Civ Pro Final Exam

- Ability of a court to exercise power over particular defendant or item of property
- Statutory Basis = Rule 4(k)(1) and State long-arm statute
- Constitutional Basis = Consent, General Jurisdiction, Specific Jurisdiction

- Concerns the court's power to hear a particular claim and protects the respective power of the federal and state court systems (cannot be waived) -- Rule 12(h)(3)
- Federal courts are courts of limited jurisdiction
- Two basis of SMJ: Diversity of Citizenship and Federal Question
- If the requirements of diversity OR federal question are NOT met, then case cannot be heard in federal court

- Constitutional Basis = Article III
- Statutory Basis = 1332(a)
- Must be complete diversity between parties
- Each plaintiff must be completely diverse from each defendant (Complete Diversity Rule -- Strawbridge)
- Amount in controversy must exceed $75,000

- Constitutional Basis = Article III
- Statutory Basis = 1331
- Courts shall have jurisdiction of all actions arising under federal law
- Complaint must contain reference to the federal question and the federal issue evoked; Cannot anticipate federal defense or state a federal claim solely for the purpose of creating fed juris (Well-Pleaded Complaint Rule -- Mottley)

- Statutory Basis = 1442
- Allows defendants to remove an action brought in a state court to a federal court IF the federal court would have had original jurisdiction over the action

- Statutory Basis = 1367
- Allows a federal court to entertain certain claims over which it would have no independent basis of SMJ
- Claims do not satisfy diversity or federal question jurisdiction requirements
- Operates to bring additional claims into that case that arises from a common nucleus of operative facts (Gibbs)

- Statutory Basis = 1391
- Designation of the proper district in which to bring an action
- Depends on where the cause of action arose and on the nature of the parties (corporate or natural persons)

- Process by which litigants gather information from each other before trial
- Allows parties to know what evidence may be presented during trial
- Issue typically arise in court or during pretrial proceedings
- Issues include scope of examination allowed in discovery, uses of depositions at trial, and the available methods of enforcing discovery rights

- Courts do not have inherent power to exercise jurisdiction over people; Need enabling statute
- Federal courts use Rule 4(k)(1)
- State courts use long-arm statutes
- Two-Types of long-arm statutes (Jurisdiction consistent with Due Process and Enumerated statute)

- Parties added under Rule 14 or Rule 19 may be served if within 100 miles of federal courthouse

- A defendant may consent to personal jurisdiction when a dispute arises by NOT objecting -- Rule 12(h)(1)
- A defendant may consent in advance of any dispute by contract provisions -- Forum selection clause involves waiver of constitutional provisions (Carnival)
- Forum Selection clause involves waiver of constitutional right (is contract enforceable? fundamental fairness -- bad faith; fraud or overreaching; notice and opportunity to reject)

- A defendant's contacts with forum must be so continuous and systematic as to render it "at home" in forum (Daimler)
- Individual's domicile
- Corporation's state of incorporation and principal place of business
- Corporation operating in many places cannot be deemed at home in all of them (BNSF Railway)

- Held that general jurisdiction is proper only in states in which a defendant corporation is "at home"
- "At home" = incorporated and principal place of business

- If defendant is personally served with process while voluntarily present within forum state, then defendant is subject to personal jurisdiction in that forum (Burnham)

- Due process requires that defendant, "if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'
- Assess minimum contact, reasonableness and fairness factors

- Jurisdiction over a defendant when the defendant has sufficient minimum contacts with the forum state, and the claim arises out of those contacts, such that haling the defendant into court does not offend traditional notions of fair play and substantial justice

- Volume of contacts
- Nature of contacts
- Relationship between contact and claim
- Whether defendant could foresee suit in forum state
- Purposeful availment

- Defendant must have caused the contact by reaching out to the state in some way
- Ex: defendant derives benefits from contacts with state, whether defendant purposefully directs acts toward state
- Hanson, McGee, Worldwide, Burger King, J. McIntyre, Abdouch, Bristol-Myers, and Ford

- Burden on defendant
- State interest in regulating defendant's conduct
- State interest in opening courts to its residents
- Plaintiff interest in obtaining relief in forum
- Location of witnesses and evidence
- Interstate judicial system's interest in efficient resolution of dispute
- Shared interest of several states in furthering substantive social policies

- Bristol-Myers (Drug caused personal injury; Suit brought in CA w/ CA plaintiffs and non-CA plaintiffs)
- Plaintiff's claim MUST arise from or relate to the defendant's contact with the forum
- Defendant's contact with the forum must include the very product that the hurt the plaintiff

