Table of Contents Civil Procedure Outline

Table of Contents Civil Procedure Outline2Public Policies to Consider

2Personal Jurisdiction

5Service & Process

6Subject Matter Jurisdiction

9Removal and Remand

10Venue & FNC

11Raising/Challenging JXN Challenges

12Erie Question- What Law Applies

14Pleading (Complaint and Answer)

18Discovery

22Right to a Jury Trial

23Jury Selection

24Dispositions of a Case

27Appeals

29FRCP 60-Extraordinary Relief from Judgment

30Preclusion

32Joinder and Supplemental Jurisdiction

35Class ActionsFRCP 23

Civil Procedure Outline

DEPTarkington (Winter 2009)

Public Policies to Consider

I. Federalism- Allocation of powers between the federal government and state governmentsa. Where federal law exists and conflicts with state law, the federal law controls so long as it concern an issue properly within the purview of the federal governmentII. Separation of Powers

III. Cost of litigation and courts resources

IV. Lawyers love having an option on where they can suethus we still have diversity casesV. Protect against in-state biases

Personal Jurisdiction

I. General Information:

a. Pennoyer v. Neff- Need to bring the person into the jurisdiction of the court at the outset of the suit

i. Two Principles:

1. Every state possess exclusive jurisdiction over person and property within its territory

2. No state can exercise direct jxn and authority over persons and property w/o its territory

b. PJ requires two things:

i. Constitutional authorization (minimum contacts)

ii. Statutory authorization (long arm statutes)

II. Automatic Personal Jurisdiction:

a. Domiciliary of the state: Current dwelling and intent to stay

i. Must physically move there

b. Personally served within the state (Burnham)i. Being in the state is considered sufficient minimum contact

ii. Scalia- Tradition dictates that all you need to have is to be personally served in the state

iii. Brennan/White- Ds presence in the state dictates that it is sufficient b/c they meet the minimum contact test (D, while in CA, was partaking of the fruit of the economy)

iv. Bottom line: Judges all agree that service in state is sufficient for PJ(just differ on reasoning)

v. Exception: Doesnt work if the person was tricked into coming into the state OR if you solely appear to be part of a case pending in that state (e.g. witness or special appearance)

c. Consenti. Appoint an agent for service of process

ii. Contract with a forum selection clause

1. Even when not freely negotiated and there is disparity in bargaining power2. May be able to fight it if you can prove:

a. Forum selection clause deprives you of a meaningful day in court, OR

b. Prove lack of notice of the forum-selection clause

iii. Consent to abide by the cts determination regarding PJ once you show up and contest jurisdiction

d. Erroneous appearance

i. Appeared in the state erroneously, not under special service, and was served

ii. Come in for a different purpose like a traffic ticket and appear before the court

e. If yes to any of these question, you have PJ, if not look to the following items:

III. Step 1: Long Arm Statutes (Statutory Authorization) (Call Ds back into the state to defend against a lawsuit)

a. Due process doesnt actually confer any jurisdiction on state courts; it only defines the outer bounds of permissible jurisdictional powerit is up to the leg. of each state to actually grant their courts PJ

b. State long arm statutes-authorization to the cts of power to have jurisdiction over anyone. Three types:

i. Authorize jurisdiction to the maximum extent allowed by due process (CA)- Min. cont test

ii. Enumerated list (Authorizes jxn over Ds based on specific types of contact w/forum state)

1. If this type, check statute first, then min. contacts

2. This is a literal construction interpretation (must fall within the list)

3. Tortuous acts: (Two interpretations)

a. Felt in the state = jurisdiction (Ill Rule)b. Must be committed in the state = jurisdiction (NY Rule)iii. Enumerated, but interpreted to be the extent of due processMin contact test

c. Where PJ would be constitutional, but the long arm statute does not authorize it, some courts allow Ps to use quasi-in rem jurisdiction as an alternative statutory basis

d. Federal long arm statutes (Rule 4k) i. 4(k)(1)(a)- Directs you to the state long arm statute1. If state statute authorizes it, move on to minimum contacts

a. Really a three part test:

i. Meet 4(k)(1)(a)

ii. Meet the states long arm statute

iii. Must be constitutionalhave min. contacts

ii. 4(k)(1)(b)- 3rd party and 100 mile rule

1. If served within 100 miles for a judicial courthouse, jurisdiction counts and Rule 14 & 19

2. Must still have minimum contacts with US to get thisiii. 4(k)(1)(c)- When authorized by federal statute

1. Special courts: bankruptcy, antitrust, interpleader, securities

2. Min. contacts not with US, not specific state

iv. 4(k)(2)- Underlying case based on fed law, no state has jurisdiction, min contacts met

1. Claim has to be from federal law and D must be foreign2. Not subject to PJ in ANY state court with general subject matter jurisdiction

v. Can also use in rem as statutory authorization

1. In rem still requires minimum contact

IV. Step 2: Purposeful Availment- Minimum Contact Test Directed at the State (Constitutional Authorization)MINIMUM CONTACT RULE (According to Intl Shoe)

*Related or give rise to liabilities*Unrelated to lawsuit

+Continuous and systematic contactYes, personal jurisdictionSome cases say NO, but if it is soooooooo continuous or substantial then YES (this means you may general jurisdiction)

+Single or Isolated Contact(Hess Case), Yes it CAN BE if signf. related

-The key is to see how related it is to the suitNo, personal jurisdiction

Two PartsPart 1: Minimum Contacts (Moved away from presence and consent) States no longer need an implied consent statute like in Hess NOTE: P does NOT have to meet in min. contact requirementit is only for DPart 2: Reasonableness/FairnessTraditional notions of fair play and substantial justice (Memorize all)Five Factorsa. (1) Continuous or systematic (all of the contactsregardless if related to the suit)

i. Specific Jurisdiction: Found when contacts are not necessarily continuous and systematic, but are related to the action

ii. General Jurisdiction: Found when the contacts are so systematic and so continuous that a forum has PJ over them on any action brought

1. If it is the cos HQ, it will probably have general jurisdiction in that state

2. You have general jurisdiction in your domicile, you may have it if you are a residentiii. TEST NOTE: Always mention that you are going to go for specific, if that is what you want; otherwise, if you start making a lot of arguments about a lot of unrelated contacts, it looks like you are arguing for general jurisdictionb. (2) Relatedness (contacts just related to the suit)i. Is it specifically related to the suitc. (3) Foreseeabilityi. Unilateral Act (WWVW)- If unilateral act of Pno jurisdiction1. If D has a contact w/a 3rd party and the 3rd party unilaterally, w/o Ds control gets contact w/the state, then D is NOT subject to suit based on the 3rd partys contact

2. Corp. must reach out to make salesif corp. puts product into the stream of commerce expecting to sell into that state, than the state has PJ, but if consumer brings the item there by a unilateral actNO PJd. (4) Purposeful availmenti. Contracts (BK v. Rudzewicks)1. Prior negotiations

2. Contemplated future actions

3. Terms of the contract

4. Actual course of dealings

ii. Goods: Stream of Commerce (Asahi v. Superior Court)1. OConnor- Stream of Commerce Plus (4 Votes)

a. Awareness of stream of commerce is NOT enough for purposeful availment of minimal contacts

b. Need some additional activity aimed at the specific state for it to be enough

c. Things that give you the plus part to indicate an Intent or purpose to serve a foreign state

i. Designing product for the market in the forum state

ii. Advertising in forum state

iii. Establishing channels

iv. Providing advice to customers

v. Marketing the product through someone who has agreed to be their distributor in that state

2. Brennan- Stream of Commerce (4 Votes)

a. Anything within the chain of distribution is within the stream of commerce and therefore constitutes minimum contacts

b. Maj. in VW in dicta said that what is in the chain of distribution is sufficient for minimum contacts

c. This is the broadest interpretation

3. Stevens (3 Votes)

a. Consider the following about the units sent in the stream: (Two Prong Test)

i. Volume (must have 100,000), OR

ii. Hazardous character of the component

4. NOTE: If there is stream of commerce plus additional contacts stated by OConner, than you have 8 judges (law); if only stream of commerce, but no additional contacts you have 4 judgesthen look to see if you have over 100,000 units, if so you have 5 judges (law), if not you have 4 judges (not law)

iii. Property1. Property is now only a contactmust be evaluated according to minimum contact test

2. Recovery limited to amount of property attached

3. Only true and quasi 1 really will give you PJ

a. True In Rem: Jurisdiction over property (Against the property)

i. Will have minimum contacts b/c all contacts related to the property in the state, subject to specific jurisdiction

ii. Gives specific jurisdiction

iii. Shaffer- Got rid of the attach req. and all you have to do is look at the min. contacts to meet the constitutional requirement

b. Quasi In Rem 1- Dispute about the property

i. Determines rights and property against specific claimants

1. Adverse possession, mortgage v. mortgagee

ii. Gives specific jurisdiction

c. Quasi In Rem 2- Dispute is unrelated to the property OR property that is related, but not about ownership

i. Must attach the property at the outset to assert the courts jurisdiction over the property

ii. This is a gap filler if the states long arm statute is crappy-P can attach the property and use in rem to get PJ even when the states long arm statute wouldnt allow it

iv. Calder Test

1. What state is targeted in the article/website?

2. What state feels the effects of the article/website

3. Activities in article took place in forum

v. Internet- Zippo Test1. How interactive is the website?

