Critical Pass - Civ Pro
Personal Jurisdiction
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Personal Jurisdiction Overview
Personal jurisdiction (“PJ”) involves the court’s ability to exercise authority over parties or their property
- Core concept is fairness—i.e., is it fair for this court to exercise jx over this D?
- Must balance state’s interest in protecting its citizens with due process rights protecting against unfair exercise of jx
- Perform this analysis for each defendant separately
- Statutory and constitutional constraints can limit court’s jx
Analysis—jx must be statutorily authorized and constitutional
- Statutory—an applicable state law must authorize jx
- Usually a long-arm statute will apply (see Card 3)
- Constitutional—jx must satisfy due process
- Minimum contacts—parties must have minimum contacts with forum state
- Adequate notice—parties must receive adequate notice of the action and an opportunity to be heard
- See Cards 4–9
See Cards 2–9 on Personal Jurisdiction
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In personam—jx over persons
- Court may render judgment (money or injunction) against an individual based on contacts with the forum state
- Note—type of jx most likely to be tested
- See Cards 3–9
In rem—jx over property or status, including ownership disputes
- Court adjudicates rights of parties with respect to property located in forum state
- Judgment is binding as to disposition of property rights or status, not as to parties personally
- Often involves estate issues, business proceedings, property disputes (e.g., action to quiet title)
Quasi in rem—permits a court without PJ to determine certain types of disputes between P and D when property is located in the forum state
- Property is attached for some reason not necessarily involving property itself—e.g., action against D and his assets due to fears D will flee state
- Court may render judgment as to persons with respect to property (rather than judgment over person or property itself)
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State laws often determine when courts may exercise jx
- A fed. court must analyze jx as would a state court in which it sits and must follow applicable state statutes
- Note — court’s exercise of jx must also satisfy constitutional requirements (see cards 4-7)
Most state statutes grant courts in personam jx if:
- Service of process — D is personally served in forum state
- Duration of D’s presence irrelevant
- Domicile — D is domiciled in the forum state
- Domicile = D maintains permanent home in forum state
- Court can exercise jx over domiciled persons even if they are not physically present when served
- Consent — D consents to jx (can be express or implied)
- Long-arm — D’s acts fall within state’s long-arm statute
- Most common
- General/unlimited long-arm statute — confers state’s courts with jx to the extent allowed by Const.
- Limited/enumerated long-arm statute — specifies when state courts can exercise jx
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To be subject to PJ, D must have such minimum contacts with the forum state that exercising jx does not offend traditional notions of fair play and substantial justice
Analysis—minimum contacts, relatedness, fairness:
- Minimum contacts (see Card 5)—D must have sufficient minimum contacts with forum state; inquiry focuses on:
- Purposeful availment—did D purposefully conduct activity in forum, thus invoking benefits and protection of forum's laws?
- Foreseeability—did D know of or anticipate being held accountable for her in-forum activities?
- Fair play & substantial justice (see Cards 6–9)—given D’s contacts, exercise of jx must not offend these notions; inquiry focuses on:
- Convenience—would litigating in the forum severely disadvantage D?
- State’s interest—does forum state have an interest in providing redress for residents or an interest in the outcome?
What constitutes minimum contacts?
- Purposeful availment—D must purposefully act in the forum, i.e., reach out in a non-accidental manner
- E.g., using roads, doing business in-state, creating a market for D's products, etc.
- Foreseeability—D must know or reasonably anticipate that she could be held accountable for her activities in the forum state
Circumstances that may give rise to minimum contacts:
- Website—interactive sites are more likely to have requisite minimum contacts; passive sites less likely
- Interactive—two-way communication between user and operator (e.g., information exchanged for the purpose of soliciting business; purchases allowed)
- Passive—site makes information available to interested viewers, but no business is transacted
- Putting goods into stream of commerce—it is unclear if manufacturer is subject to PJ if it knows or hopes product will wind up in a particular forum. Look for intentional targeting (see below)
- Mere awareness that component parts may reach forum as part of another product is insufficient
- Targeting the forum state—Increasingly, SCOTUS has equated minimum contacts with a targeting of the forum state. This requires some deliberate activity within and cultivation of the state
Due process requires that the exercise of jx must be fair (i.e., must not offend traditional notions of fair play and substantial justice)
Factors—look at three factors in determining if jx is fair:
- Relatedness of contacts & claim—does P’s claim arise from or relate to D’s contacts with the forum state?
- Specific jx—claims arise from or relate to D’s in-state contacts
- Minimum contacts must be established
- D can only be sued for claims arising from or relating to in-state contacts
- Creating a market for its product may subject manufacturer to jx in the forum even though sale did not occur there
- General jx—claims do not arise from or relate to D’s in-state contacts
- D is “at home” in the forum state (incorporated or place of business in forum state)
- If found, D can be sued for any claim arising in or outside of forum
- Specific jx—claims arise from or relate to D’s in-state contacts
- Convenience—would jx in forum severely disadvantage D?
- E.g., distance to courthouse, inability to travel, or lack of familiarity with court system
- Must be so inconvenient and difficult that D is inherently put at severe disadvantage compared to P
- State’s interest—does forum state have an interest in allocating its limited resources to hearing this matter?
- Interest is less compelling when case involves non- resident actors and non-resident acts or when case involves complexity
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Express or implied consent by the defendant can also establish personal jx
- A forum selection clause is the most common form of consent
- Courts enforce these clauses unless the selected forum is remote and alien to the parties/transaction
- Note—Ensure that defendant is a party to the contract and that the clause falls within the scope of the clause
- Defendant can also consent to jx by waiving the objection
- Defendant must raise the objection with their first appearance and litigate it promptly
- If defendant has appointed an agent in the state, this can satisfy consent (but state law must allow PJ on this basis)
If defendant is personally served, they are likely subject to personal jx within the forum state
Three recognized exceptions:
- Fraud—a defendant who is served after being lured into the forum under false pretenses
- Force—defendant who is served after being brought involuntarily into the forum by force
- Witness—a defendant who is served while responding to a court subpoena
Note—Personal jx can be established through personal service even if the defendant’s presence is transient and unrelated to the suit
Due process requires that D must be sufficiently notified of a pending lawsuit
Requirement—notice must be reasonably calculated under the circumstances to apprise interested parties of the pendency of the action and afford an opportunity to be heard
Methods—traditional methods of notice satisfy due process
- E.g., personal delivery, registered mail, delivery to an appointed agent
- P need not deliver notice personally; can be given by court- appointed agent or agent hired by P
- See Cards 21–22 on Service of Process
- If P knows that notice was not received by D (e.g., by mail), P cannot proceed if practical alternatives to giving notice exist
Note—the type of service used also must be authorized by rule or statute (e.g., if no rule or statute authorizes service by registered mail, it cannot be used even though it would be constitutional)
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Fed. courts must have authority over the claim in question (as opposed to the parties or property, which is the concern of PJ); SMJ refers to courts’ ability to exercise that authority
- Const. provides limits on types of cases that fed. courts can hear
- SMJ cannot be waived
Types of SMJ:
- Diversity jx (see Cards 11–13)
- Federal question jx (see Card 14)
- Supplemental jx (see Card 15)
- Removal jx (see Card 16)
By contrast, state courts are presumed to have SMJ. In a narrow set of cases, federal courts have exclusive SMJ (e.g., patent infringement)
The Constitution grants fed. courts SMJ over controversies between citizens of different states, even where claims do not involve fed. law
- Diversity jx conferred by statute (28 U.S.C. 1332), but the statute does not grant SMJ over all cases between citizens of different states.
