Fed Jurisdic and Civil Procedure
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| How is PJ assessed? | Same as in state court
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| What are the two main types of suits Fed Courts have subject matter jurisdiction over? | Diversity of Citizenship
Federal Question (FQ)
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| What are the two requirements of diversity of citizenship cases? | 1) the action must be b/t "citizens of different states" (or b/t citizen of a state and a foreign citzn/alien 2) amnt in controversy must exceed $75,000
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| Complete diversity rule? | No diversity if any P is a citizen of the same state as any D. States include PR, DC.
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| US Citizen citizenship of state is determined by? | Domicile which is established by 1)presence in state AND 2)intent to make state her permanent home.
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| Can a person have more than 1 domicile? | No
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| When do you test for diversity? | When the case is filed. Thus if after filing D becomes citizen of same state as P, diversity is NOT destroyed.
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| Where does a Corporation have citizenship for Fed jurisdic purposes? | 1) state where incorporated AND the ONE state where croporation has its principal place of business (PPB). Corporations can have 2 citizenships.
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| Dunder Mifflin is incorporated in PA w/PPB in NY. What is Corporation's citizenship? | Both PA and NY.
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| How do we determine the corporation's PPB (Primary Place of Business)? | Where the corporate decisions are made. "nerve center", usually wherever it is headquartered.
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| For an unincorporated association (partnership, LLC) where is its citizenship? | Wherever its members are citizens. Partners who are citizens of GA, SC, AL, partnership's citizenship is GA, SC, AL.
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| Decedents, minors, incompetents citizenship? | Their citizenship is relevant not that of reps.
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| For fed jursidic how high must Amount in controversy be? | P's good faith claim must EXCEED $75,000 (not counting interest or costs of lit).
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| If P sues for 75,000 but recovers less than 75,000 is fed jurisdic ok? | Yes. Whatever P claims in good faith is ok unless it is clear to a legal certainty (statutory ceiling on recovery) that she cannot recover more than 75,000. P who wins less than 75,000 may have to pay D's lit costs.
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| Aggregation | Adding two or more claims to meet amount requirement to satisfy fed jurisdiction. Aggregate claims of ONE P vs. D. No limit on # of claims but cannot aggregate claims of P1 & P2.
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| P sues joint tortfeasors for 76,000. Ok? | OK to aggregate claims against joint tortfeasors (use tottal value of claim).
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| Equitable relief in federal jurisdiction. How to satisfy amount in controversy? | Two tests (if either is met OK).
P's viewpoint: does affect P for more than 75,000.
D's viewpoint: does affect D for more than 75,000?
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| Exclusions to federal jurisdiction? | Divroce, alimony, child custody decree, probate an estate.
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| When does a court have FQ jurisdiction? | When the complaint shows a right or interest founded substantially on federal law (fed const, legislation). The claim arises under fed law. Citizenship or amount in controversy not relevant for FQ jurisdic.
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| *Well pleaded complaint rule | Not enough that some fed issue is raised by complaint. P's claim must "arise under" fed law. IS P ENFORCING A FED RIGHT?
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| *What do you do after Diversity and FQ get a case into federal court and there are addtl claims? | Test each claim for whether it invokes diversity or fq. If it doesn't look to suppl. jurisdic.
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| Can suppl. jurisdic be used to get a case into fed court? | No.
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| Test for whether claim qualifies for suppl. jurisdic? | The claim we want to get into fed court must share "common nucleus of operative fact" w/claim that invoked fed subj matter jurisdic. Test is always met by claims that arise from same T/O as underlying claim.
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| What is the LIMITATION to suppl jursidic? | LIMITATION: In a diversity case P cannot use supp jurisdic to overcome LACK OF DIVERSITY. P can never overcome lack of diversity in diversity case.
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| So a non-federal, non-diversity claim can be heard in federal court if it meets the supp. j. test UNLESS? | It is
a. asserted by P
b. in a diversity of citiz (not FQ) case AND
c. would violate complete diversity.
