MBE: JDX & Civ Pro

• PJ: Satisfy a statute (not tested) and the constitution (DPC).
• IPJ: Impose personal obligation on D.

• Minimum Contacts: a tie between the defendant and the forum through purposeful availment.
• >> D must reach out to the forum.
• >> Foreseeable that D could be sued in forum?
• Fairness:
• >> Relatedness: between contact and claim. Only need relatedness if there's a small amount of contact. Not needed if substantial ties (gen jdx), like domicile.
• >> Convenience: Almost never a good argument for D.
• >> State's interest: ie. provide forum for its citizens.

• Diversity: Parties from diff states and amount in controversy is MORE THAN $75K.
• >> No diversity if any P is of the same state as any D.
• >> Citizenship:
• >>>> Natural person -- state of domicile (physical presence and intent to make it your home). Only one domicile.
• >>>> Corporations -- state where incorporated AND principle place of business (nerve center).
• >>>> Unincorporated associations -- look at citizenship of the general and limited partners. As many citizenships as there are partners.
• >>>> Decedents, minors, incompetents: use their citizenship, not that of their representatives.
• >> Amount in Controversy: P friendly. Denied if clear to a legal certainty that amount is less than $75K. If less than $75K, might have to pay D costs, but not att'y fees.
• >>>> If one P and one D, can aggregate claims -- no limit.
• >>>> P sues joint defendants -- use total value of claims against Ds.
• >>>> If equitable relief case, either P must seek equitable relief to prevent damages over $75K, or it would cost D more than $75K to comply w/ injunction.

• GEN: Claim must arise under federal law.
• NOTE: For every single claim, even for claims arising after initial jdx found, the question is whether it invokes FQ, diversity, or supplemental jdx.

TEST: Common nucleus of operative fact -- same transaction/occurrence.

• Diversity cases: the plaintiff cannot invoke SJ to overcome a lack of diversity.
• FQJ cases: P can invoke SJ even where no diversity.

NOTE: Any party but P can use SJ to overcome either a lack of complete diversity or amount in controversy in any case.

• GEN: one-way street -- state to federal court (the one embracing the district).
• TEST: D can remove to federal court if case invokes diversity or federal question. If it invokes either and other claims, can remove entire case.
• TIMING: Removal must be initiated 30 days after service of the first removable document (usually service of process), and diversity cases ≠ be removed after one year.
• LIMITATION (Diversity Cases): WHere one of the defendants is a citizen of the state in which the stat action was brought, the action is not removable.

• GEN: Application of state substantive law. If state substantive law, must be applied. Substantive if outcome determinative.
• (1) Federal procedural law in conflict w/ state law? fed law wins.
• (2) IF no on-point fed law?
• >> Easy cases: SoL, elements of claim/def, ect. = substantive.
• >> Other cases: ask -- (1) outcome determinative? (2) balance interests (state v. fed) (3) will decision create forum shopping?

• GEN:
• Local Actions: ownership, possession, or injury to land must be filed in the district where the land lies.
• Transitory Actions: P may lay venue in any district where: (1) all Ds reside, or (2) where a substantial part of the claim arose.
• >> Reside: Individuals (domicile), Corporations (districts where subject to PJ)
• Special Rule: Where all Ds reside in different districts of the same state, then you can sue in any of the districts in that state. \
• Transfer of Venue: sending case from one ffed district court to another.
• >> If venue in original district is proper, may transfer to another fed district (convenience of parties and interests of justice) -- judge discretion.
• >>>> Choice of Law: Must apply law of the original venue.
• >> If venue in original district is improper, may transfer in the interests of justice or dismiss w/o prejudice.

• GEN: Deliver to D (1) a summons and (2) a copy of the complaint.
• >> Service can be provided by any nonparty at least 18.
• >>>> Personal Service: Papers given to D personally anywhere in the forum state. Papers can be left at D's usual place of abode.
• >>>> Substituted Service: Process on an authorized agent of D.
• >>>> Service by Agent: usually in the case of a corp.
• STATE OPTIONS: Also other service methods permitted by the state.
• >> Federal court can serve process outside the state in which it sits only if state law allows (long arm)
• WAIVER: If D wishes to waive, he must submit a waiver. Unless D shows good cause for failure, penalty -- loss of service.