Requirements:
- Complete diversity (see Card 12)—every P must be of diverse citizenship from every D
- Does not require that all parties be citizens of different states; just no P and no D can be from the same state (e.g., two Ps can be from Utah, as long as no D is from Utah)
- Examined at time of filing—diversity need not exist when claim arose
- Diversity can exist between a citizen of a U.S. state and a foreign country (sometimes called “alienage jx”)
- Amount in controversy must exceed $75,000 (see Card 13)
- P must make good faith allegation that her claim exceeds $75k
Exceptions to diversity jx—fed. courts will not hear actions involving divorce, alimony, child custody, or probate, even if diversity requirements are otherwise satisfied
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Every P must be of diverse citizenship from every D
- Determining citizenship for diversity purposes varies for individuals and businesses
Natural persons—citizens of the state where they are domiciled at the time the suit is filed
- Domicile—where a person was last both 1) present and 2) intending to remain indefinitely
- A person always has one—and never more than one— domicile. You keep your domicile until you have a new domicile
- Factors—for determining person’s domicile, look for simultaneous:
- Physical—actual presence in the state
- Mental—intent to make state permanent home (e.g., where person votes, works, is licensed, etc.)
Businesses
- Corporations—citizens of every state where incorporated and the one state where corp. maintains principal place of business (“PPB”)
- Corp. can have multiple states of citizenship
- Determining PPB—look to where corp. decisions are made, i.e., “nerve center” (usually corp. headquarters)
- Unincorporated businesses (LLCs, LLPs, )—citizens of all states in which any partner or member is a citizen
P’s complaint must make a good faith allegation that the amount of damages or injury in controversy exceeds $75,000, excluding interest and costs
- Lenient standard—to dismiss for insufficient amount, there must be no legal possibility that recovery will exceed $75k
- Amount actually awarded is irrelevant
Equitable relief claims—court looks at value of the harm caused
- Can look from either P or D perspective—i.e., does act requiring injunctive relief harm P by more than $75k; or would it cost D more than $75k to comply with the injunction sought?
Aggregating claims—may be permissible to meet $75k requirement
- One P can aggregate all her claims against a single D
- Multiple Ps or Ds—aggregating only allowed if either:
- One P has joint liability claims against multiple Ds
- Use total value of the claim
- Multiple Ps seek to enforce a single title or right in which they have a common, undivided interest (rare)
- One P has joint liability claims against multiple Ds
- E.g., several Ps jointly own real estate and sue D to quiet title—undivided interest, so aggregation OK
Fed. courts have jx over properly-pleaded claims arising under fed. law (28 U.S.C. 1331)
- No diversity or amount in controversy requirements
Requirements—claim must show a right or interest founded substantially on fed. law
- Fed. question must appear on the face of the complaint
- FQJ cannot arise based on extraneous allegations or potential defenses
- Analysis—ask if P is enforcing a right (e.g., one that arises under fed. statute, regulation, Const., etc.)
- If not, no FQJ exists
- Note—beware of fact patterns in which complaint raises a fed. law or issue, but P is not enforcing a fed. right
Exclusive fed. jx—fed. courts have exclusive jx over certain types of claims, which must be heard in fed. court
- Otherwise, federal claims can be heard in state court, which are courts of “general jx”
- Most common areas of exclusive federal jx:
- Bankruptcy
- Patent, copyright, trademark
- Federal antitrust claims
- Postal matters
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Supplemental jurisdiction allows a fed. court to hear additional claims (e.g., counterclaims and cross-claims) that do not, on their own, meet diversity or FQJ requirements (28 U.S.C. 1367)
- There must be one claim with original SMJ
Requirements—common nucleus of operative fact (CNOF)
- Each additional claim must share a CNOF with an existing claim that invoked FQJ or diversity jx
- Same transaction or occurrence—supplemental claims share a CNOF if they arise from the same transaction or occurrence as the underlying claim
Discretionary refusal—court may refuse a supplemental claim if:
- Original SMJ claims are dismissed early in the proceeding,
- Supplemental claim raises a novel or complex state law issue, or
- Supplemental claim substantially predominates over original SMJ claims
Limitation—in diversity cases, supplemental jx is withdrawn for claims by Ps (does not apply to claims by other parties)
- Exception—a co-P may use supplemental jx to have a below-limit claim heard in fed. court
- Even then, the co-P's presence in the suit cannot override the complete diversity requirement
D can remove a case originally filed in state court to fed. court if the fed. court would have had SMJ (i.e., diversity or FQJ)
Removal rules:
- Can only remove if the case could have been filed in fed. court
- Only D can remove and all Ds must agree to removal
- Can remove only to the fed. district embracing the state court in which the case was originally filed
- D who files a permissive counterclaim in state court waives the right to remove
- Timing—D must remove within 30 days of service of the first removable document (usually service of process)
- Procedure—D must file notice in fed. courts
- Notice must contain grounds for removal and copies of documents served in state court; must be signed
- All parties and state court must receive notice of removal
Diversity jx limitations:
- D cannot remove if P filed suit in any D’s home state
- I.e., no removal if any D is a citizen of the forum state
Remand—if removal is improper, court can remand to state court
- Improper procedure—P can move to remand within 30 days
- Lack of SMJ—P can move to remand at any time
In diversity cases, fed. courts must apply state substantive law and fed. procedural law; use the below analysis to determine if state or fed. law applies (i.e., whether a state law is substantive)
Analysis:
- Is there a valid f law (e.g., Const., statute, fed. rule) that is on point and directly conflicts with state law?
- If yes, apply the fed. law
- If no fed. law is on point, analyze under these tests:
- Outcome determinative—would applying or ignoring the state rule affect the outcome of the case?
- If yes, state law is substantive and should be applied
- Balance of interests—does either fed. or state system have a strong interest in applying its rule?
- If one has clearly stronger interest, apply that law
- Forum shopping avoidance—if fed. court ignores state law, would it encourage litigants to flock to fed. court?
- Outcome determinative—would applying or ignoring the state rule affect the outcome of the case?
