Fed Jur/Fed Civ Pro

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BlasterGirl
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162864
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Fed Jur/Fed Civ Pro
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2012-07-17 23:13:43
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Federal Jurisdiction Rules Civil Procedure
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FRCP & Fed Jurisd
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  1. I.  Personal J
      A. Overview
         1. Limitations
         2. Three Types
      B. StatutoryLimitations
      C. Constitutional Limitations
      D. In Rem J
      E. Quasi In Rem J
    • DEFINED: The ability of the ct to exercise power over a particular defendant. 
    • Must comply with both state statute and USConst. 

    • LIMITS:  Must be a state stat authoirzing power of ct over parties. DPC requires notice be given. Lastly, must be minimum contacts b/t D and forum state so it is J is fair & reasonable. Fed Ct must analyze PJ pursuant to laws of the state in which it sits. 
    •  
    • THREE TYPES: (i) In personam (J over person), (ii) in rem (J over prop against ALL persons), (iii) quasi in rem (J over particular individuals in respect to particular prop). 
  2. I.  Personal J
      A. Overview
      B. Statutory Limitations
         1. D Present
         2. D Domiciled
         3. D Citizen
         4. D Consents
         5. Long Arm 
      C. Constitutional Limitations
      D. In Rem J
      E. Quasi In Rem J
    • DEFINED: State courts have statutes granting their courts PJ based on the following: 
    • PRESENCE: Presence + Service = PJ
    • DOMICILE: Permanent Home + Intent  Remain There = PJ
    • CITIZEN: Citizen of the State <-- REVIEW 
    • CONSENT: Express or Implied. 
    • Express: by k, A accepts service, D appears.
    • Implied: If D does not raise lack of PJ defense in FIRST response (w/in 21 days or 60 days if waive formal process)
    • LONG ARM: Give cts power over any person over which state can contitutionally exercise J. Tort cases in the state or D "doing bussines in" state.
  3. I.  Personal J
      A. Overview
      B. Statutory Limitations
      C. Constitutional Limitations
         1. Sufficient Nexus

         2. Notice
      D. In Rem J
      E. Quasi In Rem J
    • SUFFICIENT NEXUS: Constitutionality of PJ based on: 
    • Standard: Sufficient Contacts and Fairness
    • Contacts: D must have "such minimum contacts with forum that exercise of PJ would be fair and resonable.
    • D must purposefully avail himself to "the privilege of conducting activties in the forum state and invoking the benefits and protections of its laws."
    • D must foresee possibility of being haled into court
    • Fairness: PJ must not offend "traditional notions of fair play & substantial justice."
    • Factors in Considering Fairness:
    • FOR SPECIFIC J: (i) Whether claims arise from D's contacts w/forum,
    • FOR GENERAL J: (ii) Whether D engages in systematic and continuous activity in forum state such that D is "essentially at home." (Cannot be based on purchases alone. MUST be some physical presence.)
    • More Factors: (iii) convenience for D, (iv) legit int of forum state resolving dispute, (v) P's convenience, (vi) efficiency.

    • NOTICE:
    • Reasonable method of notice so D may appear and be heard.
    • A's failure to notify D prohibits J. 
  4. I.  PERSONAL JURISDICTION
      A. Overview
      B. Statutory Limitations
      C. Constitutional Limitations
      D. In Rem J
      E. Quasi In Rem J
    • IN REM: PJ over property located in the state.  
    • (Ex: Condemnation, title registration, distribution of estate assets, divorce.)
    • Notice by ordinary mail sufficient.

