Fed Civ Pro

under federal law, a claim of improper venue must be raised at the first opportunity (i.e. either a pre-answer motion to dismiss or D's answer, whichever comes first)

venue concerns which district should hear a case

federal venue is proper in a district

for federal venue, P's residence does not count

residence=

for a case begun in state court and removed to fed court, venue is automatically proper in the fed district where the state court sits, even if that would otherwise not be so.

Erie=

substantive law=

fed procedures apply on state-law claims

pleadings: for diversity actions, state law controls when an action is begun

pleadings: compliant: used to state a claim for relief; the P or D may file a claim against a co-party, called a cross claim complaint; a D who impleads a third party D files a third party complaint

pleadings: answer: filed by the party against whom a claim is made; it may contain responses to the allegations of the complaint, affirmative defenses, and counterclaims

recover is not limited by the claim for relief as stated in the complaint, except for default judgments

notice pleading: all that is required is a short and plain statement of the claim

types of claims requiring special pleading

complaint should state a plausible case for recovery

motion to dismiss may be used to raise:

claim of no personal jurisdiction or a claim of improper venue must be made at the earliest opportunity (i.e. the answer or a pre-answer motion to dismiss)

lack of subject matter jurisdiction cannot be waived; it can be raised by any party at any time, including for the first time on appeal or by the court itself

most claims are waived if NOT timely raised

motion for judgement on the pleadings: appropriate when the pleadings completely agree about the facts, no material disagreement; if there is any factual dispute, proper motion is for summary judgment

motion to strike: an be used to delete from pleadings scandalous or prejudicial matters that are NOT relevant to the case at hand. Also used by the P to strike a legally invalid defense

Affirmative defenses MUST be pleaded in the D's answer.

answers ordinarily must be filed with i21 days of service of the pleading to which it responds

pleadings may be amended ONCE at any time within 21 days of service of the pleading or within 21 days of the D's response

after the party has amended once OR the time for amending as of right has elapsed, leave to amend must be sought from the court

leave to amend should be freely granted;

judge must have a reason for denying leave to amend

if the statute of limitations has run, then relation back determines whether the amended pleading allowed or time-barred

an amendment relates back to the date of the original IF it concerns:

key to doctrine of relation back is notice- cannot have the effect of surprising the other party

an amendment to add or change a party against whom a claim is asserted must:

most pleadings are NOT verified nor need they be

pleadings and all other documents- including motions of all sorts and discovery requests must be certified by the attorny of record

signature certiefies that:

violation of certification requirement can be raised by court or opposing party to move to dismiss or seek sanctions

real party in interest: An action should not be dismissed for having the wrong P until a reasonable time has been made for the substitution of the correct P

minors and incompetents may sue or be sued only through a guardian

partnership can sue or be sued as an entity if federal jurisdiction is based on federal questions

if jurisdiction is based on diversity, then each and every partner must be made a party to the litigation (complete diversity applies).

permissive joinder: any number of plaintiffs may join if they assert claims arising out of the same transaction or occurrence AND there is common question of law or fact

permissive joinder: any number of Ds may be joined in the same action if the claims against them arise out of the same transaction or occurrence and there is a common question of law or fact.

permissive joinder: diversity cases: no party can be joined whose presence would defeat complete diversity

permissive joinder: if complete diversity is maintained and if ANY P has a claim that exceeds $75k, other Ps with smaller claims can come in under supplemental jurisidiction

compulsory joinder of parties: a necessary party is someone whose participation in the lawsuit is necessary for a just adjudication

necessary party= absent that party, complete relief cannot be accorded to the existing parties; has an interest in the litigation which will be impeded if the litigation goes forward without that party; OR there is a substantial risk of double or inconsistent liability.

a necessary party MUST be joined if feasible

feasible=

necessary party: bulge provision=

If a necessary party CANNOT be joined, the court decides whether to continue without the necessary  party (typically the case) or dismiss the suit (rare).

necessary party: when the suit is dismissed, party is considered indispensable

intervention= outsider volunteers to enter a lawsuit.

intervention as of right may be had when the outsider claims an interest in the subject matter of the lawsuit that, as a practical matter, may be compromised by the disposition of the pending action

permissive intervention mat be allowed whenever there is a common question of law or fact between the intervenor's claim and the main claim

permissive intervention: must ask the court's permission and is up to the court's sound discretion.