- If yes, state law is substantive and should be applied
The following will always be governed by state substantive law:
- Elements of a claim or defense
- Statute of limitations (“SOL”) and rules for tolling SOL
- Conflict/choice of law rules
- Standard for granting a new trial because the jury's award was excessive or inadequate (see Card 58)
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Venue determines in which fed. district the case may be brought
Determining proper venue—for most actions venue is proper where:
- Any D resides—in any fed. district in which any D resides (provided all Ds also reside in the same state),
- Location of claim or property—in any fed. district in which a substantial part of the claim arose or in which a substantial part of property that is subject to the action is situated, or
- D subject to PJ (fallback)—if no fed. district can satisfy a) or b) above, venue is proper in any fed. district in which any D is subject to PJ
Residency for venue purposes:
- People—determined by domicile
- Entity with the capacity to sue or be sued in its common name, whether or not incorporated—resides in any state in which it is subject to PJ
- In a state with more than one fed. district, it is occasionally also necessary to determine in which fed. district(s) a corporation resides; a corporation resides in a fed. district if its contacts would be sufficient to subject it to PJ if that fed. district were a state
A case may be transferred from one fed. district to another in which the case could have been filed or one to which all parties consent
Venue in original district is proper—court may order transfer to another fed. district court based on interest of justice, convenience of parties and witnesses
- Transfer is to a fed. district in which the case could have been filed or to which all parties consent
- Court may refuse transfer
- Court’s discretion based on:
- Public factors—what law applies, which community should be burdened with jury service, etc.
- Private factors—convenience (e.g., location of evidence, witnesses)
Venue in original district is improper—court may transfer to a proper venue in the interest of justice or dismiss the case
Choice of law—transferee court applies choice of law rules of the original court, regardless of which party sought transfer
- Exception—transferee court will apply its own laws if original venue was improper or if transfer was to enforce a forum selection clause (see below)
Forum selection clauses—case must be transferred to the indicated fed. district unless the public factors present a compelling reason not to transfer
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When there is a more appropriate forum for the litigation, but the case cannot be transferred there, a court may dismiss the action pursuant to the doctrine of forum non conveniens
Adequacy of the Alternative—because a dismissal is consequential, courts will not grant FNC without finding that there is an adequate alternative forum
- When adequacy is in doubt, a court may stay the proceeding rather than dismiss, so that it can resume litigation if necessary
Factors—court evaluates based on same public and private factors as for venue transfer (i.e., convenience, applicable law, etc.)
- Requires strong showing of public and private interests to dismiss or stay (see Card 19)
Service of process is the delivery to D by P of the summons and complaint, which satisfies notice requirements for PJ (see Card 9). Subsequent papers filed with the court (e.g., motions, answers) do not require formal service
Service requirements:
- D must be served with:
- Summons—formal notice of the suit
- Must be signed by court clerk, tell D when/where to appear, and identify the court, parties, P’s attorney
- Copy of complaint
- Summons—formal notice of the suit
- Timing—service must be within 90 days of filing of the case
- If not satisfied, case dismissed without prejudice, unless P shows good cause for delay
- Who may serve—any non-party aged 18 or older
See Card 22—Methods of Service & Waiver of Service
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Most common methods of service of process:
- Personal service
- Substituted service—left with third party at D’s “usual abode”
- Third party must be "of suitable age and discretion," and must reside at abode
- Service upon D’s authorized agent
- Receipt of service must be within scope of agency
- Party registering to do business in a state may be required by state to appoint agent; whether appointment is consent to general jx, specific jx, or mere ministerial appointment depends on state law
- Any method permitted under state law—allowed if state is:
- Where the fed. court sits, or
- Where service is effected, e., where service occurs
- However, a minor or incompetent person must be served using the rules of the state where service is to be made (not where fed. court sits)
Waiver of service—P may request that D waives service by mailing D the complaint and a formal request to waive service
- If D denies request or fails to respond, P must serve through another acceptable method; D is then obliged to pay for the cost of that service
- If D agrees to waive service, D extends her time to answer complaint to 60 days from the date the waiver request was sent (as opposed to normal 21 days)
- Waiving service does not waive the right to object to venue or jx
Interlocutory injunctions are court orders requiring a person to do or cease doing a specific action before trial, while case is pending
- Purpose is to prevent irreparable injury that will occur before there is a final judgment
- Security—for both preliminary injunctions and TROs, movant must provide security to pay costs and damages if adverse party is wrongfully enjoined or restrained
Preliminary injunctions—traditional 4-part test:
- Irreparable injury (a/k/a no adequate remedy at law)
- Reasonable likelihood of success on the merits
- Balance of hardships
- Public interest
- Notice and hearing—required for the adverse party
- Appealable—see Card 61
Temporary restraining orders (TROs)—issued by the court when necessary to prevent immediate, irreparable injury to a party
- Not immediately appealable
- Expiration— no more than 14 days from issuance; court may extend for good cause or with adverse party consent; if extended beyond 28 days without adverse party's consent, TRO is treated as preliminary injunction (and becomes appealable)
- Notice to adverse party—not required if moving party:
- Provides specific facts showing immediate and irreparable injury will result before adverse party can be heard; and
- Certifies in writing all efforts to give adverse party notice
- Actual notice—adverse party must have actual notice before they can be held in contempt for violation
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Pleadings & Motions
The initial pleading in a lawsuit, filed by P, which begins an action and gives notice to opposing parties
Requirements—complaint in federal court must contain:
- Statement of jx—short and plain statement of grounds upon which the court’s jx depends (i.e., why court has SMJ)
- Statement of the claim—short and plain statement of P’s claim, showing entitlement to relief
- Plausibility pleading standard
- Complaint must contain sufficient factual matter to state a claim that is plausible on its face
- Allegations are accepted as true, but conclusory allegations are ignored
- Plausibility means factual content that allows the court to draw the reasonable inference that defendant is liable
- Plausibility is more than possibility but less than probability
- Judges are encouraged to use their judicial experience and common sense
- Plausibility pleading standard
- Demand for judgment—description of relief sought (e.g., money damages, injunction, etc.)
