction.
  25. When does the court have discretion not to hear a supplemental claim (subject matter jurisdiction, supplemental jurisdiction)?
    • The federal question is dismissed early in the proceedings, or
    • The state law is complex, or
    • State law issues would predominate
  26. Removal
    A defendant sued in state court might be able to "remove" the case to federal court.

    Can only be removed to federal district embracing the state court in which the case was originally filed.

    Needs to invoke diversity or federal question.
  27. For how long can a state court defendant remove a case to federal court?
    • No later than 30 days after service of the first document that makes the case removable
    • You can never remove a diversity case more than a year after it was filed
  28. To which federal courts can a state court defendant remove a case?
    Only to federal district embracing the state court in which the case was originally filed.
  29. What is the procedure for removal from state to federal court?
    • Defendant files notice of removal in federal court, stating grounds for removal
    • Signed under Rule 11
    • Attached all documents served on defendant in state action
    • Copy to all adverse parties
    • Then file notice in state court
  30. Erie Doctrine
    In diversity cases, federal courts must apply state substantive law.

    Step 1 - Is there a federal law on point that directly conflicts with the state law? If so, apply the federal law (supremacy clause).

    • Step 2 - If there is no federal law on point, ask if it is one of the following substantive issues:
    • 1) Elements of a claim or defense
    • 2) Statute of limitations
    • 3) Rules for tolling statutes of limitations, and
    • 4) Conflict (or choice) of law rules

    • Step 3 - Stil not sure? Use the following three factors:
    • 1) Outcome determinative - Would applying or ignoring the state rule affect the outcome of the case?  If so, it is probably a substantive rule.
    • 2) Balance of interests - Does either federal or state system have a strong interest in having its rule applied?
    • 3) Avoid forum shopping - If the federal court ignores state law on the issue, will it cause parties to flock to federal court?  If so, should probably apply state law.
  31. What are the three factors for determining whether or not a state law is substantive or procedural (Erie doctrine)?
    • Outcome determinative - Would applying or ignoring the state rule affect the outcome of the case? If so, it is probably a substantive rule.
    • Balance of interests - Does either federal or state system have a strong interest in having its rule applied?
    • Avoid forum shopping - If the federal court ignores state law on the issues, will it cause parties to flock to federal court?  If so, should probably apply state law.
  32. What is the appropriate venue for local actions?
    Actions about ownership, possession or injury (including trespass) to land must be filed in the district where the land lies.
  33. What is the appropriate venue for transitory (non-local) actions?
    May bring case in any district where:

    1) All defendants reside (NOTE: If all defendants reside in different districts of the same state, plaintiff can lay venue in the district in which any of them reside), or

    2) A substantial part of the claim arose.
  34. To which districts can a federal district court transfer a case?
    Only to a federal district court where the case could have been followed.

    The court has the discretion to transfer based on the following factors:

    • PUBLIC
    • 1) What law applies
    • 2) What community should be burdened with jury service
    • 3) Keeping local controversy in the local court

    • PRIVATE
    • 1) Convenience - where are the witnesses and the evidence
  35. What factors will the court consider in determining whether to exercise its discretion to transfer venue?
    • PUBLIC
    • 1) What law applies
    • 2) What community should be burdened with jury service
    • 3) Keeping local controversy in the local court

    • PRIVATE
    • 1) Convenience - where are the witnesses and the evidence
  36. What constitutes adequate service of process in federal court?
    Plaintiff must deliver to defendant a summons (formal court notice of suit and time for response) AND a copy of the complaint.

    Process can also be served in any manner consistent with state law.
  37. Who can serve process in federal court?
    Any non-party over 18 year olds.
  38. Personal service
    Papers are given to the defendant personally.
  39. Substituted service
    Papers are left with someone else.

    • OK, if:
    • 1) It is left at defendant's usual abode, and
    • 2) You serve someone of suitable age and discretion who resides there.
  40. Can you serve process to an agent of the defendant?
    Process can be delivered to defendant's agent so long as it is within the scope of the agency.
  41. Waiver by mail (service of process)
    Mail copies of complaint and waiver form to defendant.  If defendant signs, process is waived.  If defendant refuses to waive for no good reason, then he must pay the cost of service.
  42. When can a federal court serve process outside the state in which it sits?
    Only if a state law allows it.
  43. What does Rule 11 require as to pleadings?
    Rule 11 requires attorneys (or pro se parties) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule). 