Court has discretion to not hear supp claim if 1) fq is dismissed early 2)state law claim is complex or 3) state law issues would predominate
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| Removal | -D in state court might be able to remove to fed ct.
-Can only go from state trial to fed trial ct.
-NO later than 30 days after SERVICE of 1st document that makes case removable (serv of process)
-TEST- can remove if case would invoke diversity or FQ.
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| Can P remove a case? | NO. Never.
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| Removal: Special rule for diversity cases | No removal if any D is a citizen of the forum. "In state D rule".
If P dismisses claim against D2(where D1 is non forum state citizen and D2 is) then case becomes removable (30 day limit, diversity case no removal more than one year after case filed).
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| Where can cases be removed to? | Only to the federal district embracing state court in which case was originally filed.
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| Procedure for removal? | D files notice of removal in fed court, stating grounds of removal, under rule 11, attach all docs served on D in state action, copy to all adverse parties, then file copy of notice in state court.
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| Erie Doctrine, If there is no federal law on point that directly conflicts w/state law, what law should fed court apply? | Fed law if it is valid. THis is based on supremacy clause. FRCP is valid if it is arguably procedural (none ever held invalid)
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| Erie doctrine- When does federal court have to apply state law? | In diversity cases, fed court must apply state substantive law.
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| What are the "easy cases of substantive law" in re: Erie doctrine? | 1. elements of claim/defense 2. statute of limitations 3. rules for tolling statutes of lim 4. conflict or choice of law rules. -All are substantive, must apply state law.
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| What are local actions and what is their venue? | actions about ownership, possession or injury (including trespass) to land. Filed in district where the land lies.
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| Transitory action | Any action that is not a "local action"
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| *In any transitory case (diversity of fq) P may lay venue in any district where... | -All D's reside or -A substantial part of the claim arose.
SPECIAL RULE: in cases where D's reside in different districts of same state, P can lay venue in district in which any of them resides.
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| Where do D's reside for venue purposes? | Human: district where domiciled.
Corporations: all districts where they are subject to PJ when case is filed. Corporation can have only two citizenships but might reside in every district in US.
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| Fed district court may transfer case to another fed district only... | to a district where case could have been filed (to a PROPER VENUE that has PJ over D).
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| In deciding whether to transfer a case, fed courts look to... | public (what law applies, what community should be burdened w/jury service) & private factors (convenience where are witnesses and evidence). Court applies choce of law rules of orginial court.
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| If venue is improper court may... | transfer in interests of justice or dismiss.
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| Forum non conveniens | Another court is far more convenient but court does not transfer. Instead it dismisses or stays the case b/c transfer is impossible (foreign country).
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| When must you serve D? FJ | w/in 120 days of filing case or case dismissed w/out prejudice.
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| Who can serve process? FJ | Any nonparty at least 18. Does not have to be court appoitned.
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| How is process served? FJ | Personal- anywhere in forum state.
Substituted- served at D's usual abode w/someone of suitable age & discretion who resides there.
Agent- served to agent w/in scope of agency
State law
Waiver by mail- copy of complaint, 2 copies of waiver w/SASE.
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| Can D not return waiver of service form? FJ | Must pay expenses of service if not good reason. In order to waive must execute and mail waiver to P w/ion 30 days.
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| Fed court can serve process outside state in which it sits... | ONLY if state law allows (w/long arm for example)
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| FJ. Immunity from service? | D is immune while instate to be witness or party in another civil case.
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| FJ Later service: | mailed to party's attorney or pro se party.
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| FJ Pleadings | documents setting forth claims and defenses
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| FJ Rule 11 | requires attorney or prose party to sign all papers (excepted discovery docs)
-w/signature person certifies
1. paper is not for improper purspose
2. legal contentiosn are warranted by law
3. factual contentions have evidentiary support.