    QUASI IN REM: PJ over disputes b/t parties over their rights in prop w/in the state (judgment only as to those parties and that prop).  
  5. II. SUBJECT MATTER JURISDICTION
      A. DIVERSITY OF CITIZENSHIP
          (1) Complete Diversity Among Parties 
          (2) Excess of $75,000
          (3) Exceptions
      B. FEDERAL QUESTION
          (1) Fed Question Must Appear on Face of Complaint
      C. SUPPLEMENTAL JURISDICTION
    • DIVERSITY:
    • (1) Complete Div Among Parties: Every P diverse citizenship every D. If one P and one D of same state, no diversity. 
    • (2) Matter in Controversy Must Exceed sum or value $75k:
    • GF allegation. On face of P complaint. Attorneys fees and punitive damages may be used to meet the amount. P may aggregate all her claims against a single D. Can aggregate against multiple Ds ONLY IF they're jointly liable to P. Cannot aggregate based on separate claims. Several Ps may aggregate ONLY IF seeking to enforce single title or right in a common or undivided interest.
    • (3) Exceptions: Fed Cts will NOT exercise diversity J to hear domestic relations or probate proceedings. 
  6. A. DIVERSITY J:
    (1) Citizenship
    (2) Erie
    • Time: Diversity must exist when lawsuit commenced. Citizenship:
    • (1) Individuals:    
    • Permanent home + intent to stay there.                              No presence + Intent to return
    • (2) Corporations: EVERY state of incorporation and the state of it's PPB (HQ).
    • [Note: if Corp an alien & US state citizne, diversity DEFEATED as against another alien.]
    • (3) Unincorp Biz: Citizen of EVERY STATE of EVERY member (including LLCs).
    • (4) Legal Rep:  Citizen of the decedent, infant, incompetent NOT where legal rep physically is. 
    • (5) Class Actions: Diversity of NAMED members.
  7. A. DIVERSITY J:
    (1) Citizenship
    (2) Erie
    • Erie: A ct sitting in diversity will apply its own procedural law but must apply STATE SUBSTANTIVE law.
    • If: (i) federal statute, (ii) federal procedure, (iii) jury question, then Fed Law will be used. Otherwise, state law.
  8. II. SUBJECT MATTER JURISDICTION
      A. DIVERSITY OF CITIZENSHIP
          (1) Complete Diversity Among Parties 
          (2) Excess of $75,000
      B. FEDERAL QUESTION
          (1) Fed Question Must Appear on Face of Complaint
          (2) Implied Fed Q C. SUPPLEMENTAL JURISDICTION
    FED Q: Fed Dist Cts have original J over all civil actions arising under the Const, Fed laws or treaties. Fed Q must appear as part of P's cause of action.

    IMPLIED: Implied federal right of action. Fed Stat need not expressly provide for a civil cause of action.  
  9. II. SUBJECT MATTER JURISDICTION
      A. DIVERSITY OF CITIZENSHIP
          (1) Complete Diversity Among Parties 
          (2) Excess of $75,000
      B. FEDERAL QUESTION
          (1) Fed Question Must Appear on Face of Complaint
      C. SUPPLEMENTAL JURISDICTION
         (1) Ancillary
              (i) may NOT use to defeat diversity
              (ii) may NOT use for impead/interv/joinder
         (2) Pendent 
    D. EXCLUSIVE FEDERAL JURISDICTION 
    • (ANCILLARY) SUPPLEMENTAL J:
    • Court may entertain claims that could not by themselves invoke federal question jurisdiction or diversity jurisdiction if the claims arise from a common nucleus of operative fact as the claim invoking federal subject matter J.

    • LIMIT 1: If SMJ arises under diversity: May NOT use supplemental to defeat complete diversity requirement. MAY defeat AIC requirement, but MUST have complete diversity.  
    • LIMIT 2: If SMJ arises under diversity: Court may NOT invoke supplemental if (i) impleaded, compulsorily/permissively joined, or intervening parties, (ii) persons compulsorily joined as Ps, (iii) persons seeking to intervene as P.
    • INTERVENTION: No supp J for claims by or against intervenors UNLESS independent basis.
    • SUBSTITUTION OF PARTIES: Citizenship of subbed party disregarded.  
    • IMPLEADER: No diversity needed UNLESS P asserts claim against 3PD. 
    • CROSS CLAIMS: Allowed via supplemental even if no independent SMJ basis.
    • COUNTERCLAIMS: Compulsory comes in under supplemental J. Permissive (non-related) must have independent J basis (Fed Q or Comp Div + AIC).