    • The signature certifies that to the best of his knowledge and belief, after reasonable inquiry:
    • 1) The paper is not for an improper purpose
    • 2) Legal contentions are warranted by law (or nonfrivolous arguments for change in the law), and
    • 3) The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)

    NOTE: Sanctions may be levied against the attorney, firm, or party.
  44. When is the Rule 11 certification effective?
    Each time the position advocated for is presented to the court.

    NOTE: Sanctions may be levied against the attorney, firm, or party.
  45. Against whom can Rule 11 sanctions be levied?
    Against the attorney, firm, or party.
  46. How do you move for sanctions under Rule 11?
    • You cannot simply move for sanctions
    • Rather, you must serve the other party your motion for sanctions
    • They then have 21 days to withdraw the sanctionable document or fix the problem
    • NOTE: The court can also serve sanctions sua sponte, but it must also give an opportunity to fix
  47. Can the court issue Rule 11 sanctions on pleadings sua sponte?
    Yes, but it must also give an opportunity to fix.
  48. What commences an action?
    Filing the complaint.
  49. What is required in a complaint?
    • Statement of grounds of subject matter jurisdiction
    • Short and plain statement of the claim, showing entitlement to relief
    • Demand for relief sought
    • Plead facts supporting a plausible claim
    • Greater level of detail required -- with particularity or specificity -- for 1) fraud, 2) mistake, 3) special damages (those that do not normally flow from an event)
  50. When do you need to plead with particularity or specifcity in a complaint?
    • Fraud
    • Mistake
    • Special damages (those that do not normally flow from an event)
  51. When is the defendant's response to the complaint due?
    Within 21 days after service of process.
  52. What are appropriate Rule 12 motions?
    • Motion for more definite statement - pleading so vague that the defendant cannot frame a response
    • Motion to strike - which is aimed at immaterial things
  53. Motion for more definite statement (Rule 12)
    Pleading so vague that the defendant cannot frame a response.
  54. Motion to strike (Rule 12)
    Aimed at immaterial things.
  55. What are grounds for a 12(b) motion to dismiss?
    • Lack of subject matter jurisdiction -- any time, never waived
    • Lack of personal jurisdiction -- waivable
    • Improper venue -- waivable
    • Insufficiency of process -- waivable
    • Failure to state a claim -- through trial
    • Failure to join an indispensible party -- through trial
  56. When must an answer be filed?
    Filed within 21 days of service of process or 14 days after the court rules on a motion (for more definite statement, to strike, to dismiss).
  57. What is required of an answer?
    • 1) Must respond to allegations of complaint
    •      A) Admit
    •      B) Deny
    •      C) State that you lack sufficient information to admit or deny (acts as a denial, but cannot be used if the information is public knowledge or is in the defendant's control)
    •      NOTE: Failure to deny can constitute an admission on any matter except damages

    2) Raise any affirmative defenses

    3) Bring any counterclaims

    4) Bring any crossclaim
  58. How can a defendant respond to the allegations in the complaint in his answer?
    • Admit
    • Deny
    • State that you lack sufficient information to admit or deny (acts as a denial, but cannot be used if the information is public knowledge or is in the defendant's control)
    • NOTE: Failure to deny can constitute an admission on any matter except damages
  59. Does failure to deny an allegation in an answer constitute an admission?
    Yes, on any matter except damages.
  60. Affirmative defenses
    Those that basically say, "even if I did all the terrible things plaintiff says, plaintiff still cannot win," i.e.,

    • 1) Statute of limitations
    • 2) Statute of frauds
    • 3) Res judicata
    • 4) Self-defense
  61. Counterclaim
    A claim against an opposing party.

    Compulsory counterclaim - arises from the same transaction or occurence. MUST BE FILED IN THE PENDING CASE OR IT IS WAIVED.

    Permissive counterclaim - does not arise from the same transaction or occurence and theerefore may be filed in this case or in a subsequent case
  62. Compulsory counterclaim
    • Arises from the same transaction or occurence
    • Must be filed in the pending case or it is waived
  63. Permissive counterclaim
    • Does not arise from the same transaction or occurence
    • May be filed in this case or in a subsequent case
  64. Crossclaim
    A claim against a co-party that arises from the same transaction or occurence as the underlying action.
  65. Can a plaintiff amend his pleadings?
    The plaintiff has a right to amend within 21 days after the defendant serves her first response.