Response to the complaint, in which D states defenses to each claim asserted and admits or denies each count of P’s complaint
- Defenses can be pleaded in the alternative
- E.g., in breach of K claim, D can deny K existed but also answer that if a K did exist, D performed under the K
- Timing—must be filed within 21 days of service of process, or 14 days after a Rule 12 motion is denied or postponed until trial
Requirements—answer must:
- Respond to allegations of complaint—available responses:
- Admit allegations
- Deny allegations—failure to deny can constitute admission on any issue except damages
- Lack sufficient information to admit or deny allegations
- Raise affirmative defenses—certain defenses are waived if not explicitly pleaded in the answer; these may include:
- Contributory negligence
- Claim preclusion
- Statute of frauds
- Fraud
- Statute of limitations
- Self-defense
- Res judicata
Affirmative defenses are typically waived if not pleaded in the answer
Counterclaims—D’s claims against P may be required in D’s answer (compulsory) or may be brought separately (permissive) (see Card 27)
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D may attack the validity of P’s complaint through a Rule 12 motion
Rule 12(b) defenses:
- Lack of SMJ
- Insufficiency of service of process*
- Lack of PJ*
- Failure to state a claim (see Card 52)
- Improper venue*
- Failure to join a necessary party
- Insufficiency of process*
- Rule 12(b) defenses may be raised by motion or in the answer
- * Waiver—these defenses are waived if not included in D's first response (answer or 12(b) motion to dismiss), whichever is first, provided they were available
Motion for more definitive statement (Rule 12(e))—if complaint is so vague or ambiguous that D cannot reasonably prepare a response, D may move for a more definitive statement from P
Motion to strike (Rule 12(f))—D may move to strike from the complaint (or court may strike on its own) any redundant, immaterial, impertinent, or scandalous material
Motion for judgment on the pleadings (Rule 12(c))—P or D may move for judgment on the pleadings when the complaint plus the answer reveal that one party must win
- E.g., D’s answer admits all allegations in P’s complaint; P must win
An offensive claim, either compulsory or permissive, usually raised by D against P, which may be pleaded in D’s answer to the complaint
- Jurisdictional requirement—D must ensure the court has jx to hear any counterclaim
- Note—compulsory counterclaims will always have supplemental jx, but permissive counterclaims rarely have supplemental jx
Compulsory counterclaim—same transaction or occurrence
- Claim by D against P that arises from the same transaction or occurrence as one of P’s claims
- Required in answer—must be filed in D’s answer or it will be waived (i.e., D cannot assert it in a separate action at a later time)
Permissive counterclaim—different transaction or occurrence
- Claim by D against P that does not arise from the same transaction or occurrence as any of P’s claims
- Not required in answer—may be filed with D’s answer to P’s complaint, but does not have to be (i.e., can be asserted in a separate action filed by D)
Offensive claims asserted by a co-party against another co-party
- E.g., P sues D1 and D2; D1 may assert a cross-claim against D2
Requirements—same transaction or occurrence
- Cross-claims must arise from the same transaction or occurrence as the underlying action
- Never compulsory, unlike counterclaims stemming from the same transaction or occurrence (see Card 27)
- Although claim preclusion would not apply, issue preclusion might make it difficult to successfully litigate a cross-claim separately (see Card 63)
Jurisdiction—must have independent basis for SMJ
- Cross-claims will almost always satisfy supplemental jx requirements b/c they must arise from the same transaction or occurrence
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Parties may amend their pleadings once as a matter of course
- Additional amendments may be granted with consent of other parties or court permission (amendment without right)
Amendment as a matter of course—may occur either:
- No later than 21 days after service, or
- If the pleading is one which requires a response, within 21 days of service of the responsive pleadings or pre-answer motion (e.g., a Rule 12 motion)
- E.g., if D answers P’s complaint, P has 21 days from service of the answer to amend complaint
- Party has 14 days or time remaining on initial 21-day deadline (whichever is longer) to respond to an amended pleading
Amendment without right—party may only amend with either:
- Written consent of the adverse party, or
- Leave of court (i.e., court’s permission)—sought by motion
- Leave will be granted freely when justice requires (lenient standard); court looks to:
- Length of and reasons for movant’s delay;
- Potential prejudice to parties; and
- Futility of amendment
See Card 30—Amending Pleadings: Relation Back
The relation back doctrine applies when a party amends a pleading to add a new claim or D after the statute of limitations has run
- Effect—if allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was filed
Requirements:
- New claim—amendment will relate back if the new claim concerns the same conduct, transaction, or occurrence as the original pleading
- I.e., if the new claim is based on the same general set of facts as the original pleading
- New or substituted D—amendment will relate back if:
- Amendment concerns the same conduct, transaction, or occurrence as original pleading, and
- Within 90 days of filing of the original pleading:
- New D knew of or received notice of action; and
- New D knew or should have known that, but for a mistake, she would have been named originally
- Applies when P sued the wrong D first, but the right D was aware of the mistake
Rule 11 requires the attorney or pro se party to sign all pleadings, written motions, and other papers
Certification—signature acts as certification that, to the best of the signor’s knowledge, after all reasonable inquiry taken:
- Filing is not for an improper purpose (e.g., harassment, delay);
- Non-frivolous legal contentions made are warranted by law or non-frivolous argument to change law; and
- Factual contentions have evidentiary support
- Factual contentions that are likely to have evidentiary support also suffice, but must be specifically so identified
Sanctions—court may issue sanctions for violations, either on the court’s own initiative or an opponent party’s motion
- Court may not impose monetary sanctions on represented parties for frivolous legal contentions (sanctions on attorney are OK)
- Safe harbor—Rule 11 motion is served but may not be filed with the court for 21 days, creating a safe harbor
- Party may withdraw the offending document or otherwise remedy the problem
- If not remedied or withdrawn, motion can be filed
- The judge need not provide safe harbor
- Hearing required—court must give attorney or party a chance to be heard before imposing sanctions
- Sanctions may be non-monetary, monetary sanctions payable to court, and payment of costs to opponent
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Joining Claims & Parties
Under permissive joinder, P seeks to join non-parties as co-Ps or co-Ds
- Joining additional Ps—relies on their willingness to join
- I.e., non-party that P seeks to join as co-P must agree to join
- Joining additional Ds—lies in the hands of the P
- I.e., non-party that P seeks to join as co-D cannot refuse
Requirements—permissive joinder is allowed where both:
- Same transaction or occurrence—joined parties assert a right to relief arising from the same transaction or occurrence as P’s claim
- Ds may be joined if right to relief asserted against them arises from same transaction or occurrence
- Common question of law or fact—there is a common question of law or fact in the joined parties’ claims or claims against them
- E.g., after bus accident, all injured passengers and bystanders join as Ps; common issue is driver’s negligence; other issues (e.g., damages) are tried individually for each P
Jurisdiction—court must have jx over joined parties and claims
Note—distinguish from impleader, which involves joinder of non- parties by D (see Card 34), whereas permissive joinder involves joinder of non-parties by P
See Card 33—Compulsory Joinder
Absent parties may be forced to join a case if they are deemed required parties; named defendants threaten dismissal for failure to join a Rule 19 party
An absentee must be joined, if feasible, when either:
- Without absentee, court cannot grant complete relief,
- Consider whether multiple suits might follow if absentee is not made a party
- Absentee has a legal interest that may be impaired or impeded, or
- Absentee has an interest that creates a risk of multiple or inconsistent rulings and obligations
The test is NOT whether joinder would be efficient. Joint tortfeasors, for example, are not necessary parties
Meaning of feasible—joinder is feasible if:
- There is PJ over the absentee; and
- Joining the absentee will not destroy diversity
Required parties—if a required absentee cannot be joined, ask whether the case can proceed without the absentee or should be dismissed; the court looks at these factors:
- Is an alternative forum available?