    • (PENDENT) SUPPLEMENTAL J:
    • If SMJ arises under FQJ:
    • P has both fed & state claims, fed ct has discretion to hear state law claim IF two claims "derive from a common nucleus of operative fact" and P "would ordinarily be expected to try them all in one judicial proceeding."

    • PENDENT PARTIES: 
    • (i) P sues more than 1 D, (ii) Fed J exists over 1st D, and (iii) claim vs 2nd D does not invoke FQJ or DivJ. Claim vs 2nd D may be covered by supp J if arises from "same nucleus of common fact" as claim against 1st D.
  10. II. SUBJECT MATTER JURISDICTION
      A. DIVERSITY OF CITIZENSHIP
          (1) Complete Diversity Among Parties 
          (2) Excess of $75,000
      B. FEDERAL QUESTION
          (1) Must Appear on Face of Complaint
      C. SUPPLEMENTAL JURISDICTION
      D. EXCLUSIVE FEDERAL JURISDICTION
    • EXCLUSIVE FED J:
    • (1) bankruptcy
    • (2) patent and copyright
    • (3) cases involving US
    • (4) consuls as defendants
    • (5) antitrust
    • (6) actions against foreign states
    • (7) postal matters
    • (8) IRS cases
    • (9) Securities Exchange Act cases
    • (10) admiralty cases 
  11. III. VENUE
      A. General Rules
      B. Residence
      C. Improper Venue
      D. Transfer
      E. Law Applicable Upon Transfer 
    SMJ v VENUE: SMJ is the power of the court to adjudicated the matter. Venue is the proper geograhical district court in which to bring the action.

    PROPER VENUE: Where (1) any defendant resides, (2) substantial part of event occurred, or (3) if no 1 or 2, any district court having PJ over any Def. 
  12. III. VENUE
      A. General Rules
      B. Residence
         1. Individuals
         2. Businesses
         3. Nonresident US
      C. Improper Venue
      D. Transfer
      E. Law Applicable Upon Transfer
    • INDIVIDUAL RESIDENCE: Resides in the judicial district in which he is domiciled. Includes aliens admitted for permanent residence.
    • BUSINESS RESIDENCE: Resides in any judicial district in which it is subject to the court's personal jurisdiction.
    • NON-US RESIDENT: May be sued in ANY district court. Includes US Citizen Non-Resident and Alien Non-Resident.
  13. III. VENUE
      A. General Rules
      B. Residence
      C. Improper Venue
      D. Transfer 
         1. Standard
      E. Law Applicable Upon Transfer
    IMPROPER VENUE: May be waived. Considered waived unless timely objected to. 

    • TRANSFER: Even if venue proper, may transfer:
    • (1) for convenience to any court where could've been originally filed (PJ, SMJ & Proper Venue), or
    • (2) if all parties consent.
    •  
    • Standard of Transfer:  If original venue is improper, transfer is more appropriate than dismissal as long as in "Best Int of Justice" (dismissal only in extraordinary circumstances). 

    APPLICABLE LAW: If original venue was proper, THAT court's (transferor) law applies. If original venue was improper, transferee court's law applies. 
  14. IV. REMOVAL
      A. Original J Necessary
         (1) Elements
         (2) Fed Def Insuff
         (3) State Ct Need Not Have J
      B. Only Defendants May Remove
      C. Venue
      D. D May Remove FedQ Claim
      E. Dismissal of Nondiverse Party Allows Removal
      F. Procedure
    • ORIG J: A claim filed in state court may be removed to Fed if: (1) case could've been filed in Fed Ct, AND (2) no D is citizen of state where action filed if removal based on diversity. 
    • Timing: J tested as of date of removal.

    FED DEF INSUFF: A D may not remove on the basis that he has defense grounded in Fed Law.

