Barbri Review
Quiz yourself by thinking what should be in
each of the black spaces below before clicking
on it to display the answer.
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| Right court- Personal jurisdiction | The court's power over parties
Two-steps-
1. Satisfy a statute (e.g. long-arm statute), and
2. Satisfy the Constitution (due process)
Federal v. state court- Exact same
Statute v. Constitution- Constitution more important
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| Right court- Personal jurisdiction Constitutional analysis ("International Shoe"), My Parents Frequently Forgot to Read Children's Stories | Does D have "such minimum contacts with the forum so the exercise of personal jurisdiction does not offend traditional notions of fair place and substantial justice"
Test: Can the ct apply its power over the D?
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| Right court- Personal jurisdiction Constitutional analysis ("International Shoe")- Traditional | Constitutional test met if-
D is domiciled in forum, or
D consents in forum, or
D is present in forum when served with process
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| Right court- Personal jurisdiction Constitutional analysis ("International Shoe")- Factors (non-traditional) | 1. Contact, and
a. Purposeful availment
2. Fairness (fair play and substantial justice)
a. Foreseeability,
b. Relatedness,
c. Convenience,
d. State's interest
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| Right court- Personal jurisdiction Constitutional analysis ("International Shoe")- Factors: Contact | Must be some contact between D and forum resulting from purposeful availment (D's voluntary act)
Purposeful availment: D reaches out to forum in some fasion
Examples: Internet cases, market products, uses roads, and causes effect in forum
Liberal
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| Right court- Personal jurisdiction Constitutional analysis ("International Shoe")- Factors: Fairness, foreseeability | It must be foreseeable that D could be sued in the forum
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| Right court- Personal jurisdiction Constitutional analysis ("International Shoe")- Factors: Fairness, relatedness | Test: Does 's claim arise from D contact with forum?
Specific= claim must arise from D's contact with forum
General= continuous and systematic ties with forum (e.g. claim not from contact with forum, but domiciled or does substantial business in for
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| Right court- Personal jurisdiction Constitutional analysis ("International Shoe")- Factors:Fairness, convenience | Forum is okay unless D at severe disadvantage in litigation due to location of forum
Almost impossible to show disadvantage
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| Right court- Personal jurisdiction Constitutional analysis ("International Shoe")- Factors: Fairness, state's interest | P have substantial deference with regard to where they sue
E.g., State provides forum for its citizens (P)
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| Right court- Subject matter jurisdiction | Power over the case
P can sue in particular state, but in what court?
1. Federal court, or
a. Diversity of citizenship,
b. Federal question
2. State court
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| Right court- Subject matter jurisdiction Diversity of Citizenship | Two requirements-
1. Action between "citizen of different states" (or between a citizen of state and foreign citizen (alien)), and
2. Amount in controversy must exceed $75,000
Exceptions: No federal ct for divorce, alimony, child custody, probate est
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| Right court- Subject matter jurisdiction Diversity of Citizenship- "Citizens of different states" | Complete diversity rule: No diversity if ANY P is a citizen of the same state as ANY D
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| Right court- Subject matter jurisdiction Diversity of Citizenship- "Citizens of different states": Determining citizenship, Natural persons and corporations | 1. U.S. citizen= state of domicile
a. Presence, AND
b. Intent to make permanent home
2. Corporations
a. Sate incorporated &
b. State w/principle place of
business (nerve center/
headquarters)
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| Right court- Subject matter jurisdiction Diversity of Citizenship- Amount in controversy | P claim in good faith (not counting interest/litigation costs) okay, unless clear to a legal certainty cannot recover more than $75,000
Can recover less than claim
Aggregation= Single P w/two claims okay
Ds joint claim= Single P then claims total
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| Right court- Subject matter jurisdiction Federal Question | Complaint must show right or interest founded substantially on federal law
Well pleaded complaint rule: P's claim itself must arise under federal law
-Ask- Is P seeking to enforce a federal right?