a. Passive site = No PJ

b. Interactive = Use Calder test to see if directed at people in the forum

2. How related is the internet contact to the related suit?

vi. Corporations

1. May be sued in states where they have purposeful contacts, though the state of incorporation has significance (only for general jxn)e. (5) Fairness/Reasonableness (traditional notions of fair play and substantial justice) (Memorize all 5)(1) Burden on the defendant

(2) Interest of the plaintiff in obtaining relief

(3) State interest in adjudicating the dispute

(4) Efficiency of the interstate judicial system

1. Where are the witnesses from, etc

(5) Shared interest of several states in their substantive social policiesi. NOTE: These reasonableness tests come into play when min. cont. are really weak, IF min. cont. are very strong, then the reasonableness test will ONLY matter if it creates a high level of unreasonableness creating a constitutionally concern or it denies a person their day in courtii. Must be unconstitutionally unreasonable for it to really affect the situation

Service & Process

I. Two part process: Constitutional and Statutory tests

II. Notice: Constitutional Requirementa. DP of 5th and 14th amendment require: 1) Reasonable notice AND 2) Opportunity to be heardb. DP requires notice that must under all the circumstances, (1) be reasonably calculated to apprise interested parties of the pendency of the action and (2) afford them an opportunity to present their objections (Mullane- merely published it in the newspaper)i. If you have actual notice that they dont know, you must provide them more informationc. Classification is irrelevant (rem, personum, etc) in determining whether notice is adequate

d. Ordinarily, notice by publication is NOT sufficient

e. Must at least mail it to them when practical and you know their addressf. Best means of service NOT required

g. Does NOT create a subjective testit is an objective test of reasonably practicability

III. Service (FRCP 4): Statutory Requirementa. Service requires two things 4(c)(1): 1) Summons and 2) Copy of the complaintb. Time limit for service Have 120 days to serve after filing the complaint 4(m)i. Fed Question: State of limitations (SOL) tolls when you file the suit

ii. Diversity JXN: SOL will start tolling by whatever the state statute says (two possibilities)1. File the suit

2. By service of suit

c. Who can serve process

i. 4c1- Plaintiff is responsible for service of summons and complaint within Rule 4(m)120 days

ii. 4c2- Service may be performed by anyone (1) NOT a party to the suit and (2) at least 18 yr old 1. 4c3- At request of P, the court may direct that service be effected by a US Marshall

iii. Typically canNOT use the attorney to send the lawyer to serve process

d. How to serve process on an individual within US judicial districtFRCP 4e

i. Service upon a person from whom a waiver has not been obtained and filed (other than an infant or incompetent person may be effected in any US judicial district)

1. 4e1- pursuant to the law of the state in which the DC is located, OR

2. 4e1- pursuant to the law of the state in which service is effected, OR3. 4e2- delivering a copy of the summons and complaint to the individual personally, OR

4. 4e2- by leaving copies at the individuals dwelling or place of abode with some person of suitable age and discretion then residing thereon, ORa. Suitable age and discretion is usually over 18 yrs oldb. General Rule: You must choose their main home to serve them (even if you spend hundreds of millions building/creating a second home)

c. Kashagi Exception: i. Serve them while they are living in that particular residence

ii. Must have sufficient indicia of permanence5. 4e2- by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process

e. How to serve process on infants and incompetentsFRCP 4g

f. How to serve process on Corporations and associationsFRCP 4hi. According to provisions in 4e1 (in accordance to state law where court sits), OR

ii. By delivering summons and complaint to an officer, manager, or general agent, OR1. Secretary at front desk is usually NOT good enoughunless she has been appointed agent by the companyiii. By delivering the summons and complaint to an agent authorized by appointment to receive such process and if by statute, by also mailing it to defendantsg. How to serve process on the US and its agencies, corporations, or officesFRCP 4i (Must serve to at least two people and maybe even three)

i. Deliver a copy to one of three people: (NOTE: You cannot mail it!

1. Attorney of the district where the suit is brought,

2. Assistant US attorney, OR

3. Clerical employee of the US

ii. Mail a copy to the attorney general of the US in Washington

iii. Send a copy to the agency or the officer

iv. NOTE: This rule requires duplicate service (usually 2-3 people)

h. In rem serviceFRCP(n)(2)

i. You may use in rem to serve someone IF you prove that the other methods didnt work

1. You MUST first show the other methods didnt work

i. Sewer Service- Dishonest process servers who certify that process was served when in it wasnt

Subject Matter Jurisdiction

I. General Principles:

a. SMJ canNOT be CONSENTED to or WAIVED by either party

b. You can assert at any time that there is no SMJ, if correct, the case will be thrown out (even after verdict)

c. SMJ canNOT be waived by the courts (courts cant usurp this authority)

i. A court that doesnt have SMJ cannot assume it, however worthy the cause

d. Types:

i. State Courts- Have general jurisdiction (may be broken up into smaller courts that can hear exclusive issues)

1. The aggregate of state courts can hear pretty much anything (there are five exceptions)

2. States are free to divide SMJ among whatever courts they decide

a. Some divide by specialty some by monetary amount

ii. Federal Courts- Have limited jurisdiction

1. Limited to what is contained in Article IIIif not in Art. III, then there is no SMJ

2. Generally have two types:

a. Diversity jurisdiction

b. Federal question jurisdiction

II. Federal Question Jurisdiction

a. Purposes of the rule are to procure the following in the interpretation of the law (USE):

i. Uniformity (Dont want states making different laws concerning fundamental rights)

ii. Sympathy (Fed judges more sympathetic to policies underlying federal legislation)

iii. Expertise

b. 1331- DCs have original jurisdiction of all actions arising under the constitution, laws, or treaties of the USwhat does arising under meani. Does NOT impose an amount in controversy requirement!c. Holmes test: What law creates the question or cause of actiond. Well Pleaded complaint rule (Mottley): (1331- arising under interpretation=well pleaded complaint)i. Federal issue must be in the complaint!cannot be anticipated by the answer or by the reply, but must be in the original claimFederal defense insufficient for federal question jurisdiction

ii. Even if P knows that D is going to answer with federal law, it is NOT enough for P to get into federal court

iii. Purposes of the rule:

1. Predictability: P know where to file and will down on number of cases that can be heard in federal courtalmost any state claim will have a federal defense claim

2. Jxn must be established at the outset: (Pennoyer)- Jxn must begin when action starts

iv. Well-pleaded rule is NOT part of the constitutioncongress could define what arises under but they havent done that thus far

e. Embedded federal question-State claim that turns on a federal cause of action (Grable Test): 4 Parts

i. (1) Does the state law claim necessarily raise a stated federal question? 1. Not as a defense, but as part of claim for relief

ii. (2) Is it actually disputed?

1. Has to be some question concerning the validity, construction, or effect of the fed lawa. Ex: Did they discriminate on the basis of race under title VII?iii. (3) Is it substantial?

1. This is really smallnot really a test cause its easy to meet2. Just be sure to bring it up on the exam

iv. (4) Does asserting jxn disturb any congressional approved balance of fed/state judicial responsibilities?

1. Is there a federal private cause of action for the federal issue?

a. If there is, even if P doesnt assert it, but relies solely on the state for relief, then that indicates that asserting jurisdiction over the state law claim with the imbedded federal issue would not disturb the approved bal. of fed/state resp.

2. It not, would this cause a shift in the allocation of cases between fed/state courts?

a. Tested by volumei. Grable quiet titlemicroscopic shift, then federal question JXN

ii. Merrel Dowhoard or removals, then NO federal question JXN b/c it disrupts congressional allocation

III. Diversity Jurisdictiona. Purposes:

i. Protect an out-of-state litigant from in-state court prejudice

ii. Dont want to waste federal courts resources deciding a state law question

b. Applies to both Ps and Ds-draw a line btwn Ps and Ds and none of the parties may be from the same state

c. Constitution doesnt require complete diversitythat is only required by 1332(a)

i. General: Fed cts have jurisdiction when the matter exceeds $75,000 and is between

1. Citizens of different states

2. Citizens of states and citizens of a foreign state

3. A foreign state as P and citizens of a state or of different states

d. Two requirements: (SC has defined diversity more narrowly than Constitution requires)

i. Jurisdictional amount OVER $75,0001. Legal Certainty Test/Requirement:

a. To remand on this amount, it must appear to a legal certainty that P canNOT get the amount claimed in the complaint (this typically will only occur if damages are fixed by statute or claiming punitive for a contract claim)

2. Aggregation Rules:

a. If one P vs. one D, then P in such a case may aggregate all of her claims to meet the jurisdictional requirement, even if the claims are unrelated legally or transitionally (add only Ps upnot Ds claim)

b. If multiple parties on either side, then:

i. Cannot aggregate, unless Ds were joint and severably liable (joint tortfeasors)

