Federal Civil Procedure
MBE + MEE Analysis
PERSONAL JURISDICTION = Court’s power over the parties.
• Court always has PJ over plaintiff because plaintiff filed case.
• Issue of PJ = Defendant.
1.
Must fall within state statute.
• Each state has own PJ statutes. Each state has “long arm” statute granting PJ over nonresidents who perform or
cause harm in state.
• Most long arm statutes state allows court to exercise to full extent of Constitution.
• Some have specified long arm statutes.
• If statute listed, apply it. IF NOT LISTED, indicate that state statute is required and assume the state’s statutory requirement met.
2.
Must satisfy the Constitution.
• Does defendant have sufficient contacts with the forum state so that the exercise of PJ does not offend
traditional notions of fair play and substantial justice?
1. Contacts: Must be relevant minimum contacts.
i.
ii.
2.
Purposeful Availment: Contact must result from D’s voluntary act. D’s targeting of the forum.
Foreseeability: Is it foreseeable that the D could be sued in the forum?
Relatedness: Does P’s claim arise from or relate to D’s contact?
i.
If D has SUBSTANTIAL CONTACTS, only must relate to D’s contacts with forum.
ii.
If D has MINIMAL CONTACTS, must arise from D’s contacts with forum.
• If contacts sufficiently arise from or relate to, then “specific PJ” is proper.
• If contacts test is not satisfied, only way to proceed is “general PJ”
• GENERAL PJ = (1) D “AT HOME” IN FORUM OR (2) IN PERSONAM SERVICE IN FORUM
3.
Fairness: “Fairness Factors” are addressed only in specific PJ cases.
i.
ii.
iii.
Burden on defendant and witnesses; OK unless severe disadvantage.
State’s interests to provide judicial remedy for citizens harmed by out of state residents.
Plaintiff’s interests
SERVICE OF PROCESS
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Constitutional Requirement: Notice must be reasonably calculated to apprise interested parties of the action.
Notice = (1) Summons providing notice of suit and time for response and (2) Copy of complaint.
Who can serve? Anyone aged 18+ NOT a party to the action.
When must service occur? Within 90 days of filing a complaint.
Methods of Serving Process:
1.
2.
Personal Service: Process given to defendant personally anywhere.
Substituted Service: Service on substitute for defendant. Can only be done:
i.
ii.
iii.
3.
4.
5.
Service on Agent: Agent appointed by contract.
State Law Methods: Methods for serving process that are permitted of the law of the state where (i) federal court sits OR
(ii) place where service is being made.
Service on Corporation or Business:
i.
ii.
6.
7.
At D’s usual place of abode;
With someone of suitable age and discretion;
Who resides there.
Delivery to officer or managing agent; or
Method permitted by state where (i) federal court sits or (ii) where service is being made.
Service on Minor or Incompetent: ONLY by method permitted by the law of the state where service is made.
Service on Foreign Party: Use of Hague Convention methods OR if nonparty to Hague, by method reasonably calculated to
give notice such as: (i) directed by US court; (ii) allowed by foreign country law; (iii) method directed in response to letter
rogatory; (iv) personal service unless prohibited in foreign country; (v) mail sent by clerk of US court w/ signed receipt
requested.
• Defendant can waive service after P mails notice and request to waive. Must be executed within 30 days in US,
60 days in foreign country, otherwise D is responsible for cost of service.
• If D travels to forum to appear as party or witness in different case, D is IMMUNE from service during that time.
SUBJECT MATTER JURISDICTION = Court’s power over the case.
• State Courts: Can hear any case.
• Besides certain federal issues such as patent infringement, bankruptcy, federal securities, and antitrust.
• Federal Courts: Can ONLY hear (1) Federal Question and (2) Diversity.
• Lack of SMJ cannot be waived. Can be objected to at any point that it is discovered there is no SMJ.
• Federal Question JX: Plaintiff’s claim arises under federal law.
• Must follow “well pleaded complaint” rule – not enough that federal issue is raised, claim itself must arise
under federal law.
• P must be enforcing federal right.
• Diversity JX: (1) Between citizens of different U.S. states (diversity) or case involving U.S. citizen and
foreign (alienage); and (2) Amount in controversy exceeds $75,000.
• Diversity does not exist if any plaintiff is citizen of same state as any defendant, determined at time time case is
filed.
• State Citizenship of Person = State of Domicile.
• New domicile established by (1) physical presence in state and (2) intent to remain indefinitely.
• State Citizenship of Corporation = (1) State of Incorporation and (2) State of PPB.
• PPB = Location where managers direct, coordinate, and control business activities.
• State Citizenship of Partnership / LLC = Each state of domicile of the members.
• Any SINGLE plaintiff can aggregate claims against any SINGLE defendant to meet $75k.
• Claims do not have to be related to same COA.
• Multiple plaintiffs CANNOT aggregate claims to exceed the $75k threshold.
• For joint claims, the number of parties is irrelevant.
• i.e.: P sues joint tortfeasors X, Y, and Z for $76k.
• **Even if diversity requirements are met, federal courts decline actions for: (i) divorce, (ii) alimony, (iii) child
custody, (iv) probate.
REMOVAL = An action originally filed in state court may be removed to federal court
when case could have been filed in federal court due to (1) FQ or (2) Diversity.
• Defendant can remove a case from state court to federal court.
• Plaintiffs can NEVER remove even if D files counterclaim against P.
• How Case is Removed:
1.
2.
3.