Yes= Case go to federal ct under
FQ
No= Cann
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| Right court- Subject matter jurisdiction Supplemental Jurisdiction | Diversity and FQ can get case into federal ct, but claim made after case already that does not meet diversity or FQ
Test- New claim shares a "common nucleus of operative fact" with existing claim that invoked federal subject matter jurisdiction
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| Right court- Subject matter jurisdiction Supplemental Jurisdiction: P's use | P CANNOT use to overcome lack of diversity in diversity case
P CAN use to overcome lack of diversity for-
1. A claim for lack of diversity in a FQ case, and
2. A claim for lack of amount in controversy for claim in diversity case
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| Right court- Subject matter jurisdiction Supplemental Jurisdiction: Any party's use (except P) | Any party can use to overcome either lack of complete diversity or amount in controversy in any case
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| Right court- Subject matter jurisdiction Supplemental Jurisdiction: In general | Non-federal, non-diversity claim can be heard in federal court if it meets "test" unless-
1. Asserted by P
2. Diversity of citizenship (not FQ), and
3. Violates complete diversity
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| Right court- Subject matter jurisdiction Supplemental Jurisdiction: Court's discretion | Court has discretion to not hear supplement claim if-
1. Federal question is dismissed early in proceeding, or
2. State law is complex, or
3. State law issues would predominate
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| Right court- Subject matter jurisdiction Removal | D sued in state ct "removes" case to federal if case would invoke diversity or FQ
All Ds must agree
P can NEVER remove
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| Right court- Subject matter jurisdiction Removal: Diversity case exception | In state D rule: No removal if any D is citizen of forum suit is brought
Why? No prejudice by being in the state ct where D is a citizen
Never in FQ cases, just diversity
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| Right court- Subject matter jurisdiction Erie Doctrine | Whether court must apply state law on some issue
In diversity cases, federal ct must apply state substantive law
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| Right court- Subject matter jurisdiction Erie Doctrine: Federal law on point | If federal law directly conflicts with state law apply federal law, so long as it is valid
Why? Supremacy clause
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| Right court- Subject matter jurisdiction Erie Doctrine: No federal law on point, but easy | 1. Elements of a claim or defense,
2. Statute of limitations,
3. Rules for tolling statutes of limitations, and
4. Conflict (or choice) of law
Substantive so use state laws, but procedural then use federal laws
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| Right court- Subject matter jurisdiction Erie Doctrine: No federal law on point, but NOT easy | Reasonable conclusion-
1. Outcome determinative (apply/ignore state law effect outcome= state law),
2. Balance of interests (federal or state interest strongest),
3. Avoid forum shopping (applying federal law makes people "flock" to federal ct= state l
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| Right court- Venue | Which federal court by choosing proper district
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| Right court- Venue Local actions (Wyoming) | Actions concerning ownership, possession, or injury (including trespass to land) must be filed in county where property is located
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| Right court- Venue Transitory cases | If not a local action then transitory
In any transitory action (diversity or FQ), P may lay venue in "any district where-"
1. All Ds reside, or
2. Substantial part of the claim arose
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| Right court- Venue Transitory cases: All Ds reside | Special rule: If all Ds reside in different districts of the same state, P can lay venue in the district in which any of them reside
Where?
1. Humans (domiciled),
2. Corporations/business assoc. (subject to PJ)
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| Right court- Venue Transitory cases: Substantial part of claim arose | Any district where substantial part of claim arose (i.e.,where breach of contract occurred)
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| Right court- Venue Transfer | Federal district court may transfer a case to another federal district court, but only to district where case could have been filed
Proper venue that has PJ over parties
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| Right court- Venue Transfer: Venue in original district proper | Court has discretion to transfer to another federal district based on-
1. Convenience for parties/witness, and
2. Interest of justice
Factors-
1. Public (laws, community, controversy),
2. Private (convenience)
Ct applies choice of law of origina
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| Right court- Venue Transfer: Venue in original district improper | Ct may transfer in the interest of justice, or dismiss
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| Shape of the case- Statute of limitations | WY SOL is 4 years for tort action
4 years for a contract of sale
1 year for worker's compensation claim when injury readily apparent, if not one year from discovery
10 years for recovery of real property
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| Shape of the case- Statute of limitations continued |
5 years for wrongful taking of personal property
2 years after appointment of personal representative to file wrongful death action
2 years for claims against gov't entity
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| Shape of the case- Commencement of action | For SOL purposes, action commenced on date of filing if D served within 60 days of filing