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| FJ RUle 11 Continuing Certification | certification effective every time signed position is presented to court
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| FJ If another party violates rule 11 can party move for sanctions now? | NO. You serve motion on other parties but cannot file it. VIolator has 21 day safe harbor in which to fix probs and avoid sanctions. Court can raise rule 11 sua sponte (on its own). Court does not give safe harbor 21days.
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| Complaint | filing commences an action
Requirements
1. statement of grounds for smj.
2. short and plain statement of claim showing entitled to relief.
3. demand for relief sought
Standard: Must plead fact supporting PLAUSIBLE claim.
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| What 3 matters must be pleaded on the complaint in even more detail than normal? | Fraud!!!! mistake, special damages (do not normally flow from an event, must give details, erection hypo).
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| How can D respond to complaint according to Rule 12? | 1) By motion
2) Answer
w/in 21 days of serv of process.
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| Motions | RUle 12 requests for a court order.
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| Motion) Issues of form: | motion for more definite statement- pleading so vague D can't frame response, motion to strike aimed at immaterial things (demand for jury when no right essxists)
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| *Motion) Rule 12b defenses | 1) lack of smj 2)lack of pj 3) improper venue 4) insufficiency of process (prob w/papers) 5)insufficient serv of proc 6) failure to state a claim 7) failure to join indispensable party. All raised by motion OR answer.
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| *Which Rule 12b defenses are "waivable"? | lack of pj, improper venue, insufficiency of process, insufficient service of process
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| *What are waivable rule 12b defenses? | They must be put in FIRST rule 12 response (motion or answer) or else they're waived.
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| Answer | A pleading. Serve 2/in 21 days after service of proc. But if D made Rule 12 motion and it was denied bmust serve answer w/in 14days after court rules on motion.
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| Answer contains: | 1)Response- admit, deny, state lack of sufficient info to admit/deny.
2)Raise affirmative defenses (SOL, SOF, res judicata, self-defense).
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| Failure to deny constitutes... | an admission on any matter except damages.
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| What is a counterclaim? | Claim against an opposing party. In fed court it is part of D's answer.
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| What are the 2 types of counterclaim? | Compulsory
Permissive
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| What is compulstory counterclaim? | arises from same t/o as P's claim. MUST BE FILED IN PENDING CASE OR ELSE WAIVED. CLAIM CANNOT BE ASSERTED IN ANOTHER ACTION. This is the only compulsory claim.
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| What is a permissive counterclaim? | Does not arise from same t/o as P's claim. May file it w/answer or in a separate case.
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| What is a cross-claim? | Claim against a co-party, must arise from same t/o as underlying action. Check Sterling hypo p. 16
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| Right to amend (rarely tested) | P can amend once w/in 21 days after D serves 1st Rule 12 response.
D has right to amend once w/in 21 days of serving answer.
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| If there's no right to amend... | seek leave of court. Will grant if "justice so requires" based on delay, prejudice, futility of amendment.
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| Variance | Where evidence at trial does not match what was pleaded.
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| What is "relation back" in re: amendment? | Amended pleadings relate back, treat amended pleading as if it was filed when orginigal was filed.
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| Required disclosures (discovery) | 1. Initial disclosures- w/in 14 days of Rule26f conference must identify persons and give copies of docs likely to have discoverable info 2. Experts 3. Pretrial- no later than 30 days must give info about trial evidence
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| *What is a key issue w/discovery tools? | Which ones can be used to get info from non-parties.
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| When may discovery tools be used? | Not until after Rule 26f conference unless court order or stipulation allows.
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| What are depositions? | Discovery tool where depnent gives sworn oral answers to questions by counsel.
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| Who can you depose? | Parties or nonparties, but nonparty must be subpoenaed to be compelled to attend. Party must just be given notice of depo.
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| What are the deposition rules? | -Cannot take more than 10 or depose same person twice w/out court approval or stipulation.