D filed “notice of removal” in federal court stating grounds for removal.
D promptly serves copy of notice of removal on all plaintiffs.
D files copy of notice of removal in state court.
• Timing of Removal: Must remove no later than 30 days after service of first paper showing case is
removable.
• Case can become removable later when case against an in-state D or nondiverse D is dismissed.
• All defendants served must join in removal.
• Limitations on Removal – If removal based solely on diversity:
1.
2.
Case cannot be removed if any D is citizen of forum state.
Case cannot be removed more than 1 year after case filed in federal court.
• Defendant removes to federal district court “embracing” the state court where case filed.
• Does not matter if this venue would not have otherwise been proper.
• P can file motion to remand if removal improper.
1.
If motion to remand for any reason OTHER than lack of SMJ, must be filed no later than 30 days after notice
of removal.
• One year limitation and in-state D limitations NOT considered lack of SMJ and follow this requirement.
2.
If motion to remand for LACK OF SMJ, no time limit on ordering remand.
• SMJ is never waived and court without SMJ is powerless to act on case.
SUPPLEMENTAL JURISDICTION
- Check first for original JX based on independent basis under FQ or diversity. If no FQ or
diversity, see if supplemental JX can be used.
Supplemental JX Test:
1. Must share common nucleus of operative facts.
• (i) Arises from same transaction or occurrence (ii) or “related to”.
2. If case got into fed ct. on FQ, no limitation.
• Supplemental JX permitted.
3. If case got into fed ct. on diversity, apply the limitation.
• Limitation: No supplemental JX IF Claim is (1) asserted by plaintiff; (2) in diversity case
and (3) is asserted against a citizen of same state as plaintiff.
• Exception to Limitation = Multiple plaintiffs and claim by one does not meet amount in controversy.
• i.e.: P1 of NY and P2 of NY sue D of PA on state law claims.
• P1’s claim is 100k. P2’s claim is same T/O but $50k.
• Supplemental JX over P2s claim is permitted because multiple plaintiffs.
Erie Doctrine
• Applies only in diversity cases.
1. Is there a federal law on point that directly conflicts with state law?
• If so, apply federal law as long as valid. [Supremacy Clause]
• How to know if “valid” – FRCP presumptively valid if they are “arguably procedural” but practically, FRCP rules have
never been held invalid.
2. If there is no federal law on point, federal judge must apply state law if issue is
“substantive.” Five issues that are substantive:
1.
2.
3.
4.
5.
Conflict of law rules;
Elements of claim or defense;
Statutes of limitations;
Rules for tolling statutes of limitations;
Standard for granting new trial because jury damages award was excessive or inadequate.
3. If there is no federal law on point, and issue is not one of the five, federal judge must
determine whether issue is “substantive.” Factors considered:
• Outcome Determinative: Would applying or ignoring the state rule affect outcome of case? If so, the
rule is substantive, and court should use state law.
• Balance of Interests: Does either the federal or state system have a strong interest in applying its rules?
The greater interest should be applied.
• Avoid Forum Shopping: If federal court ignores state law, will it cause parties to seek federal court
determination on the matter? If so, state law should be applied.
VENUE = Place in which a federal court case can be brought
• Plaintiff may lay venue in any district where:
• (i) all defendants reside; (ii) where a substantial part of claim arose; or (iii) where a substantial part of the
property involved in lawsuit is located.
• Does NOT apply if case removed from state court to federal court.
• If removal, venue proper in the federal court “embracing” state court where original case filed.
• Venue may be waived by P.
1. Transfer from Proper Venue.
• If original venue proper, court may order transfer based on convenience & interests of justice.
• Court will consider (i) public factors [what law applies, what community should be burdened, desire to keep a
controversy local] and (ii) private factors [convenience]
• Burden on party seeking transfer and all parties must consent.
• Transferee court MUST apply the choice of law rules of transferor court unless transfer is to give effect to a
valid forum selection clause.
• FSC are enforced unless unreasonable. In federal court, federal law governs transfer, so fed ct. may enforce a FSC that a
state court would not. If transfer to enforce FSC, transferee court can apply its own choice of law rules.
2. Transfer from Improper Venue.
• If original venue improper, court may transfer in interest of justice or dismiss case w/o prejudice.
• Usually transfers if possible.
• Transferee court applies its own choice of law rules (so P cannot benefit from filing in improper forum).
• Forum Non Conveniens = Another court that is center of gravity, but court cannot transfer
the case because in a different judicial system.
• Court will stay or dismiss the case. [Can only transfer within same judicial system]
PLEADINGS: COMPLAINT
Filing of a complaint commences an action.
• Complaint must contain:
1. Statement of grounds for SMJ;
2. Short and plain statement of claim showing plaintiff is entitled to relief;
3. Demand for relief sought (i.e., damages, injunction)
• Need not allege grounds for PJ or venue.
• Must plead sufficient facts to support a plausible claim.
• Fraud, mistake, and special damages must be pleaded with more detail, including
particularity or specificity.
PLEADINGS: DEFENDANT’S RESPONSE
Rule 12 requires defendant to respond either (1) by motion or (2) by answer.
• Rule 12(e) motion for more definite statement
- Used when complaint is vague or ambiguous.
• Rule 12(f) motion asks court to remove redundant or immaterial items from
pleading
• Rule 12(b) defenses that are waived if not put in first Rule 12 response (either
motion or answer): (i) Lack of PJ; (ii) improper venue; (iii) improper service of
process.