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| Shape of the case- Service of process, WY Rule 4 (usually on bar) | Personal jurisdiction + notice to D by delivering to D by process-
1. Summons of formal ct notice of suit and time for response, and
2. Copy of complaint
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| Shape of the case- Service of process, WY Rule 4 Who? | Non-party at least 18 years old
Does not have to be appointed by court
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| Shape of the case- Service of process, WY Rule 4 How? | 1. Personal service,
2. Substituted service,
3. Service on D's agent,
4. State law,
5. Waiver by mail
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| Shape of the case- Service of process, WY Rule 4 How? Personal service | Papers are given to D personally anywhere in forum state
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| Shape of the case- Service of process, WY Rule 4 How? Substituted service | May leave process with someone at residence who is-
1. Usual resident, and
2. Over 18
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| Shape of the case- Service of process, WY Rule 4 How? Service on D's agent | Can be delivered to D's agent if within the scope of agency, or designated for that purpose
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| Shape of the case- Service of process How? State law (Rule 4) | Methods of service permitted by state law and where federal courts sit is where service is effected
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| Shape of the case- Service of process How? Waiver by mail | Regular mail of copy of complaint and two copies of a waiver form, with a prepaid means to return is okay
If D mails waiver form within 30 days, D waives formal service
60 days to then answer
If do not waive must pay costs of service
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| Shape of the case- Pleadings | Documents setting forth claims and defenses
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| Shape of the case- Pleadings Rule 11 | Requires attorney, or pro se party, to sign all pleadings, written motions, and papers (except discovery)
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| Shape of the case- Pleadings Rule 11: Signature | Certifies to best of knowledge and belief, after reasonable inquiry-
1. Paper is not for improper use,
2. Legal contentions are warranted by law(non-frivolous),
3. Factual contentions and denials have evidentiary support (likely to further investigati
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| Shape of the case- Pleadings Rule 11: Failure to comply | Sanctions levied against attorney by ct
Purpose of sanction to deter a repeat of bad conduct, not punish
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| Shape of the case- Pleadings Complaint | Filing commences action requiring-
1. Federal ct= statement on grounds of subject matter jurisdiction,
2. State and federal ct= short and plain statement of claim, showing entitled to relief,
3. Demand for relief sought
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| Shape of the case- Pleadings Complaint: Post-"Iqbal" standard | State facts supporting plausible claim
Not too much, not to little, just right
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| Shape of the case- Pleadings Complaint: Post-"Iqubal" standard exceptions | Matters must be pleaded with more detail of particularity and specificity-
1. Fraud,
2. Mistake,
3. Special damages
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| Shape of the case- Pleadings D's response | Rule 12 requires D to respond by-
1. Motion, or
2. Answer
a. Within 21 days of process, or
b. WY- within 20
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| Shape of the case- Pleadings D's response: Motion | Requests for a court order
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| Shape of the case- Pleadings D's response: Motion, Issues of form | 1. Motion for more definite statement (vagueness so no response),
2. Motion to strike aimed at material things
Usually D
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| Shape of the case- Pleadings D's response: Motion, Rule 12(b) defenses | 1. Lack of subject matter jurisdiction,
2. Lack of personal jurisdiction,
3. Improper venue,
4. Insufficiency of process,
5. Insufficient service of process,
6. Failure to state a claim, and
7. Failure to join indispensable party
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| Shape of the case- Pleadings D's response: Motion, Rule 12(b) defenses waiver | 2, 3, 4, 5 are waivable
Waivable= must be in the FIRST rule 12 response (motion or answer) or else their are waived
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| Shape of the case- Pleadings D's response: Answer | A pleading
Served within 21 days (WY 20)after service of process, unless R 12 motion and denies, then must serve within 14 days of ct ruling
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| Shape of the case- Pleadings D's response: Answer, Responding to allegations in complain | 1. Admit,
2. Deny, or
3. State lack of sufficient info to admit or deny (acts as denial, but not used if info public knowledge or in D's control)
Failure to deny constitutes as admission on any matter except damages
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| Shape of the case- Pleadings D's response: Answer, Raise affirmative defenses | Even if D did allegations, P still cannot win because-
1. Statute of limitations,
2. Statute of frauds,
3. Res judicata, and
4. Self-defense
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| Shape of the case- Pleadings Counter-claim (Rule 13(a)) | Claim against an opposing party as part of D answer
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| Shape of the case- Pleadings Types of counter-claims | 1. Compulsory, and
2. Permissive
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| Shape of the case- Pleadings Compulsory counter-claims | 1. Arises from same transaction an occurrence as P's claim,