    STATE CT: Even if state court doesn't have J b/c action is exclusively Federal, Fed Ct may hear & decide case under removal J. 
  15. IV. REMOVAL
      A. Original J Necessary
      B. Only Defendants May Remove
      C. Venue
      D. D May Remove FedQ Claim
      E. Dismissal of Nondiverse Party Allows Removal
      F. Procedure
    ONLY D MAY REMOVE: Only Ds may exercise right of removal. If more than 1 D, all must join in the removal petition. 

    VENUE: Lies in the federal dist court "embracing the place where such state action is pending."

    FED Q CLAIM: If case filed in state court contains claim that would arise under fed law, and it is joined with state law claims that do not invoke diversity or supplemental J, the entire case may be removed. The Fed Ct MUST then sever and remand state law claims, however. Only Ds against whom a Fed claim is asserted need join in removal.
  16. IV. REMOVAL
      A. Original J Necessary
      B. Only Defendants May Remove
      C. Venue
      D. D May Remove FedQ Claim
      E. Dismissal of Nondiverse Party Allows Removal
      F. Procedure
    DISMISSAL: If no Fed Q or Div, removal permitted IF nondiverse parties are dismissed and complete diversity remains.

    LIMIT 1: If SMJ based on Div, and 1 D citizen of state in which state action brought, action is NOT removable.

    LIMIT 2: If SMJ based on Div, must be removed within 1 year after commenced in state court unless P acted in bad faith.
  17. IV. REMOVAL
      A. Original J Necessary
      B. Only Defendants May Remove
      C. Venue
      D. D May Remove FedQ Claim
      E. Dismissal of Nondiverse Party Allows Removal
      F. Procedure 
         1. AIC
         2. Time
         3. Remand
    • PROCEDURE:
    • D seeking removal must file notice in Fed Dist Ct with copies sent to other parties and state court.

    (1) AIC: If removal based on Div and P is (i) seeking nonmonetary relief (ii) didn't state an amount, or (iii) recovery may be > amount stated and > $75k, then D may state that AIC exceeds $75k and Fed Dist Ct may keep case if it finds by preponderance of evidence that amount does exceed $75k. 

    (2) Time: Notice of removal must be filed w/in 30 days after (i) D served, or (ii) the case becomes removable (i.e. dismissal of nondiverse party). HOWEVER, in diversity cases, may not be removed after 1 year (UNLESS P acted in bad faith). 

    (3) Remand: P may file motion to have case remanded back to state court. Will be granted if no Fed J. Fed Ct has discretion to remand once all Fed claims have been resolved, leaving only state issues
  18. VI. CONFLICT OF J B/T STATE & FED
      A. FF&C
      B. INJUNCTIONS
      C. ABSTENTION
    • FF&C: FFU&C extends to Fed Cts via Fed Statute. Recognition of judgments required b/t state & fed cts and b/t fed cts. 
    •  
  19. VI. CONFLICT OF J B/T STATE & FED
      A. FF&C
      B. INJUNCTIONS
         1. Pending State Proceedings
         2. Threatened State Proceedings
      C. ABSTENTION
    • INJUNCTIONS:
    • (1) Pending: Fed Ct prohitibed from enjoining a pending state court proceeding unless expressly authoirzed by statute. 
    • (2) Threatened: Fed ct prohitibed from enjoining a threatened state criminal proceeding unless irreparable harm is clear & imminent.
  20. VI. CONFLICT OF J B/T STATE & FED
      A. FF&C
      B. INJUNCTIONS
      C. ABSTENTION 
         1. Grounds
         2. Procedure
         3. Federal Intervention
    • ABSTENTION: Nothing prohibits a fed ct from hearing a case pending in state court. However, under the doctrine of abstention, a Fed Ct may decline to hear the case even though it has J when: (and force litigant to seek relief in state court): 
    • (1) the state law is unclear and could be interpreted to avoid a federal question, or
    • (2) there is a state admin regulatory plan that would be disturbed. 