• Rule 12(b) defenses that can be raised later: (i) Failure to to state a claim and (ii)
failure to join an indispensable party.
- Can be raised as late as trial but cannot be raised on appeal.
• IF Rule 12 Motion to Dismiss is DENIED, D must serve answer no later than 14 days
after notice of denial.
PLEADINGS: ANSWER
In answer, defendant may:
• Admit some or all allegations; deny some or all allegations; and or state
that she has insufficient knowledge to admit or deny some or all of the
allegations.
• Effect of insufficient knowledge is a denial, but D cannot do this if answer to
allegation is within her control.
• Failure to deny an allegation is an admission except regarding the amount of
damages.
• Affirmative defenses must be raised in answer. [SOL, SOF, res judicata, selfdefense, and Rule 12(b) defenses].
AMENDED PLEADINGS
1. Right to Amend: (i) Plaintiff has right to amend complaint once no later than 21 days
after D serves first Rule 12 response. (ii) Defendant has right to amend answer once no
later than 21 days after serving.
• D can amend to include waivable 12(b) defenses only in amending answer not after motion denied.
2. Court Permission: Court will grant leave to amend after statutory period “if justice
requires” [i.e., court grants liberally]
3. Variance: When evidence at trial does not match what was pleaded, if other party fails
to object, party introducing evidence may move to amend complaint to conform to the
evidence.
4. Amendment After SOL Time
1.
2.
To join a claim not originally asserted: Amended pleading “relates back” if pleading concerns same
T/O as original. Can relate back to avoid SOL issue.
To change a defendant: Amendment will “relate back” if: (i) same T/O; (ii) D had knowledge of case;
(iii) D knew or should have known she should have been originally named.
SUPPLEMENTAL PLEADINGS
• Set forth events happening after pleadings filed. No right, must be granted by motion at
discretion of trial court.
FRCP Rule 11
• When lawyer or pro se defendant signs documents, she certifies that to the
best of her knowledge and belief, after reasonable inquiry:
• Paper is not for an improper purpose
• Legal contentions are warranted by law or a nonfrivolous argument for a law change
• Factual contentions and denials of factual contentions have evidentiary support or
are likely to after further investigation.
• Sanctions may be imposed against (i) party (ii) lawyer (iii) lawyer’s firm.
• Court must give sanctioned party an opportunity to be heard.
• Courts often impose non-monetary sanctions.
• Parties cannot get monetary sanctions, only lawyer or lawyer’s firm.
• Safe Harbor Provision: Opposing party provide violating party with notice of
violation and allow 21 days to fix problem and avoid sanctions.
JOINDER = Defines the scope of the case
• How many parties and claims can be joined in one case?
• (1) Joinder must be allowed by FRCP; (2) Must be SMJ over the case.
• Joinder of Claims by Plaintiff: P may join any additional claim she has against
that adverse party, even if the additional claim is unrelated. [Must be SMJ]
• Joinder of Claims by Defendant:
• [Must be SMJ - Assess FQ and Diversity, if not Supplemental JX]
• Compulsory Counterclaims – One that arises from same T/O.
• Must file in pending case or else waived.
• Permissive Counterclaims – Claim that does not arise from same T/O.
• Can bring in this case or another
• Crossclaim – Against a co-party.
• Must arise from same T/O, but NOT compulsory.
• Can be asserted in another case.
• Joinder of Claims by multiple plaintiffs or against multiple defendants must:
i. Arise from the same T/O, and
ii. Raise at least one common question of law or fact.
• Necessary & Indispensable Parties: How can court force a nonparty (absentee) to
join case? Typically, on motion by D. Must ask THREE questions:
1. Is absentee necessary or required?
a)
b)
c)
Without absentee, court cannot accord complete relief among the existing parties; or
The absentee’s interest may be harmed if she is not joined; or
Absentee claims an interest that subjects a party (usually D) to risk of multiple obligations.
2. Is joinder of the absentee feasible?
a)
b)
PJ over absentee;
Will be federal SMJ over claim.
• In determining diversity, court “aligns” absentee as P or D based on absentee’s interest.
3. What if absentee cannot be joined?
• Court must determine whether to proceed without absentee or dismiss entire case.
a) Is there an alternative forum available?
b) What is the actual likelihood of harm to the absentee?
c) Can court shape relief to avoid that harm to absentee.
• Intervention: Nonparty absentee uses intervention to bring herself into case.
• Chooses to come in as P or D.
• Intervention of Right: Absentee’s interest may be harmed if not joined and the interest is not
adequately represented by the current parties.
• Absentee in this case has right to join case.
• Permissive Intervention: At least one common question of fact or law.
• Up to court discretion. Typically permitted unless would cause delay or prejudice.
Impleader (Third Party Practice)
• Impleader Claim = Party bringing claim now TPP and new party is TPD.
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Used to shift the liability to the TPD that the defendant will owe to the plaintiff.
Indemnity shifts liability completely.
Contribution shifts liability pro-rata.
Impleader claim is permissive
• Defendant does not need to bring in current case.
• To bring impleader, D must:
1.
2.
File a third-party complaint naming the TPD and
Have that complaint formally served on TPD.
• Right to Implead = 14 days after D serves answer to P. After 14 days, court permission needed.
• After TPD is joined, P may assert claim(s) against the TPD and TPD may assert claim(s) against the P
that arise out of same T/O.
• NOT COMPULSORY – TPD claims are permissive counterclaims and may be brought in independent action.