2. Must be filed in the pending case or it is waived,
4. Cannot be asserted in another action
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| Shape of the case- Pleadings Permissive counter-claims | Does NOT arises from the same transaction or occurrence as P's claim
File with answer or assert in separate case
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| Shape of the case- Pleadings Cross-claim | Claim against a co-party
Must arise from the same same transaction and occurrence as underlying action
Permissive so you do not have to file it in this case
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| Shape of the case- Pleadings Amending pleadings: Liberal amendation is the rule of thumb, Right to amend | P once within 21 days (WY?),
D once within 21 days (WY?) of answer
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| Shape of the case- Pleadings Amending pleadings: Liberal amendation is the rule of thumb, No right to amend | Court grants when justice so requires if-
1. Delay,
2. Prejudice,
3. Futility
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| Shape of the case- Pleadings Amending pleadings: Liberal amendation is the rule of thumb, Relation back | Amended pleadings "relate back" if they concern the same conduct, transaction or occurrence as the original pleading
Avoid SOL, but treating amended pleading as though it was filed when original was
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| Shape of the case- Pleadings Joinder | Proper D and P may be joined if -
1. Arises from same t/o, and
2. Arises from same common question
If federal ct, must maintain diversity and FQ
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| Shape of the case- Pleadings Joinder: Necessary and indispensable parties | FRCP (WRCP) R 19: Absentee (non-parties) must bbe force to join in the case since they are necessary (required)
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| Shape of the case- Pleadings Joinder: Necessary and indispensable parties, Who? | Absentee necessary if-
1. Without A, ct cannot accord complete relief (worried about multiple suits),
2. A's interest may be harmed if isn't joined (practical harm), or
3. A claims interest which subjects party (usually D) to risk of multiple obligatio
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| Shape of the case- Pleadings Joinder: Necessary and indispensable parties, Feasible? | Ct decides whether A is P or D by checking-
1. Personal jurisdiction over A, and
2. Joining A will not make it impossible to maintain diversity
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| Shape of the case- Pleadings Joinder: Necessary and indispensable parties, Not feasible? | Proceed without, or dismiss
Factors examined by ct-
1. Is there an alternative forum available (watch for state ct),
2. What is the actual likelihood of prejudice, and
3. Can ct shape relief to avoid that prejudice
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| Shape of the case- Pleadings Impleader (R 14) | Third party practice-
A defending party wants to bring in someone new (third party D) if third party owes indemnity or contribution to the defending party on underlying claim if they are an insurance company or tortfeasor
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| Shape of the case- Pleadings Impleader (R 14): When? | Right to implead within 14 days of serving answer, otherwise need ct okay
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| Shape of the case- Pleadings Impleader (R 14): How? | 1. File third party complaint naming party as third party D, and
2. If personal jurisdiction serve process on third party D
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| Shape of the case- Pleadings Impleader (R 14): Asserting claims | TPD against P= If claim arises from same t/o as underlying case,
P against TPD= If claim arises from same transaction and occurrence as underlying case
Process each claim separately for subject matter jurisdiction
TPD only liable if D is
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| Shape of the case- Pleadings Intervention | Absentee wants to join a pending suit so chooses to come in as P or D (ct may realign)
Application to intervene must be "timely"
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| Shape of the case- Pleadings The class action | Representative(s) sue on behalf of group
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| Shape of the case- Pleadings The class action: Initial requirement 1 and 2 | Must demonstrate all four of these-
1. Numerosity (too many class members for practicable joinder),
2. Commonality (there are some questions of law or fact in common to class),
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| Shape of the case- Pleadings The class action: Initial requirement 3 and 4 | 3. Typicality (representative's claims/defenses typical of those of the class),
4. Representative adequate (the class representative will fairly and adequately represent class)
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| Shape of the case- Pleadings The class action: Must fit the case, Type 1 | Prejudice-
Class treatment necessary to avoid harm either to class members or to party opposing class
Type 3 notice is not required
No right to opt out
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| Shape of the case- Pleadings The class action: Must fit the case, Type 2 | Injunction or declaratory judgment (not damages) sought because class was treated alike by other party
Type 3 notice is not required
No right to opt out
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| Shape of the case- Pleadings The class action: Must fit the case, Type 3 | Damages-
1. Common question predominate over individual questions, and
2. Class action is superior method to handle the dispute
Must notify all reasonably identifiable class members (usually by mail) to-
1. Opt out or bound,
2. Enter separate appea