intervention must be timely via "reasonable promptness"

no supplemental jurisdiction for intervention i.e. no one can intervene whose presence would destroy complete diversity or whose claim does not exceed $75,000

interpleader is generally used to resolve the problem of competing claims to the same property

interpleader: stake=

interpleader: person holding property= stakeholder; persons claiming the property= claimants

statutory interpleader= special jurisdiction minimum of only $501; nationwide service of process; venue is proper in any district where any claimant resides; SMJ based on minimal diversity (i.e. any two claimants must be from different states)

joinder: as between the same P and same D, all claims may be joined and claims need not be related

joinder: in a diversity case P can aggregate all claims against the D to exceed the jurisdictional minimum ($75k+)

joinder: if the original claim is based on federal question jurisdiction, then a nonfederal claim may be joined only if diversity jurisdiction exists or if the two claims are part of the same case or controversy as the federal claim such that supplemental jurisdiction applies

compulsory counterclaim=  arises out of the same transaction or occurrence as the claim to which it responds.

compulsory counterclaim is lost if it is not pleaded

compulsory counterclaim: no independent jurisdiction is required. if there is SMJ over the main claim, there is SMJ over a compulsory counterclaim.

supplemental jurisdiction covers compulsory counterclaims

compulsory counterclaim: filing of the complaint tolls the SOL for the main claim AND any compulsory counterclaim(s).

permissive counterclaims: do NOT arise out of the same transaction or occurrence. It is unrelated to the main claim

permissive counterclaims may be pleaded OR raised later

permissive counterclaims: require a jurisdictional base- must be a federal claim or diversity jurisdiction with > $75,000 in issue.

permissive counterclaims barred by the SOL cannot be brought.

cross-claims are asserted against a co-party (ie. P vs co-P, D v. co-D).

cross claims MUST arise out of the same transaction or occurrence as the main claim and is NEVER compulsory

impleader (third party practice)=

impleaded party= 3rd party D

original D= 3rd party P as against the 3rd party D

interpleader: SMJ: comes under supplemental jurisdiction i.e. citizenship of 3rd party D does not matter; amount of claim against 3rd party D does NOT matter; extends to claim by the D against the impleaded 3rd party D

supplemental jurisdiction does NTO extend to claims by the original P against the 3rd party D

impleader: Ps cannot make a claim against the 3rd party D UNLESS complete diversity is met, or there is federal question jurisdiction.

impleader: in addition to all other grounds of personal jurisdiction, 3rd party D may be served within 100 miles of the courthouse

class actions prereqs: numerousness (too many parties to join), common questions of law or fact, typicality of claims by the class representatives; typicality of claims by the class reps; adequacy of representation by the rep's lawyer

dismissal or compromise of a class action requires judicial approval

class actions: diversity jurisdiction: named reps must be completely diverse from the opposing parties AND at least one plaintiff has a claim worth > $75k

class action fairness act allows very large actions involving 100 or more members with more than $5 mil at stake and only minimal diversity

mandatory disclosures: initial disclosures, disclosure of expert witnesses, pretrial disclosures

initial disclosures=

disclosure of expert witnesses=

pretrial disclosures=

scope of discovery: you can discover anything that might be admissible at trial OR that might lead to something that might be admissible at trial; general rule is relevance

scope of discovery is NOT LIMITED to admissible evidence (e.g. hearsay is NOT a valid objection to discovery as it might lead to other evidence that is admissible)

exceptions to discovery (list):

exceptions to discovery: evidentiary privilege: anything covered by a true evidentiary privilege is NOT discoverable (e.g. attorney-client privilege)

work product: documents and things prepared in anticipation of litigation by or for another party or her representative creates a qualified immunity from discovery

work product immunity can be overcome if the party seeking discovery shows need for the document or thing AND that information cannot be obtained elsewhere.

work product: you can always get a copy of your own statements whether you are a party or mere witness

work product:  can NEVER discover the mental impressions of an attoreny

if expert is NOT going to be called as a witness, no discovery absent exceptional circumstances

experts: can discover the expert's report but draft reports ARE NOT discoverable

experts: communications between counsel and the expert generally NOT discoverable. however, can discover the amount of compensation, and the facts, data, and assumptions provided to the expert by the lawyer.