- A state has specific jurisdiction if defendant has such minimum contacts with the forum that the maintenance of the suit does not offend traditional notions of fair play and substantial justice

- Plaintiff's claim must arise out of or relate to defendant's contacts with forum (so casual link not needed)
- Connection between claims and Ford's activities in forum close enough for specific PJ
- Ford advertises, sells, and services cars in forum that are same model as at issue = strong connection exists among defendant, forum, and claim
- Defendant purposely avails itself of forum through those acts, enjoys benefits/protections of forum's laws, foresees lawsuits arising from models they sell in forum, and forum has strong interests

- Purposeful availment (TX insurance company sued for breach of contract in CA)
- Insurance company solicited business from CA and CA had an interest in providing a courtroom for its citizens

- First mention of purposeful availment (PA woman, later moved to FL and formed a trust fund with a Delaware bank; After she died the children sued in FL but FL did not have jurisdiction over the Delaware bank)
- Contact between defendant and forum state MUST result from the defendant's purposeful availment
- Contact must result from something the defendant DID; Cannot result from someone else

- Did the retailer seek to serve the forum market
- No purposeful availment in the forum (defendant did not reach out to forum, defendant did not solicit business from forum, defendant did not send anything to forum)
- Family bought a car in NY and drove to AZ, but were in an accident in OK; Ps sued in OK but there OK had no jurisdiction

- Property is a contact
- Claims related to that contact, will likely lead to finding of personal jurisdiction
- Examples: Claims related to property itself, Claims related to rights and duties growing out of ownership

- Upheld International Shoe that there must be a relevant contact and jurisdiction must be fair/reasonable
- Defendants reached out to plaintiff to enter into the contract governed by FL law; defendants purposefully availed themselves

- Inquiry focuses on the interactivity of the website, and whether the conduct underlying the claims was purposely directed at the forum
- Requires purposeful direction ensures that an out-of-state defendant is not subject to personal jurisdiction for "merely random, fortuitous, or attenuated contacts" with the forum (Abdouch)

- Inquiry focuses on the relationship among the defendant, the forum, and the litigation
- Whether the plaintiff feel the harm in the forum state AND whether the defendant knew that the plaintiff would suffer the harm in the forum state and whether defendant targeted its conduct at the forum state

- Rule 8(a)
- Complaint must contain three elements
- Statement of SMJ, short and plain statement of the claim, demand for relief

- Plaintiff must plead facts supporting a plausible claim
- Court applies: The court ignores conclusions of law, and focuses ONLY on the alleged facts; facts must support a plausible claim, not just a possible claim; to determine plausibility the judge uses their own experience and common sense

- Bad drafting
- Lack of stated facts
- Did not invoke a law
- No remedy on stated facts
- Only stated a conclusion (Iqbal)

- 1391 (defendant resides; substantial part of events; no district then any)
- A civil action may be brought in a judicial district in which any defendant resides, if all defendants are residents of state in which district is located
- Action can be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is subject of the action is situated
- No district in which any action may be brought, then any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action

- Natural person, including resident alien, shall be deemed to reside in the judicial district in which that person is domiciled
- Corporation or business entity shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question
- Non-resident defendant may be sued in any judicial district

- Corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction
- If there is no district, the corporation shall be deemed to reside in the district within it has the most significant contacts

- Federal courts = Rule 4
- State courts = Long-arm statutes

- Mullane -- Due Process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them opportunity to present their objections"

- Rule 4(c): Plaintiff must serve summons and complaint in a time allowed by Rule 4(m); Any person 18 years or older and not a party may serve, or plaintiff can request service by US Marshal
- Rule 4(d): Plaintiff may request that the defendant waive service (avoid unnecessary expenses of service); If defendant fails to return a waiver, court must impose on defendant; Defendant who timely returns a waiver need not serve an answer until 60 days after request was sent

- 3 types of service: personal, mail, publication
- Form must be reasonably certain to inform those affected
- Conditions do not reasonably permit such notice, form chosen must not be substantially less likely to bring home notice than other feasible and customary substitutes
- Publication = reinforced by other steps to attract attention to proceeding OR cases where not reasonably possible or practical to give more adequate warning (i.e., missing or unknown persons)

- Individuals within the US: federal law, waiver, comply with state law, personal service (by nonparty over 18), leave at abode with suitable age/discretion resident, agent appointed to accept process
- Corporation, Partnership, or Association within the US: federal law, waiver, comply with state law, serve officer or agent