• Always remember SMJ required for all claims.
• First: FQ or Diversity? Second: If not, Supp JX? [Limitation on Supp JX for Plaintiffs does NOT apply to TPD.]
Interpleader
• Interpleader applies when two or more parties have a claim to the same property. [i.e., multiple claimants under
beneficiary policy.]
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Applies if separate actions might result in double liability against a stakeholder.
Permits a person / stakeholder to require two or more adverse claimants to the stake litigate among themselves to determine
which, if any, has the valid claim for it.
Rule 22 Interpleader requires (1) complete diversity between stakeholder and adverse claimants + $75k excess; or (2) federal question claim.
Statutory Interpleader requires only diversity between two claimants and $500 at issue.
CLASS ACTIONS = Case where representative(s) sue on behalf of group.
• Four Initial Requirements:
1.
2.
3.
4.
Numerosity: Too many class members for practical joinder. [No magic number]
Commonality: Must be some issue in common to all class members so resolution of that issue will generate answers for
everyone.
Typicality: Class representative’s claims are typical of the claims of the class.
Adequate Representative: Class rep will fairly and adequately represent class.
•
Diversity: Only citizenship of class rep considered.
• Types of Class Actions:
a.
b.
Type 1 [“Prejudice”]: Class treatment is necessary to avoid harm or prejudice to class members or to the non-class party. [Rare]
Type 2 [“Injunctive or Declaratory Relief”]: Class seeks injunction or declaratory relief because the defendant treated the class
members alike.
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c.
Plaintiffs in Type 2 cannot seek money damages.
Type 3 [“Common Question” or “Damages”]: (i) common questions must predominate over individual questions; and (ii) class
action is superior method to handle dispute.
•
•
Common for mass torts.
In Type 3, court must notify class members they are in the class, paid for by rep, informing (1) can opt out (2) will be bound by judgment (3) can enter separate
appearance.
• Court must certify class. Case is not a class action until court grants motion.
• Court must also (I) define class, claims, issues, defenses; and (II) Appoint class counsel.
• Parties can settle or dismiss class action only with court approval.
• Court must give notice to get feedback from class members re: decision to settle or dismiss.
• If Type 3 class, court might also refuse to approve settlement until second chance to opt out.
• Class Action Fairness Act (“CAFA”) grans SMJ separate from diversity or FQ if:
i.
ii.
At least 100 members;
Any class member, not just rep, is diverse from any defendant; and
•
iii.
Any defendant, even in state defendant, may remove from state to federal court.
The aggregated claims exceed $5M.
Discovery: Required Initial Disclosures
• Initial required disclosures are information each party must give to other parties
within 14 days of the Rule 26(f) conference.
• Failure to disclose required initial disclosures result in the party being unable to use the undisclosed
material in the case unless failure to disclose was substantially justified or harmless.
• Required Information:
I.
Identities of persons with discoverable information that the disclosing party may use to
support their claim or defense.
• Names, phone numbers, addresses of people with discoverable information and the topics on which they
have.
• Only required if you plan to use the party’s information / the party in case.
II.
Documents that the disclosing party will use to support their claim or defense.
• Includes photos, records, videos, electronic info, papers, etc.
• Copies or description may be produced instead of actual document.
• Must be in party’s control. Docs and things not in party’s control do not need to be disclosed.
III. Computation of relief and supporting documents or electronic information.
• Any party claiming monetary relief must provide computation supported by docs of the amount sought as
an initial disclosure.
IV. Insurance Coverage
• Parties must disclose any insurance that might cover all or part of the judgment in the case even though
the existence of insurance at trial is typically not admissible.
• “Discoverable” is broader than “admissible.”
Discovery: Required Disclosures of Expert Witnesses
• At time directed by court, each party must identify expert witnesses who may provide testimony at trial.
• Identity of mere consulting experts who a party uses to help prepare the case that the party does not intend to call as a
witness is not required to be disclosed.
• Facts and opinions of mere consulting experts are not discoverable absent exceptional circumstances.
• Party must disclose: (i) identity of expert witness and (ii) written report prepared by expert witness. Report
must include:
o Opinions the expert will express;
o *Early drafts of report and communications between witness and lawyer are protected work product.*
o
o
o
o
Bases for the opinions;
Facts used to form opinions;
Expert’s qualifications; and
How much witness is being paid.
• Party may depose expert witness.
• Failure to disclose material results in party being unable to use expert witness in case unless justified or
harmless.
Discovery: Required Pretrial Disclosures
• No later than 30 days before trial, the parties must give detailed information about their trial evidence.
• Including identity of witnesses who will testify live or by deposition, documents, electronic information, and other
things they intend to introduce at trial.
Discovery Tools
• Deposition: Person gives live testimony in response to questions by counsel or pro se parties.
• Questions typically oral but can be written.
• Deponent testifies under oath and the deposition is recorded by sound, video, or stenography so transcript can be made.
• Both parties and nonparties may be deposed.
•
•
*Subpoena NOT required for a party. Notice of Deposition is sufficient.
*Nonparty MUST be served with subpoena or else not compelled to attend.
• Deponent isn’t required to review records prior to deposition; testimony is from present recollection.
• Party cannot take more than 10 depositions OR depose the same person twice without court approval or stipulation.
• Interrogatories: Written questions to be answered in writing under oath.
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•
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Only sent to parties never to nonparties.
Maximum # of questions is 25, including subparts.
Interrogatories are to be answered within 30 days from service.