protective orders: court can order to compel or restrain discovery for "good cause"

discovery devices: oral deposition, written deposition, interrogatories, discovery and inspection of documents and land, physical and mental examination, request for admission

oral deposition: questions asked & answered orally under oath; limited to 10 depositions unless court allows more; each deposition limited to one day of 7 hours unless court allows more; any kind of notice suffices for the deposition of a party, but a deposition of a nonparty witness requires a subpoena; if subpoena decus tecum, deponent must bring specified documents or things;  can be taken at any time after the party has made mandatory disclosures; may be taken before any notary public

written deposition: questions delivered to an officer who asks questions orally which were written down before hand; rarely used

interrogatories= questions asked in writing to be answered under oath in writing; may only be used against a party; limited to 25 interrogatories unless court allows more; responses required within 30 days.

discovery and inspection of documents and land= request to produce and permit inspection; applies only to docs and land under the control of a party; the thing to be produced and inspected must be described with particularity; response due within 30 days

physical and mental examination: can be ordered only against a party; only permitted for a condition in controversy; only for good cause shown

request for admission: failure to respond within 30 days is an admission; responses must be signed by the attorney of record certifying that there is a reasonable basis and good faith for denying the request

admissions have no preclusive effect, so only binding in the current lawsuit

discovery does not equal admissibility

deposition of an adverse party is admissible as an admission against interest

deposition of a witness can be used to impeach (ie prior inconsistent statemnt)

deposition of a witness who does NOT testify can be used if the witness is dead or beyond the court's subpoena power or otherwise unavailable; can also be used if witness is more than 100 miles from the place of trial

enforcement sanctions: court can immediately impose sanctions in 3 instances of complete default:

enforcement sanctions: unless complete default, court should first issue an order to compel before imposing sanctions.

pre-trial conference must be attended by the attorneys who will conduct the trial

pre-trial conference: must file a pre-trial statement detailing claims and defenses, itemizaiton of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc.

pre-trial conference: failure to comply usually means that the attorney pays the costs and the other side's attorney's fees

termination without trial: devices [list]=

voluntary dismissal (dismissal without prejudice): P has a right to a voluntary dismissal once, at any time prior to the D serving an answer or a motion for summary judgment

voluntary dismissal (dismissal without prejudice): D's motion to dismiss (e.g. for lack of jurisdiction or improper venue) does NOT cut off the right to voluntary dismissal

voluntary dismissal (dismissal without prejudice): after D has filed an answer or motion for summary judgment, or P has already voluntarily dismissed once, P may seek a dismissal without prejudice on leave of court

when imposed for lack of jurisdiction, improper venue, or failure to join a necessary party, involuntary dismissal is without prejudice. all other cases are dismissals with prejudice

involuntary dismissal (dismissal with prejudice)= an adjudication on the mertis

involuntary dismissal is with prejudice given full res judicata effect (i.e. preclusive)

involuntary dismissal with prejudice: may be imposed for P's failure to prosecute or for failure to comply with any court order

involuntary dismissal with prejudice: standard for appellate review= abuse of discretion

summary judgment= there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law

"no genuine dispute"= no reasonable juror could find the other way

summary judgment: only tests the legal sufficiency of the P's claim

summary judgment: can be used to test the facts AND the law

partial summary judgment:: SJ that's granted only for certain parties, certain claims/defenses, or certain issues

summary judgment may be sought by either side

summary judgment MUST be supported or opposed by particular materials on the record, such as depositions, answers to interrogatrories, documents, affidavits, stipulations

materials on the record must generally be sworn statements. Pleadings are generally not sworn statements; mere assertion or denial of a fact in a pleading does NOT create a genuine dispute

sworn statement must be based on personal knowledge, not by merely saying person will call witnesses to testify in a certain way

right to jury trial: equity issues such as injunction and specific performance do NOT require trial by jury

right to jury trial: damages trigger the right to jury trial

right to jury trial: if legal and equity issues overlap in the same case, try the legal issues first

right to jury trial: demand for trial by jury must be made not later than 14 days after service of the answer or other pleading directed to the issue on which jury trial is sought

right to jury trial: jury selection: each litigant gets 3 peremptory challenges; not for case; cannot be used for racial or gender purposes

bench trial: judge is required to make both findings of fact and state conclusions of law

jury trial: any objection to the instructions given by the trial judge must be made BEFORE the jury retires

motion for judgment as a matter of law (i.e. directed verdict) is a way of moving for summary judgment AFTER the trial has begun

JMOL= viewing the evidence in the light most favorable to the opposing party, the evidence cannot support a contrary verdict and the moving party is therefore entitled to judgment as a matter of law.