    The plaintiff can seek leave of the court after that.
  66. Can a defendant amend his pleadings?
    The defendant has a right to amend within 21 days of serving his answer.

    The defendant can seek leave of the court after that.
  67. What factors will the court consider in determining whether justice requires granting leave to amend a pleading?
    • Prejudice
    • Delay
    • Futility of amendment
  68. Variance (pleadings)
    The evidence at trial does not match what was pleaded.

    • --If defendant does not object, plaintiff can move to amend the complaint to conform to the evidence.
    • --This ensures that the pleadings match what was actually tried.
    • --If defendant does object, then the evidence will be inadmissible.
  69. Relation back doctrine (pleadings)
    • Amended pleadings "relate back" if they concern the same conduct, transaction or occurence as the original pleading
    • You treat the amended pleading as though they were filed when they original was filed so as to avoid a statute of limitations problem
  70. What date do you use for an amended pleading for statute of limitations purposes?
    The date that the original pleading was filed, so long as the amended pleading concerns the same conduct, transaction or occurence as the original pleading (relation back doctrine).
  71. What discovery is required (e.g., must be produced even though no one asks for it)?
    • Initial disclosures - Unless court order or stipulation of parties differs, in most cases, within 14 days of the Rule 26(f) conference, the parties must identify persons, electronically stored information, and documents that are "likely to have discoverable information that the disclosing party may use to support its claims or defenses," computation of damages and insurance for any of judgment
    • Experts - As directed by court, must identify experts "who may be used at trial" and produce written reports containing opinions, data used, qualifications, compensation for study, etc.
    • Pretrial - No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition
  72. When can a party use discovery tools (depositions, requests to produce, interrogations, physical or mental examinations, requests for admission)?
    Not until after the Rule 26(f) conference, unless court order or stipulation allows otherwise.
  73. What discovery tools may be used on either a party or someone else (third party)?
    • Depositions
    • Requests to Produce
  74. What discovery tools may only be used against a party?
    • Interrogatories
    • Physical or mental examination (only available through court order)
    • Request for admission
  75. Depositions
    • Questions can be oral or written (if written, read by court reporter)
    • Deponent gives sworn oral answers to questions by counsel (or pro se parties)
    • Recorded by sound or video or stenographically and a transcript can then be made
    • Nonparties should be subpoenaed or they are not comeplled to attend (subpoena duces tecum - requires the deponent to bring material with her)
    • Cannot take more than 10 depositions or depose the same person twice without court approval or stipulation
    • Deposition cannot exceed 1 day of 7 hours unless court orders or parties stipulate
    • Can be used at trial to imepach the deponent; for any purpose if the deponent is an adverse party; for any purpose if the deponent is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence
    • Unless he agrees, non-party cannot be required to travel more than 100 miles from her residence or place where she regularly transacts business for the deposition
    • Notice of subpoena to a business may require it to designate the right person for deposition
  76. Are non-parties compelled to attend a deposition?
    Not unless they are served with a subpoena.
  77. Subpoena duces tecum
    Requires the deponent to bring material with her to the deposition.
  78. How many depositions can you take?
    Cannot take more than 10 depositions or depose the same person twice without court approval or stipulation.
  79. How long can a deposition last?
    Deposition cannot exceed 1 day of 7 hours unless court orders or parties stipulate otherwise.
  80. For what purposes can a deposition be used at trial (subject to the rules of evidence)?
    • Impeach the deponent
    • Any purpose if the deponent is an adverse party
    • Any purpose if the deponent is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence
  81. How far can a nonparty be required to travel for a deposition?
    Unless she agrees, nonparty cannot be required to travel more than 100 miles from her residence or place where she regularly transacts business.
  82. Can a notice of subpoena to a business require the business to designate the right person for deposition?
    Yes.
  83. Requests to Produce
    Requests that a party (or non-party with a subpoena) make available for review and copying various documents or things, including electronically stored information (ESI), or permit entry upon designated property for inspection, measuring, etc.

    Must specify form in which electronically stored information (ESI) is to be produced (hard copy or electronic).