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| What is the use at trial for depos? | 1) Impeach deponent 2) any purpose if deponent is adverse party 3) any purpose if deponent is unavailable for trial
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| Interrogatories | Discovery tool: questions propounded in writing to another party to be answered in writing under oath. Must respond w/answers or objections w/in 30days. Can say you don't know but only after reasonable investig. At trial cannot use own answers.
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| How many interrogatories may you serve? | Not more than 25 (including subparts) w/out court order or stipulation.
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| Request to produce? | Discovery tool:request to another party(or non-party if subpoenaed) requesting that she make available for review and copying various documents/things, ESI, or permit entry upon property for inspection.Specify form in which ESI is to be produced:hard/elec
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| When must you respond to request to produce? | W/in 30days of service stating material will be produced or state objection.
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| Phys/Mental Examination | Discovery tool- available only through court order on showing that party's health is in actual controvery and good cause.
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| Request for admission | Discovery tool: rerquest by one party to ANOTHER PARTY to admit truth of any discoverable matters. Used to authenticate docs. Must respond to w/in 30 days. Response is admit/deny. Lack of info only if made reasonable inquiry.
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| How do parties sign substantive answers to discovery under oath? | Every discovery request and response is signed by counsel certifying 1) its warranted 2) not interposed for improper purpose 3) not unduly burdensome. Rule 11 does not apply to discovery docs so this is separate cert for them.
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| Duty to supplement | If a party learns that its response required disclosure, interrogtatory request for prod, or request for admission is incomplete must supplement answer.
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| *What is the scope of discovery standard? What can you discover? | Anything relevant to a claim or defense.
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| What does relevant mean in terms of scope of discovery? | "Reasonably calculated to lead to discovery of admissible evidence" Broader than admissible. "Hearsay" for example.
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| Is privileged matter discoverable? | No. attorney/client, evidentiary privileges not discoverable.
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| What is work product? | Trial prep materials prepared in ANTICIPATION OF LITIGATION.
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| Does work product have to be generated by a lawyer? | No.
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| Are witness statements discoverable? | Yes, if you can SHOW 1. substantial need. 2. not otherwise available.
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| What must you do if you withhold discovery b/c of privileged material/work product? | Expressly claim protection and describe materials. If you inadvertently produced protected materials notify other party who has to return it pending courts decision.
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| 3 main ways discovery problems are presented to court | protective order- i.e., request is overburdensome/trade secrets
partial violation- party answers some objects to others.
total violation- receiving party fails completely to attend depo, respond to interrogatories/requests for prod. Heavy sanction.
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| Sanctions | Party seeking sanctions must certify tried in good faith to get info w/out court.
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| 2 steps to partial violation sanctions? | 1. get an order compelling party to answer unanswered q's plus costs of bringing motion
2. if party violates above order RAMBO sanctions plus costs and could be held in contempt
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| 1 step to total violation | RAMBO plus costs.
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| What are RAMBO Sanctions? | Choices available to judge: establishment order (facts are true), strike pleadings of disobedient party (as to issues re discovery), disallow evidence from dis party, dismiss P's case (if bad faith), enter default against D (if bad faith)
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| When can P's sue as co-P's? When can D's be sued as co-Ds? | When claims arise from same T/O AND raise at least 1 common Q. But must then assess diversity/fed q jurisdic.
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| Who is a necessary party? | An absentee who meets any of these tests:
1. w/out A court cannot accord complete relief.
2. A's interest may be harmed.
3. A claims interest which sbjects party to multiple obligations.
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| Are joint tortfeasors necessary? | Never.
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| What do you do after a party is declared necessary? | See if joinder is feasible.
1) There is PJ over party.
2) Joining him will not destroy diversity.
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| What if a necessary party cannot be joined? | Court can either proceed w/out A or dismiss entire case.