1. Meaning, either D could be completely liable for the full amount

ii. Cannot aggregate multiple Ps claim even if arise out of STO, unless a common, undivided interest in a single action exists1. Ex: Plot of land and joint tenancyiii. Personal injuries suffered by different people are separate claims and cannot be aggregated

c. Counter claims CANNOT be aggregated to meet the threshold

i. Some courts hold that in removal if Ps counterclaim is over $75,000 then can remove to federal court (this is a minority rule)

3. Injunctive/Equitable Relief:

a. Amount is either (courts typically allow either)

i. Cost of the harm to P, OR

ii. Amount it would cost D to remedy the situationii. Complete Diversity- No jurisdiction if there is any overlap of citizenship between Ps and Ds

1. If P is from state A and 99 Ds are from state B, but 1 D is from state A, then it will have to be in state courte. Citizenship of an individual: (Mas v. Perry) Citizenship does NOT equal residency!

i. Citizenship of individual is their domicileii. Only way to change domicile is:

1. Change residence (must physically move there), AND

2. Intention to remain their permanently

iii. You may only have ONE domicile at a timeiv. Marrying an alien does NOT make you lose your US citizenshipf. Citizenship of an estate representative

i. Where the decedent was a citizeng. Legal Representation for insane or infant

i. Where the insane or infant is a citizenh. Citizenship of a corporation

i. Corporations may have two citizenships: (1332)

ii. Citizen of every state of its incorporation (may be more than one), AND

iii. Citizen of one state in which it has its principal place of business (ONLY one test now)

1. Nerve Center test (Brain- e.g. Intangible production cos, Microsoft):

a. When corps activities are far flung, the sole nerve center of that corp is more significant in determining place of bus b/c that is where all decisions are made

2. If corporation is incorporated in a foreign country, it is an alien for diversity purposes

a. However, if its principal place of business in U.S., it is also a citizen in that state

i. Citizenship of a partnership

i. That of each partner

j. Citizenship for non-incorporated businessesi. The business is considered a citizen of all states of which its members are citizens

ii. If a labor union is big, it could have members in all states and thus no diversity jurisdiction

k. Citizenship of a class action

i. Citizenship of the representative

ii. Also, for jurisdictional amount, everyone in the class must meet the jurisdictional amount in a class action lawsuit (If not, they can use supplement JXN to get over the amount)IV. Supplemental Jurisdiction (See Analysis on last page of outline)a. If P files a federal question and a state law claim, through supplemental, and if comes out of the common nucleus of operative facts, then supplemental jurisdiction allows the plaintiff to bring the state law claim in federal court even though there is no diversity jurisdiction

i. As long as federal question is a bona fide claim at the outset, if later the federal question is thrown out, state claim is still adjudicated by the federal court

Removal and Remand

I. General Principles:

a. Removal- Moving a case from state to federal court

b. Remand- Moving a case from federal to state court

c. The case must be one over which federal courts have SMJ for it to be removed

d. P is master of the complaint: Even if P could have used a fed. argument, but instead relied solely on state statutes, D canNOT remove the complaint

e. A federal defense does NOT provide for removalCan only remove when P asserts federal rights in their complaint

f. Only D can remove: P cannot remove if there is a counterclaim asserting a right under fed. law

II. Benefits of removal:a. Backlog comparison between two courts

b. Fed court favors Ds more than state courts

c. State courts jury awards damages

d. State courts have calendar system (may not have a single judge from beginning to end)

III. Removal Statutes: 28 USC 1441 & 1446

a. 1441(a)

i. Can remove any action brought in state court where the fed. court has original jurisdictioncan remove only if P could have brought it in federal courtb. 1441(b)

i. If federal questionautomatic removal

ii. If diversity, canNOT remove IF one of the Ds is a citizen of the state from which removal is sought AND Cant remove if you seek for LESS than $75,000c. 1446- Procedure for removal

i. (a)- D files notice of removal in the DC1. Action may be removed by D or DsALL Ds must agree to remove or it is NOT removable2. Noble Rule- A minority of courts will allow a new D being added to convince the original party, the one that waived it originally, and if BOTH agree within 30 days of the amended complaint, they will allow for it to be removedii. (d)- After filing notice, D gives notice to all parties and file a copy of the notice with the state ct

iii. (d)- State will STOP proceedings, and all will immediately go to federal court

iv. (b)- D has 30 days to remove after being served with the complaint

1. If case become removable (one of the Ds dropped or fed question added), then you have 30 days to remove from when case became removable

2. In diversity cases, have 1 year during which a case can become removable

IV. Remand Procedures 28 USC 1447(c)

a. Once removed by D, state ct has NO say P must go to fed ct and contest the removal

b. P has 30 days to file a notice in federal ct to remand the case back to state court UNLESS he files because of SMJ (then he has all the time P wants)

i. Other grounds for remand may include:

1. Removal filed too late (after 30 days)

2. Not all Ds joined together for removal diversity

3. One D is a citizen of the state from which removal is sought in diversity

c. If after removal, the case is remanded, the ct may order the payment of costs and actual expenses incurred as a result of the removal

d. 1447(d)- An order remanding a case to state ct from which it was removed is NOT reviewable on appeal

i. CAN appeal removal to federal court, where ct has refused to remand the case and the final judgment has been made

Venue & FNC

I. General Principles:

a. Venue- Where within the district or state should the trial be held

b. Purposes

i. Protect D from burdensome trials

ii. Preserve efficiency of court systems

iii. Restrict to 1 or a few of all the possible courts in the stateII. State Courts

a. Transfer of venue is county to countynever from state to state

b. For a state to state transfer in a state ct, you will use a forum non conveniens dismissalIII. Venue is proper for Diversity and Federal Question in

a. Where any defendant resides if all defendants reside in the same state, OR

i. If there is only one district in the state, this will not be an issue

ii. If all Ds reside in CA, but all the Ds live in different districts within the state, you can file in ANY of the four districts

1. Ex- If 99 Ds live in district 1, and only 1 D lives in district 2, P can still file in district 2

b. Where a substantial part of the events giving rise to the claim occurred or where a substantial part of the property that is the subject of the action is situation

i. Doesnt have to be the best place as long as substantial events occurred there

c. Fall Back Provision: If options A or B do NOT apply and there is no district where it can be brought, then venue will be proper where D is properly subject to PJ when the action commenced

i. Only happens if the underlying cause of action occurs in a foreign country or all the different parties reside in different states

d. An alien may be sued in ANY jurisdiction

IV. Where does D reside for venue purposes? (Based on residencyNOT citizenship!)

a. Individuals

i. Majority view: Residence = Ds domicilehave only one residence and that is your citizenship

ii. Minority view: Can be a resident of two states if you have two homes that you reside in

b. Corporations

i. A corporation is a resident in any jurisdiction that has PJ over itii. To discover residence, analyze minimum contacts with each judicial district as though it were a state. If minimum contacts with that district are sufficient, venue is proper

iii. If no such district, then corporation shall be deemed to reside in the district within which it has the most significant contacts

1. This can be substantive or numerical

V. Change of Venue

a. 1404(a)- Proper Venue

i. Transfer of venue is proper if

1. Convenience of the parties and witnesses, and

2. In the interests of justice, and

3. Must be to a district or division where it might have been broughtii. Burden of proof on party seeking transfer

iii. Use law of transferor court (no change of law when case is transferred)b. 1406(a)- Improper Venue

i. May be dismissed, or in the interest of justice transferred to any district or division where it might have been brought

ii. Use law of transferee court (choice of law rules will change)c. Goldlawr Transfer- If ct lacks PJ, they can still transfer it to the proper venue where you will have PJi. Can be improper or proper venue

ii. Regardless if it is 1404 or 1406, they will use the choice of law in the transferee courtd. NOTE: Ds CANNOT waive PJ in change of venuethey can in other situations, just not here

VI. Choice of Law

a. 1404(a)- Use law of transferor court

b. 1406(a)- Use law of transferee court

c. Goldlawr Transfer- Use law in the transferee courtd. Klaxon rule: Federal cts, sitting in diversity cases, must use state law in which they sitVII. Forum Non Conveniens (FNC)

a. Results in actual dismissal of the case, and it must be filed again for a more convenient forum

b. This was used before 1404 was aroundnow if you want to transfer to more convenient federal district ct, just use 1404 rather than dismiss with a FNC

c. Use FNC when in fed ct and you think that a foreign ct is more convenient

d. Use FNC when in state ct and there is a more convenient court in another statee. Choice of law does NOT applyMeaning, FNC may change the law that is applied

f. No FNC if the ct. knows that the more convenient forum will not hear the casemust be the MOST convenient forum where can be subject to suit

g. Main focus: Is it convenient or not

h. Two step process:

(1) D must show that an adequate forum is availablei. Possible change in law is NOT enough to make it inadequate UNLESS the changes makes the remedy so clearly inadequate or unsatisfactory that it is no remedy at all

(2) Must show considerations of party and forum override Ps choice of forum and justify dismissal

ii. Two types of factors to consider:

1. Look at private factors to decide if FNC is proper: (Memorize Daw)a. Relative ease of access to sources of proofb. Availability of witnessesboth compulsory process for attendance of unwilling, and the cost of obtaining willing witnesses

c. Possibility of viewing the premises

d. All other practical problems that make trial of a case easy, expeditious, and inexpensive