- What is the likelihood of prejudice to the parties or others if the case goes forward?
- Can the court shape potential relief to avoid prejudice?
- Would P have an adequate remedy if the case is dismissed?
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Impleader allows D to join a non-party who may be liable to D for all or part of the claim brought by P against the original D
- Allows D to assert claims for indemnity, contribution, etc. against another party for the claim D is defending
- Contracts and laws can create these rights of reimbursement
- E.g., state tort law specifies how joint tortfeasors split the payment of damages
Effect & terminology—original D becomes a P:
- Newly joined party is third-party D (“TPD”)
- Original D becomes third-party P (“TPP”)
Requirements—D may implead a TPD by filing a third-party complaint within 14 days after serving her answer
- After 14 days, D must get permission from court
- D’s claim under impleader must be derivative—D/TPP cannot claim that TPD is solely liable to P
- Jurisdiction—court must have PJ over impleaded party; court must also have SMJ, and will have supplemental jx
Additional claims involving TPD:
- Once TPD is joined, TPD may make claims of her own against other parties as long as SMJ exists over each claim
- Original P may assert claims against TPD arising from the same transaction or occurrence as P’s original claims against D/TPP as long as SMJ exists over each claim
A non-party absentee may seek to join (i.e., intervene) in an already pending suit, either as a P or D
Intervention as a right—must be allowed if either:
- Absentee’s interest will be harmed if not joined and no existing party will adequately represent that interest, or
- Absentee has an unconditional statutory right
Permissive intervention—allowed in court’s discretion if either:
- Absentee has a claim or defense that shares a common question of law with the underlying action,
- Absentee has a conditional statutory right, or
- Absentee is a officer or agency and an existing claim or defense relates to the officer/agency or a statute, regulation, etc.
- Court must also consider whether intervention will unduly delay or prejudice adjudication of original parties’ rights
Jurisdiction
- In diversity cases, interveners must establish independent SMJ
- Supplemental jx will not cover diversity intervention
Intervention vs. compulsory joinder—compulsory joinder forces absentee into suit; narrow; must be very necessary for the court to force an absentee into a case (see Card 33)
- Intervention lets absentee join suit voluntarily; more lenient
Interpleader allows a property holder to initiate a suit to compel multiple claimants to that property to litigate the dispute
- Interpleader is allowed under both fed. statute and Rule 22
- Property holder = stakeholder
- Other parties who want the property = claimants
- Stakeholder plaintiff may also make a claim to the stake
Rule 22 interpleader
- Complete diversity required—stakeholder must be diverse from all claimants; amount in controversy must exceed $75k
- SMJ, PJ, and Venue requirements are the same as for any other federal case
Statutory interpleader
- Only minimal diversity required—one claimant must be diverse from at least one other claimant
- Amount in controversy must be $500 or more
- Nationwide jx—service is proper on anyone in the U.S.
- Venue is proper in any district where any claimant resides
Example—deceased had life insurance policy with DE corp. having PPB in CA; claimants from NJ & CA all claim interests
- Rule 22 interpleader—improper b/c lack of diversity
- Statutory interpleader—proper b/c NJ claimant is diverse from CA claimants
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Class Actions
Under Rule 23, an individual or small group can represent a larger group (class) sharing a common interest in a lawsuit
- Usually involves Ps as class, though Ds can form a class action
Requirements—to certify a class, court must find:
- Numerosity—class size must be so numerous that joinder is impracticable
- No exact threshold as to class size requirement; depends on context of case and claims
- Commonality—there must exist questions of law or fact common to the entire class
- Typicality—claims or defenses of the class representatives are typical of those of the class
- Adequacy—class representatives will fairly and adequately protect interests of the entire class
- E.g., representatives must not have conflicts of interest with class members, class counsel must be competent
- Type—action must fit into 1 of 3 types of class actions (see Card 38)
See Cards 38–40 on Class Actions
Rule 23(b)(1)—anti-prejudice device
- Used where actions by or against class members would create a risk of inconsistent decisions or impairment of class interests
- Note—uncommon and unlikely to be tested on MBE
Rule 23(b)(2)—injunction or declaratory judgment
- Allows class where suit requests injunctive or declaratory relief as the primary relief sought (i.e., not damages)
- E.g., employment discrimination, civil rights cases
Rule 23(b)(3)—damages
- Most common class action type; used where primary relief sought is damages
- Requirements:
- Predominance—common questions of law or fact predominate over individual questions, and
- Superiority—class action is superior to other procedures to resolve the dispute
- Class members have opt-out rights—judgment only binds class members who do not opt-out
- Notification required—all reasonably identifiable class members must be notified of pendency of the action, including opt-out rights and right to appear via separate counsel
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Personal jurisdiction—absent class members are not required to meet minimum contacts requirements
- PJ due process requirements satisfied by reasonable and adequate notice to class members, opportunity to opt out (if applicable), and adequate representation
Subject matter jurisdiction
- Federal question jx—same rules as in individual cases
- Diversity jx—in determining amount in controversy and citizenship, court looks only to class representatives
- Diversity requirements satisfied if:
- Class representatives are diverse from all opposing parties; and
- Class representatives’ individual claims exceed $75k
- Diversity requirements satisfied if:
Class Action Fairness Act (CAFA)
- Separate means of obtaining SMJ in class action; jx exists if:
- Any class member is diverse of any opposing party, and
- Aggregated claims of the class exceed $5 million
- Any D, even an in-state D, may remove
- Generally, when most class members and primary D's are citizens of the same state, the cases will get remanded or dismissed (that is, local actions stay local)
- Does not apply to:
- Class actions with fewer than 100 class members
- Shareholder claims against corporate management
- Certain state securities law fraud claims
Certification—court must determine at an early practicable time whether to allow the case to proceed as a class action (i.e., certify class)
- If a class is certified, court must:
- Define the class (i.e., who can be a class member), the class claims, issues, and defenses
- Appoint class counsel—class counsel must fairly and adequately represent interests of the class as a whole
- Certification can be appealed via interlocutory appeal before final judgment on the merits (see Card 61)
Judgment—binding as to all absent class members, unless they opt out, if applicable
Settlement—court must approve any settlement reached between class representatives and opposing party
- Settlement must be fair, reasonable, and adequate
- Court will seek feedback from absent class members in deciding whether to approve or reject the settlement
- In Type 3 action, court may refuse to approve settlement unless members are given second chance to opt out
Discovery
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Discovery involves a court-mandated process of acquiring and producing information from parties and non-party witnesses
- Conducted by parties—court helps the process move forward, but does not actively participate in the exchange of information
What is discoverable?—two overarching queries:
- What is the scope of discovery? (see Card 43)
- Is relevant information privileged? (see Card 47)
Process of Discovery
- Initiating discovery—parties must:
Meet & confer—discuss claims and develop proposed discovery plan (see Card 42)
Initial disclosures—disclose discoverable information, insurance, and damages information (see Card 44)
Scheduling—court and parties will develop scheduling order with deadlines for completing discovery