FACTORS: 1. alternative forum available? 2. likelihood of harm to A. 3. can court shape relief to avoid potential harm?
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| Joinder rules that start with C... | are claims between present parties (Counterclaim, crossclaim)
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| Joinder rules that start with I... | involve joining someone new to the case.
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| *Impleader | A defending party wants to bring in someone new (TPD) for one reason: TPD may owe indemnity or contribution to defending party on underlying claim. Right to implead w/in 14 days of serving answer after that need court permission.
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| What are the steps for impleading TPD in a pending case? | File third party complaint naming TBD and serve process on TPD.
After TPD is joined P can assert claim against TPD if claim arose from same T/O as underlying case. Always assess SMJ. Then SUPPJ if needed.
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| What is intervention? | Absentee wants to join pending suit. Chooses to come in as either P or D. Court may realign if she came in "wrong". App must be timely.
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| Intervention of Right | As interest may be harmed if she is not joined.
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| Permissive Intervention | As claim or defense and pending case have at least one common Q.
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| Interpleader | One holding property forces all potential claimants into single lawsuit to avoid multiple lit. Person w/prop is stakeholder, folks who want it are claimants.
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| *Class Action | Rep sues on behalf of members of a class.
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| Requirements for Class Action initially: | All must be demonstrated:
a. Numerosity b. Commonality c. Typicality d. Representative is adequate.
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| Class Action case must fit one of 3 types. What are they? | Type I- Prejudice (many claimants to a fund),Type II- Injunction (employment discrim) or *Type III- Damages (common questions PREDOMINATE over individual AND class action is superior method to handle dispute, ie mass tort)
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| What must a court do in re: a class? | Determine "at an early practicable time" whether to certify case to proceed as a class action. If court certifies class, must define class and class claims, issues or defenses.
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| *Does the court notify class of pendency of class action? | Type 3 class, court must notify clas members including individual notice to all reasonably identifiable members. Notice tells them 1) they can opt out 2) bound if don't opt out 3)can enter separate appearance thru counsel.
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| Who's bound by class action judgment? | All class members except those who opt out of a Type 3 class action.
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| Is there any right to opt out of Type 1 or 2 class action? | No.
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| Can the parties dismiss or settle a certified class action? | Only w/court approval.
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| How could a class invoke FQ jurisdiction for SMJ purposes? | By asserting a claim arising under federal law.
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| How is diversity of citizenship determined in a class action? | The citizenship of the rep is the only one considered. Ignore other class members citizenships.
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| How is amount of controversy determined in a class action to satisfy SMJ? | Reps claim must exceed 75,000.
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| CAFA: | Lets fed court hear class action if any class member is of diverse citizenship from any D and if aggregate claims exceed 5 million.
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| Voluntary dismissal | May be allowed on court order (and P may have to pay D's costs) But sometimes P has right to it by filing written notice of dismiss.
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| What does dismissal without prejudice mean? | P can refile the case.
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| P sues D, before D answers, P files written notice of dismissal. Ok? | Yes. P may voluntarily dismiss w/out prejudice before D serves her answer or motion for summary judgment.
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| Default: | Notation by court clerk on docket sheet. Claimant gets default by showing clerk that D has failed to respond w/in 21 days after process. D can respond anytime before default is entered. Must get judgment to enforce and recover money.
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| When can clerk of court enter judgment for default? | If D made no resopnse at all.
Claim itself is for a sum certain in money.
D is not minor or incompetent. If any of above is not true claimant must go to court for judgment.
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| What is a failure to state a claim motion? | Under FRCP 12b6 D moves to dismiss for failure to state a claim. Tests only the sufficiency of P's allegations. Court ignores legal conclusions and looks at allegations of fact.
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| What question does court ask when assessing motion for failure to state a claim? | If everything P says is true will she win a judgment. This tests whether fact alleged state a claim the law would recognize.
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| What is a motion for judgment on the pleadings? | Same as motion for failure to state a claim but made after D has answered.