• GEN: Documents setting forth claims/defenses. Need only enough detail to allow the other side to be on notice and make a meaningful response.
• >> Must plead facts supporting a plausible claim: more than simply possible.
• FRAUD, MISTAKE, SPEC. DAMAGES: heightened pleading requirements.

• REQS:
• (1) Statement of the grounds for subject matter jdx
• (2) Short/plain statement of the claim showing relief entitled
• (3) Demand for relief sought.

• RULE 12: respond by either (1) motion or (2) answer. Must respond w/in 21 days after serivce.
• MOTIONS:
• >> Form: (1) more definite statement (so vague response not possible); (2) motion to strike -- immaterial info.
• >> Rule 12(b) Defenses:
• Can be raised at any time
• (1) Lack of SMJ
• Waived if not raised by motion or answer, whichever is first
• (2) Lack of PJ
• (3) Improper Venue
• (4) Insufficiency of Process
• (5) Insufficiency of Service
• May be raised anytime before/at trial
• (6) Failure to State a Claim
• (7) Failure to Join an Indispensible Party

• GEN: Admit, deny or not sufficient information (denial). Present affirmative defenses.
• >> Failure to deny: can constitute an admission on any matter except damages.
• >> Affirmative defenses: ie. SOL, SoF, res judicata, SD.
• TIMING: 21 days after service of process. But if D makes a rule 12 motion and it's denied, answer must be served w/in 14 days after ruling.

• GEN: Claim against an opposing party.
• JDX: FQ? SMJ? If no, try SJ.
• TWO TYPES:
• Compulsory: arises from the same T/O as P's claim. Must be filed in the pending case -- or it's waived.
• Permissive: do not arise from same T/O as P's claim. Can raise them here or assert them separately.

• GEN: Claim against a coparty. Must arise from same T/O.
• NOTE: No compulsory CC.

NOTE: If D1 wants to bring a claim against D2 arising out of the same T/O, ok.

• Right to Amend:
• >> P -- once within 21 days of the pleading's service, or withing 21 days after service of a responsive pleading or motion.
• >> D -- once within 21 days after defendant serves his answer.
• Permissive Amendments (seek leave of court): Such admendments to be allowed by the court unless they cause delay, are futile, ect.

• Relation back: amendments that concern the same T/O relate back to the time an original pleading document was filed.
• >> So if claim filed, SOL runs, then claim amended, claim is ok. Amendments not barred.

• Required disclosures by Parties:
• >> Mandatory Disclosures: w/in 14 days of the Rule 26(f) conference. Must ID persons, electronically stored info, and docs likely to have discoverable info that discovering party may use to support claims/defenses, computation of damages, insurance, ect.
• >> Expert Witness Info: names, qualifications, data used, reports, compensation.
• >> Pretrial notice of evidence: docs, witnesses, ect.

• Retrieving information from parties + non-party:
• >> Depositions: Can depose parties and non-parties, but latter must be subpoenaed in order to be required to attend.
• >>>> 10 depos allowed w/o court order, and can depose same person twice. Cannot exceed one seven-hr day per session.
• >>>> Use at Trial: (1) imeach, (2) any purpose if deponent is the adverse party, or (3) any purpose if deponent unavailable (unless absence result of party presenting evidence).
• >> Requests to Produce: available for parties and non-parties, but subpoenas are required to compel the latter. Must respond w/in 30 days.

• Retreiving Information from Parties:
• >> Interrogatories: questions in writing to another party. To be answered in 30 days. Limit of 25 (including subparts) w/o court order. Can give asker access to records.
• >> Physical/Mental Exams: Party make seek the examination of a party or person under the legal control of a party if (1) good cause and (2) condition of party is in controversy.
• >> Request for Admission: request of one party to admit the truth of a discoverable matter.

NOTE: Duty to supplement answer if incomplete or incorrect.

• GEN: Anything Relevant to a Claim/Defense.
• >> Relevant: Reasonably calculated to discovery of evidence. Broader than admissibility.
• Privileged: not discoverable.
• >> Work Product: material preparation in anticipation of litigation. Generally protected from discovery. Can be created by a party or any representative of a party.
• >>>> Exception: overcome if (1) substantial need and (2) not otherwise available.
• >>>> BUT: some matters untouchable. IE. mental impressions, legal conclusions.
• >>>> NOTE: Consulting Experts -- Difficult to get product from a consulting, non-testifying witness.