- Conducting discovery—depositions, requests for production, interrogatories, requests for admission, etc. (see Cards 45–46)
- Followed by expert testimony and pretrial disclosures
Party representatives must meet and confer with each other and/or the court at various times throughout the proceeding
- Most of these conferences are for discovery purposes
Mandatory meet & confer—parties must meet at least 21 days before the scheduling conference (see below) to:
- Discuss claims, defenses, and settlement; and
- Develop a plan for discovery
- Must present written discovery plan to court within 14 days of the meet and confer
Scheduling conference—conference at or after which judge issues scheduling order setting deadlines for filings of pleadings, joinder, amendments, and discovery deadlines
Pretrial conference—conference before the court; held as needed to move case forward and encourage settlement
- Final pretrial conference—may be set to finalize issues to be resolved at trial and evidence to be presented
- Memorialized in pretrial conference order
- Issues not included in the pretrial conference order are generally excluded at trial
- Order may only be modified to prevent manifest injustice
Material is discoverable if—non-privileged, relevant, and proportional:
- Non-privileged
- Relevant to a claim; and
- Proportional to the needs of the case—factors:
- Amount in controversy
- Importance of issues at stake in the action
- Resources of parties involved
- Importance of discovery in resolving issues at stake
- Whether burden or expense of proposed discovery outweighs its likely benefit
- Parties’ relative access to the information
Privileged material—undiscoverable (see Card 47)
- Types of privileges recognized:
- Attorney-client
- Work product
- Physician-patient
- Clergy-penitent
- Marital
- Journalist-source
- 5th Amend. privilege against self-incrimination
- Work product may be discoverable upon showing of substantial need for material that is not otherwise available
- Objections to discovery requests based on privilege must be stated with particularity
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Parties must disclose certain information, irrespective of requests from the opposing party
Initial disclosures—parties must disclose:
- Sources of discoverable information—parties must disclose witnesses and documents that they may use to support their claims or defenses
- Damages—computation of damages claimed
- Insurance—any insurance agreement that may be used to satisfy all or part of a judgment
- Timing—within 14 days of parties’ mandatory meet and confer (see Card 42)
- Parties served or joined later must make initial disclosures within 30 days of being served or joined
- Duty to supplement—parties must supplement their mandatory disclosures if the produced information becomes incomplete or incorrect
Expert disclosures—at least 90 days before trial, parties must identify experts who may be used at trial and produce a report containing experts’ opinion, data used, qualifications, etc.
Pretrial disclosures—parties must give detailed information about evidence to be used at trial at least 30 days before trial
- E.g., documents to be used as evidence, identity of witnesses to testify, etc.
Interrogatories—written questions proposed by one party to an opposing party
- Typically used to ask about identity of documents and people who may have information related to claims and defenses
- Deadline for response is 30 days
Requests for production (“RFPs”)—written requests to a party to make documents, electronic documents, or other things within the party’s control available to review, inspect, and/or copy
- Deadline for response is 30 days after RFP served
- Non-party may be compelled to produce material under subpoena
Requests for admission (“RFAs”)—requests to parties to admit the truth of discoverable information
- If a party has admitted information, it does not have to be litigated at trial; opposing party can show jury the admission
- Deadline for response is 30 days—responding party can admit, deny, or state that it lacks knowledge
Physical or mental examinations—only available through court order where a person’s physical or mental condition is an issue in the case (e.g., tort involving injury)
- Must show that party’s health or condition is in controversy
- If allowed, doctor-patient confidentiality privilege disappears
Depositions are oral proceedings in which an attorney may examine any person under oath
- Testimony is sworn and subject to penalties for perjury
- Parties—notice of deposition will compel attendance
- Non-parties—may be deposed, but must be subpoenaed
- Documents—subpoena duces tecum used to compel a deponent to bring documents to the deposition
Scope—may cover any issue within the scope of discovery
- Objections—deponent’s counsel may object to questions, but deponent is still required to answer
- Exception—if an objection is based on privilege (i.e., answering would reveal privileged information), counsel can instruct deponent not to answer
Length—limited to one day for seven hours
- Must seek court approval to take more than 10 depositions or depose the same person twice
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Otherwise discoverable information need not be disclosed if a privilege applies
- Privilege determined under Fed. Rules of Evidence
Attorney-client privilege—protects information exchanged confidentially between attorney and client
- Requirement—to invoke the attorney-client privilege, a party must demonstrate the communication was:
- Made between client and counsel;
- Intended to be and was, in fact, kept confidential; and
- Was made for the purpose of obtaining or providing legal advice
Work product privilege—protects material prepared by or for an attorney in anticipation of litigation
- Rule—items prepared in anticipation of litigation or for trial are not discoverable unless the opposing party shows:
- Substantial need for material; and
- Inability, without undue hardship, to obtain the substantial equivalent of materials by other means
Protective order—a court order limiting discovery of material; sought by party seeking to prevent disclosure
- Usually used to prevent disclosure of material that is privileged, highly embarrassing, trade secret, and/or clearly outside scope of appropriate discovery
- The lack of proportionality of the discovery also may be raised
- Moving party must certify they have or have attempted to meet and confer with affected parties to resolve dispute
- Standard—court may issue protective order for good cause
- Order can limit, condition, delay, or bar discovery of affected information
Motion to compel—a party may move for an order compelling disclosure or discovery of requested material
- Often arises when discoveree (i.e., party holding information) claims withheld materials are privileged
- Motion must certify that moving party has made a good faith attempt to obtain discovery absent court intervention
- Judge will call hearing to confer with parties regarding dispute and make decision on whether material may be withheld
A court may sanction parties for discovery violations, either on its own or upon motion of a party
Grounds for sanctions—court can sanction any type of failure to comply with discovery obligations or court order
- The Rules impose a duty to supplement initial disclosures, interrogatory answers, responses to document requests, and requests for admission when the produced information is incomplete or incorrect
Types of sanctions—sanctions will depend on type of violation:
- Partial violations—less serious discovery violation (e.g., party makes frivolous objections in RFAs)
- Court may issue order compelling discoveree to respond to discovery requests; can also award costs to party for bringing motion to compel (including attorneys’ fees)
- Complete violations—wholesale violation of discovery rules (e.g., violation of discovery order); court may:
- Strike pleadings; disallow evidence; establish disputed or unanswered facts as true; issue monetary sanctions; dismiss P’s case (very serious, requires bad faith); enter default judgment (very serious, requires bad faith); hold disobedient party in contempt of court
- Motion to compel not required before moving for sanctions
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Pretrial Adjudication
P may voluntarily dismiss her case, either with or without court approval (i.e., leave of court)
- Dismissal will be without prejudice (i.e., P can bring claims again), unless an exception applies (see below)
