MBE: JDX & Civ Pro

  1. Jurisdiction (General)
    • PJ: Satisfy a statute (not tested) and the constitution (DPC).
    • IPJ: Impose personal obligation on D.
  2. Personal Jurisdiction -- Constitutional Reqs
    • 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.
  3. Subject Matter Jurisdiction (Diversity)
    • 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.
  4. Subject Matter Jurisdiction (FQJ)
    • 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.
  5. 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.
  6. Removal
    • 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.
  7. Erie Doctrine (Diversity Cases Only)
    • 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?
  8. Venue
    • 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.
  9. Pleadings -- Service of Process
    • 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.
  10. Pleadings -- General
    • 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.
  11. Pleadings -- Complaint
    • 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.
  12. Pleadings -- D Response
    • 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
  13. Pleadings -- Answer
    • 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.
  14. Pleadings -- Counterclaim
    • 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.
  15. Pleadings -- Crossclaims
    • 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.
  16. Pleadings -- Amendments
    • 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.
  17. Discovery -- Tools (Parties & Non-Parties)
    • 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.
  18. Discovery -- Scope & Privilege
    • 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.
  19. Discovery -- Enforcement
    • 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.
  20. Party Joinder (Necessary + Indispensible Parties)
    • 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?
  21. Party Joinder (Impleader)
    • 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.
  22. Intervention
    • 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.
  23. Class Action
    • (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.

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

    • 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.

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

    • FQ or Diversity.
    • If Diversity: focus on citizenship of the representative (diverse from all defendants?). Rep's claim must exceed $75K.
  24. Pretrial Adjudication: Failure to State a Claim
    • 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.
  25. Pretrial Adjudication: Summary Judgment
    • 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.
  26. Rule 26(f) Conference
    • Conference: at least 21 days before schedulign conference -- claims, defenses settlements discussed.
    • Scheduling order issued cutting off discovery, joinder, amendment, motion...
  27. Trial -- Juries
    • 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.
  28. Motion for Judgment as a Matter of Law (AKA: Directed Verdict)
    • 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.
  29. Renewed Motion for Judgment as a Matter of Law (AKA Judgment NWSV)
    • 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.
  30. Motion for a New 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.
  31. Appeals
    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.
  32. Preclusion: Claims
    • 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."
  33. Preclusion: Issues
    • 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.
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MBE: JDX & Civ Pro