• Protective Orders: A receiving party may request a PO if the request is overburdensome, or if it involves electron info not reasonably accessible, or trade secrets.
• Partial Violations: Answering party responds to some requests, objects (improperly) to others.
• >> Two steps to sanctions: retrieve order from the court compelling discovery. If no compliance, move for sanctions.
• >> Failure to provide electronically stored info: usually only sanctions in exceptional cases.
• Total Violations: Recieving party fails to attend, respond.
• >> One step to sanctions: move for sanctions.

Sanctions include: general sanctions (paid to court) + costs + att'y fees + contempt order.

• Party Joinder: claims (1) arising from the same T/O, and (2) raise at least one common question.
• >> BUT ASK: Jurisdiction? Diversity or federal question?

• Necessary and Indispensible Parties: some absentees (indispensible) must be forced to join the case.
• >> Necessary:
• (1) without individual, court cannot accord complete relief;
• (2) absentee's interest may be harmed if he isn't joined (most common on MBE); OR
• (3) absentee claims an interest which subjects a party (usually D) to a risk of multiple obligations.
• >> Indispensible: If necessary party cannot be joined (ie. destroys diversity): three-factor test to determine if that party is indispensible --
• (1) Alternative forum available?
• (2) Actual likelihood of prejudice?
• (3) Can court shape relief to avoid prejudice?

• GEN: Bring someone new -- third party defendant (TPD) into the case for indemnity or contribution (joint tort feasors).
• >> Each claim have jdx over TPD -- diversity, FQ, SJ.
• >> Right to Implead within 14 days of serving answer. After that, need court approval.
• NOTE: After TPD is joined, P and TPD can bring claims against each other if the claim(s) arise out of the same T/O.

• GEN: Absentee wants to join as P or D. Application must be "timely."
• >> Intervention of Right: A's interest may be harmed if she is not joined and her interest is not adequately represented.
• >> Permissive Intervention: A's claim/defense and then pending case have at least one common question. Court discretion -- ok unless delay/prejudice.
• NOTE: If intervenor is going to destroy diversity, courts generally say there's no SJ over a claim by/against intervenor.

• I. INITIAL REQS:
• (1) Commonality (Common q law/fact)
• (2) Adequate Class Rep (fair/adeq)
• (3) Numerosity (too many for practical joinder)
• (4) Typicality (Class similar)
• (5) AND -- IN TOTAL -- Superiority: Class action is the superior method of handling these cases.

• II. TYPES:
• (1) Prejudice (RARE!): class treatment necessary to avoid harm either to class members or to the party opposing the class. IE. many claimants to one fund.
• (2) Equitable Relief -- Employment Discrim: Injunction or declaratory judgment sought b/c class treated alike by the other party.
• (3) Damages -- Mass Tort: (a) common questions predominate over individual questions, AND (b) class action is superior method.

• III. CERTIFICATION:
• Judge certifies the class, defining its claims, issues, defenses.
• Must also appoint counsel (fair/adequate).

• IV. NOTIFICATION
• In "Damages" cases (above), court must notify the class members, including individual notice to all reasonably identifiable members.
• Notice Provisions: opt-out, binding nature, ability to enter separate appearances.
• Payment: must be paid for by the representative.

• V. BINDING
• Binding: All class members bound except those who opt out per notice. BUT: no opt-out for prejudice and equitable relief cases.

• VI. SETTLEMENT
• Of parties dismiss an action (ie. settle): court must approve it.

• VII. JURISDICTION
• FQ or Diversity.
• If Diversity: focus on citizenship of the representative (diverse from all defendants?). Rep's claim must exceed $75K.

• FRCP 12(b)(6): Even if all of P's allegations are assumed to be true, P would not prevail.
• >> Doesn't look into evidence.
• Motion for a Summary Judgment on the Pleadings: Same as the FRCP claim above but after defendant answers.