- 1404(a)
- For the convenience of parties and witnesses, in the interest of justice, a district court MAY transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented
- Either party may seek transfer
- Transfer to district where it could've been filed
- Transferor court's law governs (change court NOT law)
- Enforce forum selection clause by seeking a transfer and court should ordinarily transfer (Atlantic Marine)
- FED COURT TO FED COURT

- 1406: Filed case laying venue in the wrong district shall dismiss or if it be in the interest of justice, transfer such case to any district in which it could have been brought
- Cannot dismiss if court is a proper venue (Atlantic Marine)
- 1631: Court finds that there is a want of personal jurisdiction, the court shall, if it is in the interest of justice, transfer such action to any other such court in which the action could have been brought at the time it was filed and the action shall proceed as if it had been filed in the court to which it is transferred

- Piper: Start with presumption in favor of plaintiff's choice of forum, but lesser presumption if has not chosen its home forum -- then consider public and private interest factors
- Private interests: access to proof, ability and cost to get witnesses, ability to view premises, other practical problems
- Public interests: court congestion, local interest, trial in place of governing law, unnecessary conflicts of law, application of foreign law, burden on jurors

- Subject matter jurisdiction concerns the court's power to hear a particular claim and protects the respective power of the federal and state court systems, so it cannot be waived by parties
- If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action

- Appear, challenge SMJ and lose = cannot collaterally attack
- Appear, but no SMJ challenge = cannot collaterally attack
- Do NOT appear and suffer default judgment = unclear

- Federal courts are courts of limited jurisdiction and Article III of the Constitution limits federal court authority to the certain types of cases
- Basis of subject matter jurisdiction must exist for each claim filed in federal court
- However, state courts can hear ANY kind of case

- Federal Question Jurisdiction
- Diversity Jurisdiction
- If the requirements of diversity of citizenship OR federal question are NOT then federal court cannot hear the case even if the parties want to be in federal court
- Even if the requirements are met, the plaintiff does NOT have to go to federal court but can go to state court instead

- Constitutional Basis = Article III
- Statutory Basis = 1331

- The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority

- The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

- Must only look at the claim being made
- An action arises under federal law when plaintiff's statement of its own cause of action show sit is based on federal law or the Constitution (SCt's interpretation of Mottley)
- Plaintiff's initial complaint must contain the references to the federal question and the federal issue evoked
- Plaintiff cannot anticipate federal defense or counterclaim
- Plaintiff cannot state a federal claim that is immaterial and made solely for the purpose of creating federal jurisdiction

- Constitutional Basis. = Article III
- Statutory Basis = 1332(a)

- The judicial power shall extend to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between state, or the citizens thereof, and foreign states, citizens or subject

- The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 and is between: citizens of different states; Citizens of a state and citizens or subjects of a foreign state expect that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;
Citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
A foreign state... as plaintiff and citizens of a State or of different States"

- There is no diversity if any plaintiff is a citizen of the same state as any defendant
- Cannot have the same citizenship on both sides of the v.

- A U.S. citizen is a citizen of a state where he or she is domicile
- Domicile = only have one domicile, cannot have more than one domicile at a time, to affirmatively change your domicile must have physical presence in a new state and form the intent to make that you permanent home

- Under 1332(c) a corporation shall be deemed to be a citizens of every state and foreign state by which it has been incorporated and of the state or foreign state where it has its principal place of business
- Can be a citizen of more than one state (state of incorporation and state where it has its principal place of business -- only one state for PPB)
- Hertz defined 'principal place of business' as the corporation's nerve center -- where the corporation's officers direct, control, and coordinate the corporation's activities

- For a non-incorporated business use the citizenship of ALL of its members
- Deemed citizen of states in which its owners are citizens
- Any place where entity's business officials and partners live

- Treated as foreign citizens except when lawfully admitted for permanent residence in the US and are domiciled in the same state

- Located in 1332(a)
- Amount must exceed $75,000; cannot be exactly $75,000
- Whatever the plaintiff claims governs unless it is clear to a legal certainty that she cannot recover more than $75,000
- Plaintiff must establish a good faith allegation of AIC; Defendant would have to show to a legal certainty that claims do not meet AIC

- Where the plaintiff must add multiple claims to meet AIC
- If the plaintiff must add multiple claims to meet AIC then there is an aggregation issue
- Rules:
1 plaintiff with multiple claims against 1 defendant = may aggregate;
2 plaintiffs with separate and distinct claims against 1 defendant = may NOT aggregate;
1 plaintiff with separate and distinct claims against 2 defendants = may NOT aggregate;
multiple plaintiffs with common undivided interest and single title or right = use total value;
Injunctions = value to plaintiff or cost to defendant