Must be based upon information reasonably available.
•
If answer to a question is in business records, and burden of finding the answer would be same for either party, the responding parry can allow
requesting party to search records themselves.
• Questions re: legal contentions are permitted.
• Request to Produce: Asks a party to make available documents or information or permit entry on designated property.
• Medical Exam: Court order required to compel medical exam. Requesting party must show:
1.
Person’s health is in actual controversy;
2.
Good cause.
• Medical professional will write report to requesting party. If examined person requests copy of report, she must, on request, produce all
medical reports by her own doctors about the same medical condition.
• Request for Admission: Written requests to admit, deny, or object to certain matters.
• Can state not enough information known if true.
• Failure to deny = deemed admitted.
• Duty to Supplement – If new facts come to light after responding to discovery request, the party must supplement her
response to discovery.
Scope of Discovery
• Discovery Standard: Can discover anything that is relevant to a claim or
defense and proportional to the needs of the case.
• Party can object to discovery based on evidentiary privilege.
• i.e., Spousal immunity, attorney-client privilege.
• If party is claiming a privilege or seeking protective order, party must claim the protection expressly
and describe the materials in detail.
• Must do so in a privilege log that lists the materials protected by date, author, recipient, and privilege or
protection claimed. Must be detailed enough to allow judge to determine whether material is privileged.
• If privileged information is inadvertently disclosed, party must notify the other party promptly.
• Other party must return, sequester, or destroy pending a court decision on whether or not there was a
waiver.
• Work Product is generally protected.
• Work Product = material prepared in anticipation of litigation
• Qualified Work Product can sometimes be discovered if requesting party can show (i) substantial
need and (ii) undue hardship in obtaining the materials in alternative way.
• Absolute Work Product is never discoverable. Includes opinions, mental impressions, conclusions,
or legal theories.
• Party’s Own Statement is always discoverable, notwithstanding work product.
Enforcement of Discovery Rules
Three ways that a court gets involved in discovery disputes:
1. Party seeks protective order.
• If party thinks discovery request subjects her to annoyance, embarrassment, undue burden, or expense, she can move for
protective order. If court agrees, it can:
i.
ii.
iii.
Deny discovery;
Limit discovery; or
Permit discovery on specified terms.
• Party must certify that she tried in good faith to resolve issue without court involvement and asked other side to meet and
confer.
2.
Party responds but not fully.
• If party responds but fails to answer all questions, she may be compelled by court order. Two-step:
1. Requesting party moves for an order compelling the producing party to answer unanswered questions or unproduced
materials, etc. plus costs of bringing motion.
2. If producing party violates order, court can enter “merits” sanctions along with costs and attorney’s fees.
• Producing party may be held in contempt, but no contempt for refusal to submit to medical exam.
3.
Party fails to respond entirely.
• Subject to sanctions plus costs. One step:
1. If party fails to respond at all, court can enter “merits” sanctions. No need to get court order compelling answers, goes
immediately to merits sanctions.
Sanctions: Party seeking sanctions must certify in good faith to get the information without court involvement.
• Merits Sanctions: (i) establishment order [establishes facts as true]; (ii) strike pleadings as to issues re:
discovery; (iii) disallow evidence as to issues re: discovery; (iv) dismiss P’s complaint if bad faith shown; (v)
enter default judgment against D if bad faith shown.
• If litigation is reasonably anticipated, parties must preserve discoverable information. If documents are lost &
unable to be recovered because party purposely failed to preserve, court can order measures to cure harm.
PRELIMINARY INJUNCTION: Preserves status quo until trial.
• Cannot be issued ex parte.
• Burden on party to show:
1.
2.
3.
4.
Likely to suffer irreparable harm if injunction is not issued;
Likely to win case on merits;
Balance of hardship favors her; [threatened harm outweighs the harm to other party]
Injunction is in public interest.
• In granting or denying preliminary injunction, court must make specific findings of fact and
separate conclusions of law.
• May be appealed as of right.
TEMPORARY RESTRAINING ORDER: Preserves status quo until hearing on the
preliminary injunction.
• TRO can be issued ex parte IF: (1) applicant files oath showing if TRO not issued, will suffer
immediate and irreparable harm (2) applicant’s lawyer certifies in writing her efforts to give other
party notice.
• If court issues TRO, must be served on D as soon as possible. Ordinarily may not be immediately appealed.
• TRO must (i) state its terms specifically, (ii) describe in detail what D must or must not do, (iii)
state why it was issued, and (iv) state why threatened injury to P was irreparable.
• Effective for 14 days. Can be extended another 14 days for good cause but cannot go past the 28-day period.
After 28 days, will be treated as a preliminary injunction.
Voluntary Dismissal
• Plaintiff can withdraw case without court order (i) BEFORE defendant
serves an answer or MSJ.
• Parties can stipulate to a voluntary dismissal without court order.
• If D has answered or served MSJ, court permission required.
• P can motion for voluntary dismissal, but up to court discretion whether to
grant or not.
• First voluntary dismissal is without prejudice. Second voluntary
dismissal is with prejudice, which operates as an adjudication on the
merit sand takes away the plaintiff’s ability to refile case.
• **Applies even if filed in state court first or vice versa.
ENTRY OF DEFAULT = Default notation by court clerk on docket.
• P must move for entry of default.
• Must demonstrate that the D failed to respond in time (w/in 21 days of service)
• Until default entered, D can respond by answer or motion beyond the 21 days.