    Procedure: After Fed Ct abstains, litigants must present issues to state ct in light of federal contentions.

    Intervention: Fed Intervention on constitutional grounds may apply if P can demonstrate: (1) great and immediate irreparable injury; (2) bad faith in prosecution of state action; or (3) harassment or other unusual circumstances calling for Fed equitable relief.
  21. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
      C. Time Extension
      D. Interlocutory
      E. Provisional Remedies
      F. Pleadings
      G. Joinder
      H. Duty of Disclosure
      I. Pretrial Conferences
      J. ADR
      K. Trial
    • COMMENCEMENT: Filing complaint in court. Satisfies SOL. If action commenced only upon service per state law, that law must be applied in Diversity cases. 
    •  
  22. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
         (1) How
         (2) Parties Outside State
         (3) Parties in Foreign Country
         (4) Immunity from Process
      C. Time Extension
      D. Interlocutory
      E. Provisional Remedies
      F. Pleadings
      G. Joinder
      H. Duty of Disclosure
      I. Pretrial Conferences
      J. ADR
      K. Trial
    • PROCESS:
    • How: Any person (i): at least 18 years old, and (ii) a nonparty may serve process by: (i) abode [service left at D's usualy place of abode], (ii) waiver [get more time to respond], (iii) agent, (iv) state methods, (v) personal service.
    • AWASP: Abode, Waiver, Agent, State methods, Personal service.
    • (As long as Const)  "Process is Const if it is reasonably calculated to apprise interested parties of litigation." [All 5 methods are Const]

    Outside State: Fed Ct will acquire PJ over parties served outside the state (i) under state's statutes and rules for extraterritorial service; (ii) if they are 3P D or required to be joined for adjudication; (iii) personal serive or mail; (iv) any method court orders not prohibited by international agreement. 

    Immunity: If someone enters state to appear for another action, may not be served. 
  23. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
      C. Time Extension
      D. Interlocutory
      E. Provisional Remedies
      F. Pleadings
      G. Joinder
      H. Duty of Disclosure
      I. Pretrial Conferences
      J. ADR
      K. Trial
  24. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
      C. Time Extension
      D. Interlocutory
      E. Provisional Remedies
      F. Pleadings
      G. Joinder
      H. Duty of Disclosure
      I. Pretrial Conferences
      J. ADR
      K. Trial
    • TIME EXTENSION: The following may never be extended: (i) renewed motion for judgment as a matter of law, (ii) motion to amend judgment, and (iii) motion for new trial.
    • All MUST be filed within 28 days of entry of judgment. 
  25. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
      C. Time Extension
      D. Interlocutory
         (1) Preliminary Injunctions
         (2) TRO
      E. Provisional Remedies
      F. Pleadings
      G. Joinder
      H. Duty of Disclosure
      I. Pretrial Conferences
      J. ADR
      K. Trial
    • INTERLOCUTORY:
    • Prelim Injunct: One may seek prelim injunct prior to trial to preserve status quo. Adverse party must be given notice & opp to be heard.

    • TRO: If irreparable injury will occur before hearing on prelim injunct can be held, party may seek TRO to preserve status quo before prelim hearing. Notice required UNLESS:
    • (i) irreparable injury if TRO not granted,
    • (ii) efforts made to notify adverse party and reasons why notice should not be given,
    • (iii) security to pay damages incurred by adverse party if wrongfully restrained.
    • [Note: TRO may be issued w/o notice and given effect for 14 days but one must ACTUALLY know of TRO before may be held in contempt for violating it]. 
  26. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
      C. Time Extension
      D. Interlocutory
      E. Provisional Remedies
      F. Pleadings
      G. Joinder
      H. Duty of Disclosure
      I. Pretrial Conferences
      J. ADR
      K. Trial
    • PROVISIONAL REMEDIES: provide for pretrial seizure of prop to secure satsifaction of judment.
    • (i) garnishment,
    • (ii) attachment,
    • (iii) replevin 
  27. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
      C. Time Extension
      D. Interlocutory
      E. Provisional Remedies
      F. Pleadings
         (1) Notice Pleading
         (2) Pleading a Cause of Action
         (3) Pre-Answer Motion
         (4) Answer
         (5) Counterclaims
         (6) Inconsistent Claims or Defenses
         (7) Replies
         (8) Amendments and Supplemental Pleadings
         (9) Rule 11
      G. Joinder
      H. Duty of Disclosure
      I. Pretrial Conferences
      J. ADR
      K. Trial
    • PLEADINGS:
    • Notice Pleading: Fed Cts require notice pleading as opposed to fact pleading (which states require). 