2. Look at public factors to decided if FNC is proper: (Memorize Daw)a. Administrative difficulties flowing from court congestion

b. Local interest in having localized controversies decided at homec. Having a diversity case trial in a forum that is at home with the law that must govern the action

d. Avoidance of conflict of law

e. Avoidance of application of foreign law

f. Unfairness of burdening citizens in an unrelated forum with jury dutyRaising/Challenging JXN ChallengesI. Direct Attack

a. Appear in court to battle it out

b. Special Appearance

i. Only worked for PJ questions

ii. If you raised anything else besides PJ, it becomes a general appearance and you waived PJ

c. Most courts now follow FRCP 12 (This got rid or special and general appearances)

i. FRCP 12(b)- Things you may contest

1. Lack of SMJ

2. Lack of PJ

3. Improper venue

4. Insufficient process

5. Insufficient service of process

6. Failure to state a claim upon which relief can be granted, and

7. Failure to join a party under Rule 19

ii. Must be raised in either:

1. Motion before responding, OR

2. Pleadingthe answer itself

3. Note: Must include ALL of your defenses at once

iii. FRCP 12(h)(1)- A party waives any defense listed above in (2-5) by:

1. Omitting it from a motion when first filed, OR

2. Failing to make a motion or include it in a responsive pleadingiv. Summary of Timelines for Motions

1. 12(b)(2-5)- Must be asserted in the first response

2. 12(b)(6-7)- Must be asserted anytime before judgment

3. 12(b)(1) (SMJ)- Anytime (just not in collateral attack)d. Good to do direct attack when you can win on merits alone or not liable

II. Collateral Attack

a. Do not appearyour attorney does nothing and they enter default judgment against you

b. ONLY thing you can contest is PJ

i. You CANNOT due collateral attack on SMJ

c. If your case has strong case on its merits, DONT use collateral attack

d. If on collateral attack, the ct decides that the initial judgment is void b/c of lack of PJ, then the suit can be refilled but it will have to be filed in a diff. place (where PJ exists)

Erie Question- What Law AppliesI. Generally

a. Eerie applies in diversity and imbedded federal question casesb. Is the state law substantive or procedural?i. State law: Fed cts must give proper regard to decisions of state ACs and TCs, but its job is to apply the law as announced, or as it would be announced, by the states SCii. Substantive: law that defines duties, relationships, and rights of the parties external to the litigation processiii. Procedural: law that determines the means by which the substantive rights are determined in ctII. History

a. Swift: Interpreted the Rules of Decision act and held that federal cts in diversity should apply general law rather than states local law where the state law deviates from the general lawb. Erie: Man is hit while walking close to RR tracks and sues the RRi. Overturned Swift because (even though neither party argued to overturn Swift)1. Misinterpreted the Rules & Decisions Act (said ALL lawsnot just some state law)2. Inequitabledenied equal protection of the law and encouraged forum shopping3. Swift was unconstitutional because it violated const. limitsthe fed cts had NOT been delegated the law-making power of state law (e.g. torts and contract claims)ii. Held that in div. cases substantive = state law, procedural = fed law, and NO MORE FED CL!c. York: P sues for fraud, but statute of lim. had run; ct uses fed SL law; SCt holds that state SL appliesi. Outcome determinative test: Look to see if it significantly affects the result of litigationif it does, apply state law1. State substantive law includes procedural law that sig. affects the outcome of litigationd. Byrd: P injured while doing power lines and sues contractor for negligenceD wants a judge to determine whether or not P is a statutory employeei. May be outcome determinative according to York, but some procedures are such an essential characteristic of the Independent Federal System in Administering Justice (ECIFSAJ) that they override outcome determinative state procedure (is there an overriding federal interest)ii. If it is a state procedure bound up with substance (PBUWS), then state law would override federal procedural lawdetermine PBUWS by1. Did lawmakers consider the procedure to be part and parcel of the substantive right of recovery?a. Aka- is the procedure used by the state leg. to affect a policy change?iii. Balancing test: Use balancing test when you have something outcome determinative & ECIFSAJe. Hanna: D served according to FRCP 4- argues that state law serves differently, thus service doesnt counti. Outcome determinative in York MEANS those procedural rules whose effect is so vital that to apply different state and fed rule would cause forum shoppingdoes NOT mean any rule that if unadhered to might change the outcome of the litigation

ii. If there is a valid and applicable (on point) FRCP, then it applies no matter whatregardless if it is outcome determinative, PBUWS, etciii. Two ways to determine if procedural:1. Is there an FRCP on point?2. If not, then follow the relatively unguided Erie choiceIII. Policies

a. Limit forum shopping (gamesmanship)b. Promotes vertical uniformityc. Equitable administration of the lawIV. Flowchart

a. Is there a valid FRCP on point, controlling, and in conflict with state law? If yes, use federal lawi. Two Steps: Ask1. Is FRCP Constitutional- Rationally procedurala. Can anyone think that it has something to do with procedure2. Does it violate the Rules Enabling Act- FRCP canNOT abridge, modify, or enlarge a substantive right a. If it does violate it, the FRCP is unconstitutional and state law appliesb. Never has been struck down before, SCt is going to do it nowb. Is it state substantive law? If yes, use state lawi. Procedural- Manner or means by which substantive rights are determinedii. Substantive- Defines duties, relationships, or rightsc. Is it procedure bound up with substance (PBUWS)? If yes, use state law i. If it is ECIFSAJ, the cts are split and you apply state law at TC level and fed law at AC levelb/c they could accommodate both interest in that case they did which causes havoc-Gasperini)

ii. Did the lawmakers consider it part and parcel of the substantive rights or recovery?1. Is the procedure part of the relief to be granted?d. Is it outcome determinative (view in light of the two Erie policies)? If yes, GO TO QUESTION E, if no, then federal law applies

i. Two ways:1. Twin Aims of Erie

a. Look at forum shopping and inequitable administration of laws (meaning one outcome in one court and a different outcome in another court)2. Post Hoc (Guaranty Trust) (Many feel this has been overruled by twin aims, but there is nothing explicitly stating thata. Look at cases decided and see if it made a differenceb. Ex: Bring wrong size paper to court and they dismisse. Is it an essential characteristic of the independent federal system in administrating justice (ECIFSAJ)? If yes, federal law applies, if no (and it is outcome determinative), use state law

i. ECIFSAJ- Trying to allow people to have their day in court, FRCP are supposed to be liberalii. Ex- right to jury in federal systemV. Alternative Flowchart (Byrd)a. 1 and 2 are the sameb. 3-5 you just combine them as factors and weigh them all togetherc. Note: Do this analysis last for extra points!!Pleading (Complaint and Answer)I. Generally

a. Purposes

i. Putting parties on notice of claims and defenses of their opponents

ii. Stating facts each party believed it could prove

iii. Narrowing the number and scope of issues needing trial

iv. Providing a quick method for resolving meritless claims and defenses

b. Historic Theories of Pleading

i. Common law pleading (now abandoned)

1. Had to fit pleading into a specific writ-could prove liability, but if you plead wrong writ, you would lose and had to start all over again

ii. Code pleading

1. Didnt have to fit into a specific writ

2. Required a pleading of the facts (a statement of the facts)

3. Code pleading requires more detail than notice pleading (the difference btwn the two)

4. Problems:

a. A P who alleges facts to specifically could be guilty of pleading the evidenceb. A P who alleges facts to generally could be guilty of pleading conclusions of lawc. Had to try to find the balance between the two

iii. Notice pleading (federal rules pleading)

1. Must make a short and plain statement of the claim (NOTE: 8(a)(2) does NOT use the word facts)

2. Majority rule

II. Complaint

a. TypesFRCP 7(a) Lists 7 types of pleadings that are allowed (can be summed up in three categories)

i. Complaint, Answer, and Reply

b. RequirementsFRCP 8(a)i. Claim for relief must contain the following: (Three things)

1. Short and plain statement of the ground for the cts. JXN

a. This is for SMJ

b. FRCP 8 does NOT require any allegations of PJ or venue (although some state require it)

2. Short and plain statement of the claim showing the pleader is entitled to relief

3. A demand for relief sought (typically a monetary amount)a. A demand is often called the prayerb. The demand does NOT limit the claimyou can prove more or less at trial

c. You do NOT have to prove or put an exact amountyou can just put an amount to be proven at trial

ii. Failure means the complaint can be dismissed by a 12(b)(6) motion failure to state a claim

1. Even if all allegations are true, it is still insufficient

2. Usually 1 opportunity to amend, then dismiss with prejudice

c. Sufficiency

i. Old Rule:

1. Old Rule: Pleading set parameters/scope of disagreement and gave notice to D of Ps legal theory2. FRCP 84Forms are sufficient (could just use Form 11)

a. This was a really low bar and easy to pass

3. Complaint should NOT be dismissed for failure to state a claim UNLESS it appears beyond doubt that P can prove no set of facts in support of his claims which would entitle him to relief (Connoly)