    Must respond within 30 days of service, stating that the material will be produced or stating objection.
  84. What is requred to respond to requests to produce?
    Must respond within 30 days of service, stating that the material will be produced or stating objection.
  85. Interrogatories
    • Questions propounded in writing, to be answered in writing under oath
    • May only be used against a party
    • Must respond with answers or objections within 30 days
    • Can say you don't know the answer, but only after reasonable investigation; if the answer could be found in business records and it would be burdensome to find it, can allow propounder access to those records
    • At trial, cannot use your own answers; others may be used per rules of evidence
    • Cannot serve more than 25 interrogatories (including subparts) without court order or stipulation
  86. How long do you have to respond to interrogatories?
    Must respond with answers or objections within 30 days

    NOTE: Can say you don't know the answer, but only after reasonable investigation.
  87. How many interrogatories can you serve on another party?
    Cannot serve more than 25 interrogatories (including subparts) without cort order or stipulation.
  88. Physical or mental examination (discovery tool)
    • May only be used against a party
    • Only available through court order on showing the party (or person in party's control)'s health is in actual controversy and "good cause."
    • Party seeking the order chooses the suitably licensed person to perform the exam
    • Person examined may obtain copy of report simply by asking for it, but by doing so waives his doctor-patient privilege re reports by his doctors re that condition
  89. What is required in order to get a physical or mental examination as a discovery tool?
    Only available through court order on showing the party (or person in party's control)'s health is in actual controversy and "good cause."
  90. Request for admission (discovery tool)
    • Request by one party to another party to admit the truth of any discoverable matters
    • Often used to authenticate documents; the propounding party will send copies of the documents to be authenticated with the request
    • Must respond within 30 days of service
    • The response is to admit or deny; can indicate lack of information only if you've made a reasonable inquiry
    • Failure to deny tantamount to admission; can amend if failure not in bad faith
  91. How long do you have to respond to requests for admissions (discovery tool, typically used to authenticate documents)?
    Must respond within 30 days of service.

    NOTE: The response is to admit or deny; can indicate lack of information only if you've made a reasonable inquiry; failure to deny tantamount to admission; can amend if failure not in bad faith.
  92. What certification is required of every discovery request and response?
    Every discovery request and response must be signed by counsel certifying:

    • A) It is warranted,
    • B) Not interposed for improper purpose, and
    • C) Not unduly burdensome.
  93. Duty to Supplement (discovery tools)
    If a party learns that its respopnse to a required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect, she must supplement her response.
  94. What is the scope of discovery?
    Anything relevant to a claim or defense that is not privileged or work product.

    Relevant = reasonably calculated to lead to the discovery of admissible evidence.
  95. Relevant (scope of discovery)
    Reasonably calculated to lead to the discovery of admissible evidence.
  96. Is privileged matter discoverable?
    No.
  97. Work product (discovery)
    Material prepared in anticipation of litigation; generally protected from discovery.

    EXCEPTION: The party that wants to discover the work product shows A) substantial need, and B) the information is not otherwise available.

    NOTE: Work product does not need to be by a lawyer; it can be by a party or any representative of a party.

    NOTE: If you claim work product, you must claim the protection expressly and describe the materials.
  98. What must the party that wants to discover work product show?
    • Susbstantial need
    • The information is not otherwise available
  99. How do you invoke the work product protection as to otherwise-discoverable material?
    You must claim the protection expressly and describe the materials.
  100. What are the three main ways to enforce discovery?
    • Protective order - responding party seeks protective order
    • Partial violation -receiving party answers some and objects to others.  If the objections are not upheld, this is a partial violation, leads to a light sanction
    • Total violation - receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for protection; leads to a heavy sanction
  101. What sanctions follow a partial discovery violation?
    • Can get an order compelling the party to answer the unanswered questions, plus cost of bringing the motion
    • If the party violates the order compelling him to answer, can bring sanctions
  102. What sanctions follow a total discovery violation?
    • Establishment order (establishes facts as true)
    • Strike pleadings of the disobedient party (as to issues re the discovery)
    • Disallow evidence from the disobedient party (as to issues re the discovery)
    • Dismiss plaintif's case (if bad faith shown)
    • Enter default judgment against the defendant (if bad faith shown)
  103. What is required for co-plaintiffs to bring the same claim?
    • Must arise from the same transaction or occurence, and
    • Raise at least one common question
  104. Necessary and indispensible party
    An absentee who meets any of the follwign three tests:

    • 1) Without A, the court cannot afford complete relief (worried about multiple suits)
    • 2) A's interest may be harmed if he isn't joined (practical harm); or
    • 3) A claims an interest which subjects a party (usually defendant) to a risk of multiple objections
  105. What if an absent necessary and indispensable party cannot be joined because of lack of personal jurisdiction or inability to maintain diversity jurisdiction?
    The court must either proceed without Bob or dismiss the case.