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| Shape of the case- Pleadings The class action: Certifying at an early practicable time | Ct must determine "at an early practicable time" whether to "certify" the case to proceed as a class action
Counsel must fairly and adequately represent interest of class
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| Shape of the case- Pleadings The class action: A certified class | The ct must-
1. "Define the class and the class claims, issues, or defenses",
2. Appoint class representative (from pool of Ps counsel)
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| Shape of the case- Pleadings The class action: Who's bound? | All class members (unless opt-out of type 3) are bound by the judgment
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| Shape of the case- Pleadings The class action: Settling or dismissing | In all three types, ct gives notice to class member to get feedback about dismissing or settling
In type 3, the ct may give another option to opt-out
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| Shape of the case- Pleadings The class action: Subject matter jurisdiction | Class could invoke FQ jurisdiction by asserting a claim arising under federal law
Diversity of citizenship= determined by representative of class
Amount in controversy= must exceed $75K
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| Shape of the case- Pleadings The class action: Class action fairness act | Federal cts can hear a class action if-
1. Any class member is a diverse citizenship from any D, and
2. If aggregated claims of class exceed $5 mill
Local classes do not stay in federal ct, they get dismissed
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| Adjudication- Discovery Required disclosures | Materials must be produced even though no one asks for it
1. Initial disclosures,
2. Experts,
3. Pre-trial
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| Adjudication- Discovery Required disclosures: Initial disclosures | Unless ct order/stipulation, w/in 14 days of R 26(f) conference must identify persons, electronically stored info, and docs "likely to have discoverable info disclosing party may use to support claim or defense", computation of damages/ins. for judgment
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| Adjudication- Discovery Required disclosures: Experts | As directed by ct, must-
1. Identify experts "who may be used at trial," and
2. Produce written report containing-
a. Opinions,
b. Data used,
c. Qualifications,
d. Compensation for study, etc.
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| Adjudication- Discovery Required disclosures: Pre-trial | Not later than 30 days before trial, must give detailed info about trial evidence, including docs and identity of witness to testify live or by deposition
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| Adjudication- Discovery Discovery tools | Not used until after R 26(f) conference, unless ct order or stipulation
1. Depositions,
2. Interrogatories,
3. Requests to produce,
4. Physical or mental examination,
5. Request for admission
Key: What can compel disclosure from entities involve
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| Adjudication- Discovery Discovery tools: Depositions | Oral or written (written if by ct reporter)
Depose non-parties or parties, but non-party must be subpoenaed to be compelled
Cannot take more than 10 or depose same person twice without ct approval, or take more than one day of 7 hours
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| Adjudication- Discovery Discovery tools: Depositions use at trial | 1. Impeach deponent,
2. Any purpose if the deponent is an adverse party,
3. Any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence
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| Adjudication- Discovery Discovery tools: Depositions non-party travel | For deposition cannot be required to travel more than 100 miles from residence or where regularly transacts business
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| Adjudication- Discovery Discovery tools: Depositions notice | Notice of subpoena to a business may require it to designate right person for deposition (e.g. to depose person who designed particular product)
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| Adjudication- Discovery Discovery tools: Interrogatories | Questions propounded in writing to another party, answered under oath
Must respond with answers/objections within 30 days
Can say don't know, only after reasonable investigation
No more than 25 (including sub-parts) w/o ct order or stipulation (W
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| Adjudication- Discovery Discovery tools: Requests to produce | Request to another party to non-party by subpoena requesting to make available for review and copying various docs or things, including electronically stored info, or permit entry upon designated property for inspection
Respond within 30 days of servic
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| Adjudication- Discovery Discovery tools: Physical or mental examination | Only available through ct order on showing party health is in actual controversy and "good cause"
Party seeking order choose dr
Party examined may obtain copy of report, but waive privilege by doing so
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| Adjudication- Discovery Discovery tools: Request for admission | A request by one party to another party to admit truth of any discoverable matters
Used to authenticate docs
Must respond within 30 days of service with admit, deny, lack of sufficient info
-Failure to deny amended if not in bad faith
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| Adjudication- Discovery Discovery tools: Signatures | Parties sign answers to discovery under oath
Counsel signs to certify-
1. Warranted,
2. Not interposed for improper purpose, and
3. Not unduly burdensome
(NOT R 11)
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| Adjudication- Discovery Discovery tools: Duty to supplement | If party learns that its response is required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect party must ...