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| What must party show to be granted summary judgment? | 1) No genuine dispute as to material issue of FACT and 2) that she is entitled to judgment as a matter of law. Court may look at evidence (in light most favorable to nonmoving party)
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| Pleadings are evidence T/F? | No. Not unless verified under oath. But might be relevant on summary judgment. Evidence must be firsthand knowledge.
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| Failure to deny an allgation can be treated as fact. T/F? | True
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| 3 types of conferences and which is most important for the Bar? | Rule26f conference, Scheduling order, *Pretrial conferences- Determiens issues to be tried and evidence profferred, supersedes pleadings, final pretrial conference order is important document- roadmap of trial.
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| Juries determine what and are instructed by who? | Facts and judge.
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| 7th amendment proscribes right to a jury in which actions? | Civil actions at law, not suits in equity.
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| What do we do with jury if case involves both law and equity? | Jury decides facts underlying legal claims but not on injunction issues. Jury issues tried first.
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| When must you demand raising jury triable issues? | In writing no later than 14 days after service.
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| *How many strikes for cause in voir dire? | Unlimited.
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| How many peremptory strikes in voir dire? | Each side (P and D) gets 3.
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| How must you justify peremptory strikes? | Must use in a race and gender neutral way b/c jury selection is a state action.
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| Max and min jurors in fed court? | 12 and 6
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| *What is a motion for judgment as a matter of law? | An exceptional order which takes the case away from jury.
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| When is JMOL brought? | After other side has been heard at trial. D moves at close of P's evidence and close of all evidence. P can move at close of all evidence.
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| Standard for granting JMOL? | A reasonable person could not disagree on the result of the verdict.
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| What is a RENEWED judgment as a matter of law? | Same as JMOL but comes up after trial.
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| What happens once RJMOL is granted? | Court enters judgment for party that lost verdict. Move w/in 28 days after entry judgment.
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| What is the standard for RJMOL? | Same as JMOL. Jury reached conclusion reasonable people could not have reached.
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| *If you didn't move for JMOL at trial can you bring RJMOL? | NO.
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| When can a motion for new trial be granted? | Judgment entered but errors require new trial. Move w/in 28 days after judgment.
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| What are the grounds for granting motion for a new trial? | 1)Prejudicial (not harmless) error 2)New evidence that could not have been obtained w/due diligence during trial 3)prejudicial misconduct of involved party 4) judgment is against weight of evidence 5) excessive or inadequate damages
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| Motion to set aside judgment | Grounds- clerical error, mistake, new evidence
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| What is the final judgment rule in re: appellate review? | Generally right to appeal only from final judgments. Ultimate decision by trial court of merits of the entire case.
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| Where is notice of appeal filed? | Trial court w/in 30 days after entry of final judgment.
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| How do you determine if its a final judgment? | Ask if after making this order does trial judge have anything left to do on merits of case. Denial of new motion for trial. Grant or denial of RJMOL all final. Not final: motion for new trial, remand to state court.
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| Interlocutory review: | May be appealable even though not final judgment
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Review the information in the table. When you are ready to quiz yourself you can hide individual columns or the entire table. Then you can click on the empty cells to reveal the answer. Try to recall what will be displayed before clicking the empty cell.
To hide a column, click on the column name.
To hide the entire table, click on the "Hide All" button.
You may also shuffle the rows of the table by clicking on the "Shuffle" button.
Or sort by any of the columns using the down arrow next to any column heading.
If you know all the data on any row, you can temporarily remove it by tapping the trash can to the right of the row.
To hide a column, click on the column name.
To hide the entire table, click on the "Hide All" button.
You may also shuffle the rows of the table by clicking on the "Shuffle" button.
Or sort by any of the columns using the down arrow next to any column heading.
If you know all the data on any row, you can temporarily remove it by tapping the trash can to the right of the row.
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