Dismissal without leave of court—allowed before D serves an answer or motion for summary judgment (“MSJ”)
- P voluntarily dismisses by filing written notice of dismissal or stipulation signed by all parties who have appeared
- Dismissal is without prejudice provided this is the first time that P has dismissed her case; otherwise it is with prejudice
Dismissal with leave of court—required if there has been an answer, motion, or prior dismissal
- Court has discretion to grant dismissal on terms and conditions it deems proper
- Dismissal is without prejudice unless court states otherwise; the second voluntary dismissal is "with prejudice"
- Pending counterclaim—if D has filed a counterclaim, P cannot voluntarily dismiss without D’s consent
Default judgment against D may be entered when D fails to plead or otherwise defend a properly served complaint
Procedure—P files motion for default judgment against D
- Clerk enters default on docket if P shows that D failed to respond within 21 days of being served (60 days if service waived)
- Default does not automatically entitle P to recovery; clerk or judge must enter judgment of default
- Default judgment by court clerk—may be entered if:
- D has not responded at all;
- Claim is for money damages;
- P gives an affidavit of sum owed; and
- D is not a minor or incompetent
- Default judgment by court—if elements above are not met, court must enter default judgment and court will hold a hearing on damages
- D may be entitled to hearing—If D has appeared at some point in response to P’s complaint, D must get 7 days notice of a hearing on default motion
Recovery—limited to amount demanded in complaint
Setting aside entry of default—motion with court showing good cause, merit defense, and no prejudice to P
Setting aside default judgment—a default judgment may be set aside like any other judgment (see Card 59)
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Under Rule 12, D may move to dismiss for failure to state a plausible claim or move for judgment on the pleadings due to P’s failure to bring a plausible claim
- I.e., D arguing that even assuming all allegations in P’s complaint or pleadings are true, P cannot win
- If granted, P will usually be given leave to amend her complaint
Failure to state a claim vs. motion for judgment on the pleadings
- Timing of filing:
- Before D files answer = Rule 12(b)(6) motion to dismiss
- After D files answer = Rule 12(c) motion for judgment on the pleadings
- Materials reviewed by court:
- Rule 12(b)(6) motion—court reviews sufficiency of P’s complaint alone
- Rule 12(c) motion—court reviews all pleadings
Either party may file a motion for summary judgment (“MSJ”) asking the court to enter judgment
- Must be filed no later than 30 days after close of discovery
Burden for moving party—must show:
- There is no genuine dispute of material fact; and
- Moving party is entitled to judgment as a matter of law
- I.e., no reasonable person could find for non-moving party
- Motion is based on pleadings and evidence submitted
Burden-shifting—if party moves for summary judgment, burden shifts to non-moving party to show that a triable issue exists
- Non-moving party may submit request for more time to take discovery (must specify discovery sought and how it will help)
Evidence—examined in the light most favorable to non-moving party
- Court can look at the whole record of admissible evidence
- Note—this distinguishes MSJ from Rule 12(b) or 12(c) motions, in which court may only look at the complaint or pleadings (see Card 52)
Partial summary judgment—court can grant summary judgment on only certain claims or issues (e.g., on liability but not damages)
Fed. courts must have an ADR program and the FRCP actively encourages settlement through various means, including mandatory settlement conferences
ADR—generally refers to any means of settling disputes outside the courtroom, including arbitration and mediation
Mandatory settlement conference—court-appointed advisor meets with parties privately and offers evaluation of the weaknesses of their respective cases
Formal "offer of judgment"—a party defending a claim may make a formal settlement offer at least 14 days before the date set for trial
- Settlement for less than offer—if claimant rejects settlement offer and obtains judgment less favorable than the unaccepted offer, claimant must pay costs incurred by the offering party after the offer was made
- Ordinarily costs do not include attorney fees. The exception involves litigation in situations where federal fee- shifting statutes define fees to be part of costs
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Trial, Judgment, & Post-Trial Motions
Right to a jury trial—7th Amend. provides the right to a jury trial in civil actions at law, but not at equity (i.e., not where equitable relief sought)
- Demand for jury trial—may be included in any pleading
- Deadline—must be made within 14 days of service of the last pleading raising a triable issue; otherwise, waived
- Number of jurors—minimum of 6 jurors, maximum of 12
- Verdict—unless the parties stipulate otherwise, the verdict must be returned by at least 6 members and be unanimous
- Cases involving law and equity claims—jury will decide underlying facts on claim at law first; equity claims left for judge to decide
Voir dire—jury selection process; each party may strike jurors, either for cause or through peremptory challenges
- For-cause strikes—used to strike potential juror for cause
- E.g., bias, prejudice, relation to party
- Each side has unlimited for-cause strikes
- Peremptory strikes/challenges—each side has 3, which can be used for any race-neutral and gender-neutral purpose
Non-jury trial—parties can elect for trial on documentary evidence alone or for a non-jury (bench) trial
- Judge must make fact findings and state separate conclusions of law
Jury instructions—parties may file requested jury instructions to be given to the jury during deliberations
- Usually given to jury at close of evidence
- Proposed instructions—court gives parties its proposed jury instructions before final arguments
- Objections—parties must have an opportunity to object before final arguments and before instructions are given to the jury
- Failure to object waives the issue for appeal except for plain error that affects a substantial right
Jury verdicts—court decides verdict to be used:
- General verdicts—jury finds for P or D and decides amount of damages or relief due
- Special verdicts—jury asked to make factual findings; court applies the law to those facts
- Court submits questions to jury regarding each ultimate fact and makes legal conclusions based on jury findings
- Parties must object to proposed jury questions before jury deliberates
- General verdict with interrogatories—court can require a general verdict and ask jury to answer specific questions concerning ultimate facts
- Purpose is to ensure jury properly considered important issues
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In extraordinary circumstances, a judge can take a case from the jury and render a decision on an issue
- Can occur during trial (JMOL) or after jury verdict (RJMOL)
- Court views evidence in light most favorable to non-moving party
Judgment as a matter of law (JMOL) (a.k.a. “directed verdict”)
- Motion brought by either party before case submitted to jury
- D can bring motion upon close of P’s evidence or all evidence; P can file at close of all evidence
- Standard—court can grant JMOL on an issue if a reasonable jury would not have a sufficient evidentiary basis to disagree as to the result (i.e., reasonable people could not disagree)
Renewed motion for JMOL (RJMOL) (a.k.a. “JNOV”)
- After court enters judgment based on jury verdict, losing party can file RJMOL for entry of judgment in his favor
- Must be filed within 28 days after entry of judgment
- Can only be filed if JMOL was originally filed
- Standard—same standard as for JMOL (i.e., court can grant RJMOL if there is insufficient evidence for a reasonable jury to have reached the verdict)
- Note—occasionally referred to as “judgment notwithstanding the verdict” or “JNOV”
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Either party may file a motion for a new trial if judgment was entered but serious errors occurred at trial
- Must be filed within 28 days after entry of judgment
Grounds for new trial — unlimited, but potential errors include:
- Prejudicial error — serious error that makes judgment unfair
- E.g., judge misstates law, gives wrong jury instructions
- Prejudicial misconduct — of a party, attorney, juror, etc.