    • --Is there an alternative forum available?
    • --What is the actual likelihood of prejudice?
    • --Can the court shape relief to avoid that prejudice?


    If the court dismisses, Bob was indispensable.
  106. Impleader
    • A defending party wants to bring in someone new.
    • Defendant can implead within 14 days; after that you need a court order.
  107. For how long can a defendant implead another party?
    • 14 days
    • After that, you need a court order
  108. Intervention
    • Absentee wants to join a pending suit, to come in either as plaintiff or as defendant
    • Intervention of right - A's interest may be harmed if she is not joined and her interest is not adequately represented now
    • Permissive intervention - A's claim or defense and the pending case have at least one common question.  Discretionary with court -- OK unless delay or prejudice
  109. Intervention of right
    A's interest may be harmed if she is not joined and her interest is not adequately represented now.
  110. Permissive intervention
    A's claim or defense and the pending case have at least one common question.  Discretionary with court -- OK unless delay or prejudice.
  111. Class action
    Representative sues on behalf of group.
  112. What must you initially demonstrate in order to bring a class action?
    • Numerosity -- too many class members for practicable joinder
    • Commonality -- there are some questions of law or fact in common to class
    • Typicality -- representative's claims/defenses are typical of those of the class; and
    • Representative adequacy -- the class representative will fairly and adequately represent class
  113. Numerosity (class action)
    Too many class members for practicable joinder.
  114. Commonality (class action)
    There are some questions of law or fact in common to class.
  115. Typicality (class action)
    Representative's claims/defenses are typical of those of the class.
  116. Representative adequacy (class action)
    The class representative will fairly and adequately represent class.
  117. What are the three types of class actions?
    • Prejudice -- class treatment necesary to avoid harm either to class members or to party opposing class
    • Injunction or declaratory damages sought because class was treated alike by other party
    • Damages -- common questions predominate over individual questions; AND class action is the superior method to handle the dispute (must provide individual notice to class members, expense born by representative; class members can opt out)
  118. Who decides whether to cerfiy the class in a class action suit?
    • The court
    • Defines the class and the class claims, issues, or defenses
    • Appoints class counsel who must fairly and adequately represent the interests of the class
  119. Who appoints class counsel in a class action suit?
    The court must appoint class counsel who must fairly and adequate represent the interests of the class.
  120. Which members of a class are bound by a class action judgment?
    All members, except those who opt out of a "damages" class action (where common questions predominate over individual questions; AND class action is the superior method to handle the dispute).
  121. How do you determine diversity jurisdiction in a class action?
    • Look at the class representative(s) for diversity
    • The class representatives' claim must exceed $75K
  122. Class Action Fairness Act (CAFA)
    • Lets federal courts hear a class action if any class member is of diverse citizenship from any defendant AND
    • If the aggregated claims of the class exceed $5M AND
    • If there are at least 100 members
  123. How can you dispose of a case before trial?
    • Failure to state a claim -- if all these facts were true, would P win a judgment (motion to dismiss)?
    • Motion for judgment on the pleadings -- like a motion for failure to state a claim but after there has been an answer
    • Summary judgment -- moving party must show (1) there is no genuine dispute as to material issue of fact and (2) that he is entitled to judgment as a matter of law
  124. What must a moving party show in order to dismiss a case for failure to state a claim?
    If all of the facts alleged by P were true, P would not be entitled to judgment as a matter of law.
  125. Motion for judgment on the pleadings
    Like a motion for failure to state a claim, but after there has been an answer.
  126. What must a moving party show in order to win summary judgment?
    • There is no genuine issue as to material fact
    • He is entitled to judgment as a matter of law
  127. Rule 26(f) Conference
    Unless court says otherwsie, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses, and settlement.  Must form discovery plan, including issues about how eletronically stored information (ESI) will be produced, and present it to court in writing within 14 days.
  128. Scheduling Order
    Unless local rule or court order says otherwsie, the court enters an order scheduling cut-offs for joinder, amendment, motions, etc.
  129. Pretrial Conferences
    The court may hold "pretrial conferences" to process the case and foster settlement.  Final pretrial conferences determine issues to be tried and evidence to be proffered.  This is recorded in a pretrial conference order, which supersedes the pleadings.
  130. Right to jury trial in federal court
    Seventh Amendment preserves right to jury in "civil actions at law," but not in suits at equity.