4. NOTE: Talk about old rule on test because Tarkington HATES the current ruleii. Current Rule:

1. General Rule: Showing under FRCP 8(a)(2) requires that the facts are plausible and legal conclusions are not entitled to presumption of truth

2. Twombly- Include enough facts that the claim is plausible, possible is not enough, but it does NOT have to be probable

a. Possible < plausible < probableb. Plausibility rule- Must have enough facts that there is a reasonable expectation that discovery will show that you are entitled to reliefc. Labels and legal conclusions are NOT sufficientthey must be supported by underlying facts, enough facts to show youre entitled to relief

i. E.g. dont say they were negligent, say they were drunk and hit me

d. Parallel conduct is insufficient; need a fact to prove the inference

3. Iqbal- (5-4 decision) Confirmed that Twombly didnt just apply to antirust

a. Two prong approach: The tenet that a ct must accept as true all allegations contain in a complaint is inapplicable to legal conclusions

i. Legal conclusions are NOT entitled to presumptions of truth

1. Ct will strike down legal conclusions2. What is left, after striking parts, is read in light of prong 2

ii. The claim must be plausible (Twombly plausibility requirement)1. Look for reasonable inference that the defendant is liable using judicial experience and common sense

4. Problems: (Discuss these for points on the test to advocate going back to old rule)

a. Possible, probable, and plausible are all synonyms and are difficult to distinguish

b. Judicial experience and common sense do NOT provide notice to parties and are arbitrarythey also promote judicial activism

c. Bald allegations dont give us any clue what the SCt is talking about

d. Iqbal was a 5-4 splitwhich means the lower courts are going to have a hard time determining whether a fact is conclusory or not

e. Iqbal, according to the Bushman article, will cause harm in situations where there is information asymmetryd. Heightened PleadingFRCP 9(b)

i. Heightened pleading is required for certain things under FRCP 9(b):

1. Fraud

2. Mistake

ii. Peculiarity in FRCP means heightened pleading

iii. CanNOT require heightened pleading through judicial interpretationmust be done by cong.

e. Pleading in the alternative: Inconsistent theories are OK to plead, but you can only recover on one

III. Answer

a. Two options:

i. Answer the complaint1. Time Limit: Must answer w/in 21 days, or 60 if D waive service, or 90 days if out of the country

2. Answer must contain two things: FRCP 8(b)

a. Admit or deny any allegations asserted against you by the opposing party

i. General Denial: Deny everything

ii. Specific Denial: Deny individual allegations

iii. Qualified Denial: Rephrase part that is true and otherwise deny

iv. Admit

v. Lack of knowledge or info insufficient: To form a belief about the truth of an allegation

vi. Failure to deny is treated as an admission (is admitted as true forever)

vii. Once you admit, you cannot go back on the issue

b. Affirmative defenses: State in short and plain terms partys defense

i. FRCP 8(c) and 12(b)(6) list affirmative defenses

ii. If 12(b)(2-5) and 8(c) are NOT included in answer, they will be waivediii. There is a big argument that you must provide evidence of fact to support all of your affirmative defenses that are listedthis would follow Twiqbal, but the lower courts are split on this issue and since Twiqbal relied on showing but showing doesnt appear in 8(b) defenses ii. Bring a motion1. FRCP 12(b)- Present Defensesa. May bring the 12(b) motionsif you dont bring any you waive 12(b)(2-5)

b. 12(b)(6-7)- either can be made any time before or after trial

c. 12(b)(1)SMJ can be raised anytime

2. FRCP 12(e)- Motion for a more Definite Statementa. Move for a more definite statement to which a responsive pleading is allowed, but which is so vague/ambiguous that the party cant reasonably prepare a answer

b. Elements

i. State the defect AND State details you want

c. If 12(e) is granted, the P has 10 days to fix the complaint or the ct will strike it

3. FRCP 12(f)- Motion to Strike (very rare)

a. Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter

i. May do it on its own,

ii. Or on motion by a party either before responding to the pleading OR within 21 days after being served with the pleading

IV. Amended or Supplemental PleadingsFRCP 15

a. Amendments before trial- 15(a)

i. Matter of course amendments-15(a)(1) May amend your pleading as a matter of course within:

1. 21 days after serving it, OR

2. If the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under any of 12(b, e, f)

3. The other party has 14 days after service of the amended pleading to respond

ii. Other Amendments-15(a)(2) In all other cases, a party may amend its pleading ONLY with

1. Opposing partys written consent, OR

2. Courts leave (when justice so requires)

b. Amendments during and after trial- 15(b)

i. Ct should freely permit an amendment when doing so will (1) aid in presenting the merits and (2) the objective party fails to satisfy the ct that the evidence would prejudice that partys action or defense on the merits

c. Relation back to amendments- 15(c) (Deals w/ Statute of Limitations and Amending)

i. An amendment to a pleading relates back to the date of the original pleading when:

1. The law that provides applicable SOL allows relation back,

a. Look at states SOL to see if you can

2. Amendment asserts a claim or defense that arose out of the conduct, transactions, or occurrence set outor attempted to be set outin the original pleading

a. This usually means if it comes out of the same set of facts, it is OK to amend3. The amendment changes the party or the naming of the party against the claim is asserted and that party knows or should have known that the action would have been brought against it, but for a mistake concerning the proper partys identity

a. Failure to not know who the person is does NOT countit has to be a mistake!

i. Lack of knowledge does NOT = mistakeV. Veracity in Pleadings/SanctionsFRCP 11a. Everything submitted to the court MUST have the following things: 11(a)

i. Signature by one attorney of record in the attorneys name OR by the party if they are pro se

ii. Signers contact information, email, phone number, address, etc

iii. Unsigned paper MUST be stricken by the ct UNLESS it is promptly corrected by the attorney after being called to the attorneys or partys attention

b. Representation in the court11(b)

i. Submission to the ct certifies that the paper certifies that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

1. It is not for an improper purposesuch as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, AND

2. The legal claims are warranted by existing law or by a nonfrivolous argument for extending, modifying, or changing existing law, AND

3. Factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for further investigation after discovery, AND

4. The denials or factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information

ii. NOTES:1. Do NOT forget the first part that it was formed after a reasonable inquiry under the circumstances

a. If you have one day to file b/c of the SOL, you can take your clients word for itc. Sanctions11(c)

i. If the court determines that 11(b) has been violated, the court may impose an appropriate sanction on ANY attorney, law firm, or party that violated the ruleabsent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee

ii. Two ways sanctions may be imposed: 11(c)(2-3)

1. By Motion

a. Motion for sanction must be made separately from any other motion, AND

b. Must describe the violations of 11(b), AND

c. You send it FIRST to the opposing party and give them 21 days before you file the motion sanction, to fix the problem

i. Safe harbor rule: Party has 21 days after motion to correct a motion that was incorrectd. If warranted, court may award to the prevailing party the reasonable expenses, including attorney fees, incurred for the motion

2. Sua Sponte

a. On its own, the court may order an attorney, law firm, or party to show cause why conduct has not violated 11(b)called an order to show cause

i. You do NOT have 21 days if this happensyou are pretty much hosed

iii. Nature of the Sanction11(c)(4)

1. Must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated

2. May be non-monetary directives:

a. Striking, CLE requirements, Admonition, Censure, Reporting lawyer to the bar

3. May be a monetary penalty

a. Fine payable to the court

b. Reasonable attorney fees and other expenses relating to the violation payable to the movant

c. Monetary sanctions are NOT appropriate when:

i. The party is making 11(b) legal argument (frivolous, bad), OR

ii. If sua sponte (unless there was a show-cause order before voluntary dismissal or settlement of the claims made by or against the party sanctioned),

iii. Can NOT do it against the partymust be against their attorney

DiscoveryI. Generally: The quantity and time of the information sought is left almost entirely to the parties with judicial intervention only when there is a problem

II. Scope of Discovery: FRCP 26(b)

a. Parties may obtain discovery regarding any non-privileged matter that is relevant to any partys claim or defense

i. Good Cause- For good cause a party may get the old rule for scope which use to be super broadgood cause is a vague term, just mention it on the test for extra pointsii. Relevant Matter

1. Relevance- Need a cogent nexus between the information that you want and the claim or defense that you are bringing

2. Must be for existing claims/defensescant try to find new ones

3. Relevance for discovery is viewed more liberally than relevance for evidentiary purposes

4. Requesting party has burden to show relevance

5. You dont have to even ask for something that will be admissible in trial as long as what you are asking for will help lead you to information that you can submit in trialiii. Privileged Matter

1. Once disclosed, it is no longer privileged

a. If you disclose pat of communication on a subject, rest of communication on the subject is waived

2. Privileges

a. Attorney/clientfour elements (Memorize for test daw)

i. Confidential

ii. Communication

1. It is ONLY communication that is privilegedthat does NOT mean that your client can tell you something and the fact is going to be hidden