- E.g., jury considers evidence excluded at trial
- Judgment against weight of evidence — jury erred in reaching verdict given the evidence before it
- Newly discovered evidence
- Excessive or inadequate damages — court cannot increase jury award (violates 7th Amend.); judge can order a new trial or offer remittitur if convinced the award is too high
- Remittitur — court can order a new trial or offer P a choice of taking a lesser figure set by the court
- Majority standard (fed and most states) — the jury's award shocks the conscience; diversity cases must use state standard
Motion for new trial vs. JMOL or RJMOL — in granting a new trial, court is not directing judgment, but rather saying the process should restart (i.e., there was some error necessitating a do-over)
A court may relieve a party from judgment or a court order if any of the following issues arise:
- Mistake, inadvertence, or excusable neglect
- E.g., Relief from default judgment that entered against defendant who did not receive actual notice
- New evidence undiscoverable at time of trial
- Evidence existed at time of trial and moving party made diligent efforts to discover it
- Evidence would likely have changed the result
- Fraud, misrepresentation, or misconduct by opposing party
- The fraud must be established by clear and convincing evidence, and must have prevented the party from fully and fairly presenting her case
- Judgment is void
- E.g., Relief from a judgment rendered by a court that lacked subject matter jurisdiction. A judgment is not void merely because it is erroneous
- Judgment has been satisfied or discharged
- Includes judgments based on an earlier judgment that was later reversed or vacated
- Any other reason that justifies relief
- Catchall used in extraordinary circumstances
Note—for issues 1–3, motion may be brought any reasonable time within one year of entry of judgment; for issues 4–6, motion must be brought within a reasonable time
Appellate Review
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Appellate courts & standards of review—review potential errors on questions of law; highly deferential to questions of fact
- Questions of law—de novo (i.e., appellate court can substitute its judgment for that of trial judge)
- Questions of fact—will not be disturbed unless:
- Non-jury decisions (e.g., bench trial)—clearly erroneous
- Jury trials—reasonable jury could not have reached the same conclusion
- Mixed questions of law and fact—de novo
- Discretionary matters (e.g., evidentiary rulings)—abuse of discretion
Final Judgment Rule—appeal may only be taken from a final judgment, meaning trial court has made an ultimate decision on the merits of the entire case; otherwise, appellate court lacks jx
- Exceptions—these orders are appealable without final judgment:
- Injunctions—entitled to interlocutory appeal (see Card 61)
- Certification of class actions—may be appealed (see Card 40)
- Orders involving debatable questions of controlling law
Multiple claims and/or parties—trial court may enter final judgment as to fewer than all of the claims or parties only on an express determination that there is no just reason for delay
Timing—must file notice of appeal in trial court within 30 days of entry of final judgment
Though generally only final orders are appealable, some interim (interlocutory) orders may be appealed before final judgment
Interlocutory orders reviewable as of right:
- Injunctions—orders concerning an injunction
- Receivers—orders concerning appointment of receivers
- Patent—orders where only an accounting is left in the case
- Property—orders affecting property (e.g., attachment)
Interlocutory Appeals Act—appellate court may hear appeal of a non-final order if trial judge certifies that the order involves a controlling issue of law with substantial ground for difference of opinion
Class action—appellate court may review an order granting or denying class certification
Collateral order exception—appellate court may hear an interlocutory appeal on an issue if it is:
- Too distinct from the merits of the case (i.e., collateral)
- Too important to be denied review; and
- Would essentially be unreviewable if parties waited for final judgment
Extraordinary writ—a party aggrieved by an unappealable order may seek a writ to compel or prohibit lower court action; must show irreparable harm will occur and normal route of appeal is inadequate
Claim & Issue Preclusion
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A party that has had an opportunity to litigate a claim cannot re- litigate the claim once final judgment has been rendered
- Claim preclusion is an affirmative defense
Requirements—new claim will be precluded if:
- Same parties—the second case was brought by the same party against the same party (e.g., same P against same D)
- An entity in privity with a party is considered “same party” (e.g., an employee and employer may be the same party for claim preclusion purposes)
- Same claim—same claims in the first and subsequent suit
- Claim refers to the transaction or series of transactions or occurrences giving rise to the action
- I.e., even if not previously raised, claim can be precluded if it is sufficiently related to prior claims
- Final judgment on the merits in original claim
- Judgment is final even if it is being appealed
- Dismissal with prejudice operates as a judgment on the merits
- Technical dismissals (SMJ, PJ, Venue) are not “on the merits” because they are not evaluating the substance of the plaintiff’s claim
Prevents re-litigation of particular issues of fact or law that have been actually litigated and previously determined
- Narrower than claim preclusion; does not preclude the whole claim necessarily, just the same issue
- Issue must have been actually litigated—distinguish from claim preclusion, which only requires opportunity to litigate
Requirements:
- Final judgment on the merits—first case ended with a valid, final judgment on the merits
- Same issue—same issue was actually litigated and determined in the first case
- Issue was essential to the judgment—i.e., judgment would have been different in the first case absent litigation of this issue
- Must be clear how the issue was decided by the original trier of fact
- Asserted against actual party to previous case
Who may assert issue preclusion—two views:
- Mutuality (traditional view)—only parties to prior litigation can assert issue preclusion
- Non-mutuality (modern view)—issue preclusion may be asserted by those who were not parties in the prior litigation
- See Card 64
Non-mutual issue preclusion may be used defensively or offensively, although courts are reluctant to allow offensive use
Defensive use of prior judgment—D seeks to prevent P from re- litigating an issue P lost in a prior suit against a different party
- Allowed if the party against whom issue preclusion is asserted had a full chance to litigate the issue previously
- E.g., D in second case can preclude P from re-litigating an issue P lost to another D in a prior case; this is “non- mutual” because the party asserting IP was not a party in the prior litigation
Offensive use of prior judgment—P seeks to prevent D from re- litigating an issue that D previously lost in a prior suit against a different party
- Court will allow only if deemed fair after balancing factors
- Factors:
- Whether party against whom prior judgment is asserted had full and fair opportunity to litigate
- Whether party could foresee multiple suits being filed
- Whether the party asserting IP controlled or could have joined the prior litigation
- There are no inconsistent judgments on the record
See Card 63—Issue Preclusion (Collateral Estoppel)
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