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| Adjudication- Discovery Scope of discovery: Standard | Can discover- Anything relevant to a claim or defense
Relevant= Reasonably calculated to lead to discovery of admissible evidence
Broader than "admissible"
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| Adjudication- Discovery Scope of discovery: Privileged matters | Not discoverable
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| Adjudication- Discovery Scope of discovery: Work product | "Trial preparation materials" (material prepared in anticipation of litigation)
Generally, protected from discovery
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| Adjudication- Discovery Scope of discovery: Discoverable work product | If-
1. Substantial need, and
2. Not otherwise available
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| Adjudication- Discovery Scope of discovery: Non-discoverable work product | If-
1. Mental impression,
2. Opinions,
3. Conclusions, and
4. Legal theories
Generated in anticipation of litigation, not just by an attorney
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| Adjudication- Discovery Scope of discovery: Claiming privilege or work product | If you withhold discovery because it asked for privileged material or work product, must claim protection expressly and describe the materials
If inadvertently produced protected material, notify other party, who has to return it pending case
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| Adjudication- Discovery Scope of discovery: Expert witness | Parties required to produce info about experts who may be used at trial without request from party
Party may take deposition of any expert "whose opinions may be presumed at triProtective order (Responding party seeks PO)al"
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| Adjudication- Discovery Enforcement of discovery rules: Problems presented to ct | 3 main ways-
1. Protective order,
2. Partial violation,
3. Total violation
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| Adjudication- Discovery Enforcement of discovery rules: Problems presented to ct, Protective orders | Responding party seeks PO in order to not have to present requested evidence/info
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| Adjudication- Discovery Enforcement of discovery rules: Problems presented to ct, Partial violations | Receiving party answer some and objects some
If objections no upheld it is partial violation so light sanction)
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| Adjudication- Discovery Enforcement of discovery rules: Problems presented to ct, Total violations | Receiving party fails completely to attend depositions, respond to interrogatories or respond to requests for production, so heavy sanction
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| Adjudication- Discovery Enforcement of discovery rules: Sanctions against parties | 1. Establishment order (establish facts true)
2. Strike pleadings of disobedient party (discovery issues)
3. Disallow evidence from disobedient party (discovery issues)
4. Dismiss P's case (if bad faith)
5. Enter default judgement against D (if bad fa
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| Adjudication- Pretrial adjudication Failure to state a claim | FRCP 12(b)(6), D moves to dismiss for failure to state a claim by testing only sufficiency of P's allegations
Ct ignores legal conclusions and looks at allegations of fact by asking "if facts are true, would P win"
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| Adjudication- Pretrial adjudication Failure to state a claim: Test | Tests to see whether facts alleged state a claim that law would recognize
The ct does not look at evidence, only complaint on its face
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| Adjudication- Pretrial adjudication Failure to state a claim: Motion for judgment on the pleadings | Same motion, if made after D has answered
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| Adjudication- Pretrial adjudication Summary judgment (R 56) | Moving party must show-
1. There is no genuine dispute as to material issue of fact, and
2. She is entitled to judgment as a matter of law
Ct looks at evidence in the light most favorable to non-moving party to resolve dispute of facts
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| Adjudication- Pretrial adjudication Summary judgment: Types of evidence | Affidavits (declarations) are signed under oath, used as evidence
Unverified pleadings are not evidence, but might be relevant on SJ since looking at dispute of material fact
Must reflect first hand knowledge
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| Adjudication- Conferences and meetings Pretrial conferences | Ct may hold "pretrial conference" to process case and foster settlement
Determines issues to be tried and evidence to be proffered
Recorded in pretrial conference order, which supersedes pleadings
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| Adjudication- Conferences and meetings Final pretrial order | Important document
Roadmap of issues to be tried
Evidence to be presented at trial, witnesses, etc.