- Constitutional Basis = Article III
- Statutory Basis = 1367
- Supplemental jurisdiction does NOT get a case into federal court
- Case is already in federal court and has already invoked federal question or diversity but there may be additional claims

- 1367(a): Supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III
- Supplemental jurisdiction is granted if the claims arise from a common nucleus of operative facts (Gibbs)
- 1367(b): No supplemental jurisdiction over claims by PLAINTIFFS against person made parties under Rule 14, 19, 20, or 24; or by persons joining as plaintiffs under rule 19 or 24

- Courts can decline to exercise supplemental jurisdiction over a claim if: the claim raises a novel or complex issue of state law; the claim substantially predominates over the claim or claims over which district court has original jurisdiction; district court has dismissed all claims over which it has original jurisdiction; or in exceptional circumstances, there are other compelling reasons for declining jurisdiction

- 1367(a): All other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy
- Common nucleus of operative fact (Gibbs)
- Includes claims joining additional parties

- 1367(a): All other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy
- EXCEPT claims under 1367(b): plaintiffs against persons made parties under Rule 14, 19, 20, or 24; persons joining as plaintiffs under Rule 19 or 24; exercising supplemental jurisdiction would be inconsistent with diversity jurisdiction (1332)

- 1441(a): Defendants may remove "any civil action brought in a state court of which the district courts of the United States have original jurisdiction" -- can remove is the case could have been brought in federal and meets the requirements for federal question or diversity
- 1441(b): Cannot remove when ONLY basis of federal subject matter jurisdiction is diversity and there is a home-state defendant

- 1446(b)(1), 1446(b)(2)(B): notice of removal must be filed within 30 days after defendant served with initial pleading
- 1446(b)(3): if initial pleading is not removable, may file notice of removal within 30 days after defendant receives amended pleading, motion, order, or other paper making case removable
- 1446(c):Unless court finds plaintiff has acted in bad faith to prevent removal -- bad faith includes if plaintiff deliberately failed to disclose the actual AIC to prevent removal

- 1447(c): Motion to remand for any defect other than lack of subject matter jurisdiction must be made with 30 days after notice of removal filed (I.e., any defects under the removal statutes)
- 1447(c): Federal courts must remand at any time that it appears subject matter is lacking
- 1447(c): Order remanding case to state court
- May include order to pay costs and actual expenses, including attorney fees, incurred with removal
- Is not reviewable on appeal or otherwise

- Do nothing = suffer a default
- Pre-Motion Answer = Rule 12(b, e, f)
- Answer: Admit; Deny (be specific per Rule 8); Deny b/c lack knowledge (Rule 8); No response, then deemed admitted (Rule 8); Defenses (includes 12(b) defenses not waived); Affirmative defenses (Rule 8); Counterclaims or cross-claims

- Within 21 days of being served with process, a party must respond either by MOTION or ANSWER
- Do nothing = suffer a default
- Motions are not pleadings
- Motion for a court order
- Three subsections of Rule 12 = 12(e), 12(f), 12(b)

- Motion for a more definite statement
- Rare and is proper only when the complaint is so vague or ambiguous that defendant cannot respond

- Permits any party to bring a motion to strike, which asks the court to order that parts of a document (or the entire document) to be stricken

- Lists the seven defenses and allows defendant to raise any of the defenses either in a motion to dismiss or in the answer
- (1) lack of SMJ; (2) lack of PJ; (3) improper venue; (4) insufficient venue; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join a party under Rule 19

- Must be put in FIRST Rule 12 response (either motion or answer)
- If not put in first response, then waived
- Lack of PJ; Improper venue; Insufficient process; Insufficient service of process

- Can be raised for the first time ANYTIME through trial
- Do not have to be in party's first response BUT cannot be raised on appeal
- Failure to state a claim upon which relief can be granted; Failure to join a party under Rule 19

- Can be raised at ANYTIME
- Never waived
- Lack of SMJ

- Instead of a making a motion under Rule 12, a defendant may simply answer

- An answer is also a pleading

- In an answer the defendant responses and raises affirmative defenses

- Rule 8(b): Defendant responds to the complaint by either admitting, denying, or lacks sufficient information to admit or deny

- Note -- a failure to deny constitutes an admission on any allegation expect damages

- Rule 8(c)(1): Must plead (put in answer) affirmative defenses or else they are waived

- Even if complaint's allegations are true, defendant wins when an affirmative defense prevents recovery

- Defendant bears the burdens of pleading, production, and persuasion for affirmative defenses