2. It does NOT make facts privileged

iii. Between attorney and client

iv. For the purpose of obtaining legal advice

v. NOTE: If there are other parties present, the privilege is destroyedb. Work/product immunity26(e)

i. All trial preparation by an attorney

1. Qualified immunity- Such as notes for interviews, courts, etc

a. CAN be discoverable IF a substantial neednot available by other means

2. Absolute immunity- Thought, conclusions, opinions, impressions

c. Doctor/patient

d. Priest/penitent

e. Spousal

3. Privileged Documents- 26(b)(5)

a. When a party withholds information otherwise discoverable by claiming that it is privileged, the party must:

i. Expressly make claim that it is privileged, AND

ii. Describe the nature of the documents in such a manner that, w/o revealing info itself privileged or protected, will enable the other party to assess the privilege claim

1. Cant just hide thingsmust disclose

III. Discovery Devices:

a. Initial Disclosure-FRCP 26(a) A party, w/o awaiting a discovery request, must provide to other parties:

i. Name and contact information of each person likely to have discoverable information you may use to support your claim or defense

1. UNLESS the use would be solely for impeachment

ii. A copy/description of all documents, including tangible things, the party has in their control to support its claims

1. UNLESS the use would be solely for impeachment

iii. A computation of each category of damages

1. Includes docs used to computer UNLESS they are privileged

iv. Any insurance agreement under which an insurance business may be liable

b. Supplementing Disclosures and Responses- (FRCP 26(e)) A party who has made a disclosure under 26(a), must supplement or correct its disclosure or response:

i. In a timely matter if the party learns the response/disclosure is incomplete or incorrect; OR

ii. As ordered by the court

iii. Generally: This rule means that if you get a new document you have to disclose anything new and correct anything that you gave them that might not be correct anymore

c. Disclosure of Expert WitnessesFRCP 26(a)(2)

i. Ordinary witnesses cannot express opinions, only experts where technical/specialized knowledge will assist trier of fact to understand the evidence

ii. A party MUST disclose to the other parties the identity of any experts that may be used at trial to present evidencemust disclose at least 90 days before trial (2)(A)

1. Note: If the witness is NOT disclosed, they can NOT be used at trial (see 37(c))

a. Two exceptions: Unless if substantially justified OR harmlessiii. Unless otherwise stipulated or ordered by the court, this disclosure MUST be accompanied by a written reportprepared and signed by the witness; report must contain: 26(a)(2)(B)

1. Complete statement of all opinions the witness will express and basis/reasoning,

2. Data other information considered by the witness in forming them,

3. Any exhibits that will be used to summarize or support them,

4. The witnesss qualifications, including list of all publications authored in previous 10 yrs,

5. List of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or deposition,

6. A statement of the compensation to be paid for study and testimony in the case

iv. Categories of witnesses (Must know ALL for test)

1. Experts a party expects to use at trial

2. Experts retained or specifically employed, but NOT expected to be used at trial

a. Courts are split

i. Some require names/numbers but NOT facts and opinions (absent exceptional circumstances)

1. E.g. would it be impractical to get opinions anywhere else

ii. Some courts said NOT even names or numbers or any information (absent exceptional circumstances)

3. Experts informally consulted in preparation for trial, but not retained

a. No discovery may be had of the names or views of experts in this category

4. Experts whose information was not acquired in preparation for trial

a. These are experts that are in fact witnesses and are accessible by either party

v. Factors to determine if the expert is retained/specially employed (2) or informally consulted (3)

1. Are they paid (specially employed) or not (Ager trial court)

a. Extent of time/depth of consultation

2. Decide not to use the witness = Informally consulted (Ager)

3. Ad Hoc Basis Test: (Ager USSC)

a. Manner it was initiated

b. Nature and extent of information provided

c. Duration and intensity of the relationship

d. Terms of consultation

e. Payment of consultation

f. Additional factors that are examined as relevant

d. DepositionsFRCP 30-32i. Depositions is a sworn statement

1. Used for impeachment of witnesses and evidence for summary judgment

ii. Limitations:

1. Generally, each side has 10 depositions

a. Can be changed by agreement or court order

2. Time (1 day with a 7 hour maximum per day per deposition)

a. Can be altered by agreement

3. Anyone with relevant information can be deposedthey dont need to a party to the issue

a. If you dont know who will have the best information, the corporation MUST name the person that does

b. Must provide the name of the organization, information you want, and the corporation must find the person and present them

4. Cannot be used at trial except for impeachment OR if not available

5. Very expensive to do

e. InterrogatoriesFRCP 33i. Written question to opposing side

ii. Can ONLY be sent to parties (this is a BIG difference from a deposition)

iii. Written by an attorney and are carefully crafted

iv. Relatively inexpensive

v. Used to get basic information and answers to research

vi. Typically get 25 (including subparts)

1. May be changed by court order

vii. Helpful to get BEFORE a deposition, so you know what to ask in deposition

f. Document RequestsFRCP 34i. Permits a party to require another party to produce for inspection, copying, or testing all relevant documents and tangible things

ii. Unlimitedyou get as many as you want

iii. Limited to the party

iv. Get these BEFORE your deposition so that you can get the ?s you want to ask in your depositiong. Medical ExaminationsFRCP 35

i. Must show good cause and a mental/physical condition must be in controversymust be specific about what you cover or ask for

ii. Limited to parties to the suit (or extremely closely tied to the suit)

h. Request for AdmissionFRCP 36

i. Used to determine what issues are and are not in dispute

1. Used to get the other side to admit facts that are not in dispute

ii. There are sanctions if you dont admit facts that are not in dispute

i. Conference with PartiesFRCP 26(f)i. Parties must confer as soon as practicableand in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under 16(b)

ii. Discuss settlement, initial disclosures, and set up a proposed discovery plan with oppsing attorney

iii. Within 14 days after 26(f) conference, must make initial disclosures (R26(a)), leaving 1 week until 16(a) scheduling conference

j. Scheduling Conference and OrderFRCP 16

i. Conference covers all aspects of the trial and sets deadlines for everythingii. Must live by the scheduling orderit is binding absent showing really good cause

iii. Scheduling order is issued as soon as practicable, but it is within the earlier of (1) 120 days after any defendant has been served with the complaint OR (2) 90 days after any D has appeared

iv. Whole process results in two orders:

1. Scheduling Conference16(b)Scheduling Ordera. Sets all deadlines, close of dispositive motions, can only be modified with good cause and the judges consent2. Final Pretrial Conference16(e)Pretrial Ordera. Held right before trial

b. Contains

i. Each partys assertion of facts/legal issues

ii. Every witness to be called

iii. Every piece of evidence that will be submitted

iv. Every piece of relief that you want

c. Will NOT be modified unless there will be manifest injustice

d. Supersedes all pleadings and governing actions

k. Timeline Summary

i. 26(f) conference with opposing counsel

ii. Scheduling conference and order (happens w/14 days of conference with opposing counsel)

1. Tells when the date for close of discovery

2. Tells when the date for close of dispositive motions

3. Sets a trial date

iii. 30 days before trialpretrial disclosures

1. Names of witnesses to be called, evidence to be used, and depositions/interrogatories to be used at trial must be disclosed

a. Experts are disclosed 90 days before trial

iv. 16 days before trialfile objections to opposing counsels arguments/pretrial disclosures

1. You object before trial even happens

v. Final pretrial conferenceheld as close to the trial as possible

1. Receive the pretrial motion/order

a. This motion supersedes everything (even previously dictated date schedule)

l. Signing Disclosures and Discovery Requests/ResponsesFRCP 26(g)i. Similar to Rule 11all documents MUST be signed by at least one attorney and must give their contact information (email address, phone number, address)

ii. By signing, the attorney certifies that they formed their belief after a reasonable inquiry AND it is to the best of their knowledge or information; they certify that:

1. It is complete and correct, AND

2. Consistent with the rules and warranted by existing law, AND

3. Not interposed for any improper purpose such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, AND

4. Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action

a. THIS section (4), is different than Rule 11

IV. Discovery SanctionsFRCP 37

a. A party may move for an order to compel discovery, BUT the movant MUST certify that they conferred or attempted to confer with the other party or the party failing to make disclosure/discovery BEFORE involving court action/assistance

b. Steps to Discovery Problems:

i. Confer- with opposing counsel and ask them for the desired material

ii. Compel- Go to the court and move for an order to compel disclosure or discovery

iii. Court rules on the motion

1. If they rule to compel, the court MUST require the losing counsel to pay reasonable expenses, including attorney fees:

a. Two exceptions to this:

i. The movant filed the motion BEFORE attempting in good faith to obtain the disclosure/discovery without court action

ii. The opposing partys nondisclosure, response, or objection was substantially justified2. If they do NOT rule to compel, the court MUST require the moving party to pay reasonable expenses of the other party in answering the motion

a. Only one exception here: No penalty if motion was substantially justifiediv. Losing party must give over the info. (and pay the feesunless it meets one of the exceptions)

1. If you dont comply, you will be found in contempt of court

a. Attorneys will only use this option when the attorney really feels that giving up will be too damaging to their client and they want a quick chance at an appeal

b. Only happens in rare and extreme circumstances

2. Court may also do any of the following: 37(b)(2)

a. Direct the matters wanted to be taken as fact,

b. Prohibit disobedient party from supporting or opposing designated claims or defenses,

c. Striking pleadings in whole or in part,

d. Staying further proceedings until the order is obeyed,

e. Dismissing the action or proceeding in whole or in part, or

f. Rendering default judgment

3. Instead of or in addition to what is just mentioned, the court must order payment of fees

c. Failure to Disclose or Supplement37(c)

i. If a party fails to provide information or identify a witness required by Rule 26(a), the party is NOT allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, UNLESS the failure was