    Notice Pleading must include sufficient facts to put the parties on notice of plausible claims asserted against them.

    Pleadings a C/A: Complaint must state (i) gounds of Fed J, (ii) short statement of claim showing pleader is entitled to relief, and (iii) demand for judgment for relief
  28. F. PLEADINGS
         (1) Notice Pleading
         (2) Pleading a Cause of Action
         (3) Pre-Answer Motion
         (4) Answer
         (5) Counterclaims
         (6) Inconsistent Claims or Defenses
         (7) Replies
         (8) Amendments and Supplemental Pleadings
         (9) Rule 11
    • PRE ANSWER MOTION:
    • Rule 12(b): Def may file motion to raise any following defenses: (i) lack SMJ, (ii) lack PJ, (iii) improper venue, (iv) insufficient process, (v) insufficient service, (vi) failure to state a claim, (vii) failure join indespensible party. 
    • Defense (i) raised at any time. Defenses (ii)-(v) must be raised in D's first pleading (either the Answer or D's own Motion) or waived. Defenses (vi) & (vii) raised at any time prior to trial

    Rule 12(e): Motion for more definite statement before responding to vague pleading.

    Rule 12(f): Motion to strike before responding to pleading
  29. F. Pleadings
         (1) Notice Pleading
         (2) Pleading a Cause of Action
         (3) Pre-Answer Motion
         (4) Answer
         (5) Counterclaims
         (6) Inconsistent Claims or Defenses
         (7) Replies
         (8) Amendments and Supplemental Pleadings
         (9) Rule 11
    • ANSWER:
    • (1) Must be filed w/in 21 days unless waive formal service, then have 60 days.
    • (2) MUST state affirmative defenses or they're waived. 
    • (3) If Rule 12 Motion made, must respond in 14 days.

    • COUNTERCLAIMS: 
    • Compulsory: If same transaction or occurrence it MUST be pleaded as a counterclaim or will be BARRED. [Fed Cts have (anciallry) Supp J over Compulsory CC not otherwise meeting federal SMJ (Div or FedQ).
    • Permissive: Any other claim D has vs. P may be asserted as permissive counterclaim IF it meets Fed SMJ requirements. 
  30. F. Pleadings
        (1) Notice Pleading
         (2) Pleading a Cause of Action
         (3) Pre-Answer Motion
         (4) Answer
         (5) Counterclaims
         (6) Inconsistent Claims or Defenses
         (7) Replies
         (8) Amendments and Supplemental Pleadings
         (9) Rule 11
    • INCONSISTENT CLAIMS:
    • Party may set out as many alternative claims or defenses as he has, regardless of consistency.

    REPLIES: A reply by P to D's Answer required only if court orders.

    • AMENDMENTS: Pleading may be amended once within 21 days of service. After that, leave to amend shall be freely granted by the ct to serve justice.
    • Amendments for new claims relate back to date of timely filed complaint if same events (new claim derives from same transaction or occurrence).
    • Amendments for new parties related back to date of timely filed complaint if same events AND new D acquired knowledge within 120 days after filing of original complaint that but-for mistake it would've been named.
  31. F. Pleadings
         (1) Notice Pleading
         (2) Pleading a Cause of Action
         (3) Pre-Answer Motion
         (4) Answer
         (5) Counterclaims
         (6) Inconsistent Claims or Defenses
         (7) Replies
         (8) Amendments and Supplemental Pleadings
         (9) Rule 11
    • RULE 11:
    • (1) Certification. Attorney certifies that (i) no improper purpose, (ii) legal contention warranted by existing law or nonfrivolous argument to change law, (iii) allegations are likely to have evidentary support, and (iv) denials of factual contentions are warranted on the evidence.  