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| Adjudication- Trial, judgement, and later motions Jury trial | Juries determine FACTS, and instructed on law by judge
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| Adjudication- Trial, judgement, and later motions Jury trial: Right in federal ct | 7th am. (applies only in federal ct) preserves right to jury in "civil actions at law", but not in suits at equity
What if both equity and law?
Case goes to jury on underlying legal relief
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| Adjudication- Trial, judgement, and later motions Jury trial: Requirement of demand | Must demand in writing no later than 14 days after service of last pleading raising jury triable issue
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| Adjudication- Trial, judgement, and later motions Jury trial: Jury selection process | Each side might want to strike (remove) potential jurors
No limit on "for cause" strikes
Limit on peremptory strikes from Batson, so must be in a race and gender neutral way (jury selection = state action)
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| Adjudication- Trial, judgement, and later motions Jury trial: Motion for judgment as a matter of law (JMOL) | Takes case away from jury
Brought after other side has been heard at trial
D can move twice- close of Ps evidence and at close of all evidence
P can move only at close of all evidence
Standard= ...
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| Adjudication- Trial, judgement, and later motions Renewed motion for judgement as a matter of law (RJMOL) | Same as JMOL, but AFTER trial
Party must have moved for RJMOL at trial
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| Adjudication- Trial, judgement, and later motions Motion for new trial: Situation | Judgment entered, but errors at trial require a new trial
Something happen that makes the judge think the parties should start over and re-try case
Move within 28 days after judgment
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| Adjudication- Trial, judgement, and later motions Motion for new trial: Grounds 1 and 2 | 1. Prejudicial (not harmless) error at trial makes judgment unfair,
2. New evidence that could not have been obtained with due diligence for the original trial,
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| Adjudication- Trial, judgement, and later motions Motion for new trial: Grounds 2 and 3 | 3. Prejudicial misconduct of party or attorney or third party or juror, and
4. Judgment is against the weight of the evidence
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| Adjudication- Trial, judgement, and later motions Motion for new trial: New trial v. RJMOL | RJMOL results in taking judgment away from one party and giving it to the other
New trial start the result over (preferred because not disregarding will of jury)
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| Adjudication- Appeal Final judgment rule | G/R: Can appeal only from final judgments, which means an ultimate decision by the trial ct of the merits of the entire case
File notice of appeal in trial ct within 30 days after entry of final judgment
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| Adjudication- Appeal Final judgment rule: How? | After making this order does the trial ct have anything left to do on merits of the case?
If so, NOT final
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| Adjudication- Preclusion | Whenever there has been an earlier case, watch for, concern with preclusive effect of prior judgment on merits
Ask- Whether a judgment already entered (case 1) precludes litigation of any matters in another case (case 2)
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| Adjudication- Preclusion Claim preclusion (res judicata) | You only get to sue on a claim once
Only get one case which to vindicate all rights to relief for that claim
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| Adjudication- Preclusion Claim preclusion (res judicata): Requirements | 1. Case 1 and 2 were brought by same claimant against same D,
2. Case 1 ended in a valid final judgment on the merits,
3. Case 1 and Case 2 asserted the same "claim"
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| Adjudication- Preclusion Claim preclusion (res judicata): Requirement 1 | Not just same parties, but same guy suing same guy in both cases
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| Adjudication- Preclusion Claim preclusion (res judicata): Requirement 2 | G/R: Unless ct said otherwise when it entered judgment, any judgment is "on merits", unless based on-
1. Jurisdiction,
2. Venue,
3. Indispensable parties
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| Adjudication- Preclusion Claim preclusion (res judicata): Requirement 3 | Majority view (including federal law)= A claim is any right to relief arising form a transaction or occurrence
Minority view= There are separate claims for property damage and for personal injuries because those are different "primary rights"
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| Adjudication- Preclusion Issue preclusion (collateral estoppel) | Precludes re-litigation of a particular issue litigated and determined before
That issue is deemed established in second action, so it cannot be re-litigated
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| Adjudication- Preclusion Issue preclusion (collateral estoppel): Requirement 1, 2, and 3 | 1. Case 1 ended in valid, final judgment on merits,