1. Two Exceptions:

a. Substantially justified, OR

b. HarmlessRight to a Jury TrialI. In 1938, FRCP merged the legal and equitable courts

II. Amendments

a. 6th Amendment requires jury trials in criminal cases (applies to states)

b. 7th Amendment applies to civil cases (does not apply to statesthus in a civil court case, there is no federal constitutional right to a jury, though a state constitution may provide for one)

i. Suits at common law refers to suits in the courts of law as opposed to the courts of equity

ii. It provides that the right of trial by jury shall be preserved

III. Test for Whether Jury Trial is Required

a. Preserve = Did you have a right to a jury trial in 1791?

i. Problem: States were all over the place on this issue, so we need to go to England in 1791 to see when they allowed for equitable or legal relief

b. Two types of claims to decide:

i. Legal- Jury

ii. Equitable Claims- Bench Trial

c. Two part test to determine which kind of claim it is:

i. 1791 Analog (Legal History Prong)

1. See whether the instant cases cause of action was in equity or legal

2. If it was NOT a claim in 1791, find an analogous cause of action in 1791 and find out whether or not it relates or is analogous to the instant case

ii. Type of Remedy Involved (trumps part 1 if they conflict)1. Look to see if it is a legal or equitable remedy2. Monetary relief, OR

a. Monetary will be equitable when

i. It is restitutionii. Incidental or intertwined with injunctive relief

1. No bright line rule on thishard to peg down

iii. Congress characterizes it as such (Title VII Scenario)

1. Here, congress in statute characterizes something as equitablewhen that happens you will NOT have a right to a jury

b. Back pay MAY be legal or equitableit just depends on

i. It is equitable when it is restitutionarythis occurs when you work and dont get paid

ii. It is legal when you were allowed to do it, but you werent able to do it, so you are suing to get paid for something you didnt get to do3. Injunctive relief

d. Brennans Dissent Test: (Chauffeurs Local)

i. Get rid of the first prong, and ONLY use the second prong because if the two conflict, the second prong is chosen anyway

ii. This doesnt violate the 7th amendment because historically jurisdictional lines between law and equity were primarily a matter of remedy

iii. Tarkington REALLY likes this argument! On the test, say that prong 1 is garbage and a waste of time, Brennan was right, and finish prong two analysis

1. You might get a point in saying how bad the first prong is

IV. Mixed Claims and Mergers

a. FRCP merged equitable and legal cts & permits parties to join legal and equitable claims in a single suit

b. You will try the legal one first (with a jury), and the equitable claims second

i. You do this b/c if you try equitable ones first, the facts will be assumed true in the legal case (which is tried second) and the jury wouldnt be able to rule on the facts (contrary to their right)

Jury Selection

I. Venire- Jurors summoned for duty

a. Must selected from a fair and reasonable cross-section of the population

II. Voir dire- Jurors that are ultimately selected from the venire

a. Purpose is to gather information about prospective jurors knowledge, bias, or opinions on the case

b. Jurors can be struck for cause when they have close connection to the parties or witnesses, or when they have such fixed opinions that they could not judge impartially guilt of the defendant

i. Attorneys move to have the jurors stricken for causeIII. Peremptory Challenges

a. Number is fixed by statute:

i. Federal civil cases- 3, Non-capital felony prosecutions- 10, Capital cases- 20

b. Reasons for peremptory challenges

i. Allows for D to equalize their position

ii. Legitimizes verdicts since both sides pick the jury

iii. Allows lawyers to strike people w/o spending time and effort to ask a bunch of ?s in voir dire

c. Traditionally, attorneys could strike anyone for any reason

d. Now, b/c of Batson and J.E.B., can NOT strike for gender or race reasonsi. Batson Challenge- to challenge a peremptory strike on basis of gender or race

1. Elements/Processa. Opponent MUST establish a prima facie case of discrimination

b. The burden shift to the proponent of the strike to come forward with a constitutionally permissible reason

c. Ct must determine whether impermissible discrimination has been established

i. The reasons dont have to be very good, they could be ANYTHING other than race or gender or a pretextual reason for those two groups

1. Could say you didnt like how they slouched, etc

2. If successful, cts are split on whether to dismiss the entire venire or sit the juror

3. Cts are also divided on the question of discrimination on religion (beliefs, not affiliation)

4. Cts have refused to extend it to economic status or visibility

ii. OConners Concurrence: J.E.B.1. Only states should be restricted to peremptory strikes b/c the Ds rights are at stake and they should get the jury that they want

iii. Scalias Dissent: J.E.B.1. No harm in allowing it b/c both sides struck opposite genders, so it evens out in the end

Dispositions of a Case

I. Summary JudgmentFRCP 56

a. Generally

i. Use before going to trial

ii. SJ is used when there are just issues of law

iii. All evidence considered is in written form

b. Timing of motions56(c)

i. A party may move for summary judgment any time until 30 days after the close of all discovery,

ii. A party opposing the motion must file a response within 21 days after the motion is served or a responsive pleading is due, whichever is later; and

iii. The movant may file a reply within 14 days after the response is served

c. Appropriate when there is no genuine issue as to any material fact and when the movant is entitled to judgment as a matter of law56(c)(2)

d. If opposing party moves for SJ, but there hasnt been time for discovery yet to disprove their assertions, the court will grant time for discovery56(f)

e. SJ v. 12(b)

i. SJ is different than 12(b) b/c in 12(b) the court relies solely on pleadings to determine the facts

ii. In contrast, in ruling on SJ, the court looks beyond the pleadings and considers material such as affidavits or other sworn statements such as depositions or interrogatory answers

iii. SJ is often called piercing the pleadingsyou look beyond the pleading to see if there is anything there to support your claim or facts that you need

f. Ct may grant SJ sua sponte, but must give losing party notice that they need to come forward w/ evidenceg. Standard

i. View the evidence in the light most favorable to the nonmoving party (resolving inferences in favor of the nonmoving party), and movant must prove that no reasonable jury could find (under the appropriate standard: preponderance of evidence < clear and convincing evidence < beyond a reasonable doubt) for the nonmoving party (NRJCFF)

1. The court can NOT weigh the evidence or make judgments

a. Ex: If you have 1 witness and they have 15, you are OK, if you are the only witness on your side and the other side has 15, SJ is still NOT appropriate

b. Circumstantial evidence is good enough to defeat SJeven if other side has direct, contradictory evidence

2. Materiality

a. Not all factual disputes are materialmust be about a critical substantive fact

b. Scintilla of evidenceMere existence of a scintilla of evidence in support of the P's position will be insufficient; there must be evidence on which the jury could reasonably find for the P. (Anderson)

i. Lavender (switch operator killed by a mail hook) stands somewhat against this proposition by supporting that a scintilla of evidence is enough, but Anderson overruled Lavender to the extent that it held that

h. Burden Standards and Responding to SJ

i. Preponderance of evidence (51%+), clear and convincing evidence (highly probable or reasonably certain), and beyond a reasonable doubt

ii. Burden of Production

1. The burden the moving party bears when they make the motion for SJ

iii. Burden of Persuasion

1. This lies with the person that has the burden of proof (this could be on the D or P)

iv. Celotex (Wife claimed husband died from Asbestos from Ds products)1. Brennans Dissent in Celotex (this has become the majority view)a. First identify who has the burden of persuasion

b. Next, if moving party has the burden of persuasion, they can meet this burden in Two ways:

i. Submit affirmative evidence that negates an essential element of the nonmoving partys claim, OR

ii. Demonstrate to the ct that the nonmoving partys evidence is insufficient to establish an essential element of the nonmoving partys claim

1. Dont need any evidence for thisyou can just argue it in your motion

c. You are trying to move the evidence to where NRJCFFD

d. Once you have met NRJCFFD, the other party must, by evidence, move it back to where it could go either way or to a point where no reasonable jury could find for the movant

e. If movant does NOT have burden of persuasion at trial, they can move for SJ w/ little evidence

i. Maj: requires less evidence that Brennan would require for this to be met

f. If you have burden of proof at trial, you must produce evidence in SJ to support your motions (whether you are moving or responding to SJ)

i. Bench Trial

i. This does NOT change the standard for SJ

1. If you did change the standard and allowed the judge in a bench trial to just take care of it in SJ, it would become a paper trial where the judge merely rules on the affidavits and not on all the evidence