    (2) Sanctions: May be raised party for violation of any of above by (i) court or, (ii) opposing party if proponent does not fix problems w/in 21 days of notification from opponent.
  32. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
      C. Time Extension
      D. Interlocutory
      E. Provisional Remedies
      F. Pleadings
      G. Joinder
      H. Duty of Disclosure
      I. Pretrial Conferences
      J. ADR
      K. Trial
    • JOINDER:
    • (1) Claims: P may join as many claims as it has against D regardless of whether any connection b/t claims. 
    • (2) Parties: P may join parties to lawsuit if claims derive from same transaction or occurrence or at the very least the same series of transactionS or occurenceS.

    • COUNTERCLAIMS:
    • Permissive: DOES NOT derive from same transaction or occurrence and MAY be filed but need not be.
    • Compulsory: DOES derive from same transaction or occurrence and MUST be filed OR WAIVED.

    IMPLEADER: 3P claims. "D may implead a brand new claim against a brand new 3P D if new 3P D may be liable to D for all or part of Ds same liability to P.

    • INTERPLEADER: Holder of a common fund may file a lawsuit as a P and interplead (join) as Ds all rival claimants to its common fund (ex: ins policy). 
    • Rule, traditional: must be complete diversity & AIC must exceed $75,000.
    • Rule, statutory: Minimal diversity & AIC must exceed $500.

    INTERVENTION: Nonparty may intervene and become a party as of right: if he has interest that will be adversely affected by the lawsuit and not properly protected by the parties, or permissively: if commonality of issues b/t (judge has discretion). 

    INDISPENSABLE PARTIES: A nonparty MUST be joined if his absence would be prejudicial to any party's rights to a full & fair adjudication, but if party CANNOT be joined due to lack of PJ or SMJ, then court must decide in equity & good conscience whether to dismiss the entire action for failure to join an indispensible party. 

    CLASS ACTIONS: Action in which a named P represents a class of commonly situated absent Ps. Under Class Action Fairness Act (CAFA) the Fed Cts also have J over: class actions of (i) 100 or more Ps, (ii) who together seek excess of $5 million, and (iii) minimal diversity exists (1 P from different state than 1 D). 