• GEN: (1) no gen issue of material fact; and (2) moving party entitled to judgment as a matter of law.
• >> Evidence: May be supported by pleadings, affidavits, discovery materials.
• >>>> Court generally views evidence in the light most favorable to the non-moving party.
• >>>> Affidavits, pleadings, ect. not evidence. If party wants to properly rebut SJ request and show that there is an issue of material fact, must present evidence, like deposition testimony. Key is first-hand knowledge.
• >> Can be made any time, but the judge may delay ruling on the motion.

• Conference: at least 21 days before schedulign conference -- claims, defenses settlements discussed.
• Scheduling order issued cutting off discovery, joinder, amendment, motion...

• 7A: in fed court, defenadnt entitled to a jury in a civil action, but not a suit in equity.
• >> If BOTH law and equity: jury decides underlying facts re: damages claim.
• Request: Must be made in writing no later than 14 days after service of the last pleading raising jury triable issue.
• Strikes: each side gets 3 peremptory strikes and an unlimited number for cause.

• GEN: After the opposing side has been heard --
• >> D can move twice: at closing of P's evidence and at classe of all evidence.
• >> P can move once: closing of all evidence.
• STANDARD: Reasonable people could not disagree on the result.

• GEN: Same as motion for judgment as a matter of law, but is raised after trial.
• IE. JMOL raised, not granted, case goes to jury, returns verdict against a moving party, court enters judgment. Losing party can then file a renewed motion.
• TIMING: Can move w/in 28 days after judgment entered.
• STANDARD: Jury reached a conclusion reasonable ppl could not reach.
• KEY: JMOL must have been raised at an appropriate time during trial.

• GEN: Something happened that makes the judge think parties should start over. Must be made w/in 28 days after judgment. Examples:
• (1) Prejudicial error led to unfair result (wrong jury instruction, evidentiary ruling).
• (2) New evidence that ould not have been obtained with due diligence for the original trial
• (3) Prejudicial misconduct of party or attornet or third party or jury.
• (4) Judgment is against weight of evidence.
• NOTE: Less radical than RJMOL.

Final Judgment Rule: ultimate decision by trial court on meritsw of entire case. Notice of intent to appeal must be filed in the trial court w/in 30 days after entry of judgment.

• Interlocutory Review: generally only orders re injunctions, receivers, possessory property.
• >> Collateral Order Exception: issue distinct from merits, involves important legal questions, and is essentially unreviewable if parties must await a final judgment (ie. immunity claim).
• >> Other exceptions: extraordinary writ, class action certification.

• Res Judicata Reqs:
• (1) Cases one and two brought by the same claimant against the same defenant.
• (2) Case One: ended in a valid judgment on the merits (assumed unless court says otherwise).
• (3) Cases one and two address the same claim (right to relief arising from a T/O).
• >> NOTE: Separate claims for property damage and personal injuries because they are different "primary rights."

• GEN (narrower): precludes relitigation of a particular issue litigated and determined prior.
• REQS:
• (1) Case 1 ended in a valid judgment on the merits.
• (2) Same issue was actually litigated and determined in Case 1.
• (3) Issue was essential to judgment in Case 1.
• NOTE: IP can only be asserted against the one who was a party to Case 1.

Non-mutual collateral estoppel: allows a non-party to previous action to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action. Where non-mutual issue preclusion is permitted, it will always be applied AGAINST a person that was PARTY to the earlier litigation or a person in PRIVITY with that person.

• Offensive Non-Mutual Estoppel: A new P seeks to use a finding from a prior action (same D) to impose liability on a D who was in a prior action. Court has DISCRETION on this matter:
• >> Did D have a full and fair opportunity AND incentive to litigate in the first case? Could D foresee future suits?
• >> Could P have easily joined (intervened) in the first suit? If OPP to INTERVENE, MUST intervene or LOSE IT. Fear of the sit and wait effect.
• >> Will it create inconsistent judgments on D?
• NOTE – look for signs of unfairness to D.

• Defensive Non-Mutual Estoppel: D seeks to prevent P from asserting a claim that the P has previously litigated against another D.
• >> This is ALMOST ALWAYS fully permitted – P originally gets to choose the forum and the D against whom to litigate. Allowing D to do this here DECREASES litigation and gives incentive for P to join all potential Ds in first action if possible.