II. Judgment as a Matter of Law (JMOL) (FRCP 50)a. JMOL = Directed verdict

i. Occurs BEFORE the jury comes back with their decision

b. Process

i. Can NOT be done sua spontea motion is required if a party wants a JMOL from the court

ii. Motion MUST be made AFTER all evidence from both parties has been presented

1. Ex: P cant move for JMOL after they just present their evidencec. Standard

i. Standard for SJ, JMOL, and RJMOL are ALL THE SAME: Viewing the evidence in the light most favorable to the nonmoving party, no reasonable jury could find under (appropriate burden) for the non moving party NRJCFF

d. Differences from SJ

i. SJ is pretrial, JMOL is after the trial has began

ii. SJ is based on discovery, but JMOL is based on evidence at trial in court

e. Summary

i. 12(b)(6) motions- based on pleadings

ii. SJ- based on discovery

iii. JMOL/RJMOL- based on testimony/evidence at trial

iv. All of these take away things from the jury

III. Renewed JMOL (FRCP 50)a. RJMOL = Judgment notwithstanding the verdict

i. Occurs AFTER the jury has given their verdict

b. Process

i. MUST first move for RJMOL BEFORE the jury comes back with their verdict

ii. Then, after verdict is entered, you MUST renew your RJMOL motion

1. This must be done no later than 28 days after the entry of judgment

a. This may be filed jointly or alternatively with a motion for new trial

b. No previous motion is needed for a new trial, just JMOL

iii. If the court grants RJMOL, it MUST conditionally rule on the new trial in case the ruling is reversed or vacated

iv. On appeal, if the appellate court reverses/vacated the renewed RJMOL, then it has 3 options:

1. Reinstate the verdict

2. Grant a new trial

3. Remand to trial court determine if there should be a new trial

c. 7th Amendment

i. Not violated (no fact tired by a jury shall be otherwise reexamined in any court in the US, than according to common law) because it is considered a DELAYED ruling on a directed verdict and a directed verdict is found in common law

d. Many states have pattern instructions that are used

IV. Motion for New TrialFRCP 59

a. Granting a new trial doesnt take it away from all juries, just the one that decided it b/c they werent reasonable

b. Process:

i. Motion for new trial must be filed no later than 28 days after the entry of judgment59(b)

1. If motion is based on affidavits, they must be filed with the motion, and the opposing party has 14 days to respond59(c)

ii. Sua sponte, the court can on its own, order a new trial for any reason that would justify granting one no later than 28 days after the entry of judgment59(d)

c. Reasons for a new trial: (Consistent w/ 7th amendment, a new trial may be granted were CL would give you a trial)

i. Insufficiency of evidence

1. New trial is given if the prior verdict was contrary to a great weight of evidence

2. The judge weighs the evidence and if it is REALLY one sided, he can grant a new trial

3. Look to see if there is a insufficient evidence as to a material fact

ii. Prejudicial conduct

1. Judge and attorney

a. Ex: Ex parte contact with jurors, alluding to matter not relevant or not supported by admissible evidence, or lawyer expresses personal belief iii. Juror Misconduct

1. Iowa Rule:a. Extrinsic Influences- CAN be used to impeach the verdict

i. Getting outside information

ii. Verbally admitting racial discrimination or slurs

b. Intrinsic Influences- Can NOT be used to impeach the verdict

i. Use of drugsbeing high

ii. Sick, tired, etc

iii. Thinking racist thoughts, but NOT speaking them

2. Incorrect answers during voir dire may provide a basis for a new trial in VERY limited circumstancesiv. Excessive Damages

1. Must shock the conscience of the court

2. Remittur- Original amount was too high, offer a lower amount or a new trial

3. Addittur- Unconstitutional in federal courtsonly applies in state courts

a. Original amount is too low, offer a higher amount or a new trial

v. Newly discovered evidence

1. Has to be evidence that could NOT have been discovered with due diligence before the judgment was rendered

2. Has to likely have changed the outcome of the case

3. It can NOT be information that you had all along

vi. Jury Instructions

1. Before the close of evidence, the attorney must submit proposed instructions to the judge

2. Then, you have an instruction conference with the judge

a. Review instructions judge plans to give

b. Make objections to any instructions on the record

c. Judge decides which instructions will be given

i. If you fail to object, or object w/o a reason (why they are incorrect statements of law), then appeal on the issue is waived3. It is REALLY good to get this b/c it is de novo review on appeal4. Two things to remember for test (from Tarkington):

a. Errors in jury instructions are common basis for appeal and reversal

b. You MUST object to jury instruction in the trial court before you can appeal the instructions on appeal

AppealsI. There is NO constitutional right to an appeal

a. 1291 gives appellate court jurisdiction over all final judgments of the district courts

II. Final Judgment:

a. A judgment that ends litigation on the merits and leaves nothing for the court to do but execute the judgment

i. Merger: All interlocutory ruling of the court merge to become the final judgment that can be appeal together

1. Harmless error: Errors on interlocutory orders only reversed if they materially affect the outcome of the case

2. However, if you can show that many small decisions linked together affected the outcome, you might be able to appeal

b. Interlocutory decision: A decision that comes before the end of the case and thus, are NOT immediately appealable under 1291III. Process:

a. After final judgment is entered, the party has 30 days to file an appeal or 60 days if the US is a party

i. The court can NOT allow a change to the 30 daysregardless of the reason

b. The judgment is effective immediately after the judgment is entered

i. This means that you have to pay the judgment even while the appeal is going on

ii. You may get a staybut you still have to provide a bond to cover the original judgment

1. The court is worried about you liquidating your asset during the appeal process

IV. Interlocutory Appeals: Exceptions to the final judgment rulea. Collateral Order DoctrineCoheni. Even though it is NOT final, some rulings are immediately appealable it when they are conclusive, resolve important questions, separate from the merits, and are effectively unreviewable on appeal from final judgment in the underlying actionii. Elements:1. Conclusivea. This is a very low bar to meet, and the ONLY time it is NOT conclusive is when the court explicitly states that they are reserving the issue to be decided later2. Important question (have this because of Rex Lee)a. Question on a constitutional or statutory right3. Separate (collateral to) from the meritsa. Must be completely separate (PJ and FNC are NOT considered separate)b. Really applies to qualified immunity of governmental officials and 11th amendi. This is not reviewable on appeal b/c the whole purpose of the immunity is to make it so that they dont go through a lawsuit taking time away from the job of the officialc. Really tricky prong b/c it isnt uniform and it covers random things4. Effectively unreviewable on appeala. This occurs when the opportunity for meaningful review will perish unless immediate appeal is permittediii. COD does NOT cover PJyou dont have an immediate appeal once the court rules that they have PJ over youb. 1291(a)Injunctions i. Anything about granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, you can get an interlocutory appeal on it1. Meaning, anything dealing with an injunction means that you can get an interlocutory appeal as a right2. The reason we have this for injunctions is that irreparable harm is being done and you cant wait for the case to be over to appeal because the harm would continue throughout the original trial until the final judgment is renderedc. FRCP 54(b)Multiple claims/partiesi. When an action presents more than one claim for relief or when multiple parties are involved, the court may direct entry of final judgment as to one or more, but fewer than all, claims or parties if the court expressly determines there is no just reason for delay1. This means that you dont have to wait around for the other parties in the suit to finish, you can appeal your suit/portion that was disposed of early onii. Process:1. District court MUST enter a final judgment as to the claim, AND2. Expressly say there is no just reason for delaya. Must expressly state thatits similar to certificationiii. After this occurs, you still have a final judgment and thus have a right to appeal under 1291d. 1292(b)Question of law that is key to the whole case

i. Must have the following:1. An order2. Involving a controlling question3. Of lawa. It can only be a legal questionnot a question of fact or an application of a fact to law4. As to which there is a substantial ground for difference of opiniona. Cant be too one sidedb. There needs to be a split among the authorities

5. That an immediate appeal from the order may materially advance the ultimate termination of the litigationa. This means that the case cant go forward if they dont have an answer to this particular question/element ii. District court MUST certify that all five of these elements are truethey have to give you permission to appeal by certifying thisiii. Then, the appellate court must agree to the certification of the five elements1. They have to agree too!2. Appellate court has complete discretion on whether or not to accept itiv. Summary: There must be a question of law that is key to the whole case that is split in authority and the court does NOT know what to do in the situation/casee. FRCP 23(f)Class Action Lawsuiti. Applies only to the certification of a class action1. Court has to agree that it is going to go forward as a class action2. Must have permission to appeal with appellate courthave 14 days to do this3. Appellate court has unfettered discretion to permit an appealii. Instances when we grant a 23(f)

1. When denial of class status effectively ends the casea. This focuses on the plaintiff2. When grant of class status raises the stakes of the litigation so substantially that the defendant likely will feel irresistible pressure to settle

a. This focuses on the defendant3. When it will lead to a clarification of a fundamental issuef. MandamusExtraordinary Remedy/Circumstancesi. Appropriate where the party seeking issuance of the write has no other adequate means to attain the relief he desires and has carried his burden of showing that his right to issuance of the writ is clear and distinguishableii. Elements: Must show1. Gross usurpation of the lower court will allow for mandamusa. You are trying to confine the lower court to the lawful exercise in their area2. Must have no other effective remedies3. Must be clear and distinguishable that you have a right to reliefa. Must have a clear and indisputable right to what happened4. DC is blatantly flouting the lawiii. Ex: FLDS kids being taken away from their homemandamus appeal got them backg. NOTES:

i. None of the interlocutory appeals give a stay to the proceedings of the lower courtii. Make