JMOL: credibility of a witness: if the case turns on this issue, then there is a question as to a material fat and the motion for JMOL will be denied

JMOL typically made by the D at the end of P's evidence and by either or both sides at the close of ALL evidence

renewed motion for judgment as a matter of law (i.e. JNOV): JMOL may be renewed after the verdict, same standard as JMOL

renewed JMOL: if you fail to ask for JMOL initially, cannot renw

renewed JMOL: usually made together with a motion for a new trial

appeals: motions that are no longer relevant if the moving party proceeds with trial once the motions are denied:

any appeal is based on the full trial, not the earlier motion

grounds for new trial include:

new trial: court must specify the reason for granting a new trial. Reason for granting is purely a question of law

most grounds for new trial are within the sound discretion of the trial court and reviewed on appeal only for abuse of discretion

appeals: ordinarily lie from final judgments. final judgments resolve all the claims of all the parties on the merits

appeals: if partial final judgment: the court may, by express designation, enter a final judgment on some claims. Such judgment is immediately appealable

judgment becomes final when entered by the clerk on the court's docket

notice of appeal must be filed in trial court within 30 days of entry of judgment. A timely post-judgment motion (e.g. renewed motion for JMOL or new trial motion) tolls the 30 day limit

interlocutory orders immediately appealable as of right= any orders that change/affect property or injunctions

discretionary interlocutory appeal: any interlocutory order is appealable on leave of courts and BOTH trial and appellate courts must agree to allow the appeal

discretionary interlocutory appeal: trial court can issue a certificate for interlocutory appeal stating that it involves a controlling question of law and that the immediate appeal may materially advance termination of the litigaiton

collateral order doctrine authorizes immediate appeal of orders separable from and collateral to the main suit and too important to deny immediate review; forum non conveniens almost always collateral order and immediately appealable

mandamus provides for immediate appeallate review of an order that is an abuse of authority

appeals: appellate courts have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class action

standards of review [list]:

matters of law: appellate review is de novo (i.e. did the trial court get it right?)

findings of fact: appellate review more limited: if jury verdict: must be affirmed if supported by substantial evidence; judge's findings of fact: must be affirmed unless clearly erroneous

matters of discretion= abuse of discretion; any reasonable decision will be upheld

full faith and credit: courts in the U.S., whether state or federal, must give full faith and credit to judgments rendered by courts of other states, provided that the rendering court had jurisdiction

preclusion consists of two doctrines:

preclusion analysis: ask:

claim preclusion: RULE: a final judgment on the merits of a claim bars re-litigation of that claim by the same parties or those in privity with the parties.

claim preclusion prevents re-litigation of every issue that was raised OR should have been raised in the first litigation

claim preclusion: three requirements:

final judgment on the merits includes a default judgment, summary judgment, and dismissal with prejudice. it is NOT necessary that there had been a trial

re-litigation b/w the same parties or their successors in interest: both parties must have been parties to the first lawsuit or successors in interest to the original parties. Same parties= must be same P and same D or their successors in interest

successors in interest include assignor and assignee of a claim; a decent and the executor of the estate; and the executor of an estate and persons who claim under the will

in a class action, each memebr is bound by the judgment, considered to have had their opportunity in court even if not a named representative

claim preclusion: "same claim or cause of action" RULE=ALL legal theories to recover for harm arising out of a single transaction or occurrence are one claim

unless state law provides otherwise, if both K and tort theories seek redress for the same harm, they are the SAME claim

"same claim or cause of action": installment sales: creditor must sue for all that is due at the time of the suit. all accrued debt or obligation is one claim. creditor cannot sue for payments that are not "due and owing. FUTURE debts or obligations are ANOTHER claim

issue preclusion: 3 requirements to preclude relitigation

issue preclusion: "same issue of fact": it doesn't matter if the two suits involve entirely different claims so long as they have a factual issue in common

issue preclusion: "actually and necessarily decided:" only applies to issues actually litigated; not to those that MIGHT have been litigated

issue preclusion: default judgment results in full claim preclusion, but nothing is actually litigated so no issue preclusion

"party to the first suit": party invoking preclusion need  not have been a party to the prior action, nor in any way involved in the action

issue preclusion: "party to the first suit": rule at least applies to the defensive use of issue preclusion; whether a succession of Ps could invoke issue preclusion offensively is not clear