    Must make demand in writing no later than 14 days after service of the last pleading raising jury triable issues.
  131. Is there a right to a jury trial in suits at equity?
    No.
  132. How do you invoke your Seventh Amendment right to jury trial in federal court?
    Must make demand in writing no later than 14 days after service of the last pleading raising jury triable issues.
  133. Voir dire
    • The jury selection process, each side might strike potential jurors
    • Endless strikes "for cause" but only three peremptory strikes
    • Peremptory strikes must be used in a race and gender-neutral way
  134. Peremptory strikes
    • You get 3
    • Must be used in a race and gender-neutral way
  135. Strikes for cause
    Unlimited amount.
  136. Judgment as a matter of law
    • Judge takes case away from the jury before they render a verdict
    • Standard: reasonable people could not disagree on the result
    • View the facts in the light most favorable to the non-moving party
  137. Renewed motion for judgment as a matter of law
    • Judge did not grant motion for JMOL, and the case went to the jury. The losing party files a renewed motion for JMOL
    • Standard: reasonable people could not disagree on the result (same as JMOL)
    • You must have moved for JMOL at trial
  138. Motion for a new trial
    Judgment entered, but errors at trial require a new trial.

    • Grounds:
    • 1) Prejudicial (not harmless) eror at trial makes judgment unfair
    • 2) New evidence that could not ahve been obtained with due diligence for the original trial
    • 3) Prejudicial misconduct of party or attorney or third party or juror
    • 4) Judgment is against the weight of the evidence
  139. Final Judgment Rule
    Can only appeal from final judgments, which means an ultimate decision by the trial court of the merits of the entire case.

    File notice of appeal in trial court within 30 days after entry of final judgment.
  140. Interlocutory (non-final) review (appeals)
    May be appealabe even though not final judgment.

    • Interlocutory orders reviewable as of right:
    • 1) Orders granting, modifying, refusing, etc. injunctions
    • 2) Appoting, refusing to appoint receivers
    • 3) Findings of patent infringement where only an accounting is left to be accomplished by trial court
    • 4) Orders affecting possession of property
  141. What interlocutory orders are reviewable as of right?
    • Orders granting, modifying, refusing, etc. injunctions
    • Appoting, refusing to appoint receivers
    • Findings of patent infringement where only an accounting is left to be accomplished by trial court
    • Orders affecting possession of property
  142. Interlocutory Appeals Act
    Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it.
  143. Collateral order exception (appeals)
    Appellate court has discretion to hear ruling on an issue if it:

    • 1) Is distinct from the merits of the case;
    • 2) Involves an important legal question; AND
    • 3) Is esentially unreviewable if parties must await a final judgment
  144. Claim Preclusion (res judicata)
    You only get to sue on a claim once.

    • 1) Case 1 and 2 were brought by the same claimant against the same defendant
    • 2) Case 1 ended in a valid final judgment on the merits
    • 3) Case 1 and 3 asserted the same claim
    • --Majority view -- any right to relief arising from transaction or occurence
    • --Minority view -- there are separate claims for property damage and for personal injuries becasue those are different primary rights
  145. Issues Preclusion (collateral estoppel)
    Precludes relitigation of a particular issue litigated and determined before.

    • 1) Case 1 ended in a valid, final judgment on the merits
    • 2) The same issue was actually litigated and determined in Case 1
    • 3) The issue was essential to the judgment in Case 1..  Without this issue, the judgment in Case 1 would have been different
    • 4) Issue preclusion can only be asserted against someone who was a party to Case 1
  146. Who can raise issue preclusion?
    • Mutuality - Both the party seeking to employ collateral estoppel and the party against whom collateral estoppel is sought were parties to the prior action.
    • Nonmutual defensive issue preclusion - Used by a new defendant in a subsequent suit who wants to assert a final judgment on an issue against the plaintiff from the first suit.  Most courts will allow if plaintiff being asserted against had a full chance to litigate in case one.
    • Nonmutual offensive issue preclusion - Used by a new plaintiff in a subsequent suit who wants to assert a final judgment on an issue against the defendant from the first suit.  Most courts will not alllow because the person asserting it is a plaintiff, but a clear trend in the law will allow if it is not "unfair."
    • NOTE: Courts are more hesitant to apply collateral estoppel to a defendant from a previous action if the defendant is sued by a new plaintiff for the same issue.

What would you like to do?

Home > Flashcards > Print Preview