• Entry of default cuts off D’s right to respond.
• P must still seek default judgment.
• Clerk can enter default judgment if:
1.
2.
3.
4.
Defendant has made no response at all;
Claim itself is for a sum certain in $;
Plaintiff gives a sworn affidavit of sum owed; and
Defendant is not a minor or incompetent.
• Otherwise, Judge will hold a hearing and has discretion to grant default judgment.
• Defendant is entitled to notice of hearing if she has appeared in some way.
• Plaintiff’s recovery in hearing for default judgment is limited to what is pleaded in complaint.
• In motion to set aside default or default judgment, D must show:
1.
2.
Good cause [i.e., excusable neglect]; and
Viable defense.
Motion to Dismiss for Failure to State Claim
• FRCP 12(b)(6) – Tests whether the case belongs in litigation stream at all.
• If P’s complaint fails to state a claim, the case can be dismissed.
• Same motion, if made after D has answered, is called motion for judgment on the
pleadings, although has same effect.
• In ruling on 12(b)(6) motion:
• Court will ignore the plaintiff’s legal conclusions.
• Court looks only at the plaintiff’s allegations of fact on the fact of the complaint, NOT
any evidence.
• Based upon the facts taken as truthful, court will determine whether the plaintiff’s facts state a
plausible claim.
• Court may allow amendment of the complaint to try to state a claim.
Motion for Summary Judgment
• FRCP 56 – Used after case has been filed and P has survived any Rule 12 motions.
• Party moving for MSJ must show that:
1. There is no genuine dispute on a material fact; and
2. Party is entitled to judgment as a matter of law.
• Court not required to grant MSJ even if standard is met; court has some discretion
to deny the motion [measured by “abuse of discretion” std.]
• Must move within 30 days after close of discovery.
• MSJ can be partial [aka summary adjudication on a matter]
• In MSJ, courts will view the evidence in the light most favorable to the nonmoving
party.
• Based on affidavits, declarations, deposition testimony, interrogatory answers. Evidence sworn
to by OATH.
• If party opposing MSJ needs more time to gather evidence to oppose the motion, the
nonmoving party can file affidavit stating what the evidence will be. Court has discretion to
grant or deny.
Rule 26(f) Conferences + Judicial Management
• 26(f) Conference: At least 21 days before court scheduling order, parties
must “meet and confer” to discuss production of required initial disclosures,
claims, defenses, settlement, and preservation of discoverable information.
• Parties must present detailed discovery plan to court no later than 14 days after the
26(f) conference.
• Contents of discovery plan must include views and proposals on timing, issues about
discovery of ESI.
• Scheduling Order: Court then enters an order setting cut-offs for joinder,
amendment, motions, completion of discovery, etc.
• Roadmap for litigation process.
• Pre-Trial Conferences: May be held by court to oversee case.
• Final Pre-Trial Conference determines issues to be tried and evidence to be proffered
at trial.
• Recorded in pretrial conference order which supersedes the pleadings so there are no
surprises at trial.
OFFER OF JUDGMENT – Defendant can make formal offers to settle the
case up to 14 days before trial.
• Rule contains cost-shifting provisions that apply when P rejects an
offer to settle and doesn’t do as well at trial as the offer.
JURY TRIAL = Jury determines the facts and returns a verdict.
• Motion In Limine = Pre-trial motion outside presence of jury to decide whether the jury should
hear certain evidence.
• 7th Amendment preserves right to jury trial in “civil actions at law” but NOT suits in equity.
• Seventh Amendment does not apply in state courts, only federal civil cases.
• If case is MIX of law + equity:
i.
Facts underlying damages claim will be tried by jury.
ii. Facts relating wholly to equity claim will be tried by judge.
• The claims for jury are tried first.
• If fact underlies BOTH: an equity + law claim, jury will decide the fact.
• Party must demand jury in writing no later than 14 days after service of last pleading addressing a jury triable
issue. Otherwise, right to jury is waived.
• Minimum of six jurors, maximum of twelve in federal civil trial.
• Parties can stipulate otherwise.
• Verdict must be unanimous unless parties stipulate otherwise.
• Voir Dire = JURY SELECTION PROCESS
• For Cause Challenges = UNLIMITED number of challenges if juror will not be impartial.
• Peremptory Challenges = Limited to 3 peremptory challenges if party seeking to strike provides no reason for
the strike.
• May be used only in a race / gender neutral manner because jury selection is a state action, even with private parties.
• Jury Instructions: Jury decides facts but is instructed on the law by the judge
• DONE AT THE CLOSE OF ALL EVIDENCE unless if needed earlier.
• Judge may hold “off the record” conferences to discuss proposed jury instructions.
• Judge will “on the record” inform the parties of: (i) what instructions it will give and (ii) what instructions it
rejected.
• Parties must object on record BEFORE jury hears instruction.
Jury Verdict Forms:
a. General Verdict: Says who wins, and if P wins, what the relief is.
b. Special Verdict: Jury answers, in writing, specific written facts in dispute, but does not say who wins
or loses.
c. General Verdict with Written Questions: Jury gives general verdict + answers specific questions.
•
Questions ensure that jury is focused on correct issues.
Entry of Judgement of Jury Trial:
• If jury gives general verdict, the clerk will enter judgment.
• If jury gives special verdict OR general w/ written questions, and the answers are consistent with the
verdict the judge approves the judgment, and the clerk enters it.