    • CERTIFICATION: (CANT)
    • Commonality: Common issues of fact or law w/common claims & injuries.
    • Adequacy: Named Ps must fairly & adequately represent the class.
    • Numerocity: Class must be so numerous that joinder of them all would be impracticable.
    • Typicality: Claims of named Ps must be typical of the class. 
    • +2 more certification requirements if seeking money:
    • 5. Predominance: Common issues predominate over the individual issues.
    • 6. Superiority: Class action device is superior method of adjudicating the many claims.
    • + 2 more Constitutional requirements if seeking money:
    •  7. Notice: Entire class must receive notice.
    • 8. Opportunity: Entire class must have opportuinty to opt out.
  33. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
      C. Time Extension
      D. Interlocutory
      E. Provisional Remedies
      F. Pleadings
      G. Joinder
      H. Duty of Disclosure
      I. Motions & Trial by Jury
    • DISCLOSURE:
    • Rule 26: Parties required to disclose, w/o being asked, info to other parties about their case.
    • Obligation: make reasonable inquiry into the facts and disclose all info "then reasonably available" that's not privileged or protected. 
    • Intial Disclosure: w/o waiting for discovery request, parties must disclose names, addresses, phone #s persons likely to have discoverable info; and copies documents in possession to use in supporting claim; and computation of damages; and copies insurance agreements. 
    • Expert Disclosure: IDs of experts w/report 90 days prior trial.
    • Pretrial Disclosure: Witnesses 30 days prior trial
  34. VII. FEDERAL RULES OF CIVIL PROCEDURE
      A. Commencement
      B. Service of Process
      C. Time Extension
      D. Interlocutory
      E. Provisional Remedies
      F. Pleadings
      G. Joinder
      H. Duty of Disclosure
      I. Motions & Trial by Jury
    • MOTION SUMMARY JUDGMENT:
    •      w/in 30 days after close of discovery. If no genuine issue of material fact.
    • MOTION JUDGMENT MATTER LAW:
    •      after trial. Legally insufficient evidentiary basis from which a reasonable jury could find for the non-moving party. 
    • RENEWED MOTION JUD MATTER LAW:
    •      JNOV. After Verdict. Verdict's loser files if it made JML before jury deliberation. 
    • MOTION NEW TRIAL: 
    •      w/in 28 days of judgment. Granted in ct's discretion for either (i) errors at trial affecting substantial trial rights, or (ii) verdict was against manifest weight of evidence.
    • JURY TRIAL:
    •      Right to Trial by Jury: (a) must file written demand w/in 14 days of service of complaint/answer, (b) Const Rt: if claim seeks primarily money damages.
    •       Preemptory Challenges: 3 ea side.
  35. X. JUDGMENTS
    (1) Offer of Judgment
    (2) Default
    (3) Motion for Relief from a Judgment: 
    • OFFER OF JUDGMENT (SETTLEMENT):
    •      D may serve on P a formal offer of Judgment which, if not accepted, can result in sanctions. If P does not do better than the offer at trial, P must pay D's costs.
    • DEFAULT:
    • Defined: Will be entered against Ds who fail to respond to complaint in timely manner.
    • Fed Proc: If damages are a certain sum, P may simply file an affidavit requesting an entry of a judgment. Otherwise, P must prove up damages at hearing.
    • Motions to Vacate: If filed w/in reasonable time after judgment, motion liberally granted for good cause shown.
    •  MOTION RELIEF JUD:
    • Time Limit: w/in 1 year of judgment
    • Requirements: MEND
    • Merit, Equity, New Facts, Due Diligence.
    • There was merit to claim/defense, it would be inequitable to let judgment stand, new facts have come to light casting doubt on judgment, despite due diligence, could not discover new facts until after judgment entered.  
  36. XI. FINALITY
    (1) Res Judicata
    (2) Collateral Estoppel
    (3) Finality Rule
    (4) Offensive Collateral Estoppel 
    • RES JUDICATA: claim fully & fairly litigated to final judgment on the merits cannot be re-litigated.
    • COL ESTOP: Issue fully & fairly litiggated as part of final judgment on the merits cannot be relitigated. 
    • FIN RULE: Parties barred from relitigating claims or issues which they have already fully & fairly litigated to a final judgment on the merits.
    • OFF COLAT ESTOP: SEC v. Park Corp. Park loses. Private Investors then file class action vs. Park on same issue. Park bound? Yes, b/c issues already litigated. Class action will win on summary judgment.  
  37. XII. APPELLATE REVIEW
    (1) Appellate Jurisdiction
    (2) Time Requirements for Appeals 
    • APPELLATE J: "Appellate courts are courts of appellate jurisdiction and therefore have power only over appeals."
    • (1) Appellate cts may review only FINAL orders entered by a lower court EXCEPT (i) partial final order, (ii) interlocutory appeals.
    • Partial Final Order: an order resolving some claims, but not all claims, may be appealed right away if lower court finds no just reason to delay the appeal. 
    • Interlocutory: May appeal immediately if: (i) doubt (not sure if order should be granted or not, could go either way); (ii) controlling legal issue (it's a question of law); (iii) appellate review would advance the litigation. 

    • TIME REQUIREMENTS:
    • Must file notice of appeal in LOWER court w/in 30 days of entry of judgment or oder from which you are appealing.   

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