2. Same issue actually litigated and determined in Case 1,
3. Issue essential to judgement in case 1 and without issue, case 1 judgment different,
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| Adjudication- Preclusion Issue preclusion (collateral estoppel): Requirement 4 and 5 | 4. Preclusion against somebody who was party to case 1,
5. Issue preclusion by one who was party to case 1
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| Adjudication- Preclusion Issue preclusion (collateral estoppel): By whom, Mutuality | Starting point- Only by one who was a party to case 1
This is NOT required by due process and some cts have rejected it to allow "non-mutual" assertion of issue preclusion
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| Adjudication- Preclusion Issue preclusion (collateral estoppel): Non-mutual defensive issue preclusion | One using it was not party in case 1 and is D in case 2
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| Adjudication- Preclusion Issue preclusion (collateral estoppel): Non-mutual offensive issue preclusion | One using it was not a party in case 1 and is P in case 2
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| Adjudication- Preclusion Issue preclusion (collateral estoppel): Unfairness (minority view) | Clear trend in law will allow it if its not unfair
Factors-
1. A full fair opportunity to litigate in case 1,
2. A could foresee multiple suits,
3. B could not have joined easily in case 1, and
4. There are no inconsistent judgments on record
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| Right court- Personal jurisdiction Constitutional analysis: Example | "Gray"- Titan makes valve in OH, sells to company in PA. PA company puts Titan valves into its radiators then sells them across Midwest. Titan valve explodes in ILL where Titan did not send valve.
Personal jurisdiction over Titan in ILL constitutiona
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| Right court- Personal jurisdiction Stream of commerce: "McIntyre" | Merely placing an item in the stream of commerce, by itself, is not a sufficient basis for personal jurisdiction
Exception: Placing in stream of commerce + other act (opening office in forum) sufficient for PJ
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| Right court- Personal jurisdiction Internet cases: "Zippo" | Passive webe presence= insufficient for PJ
Active web presence= commercial presence is sufficient for PJ (amazon.com)
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| Right court- Personal jurisdiction In rem jurisdiction: "Mullane" | Condemnation, title registration, confiscation of property, forfeiture of vessel, assets distribution of estate, divorce
Presence of property constitutionally sufficient
Must actually give notice to persons whose interest are affected if known addr
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| Right court- Personal jurisdiction Quasi in rem jurisdiction: "Shaffer" | Proper only when minimum contacts exist making the exercise of jurisdiction fair and that the mere presence of property like stock certificates not enough
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| Right court- Subject matter jurisdiction Diversity of Citizenship- "Citizens of different states": Determining citizenship, Unincorporated, decedents/minors | 3. Unincorporated association= citizenship of all members (can be more than one state)
4. Decedents, minors, incompetents= their citizenship, not representative
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| Right court- Subject matter jurisdiction Diversity of Citizenship- "Citizens of different states": Determining citizenship, Alienage | 5. Alienage jurisdiction= 28 U.S.C. 1332(a)(2) federal courts jurisdiction over dispute between U.S. citizen of U.S. state, and "alien"
a. Does not apply if alien
becomes a permanent resident and
is domiciled in same state as
U.S. citizen
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| Right court- Subject matter jurisdiction Diversity of Citizenship- Amount in controversy, Equitable relief | Injunction to tear down part of D house being built because blocks P's view
Two test-
1. P viewpoint: Does action decrease property by more than $75,000? or
2. Defendant viewpoint: Cost D more than %$75,000 to comply with injunction?
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| Right court- Subject matter jurisdiction Removal: Procedure | When? No later than 30 days after service
Where? Federal dist. embracing state ct
How? File notice, state ground, Rule 11, attach docs, copy to adverse party
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| Right court- Subject matter jurisdiction Limitations | May not assert jurisdiction over claims by P against persons-
1. Rule 14 (third party practice),
2. Rule 19 (joinder),
3. Rule 20 (permissive joinder,
4. Rule 24 (intervention)
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| Shape of the case- Pleadings Default (R 55) | Failure to respond with answer or motion
LOOK UP
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| Adjudication- Law of case | Ruling on complex civil case can rely on ruling prior in case
Case makes its own precedent (stare decisis)
Example: Ct held indispensable party, then can rely on that years down the road when case dragged out
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|
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