• If jury gives general w/ written questions and the answers are inconsistent with the verdict, court may:
1. Enter an appropriate judgment consistent with the answers;
2. Tell jury to reconsider;
3. Order a new trial.
• If jury gives general w/ written questions and the answers are inconsistent with each other and one or
more answers is inconsistent with the verdict, no judgment can be entered. Court may: (1) tell jury to
reconsider or (2) order a new trial.
Juror Misconduct: Verdict may be impeached based on external matters, BUT a verdict will not be
overturned if the misconduct was harmless.
BENCH TRIAL = When there is no jury [either 7th Amendment did not
apply OR parties waived right to jury trial] the judge determines facts
at trial.
• Judge must record “findings of fact” orally on the record or in writing.
• Must also provide conclusions of law.
• Judge will enter judgment, with brief statement stating who wins and if P wins,
the relief granted.
JMOL [aka Directed Verdict] – Based upon the evidence presented at trial.
• Standard: Reasonable people could not disagree on the result. Court views evidence in light most favorable to
nonmoving party.
• Party can move for JMOL after the other side has been heard at trial on the issue.
• D can move after P rests case.
• P cannot move until after D presents case.
RJMOL – Court enters judgment for party that lost jury verdict.
• Standard: Reasonable people could not disagree on the result. Court views evidence in light most favorable to
nonmoving party.
• Must be made within 28 days after entry of judgment.
• **Party MUST have moved for JMOL at proper time at trial. If not, RJMOL is waived.
MOTION FOR NEW TRIAL – Error at trial requires new trial. [w/in 28 days]
• New trial can be granted on any error that makes judge believe there should be do over. Reasons include:
•
•
•
•
•
Erroneous jury instruction;
New evidence discovered that could not have been discovered before with due diligence;
Misconduct by juror, party, or lawyer;
Judgment is against the weight of the evidence; and
Damages are inadequate or excessive.
REMITTITUR and ADDITUR: To avoid new trial, when jury’s damages “shocks the conscience”
• Remittitur = Court offers P option to remit part of damages or go through new trial [Court cannot, by itself, lower
the damages figure, would violate 7th Amendment.]
• Additur = Court offers D option to add to damages award or go through new trial.
• ***ALLOWED IN STATE BUT NOT FEDERAL COURT [Violation of 7th Amendment.]
MOTION FOR RELIEF FROM ORDER OR JUDGMENT
[Motion to Set Aside / Motion to Amend Judgment or Order]
Grounds
Timing
Clerical Error
Any time
Mistake, excusable neglect
Reasonable time (Never more than 1 yr)
Fraud, misrepresentation, or misconduct
by opposing party
Reasonable time (Never more than 1 yr)
Newly discovered evidence that could
not have been found with due diligence
in time for filing for a new trial motion.
• [i.e., Could not have been found
within 28 days post-trial.]
• New facts MUST have existed at time
of trial.
Reasonable time (Never more than 1 yr)
Judgment is void
[i.e., Court had no SMJ]
Reasonable time (no maximum)
Judicial Notice
• Judicial notice is used by a court when it declares a fact presented as evidence
as true without a formal presentation of evidence.
• Effect of Judicial Notice = Prosecutor’s burden of producing evidence on the
fact judicially noticed is satisfied.
• Kinds of Facts That May Be Judicially Noticed. The court may judicially notice
a fact that is not subject to reasonable dispute because it:
• (1) is generally known within the trial court’s territorial jurisdiction; or
• (2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
• Instructing the Jury of a Judicially Noticed Fact:
• In a civil case, the court must instruct the jury to accept the noticed fact as conclusive.
• In a criminal case, the court must instruct the jury that it may or may not accept the
noticed fact as conclusive.
Appellate Review
• Losing party has a right to appeal if the court’s order is final.
• Final judgment is one that determines the merits of the entire case.
• Remand orders are NOT reviewable on appeal.
• If court grants order for new trial, no final judgment on merits thus no right to appeal.
• Notice of Appeal must be filed w/in 30 days of entry of judgment.
• Interlocutory Appeals: Orders granting, modifying, or refusing preliminary or permanent
injunctions are reviewable as of right even though the order may not be final.
• TROs are not appealable, but if TRO extends past the 14 original + 14 extended days, it becomes prelim inj
and can be appealed.
• Interlocutory Appeals Act: Allow appeal of a nonfinal order if:
• District 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.
• When more than one claim is presented in a case, district court may expressly enter a final judgment as to
one or more claim. [Appealable].
• In a class action, court of appeals has discretion to review an order granting or denying certification of a
class action.
• Extraordinary Writ [Mandamus or Prohibition] = Original proceeding in ct of app to compel
district judge to make or vacate a particular order.
• Not a substitute for appeal. Available only if district court is violating a clear legal duty.
Standards of Review on Appeal
• Review of Questions of Law – When district judge decides question of law, court
of appeals uses de novo standard.
• De novo = No deference is given to the district judge when reviewing that decision.
• Includes content of jury instruction.
• Review of Questions of Fact: Bench Trial – When district judge decides questions
of fact, court of appeals will affirm unless clearly erroneous.
• i.e., P + D only witnesses. P testifies light was green. D testifies light was red. Judge rules in favor of P. Court of appeals
unlikely to reverse because trial judge’s decision not “clearly” erroneous.
• Review of Questions of Fact: Jury Trial – When jury decides questions of fact,
court of appeals will affirm unless reasonable people could not have made that
finding.
• Review of Discretionary Matters – On discretionary matters decided by trial
judge, court of appeals will affirm unless district court judge abused discretion.
• Standard is deferential to trial judge.
• Even if ct of app does not agree with trial judge, as long as the district court’s decision was
reasonable, the decision must be affirmed.
• Harmless Error – No reversal required if error is harmless.
• Harmless error = did not affect outcome of the case.
• Not every error requires reversal on appeal.
CLAIM PRECLUSION [Res Judicata] – For claim to be precluded, three requirements:
1.
2.
Case 1 and Case 2 were brought by same claimant against same defendant.
Case 1 must have ended in a valid final judgment on the merits.
• Unless court indicated judgment was ‘without prejudice’ when entered, any judgment is “on the merits” unless it was based on lack
of JX, improper venue, or failure to join indispensable party.
• Applies even if no adjudication in Case 1.
3.
Case 1 and Case 2 must be the same claim.
• Majority View [Federal Law] = Same claim is any right to relief arising from a T/O.
• Minority View [Primary Rights Doctrine] = Separate claims for property damage and personal injuries that arise from same T/O.
ISSUE PRECLUSION [Collateral Estoppel] – For issue to be precluded, five reqs.:
1.
2.
3.
4.
Case 1 ended in valid final judgment on the merits.
Same issue is actually litigated and determined in Case 1.
Issue was essential to judgment in Case 1. [Finding on the issue is basis for judgment.]
Issue preclusion can be used against only someone who was a party to Case 1 or in “privity” with a party.
• Due Process Requirement; Privity = Party to Case 1 represented someone who was not a party to case 1. [i.e., class action members]
5.
Issue preclusion can be used by someone who was a party to Case 1.
• Nonmutual Defensive Issue Preclusion = Person using issue preclusion was not a party in Case 1 and is defendant in Case 2.
• Permissible as long as the party had the party had a full chance to litigate in Case 1.
• Nonmutual Offensive Issue Preclusion = Person using issue preclusion was not a party in Case 1 and is plaintiff in Case 2.
• Generally, NOT permissible. Court looks at fairness factors: (1) The party to be bound had full and fair opportunity to litigate in Case 1, (2) Party
to be bound had a strong incentive to litigate in Case 1 [i.e. if Case 1 was small sum, there’s less incentive to litigate UNLESS she knew larger
cases may be forthcoming]; (3) Party asserting issue preclusion could have joined Case 1 [weighs against use]; (4) NO inconsistent findings on
issue [i.e. if multiple cases decided issue differently, weighs against allowing issue preclusion].
Initial Pleadings + Motions
Timing Requirement
Service of Process
Must be served within 90 days of filing complaint (can be extended for good
cause)
Waiver of Service of Process
Must waive within 30 days (U.S. Defendant)
Must waive within 60 days (Foreign Defendant)
Removal to Federal Court
Must remove 30 days after service of the first paper indicating that the case
is removable.
•
•
Typically, no later than 30 days after service of process.
Earlier-served D can join a later-served defendant who initiates removal even if 30day period is expired.
Motion to Remand
If for lack of SMJ, no time limit.
If for any other reason, must be filed within 30 days after notice of removal
filed.
Defendant’s Response to Complaint
Must file either (1) motion or (2) answer within (i) 21 days after service of
process OR (ii) within 60 days from date D mailed waiver of process.
Denial of Rule 12 Motion to Dismiss
Defendant must serve an answer no later than 14 days after notice of denial.
Amended Pleadings
P has right to amend once 21 days after D serves first Rule 12 response.
D has right to amend answer once no later than 21 days after serving answer.
[After, court permission needed]
Right to Implead
D has 14 days after serving answer to P to file impleader complaint. [After,
court permission needed]
Discovery Action
Timing
Preliminary Adjudication Action
Timing
Required Initial
Disclosures
Must be given within 14 days after Rule 26(f)
conference.
Temporary Restraining Order
Required Pretrial
Disclosures
No later than 30 days before trial parties must give
detailed information of all trial evidence.
Effective for no more than 14 days.
Can be extended another 14 days for
good cause but cannot every extend
past 28 days. After 28 days, treated as
prelim inj.
Entry of Default
May be notated 21 days after D served
with process.
Motion for Summary Judgment
Party can move for MSJ no later than
30 days after close of discovery.
Discovery
Requests
Party cannot send discovery requests until after Rule
26(f) conference.
• Request to Produce can be served earlier 21 days
after service of process.
Interrogatory
Must be answered with 30 days of its service on a
party.
Request for
Admission
Must be answered with 30 days of its service on a
party.
Trial and Post Trial Action
Timing
Rule 26(f) Conference
Must take place least 21 days before court’s scheduling order. [Unless ct. order
says otherwise].
Must present to court detailed discovery plan no later than 14 days after 26(f)
conference.
Right to Jury Trial
Party must demand jury in writing no later than 14 days after the service of last
pleading addressing a jury triable issue. Otherwise, waives right.
JMOL [Directed Verdict]
Party can move after other side has been heard on the issue.
RJMOL
Party must move within 28 days after entry of judgment.
Must have moved for JMOL at trial.
Offer of Judgment
D can submit formal offers to settle the case up to 14 days before trial.
Notice of Appeal
Must be filed with district court within 30 days after entry of judgment.
Appeal of an Order Certifying a
Class Action
Ct. of app. has discretion to review order granting / denying cert of class action.
Party seeking appeal w/ ct. of app. Must do so w/in 14 days of certification order.