- Rule 8(c): Waive affirmative defenses if fail to plead it

- To determine when defendant must set forth matter as an affirmative defense look to Rule 8(c) for federal courts

- Signature required for pleadings, written motions, and other papers

- By signing, filing, or later advocating, certify to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: It is not being presented for any improper purpose; The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law; The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information

- Enforcement procedure and sanctions

- Court may impose sanctions (always discretionary)

- Must be a separate Rule 11 motion and served on opponent 21 days before filing with court

- Court can initiate Rule 11 sanctions

- Sanction "must be limited to what suffices to deter repetition of the conduct"

- Monetary sanction cannot be imposed against a represented party for violating Rule 11(b)(2)

- Order must describe the sanctioned conduct and explain the basis for the sanction

- Rule 11 NOT applicable to discovery

- Does not apply to disclosures and discovery requests, responses, objections, and motions under Rule 26 through 37

- Amendments allowed to be made without permission of opponent or court

- Rule 15(a)(1): A party may amend its pleading ONCE as a matter of course within 21 days after serving it or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier

- Very common and occur a lot during discovery

- Don't need permission BUT must be made within the alotted time frame

- Rule 15(a)(2): A party may amend its pleading only with the opposing party's written consent or the court's leave -- should freely give leave when justice so requires

- Reasons court may deny leave include prejudice, bad faith, undue delay (Aquaslide)

- Burden is on party opposing motion to show prejudice, bad faith, undue delay

- Bad faith: Reliance upon investigations from three different insurance companies and the fact that "no contention has been made by anyone that the defendant influenced this possibly erroneous conclusion," persuaded the court that defendant did NOT act in bad faith

- Prejudice: Amendment would merely allow the defendant to contest a disputed factual issue at trial

- Undue Delay: Investigating the circumstances of the accident had NOT been so lacking in diligence as to dictate a denial of the right to litigate the factual issue of the manufacture of the slide

- When statute of limitations has run -- use relation back

- TWO ways this can come up: Amend to ADD a claim or Amend to CHANGE the defendant

- Must satisfy Rule 15(a)(2); AND and amendment to a pleading relates back to the date of the original pleading when:

- The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading

- ONLY way this will work:
Party sued the WRONG defendant first, BUT the RIGHT defendant knew about

- Enable parties to obtain facts and present case

- Narrow the issues in controversy

- Preserve relevant information that might be not available at trial

- Promote settlement by allowing parties to assess value of case and likelihood of success

- Make available information on which case can be disposed of or in whole in part before trial (SJ)

- Parties' planning meeting

- Required disclosures (initial and experts)

- Interrogatories

- Document requests (includes electronic data)

- Depositions

- Examinations

- Requests for admission

- Ensuring compliance (enforcement)

- Relevance -- Rule 26(b)(1)

- Proportionality -- Rule 26(b)(1)

- Limitations of Rule 26 --Rule 26(b)(2)(B & C)

- Privileges -- Rule 26(b)(1) and Rule 26(b)(5)(A)

- Work Product -- Rule 26(b)(3) and Hickman

- Protective Orders -- Rule 26(c)(1)

- Experts: Non-testifying experts = Rule 26(b)(4)(D) and Experts' draft reports = Rule 26(b)(4)(B)

- Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defendant and proportional to the needs of the case

- Discovery is tied to the factual and legal allegations stated in the pleadings, and the substantive legal framework of those claims and defenses

- Example where party demonstrated that requested information was relevant to a claim or defense (Favale)

- Rule 26(b)(2)(C): "On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
-- The discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive
-- The party seeking discovery has had ample opportunity to obtain the information by discovery in the action
-- The proposed discovery is outside the scope permitted by Rule 26(b)(1)

- Rule 26(b)(2)(B):
Party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible b/c of undue burden or cost

- For good cause the court can issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expenses

- Must certify conferred with affected parties first

- Party seeking order has burden of proof

- Rule 26(c)(1)(A-H) lists potential protective orders

- NOT discoverable, even if relevant

- Privilege protects disclosure only from that source; can seek information fro, non-privileged sources

- Attorney-Client privilege (confidential communications between attorney and client)

- Rule 26(b)(1): Parties may obtain discovery regarding any non-privileged matter that is relevant

- Rule 26(b)(5)(A): Must claim privilege expressly and describe nature of communication not disclosed

- Where legal advice of any kind is sought

- From a legal advisor in capacity as such

- The communication relates to that purpose

- Made in confidence without the presence of strangers and kept in confidence

- By a person who is or sought to become a client

- Not for purpose of committing a crime or tort

- Privilege has been claimed and not waived by client

- Also known as trial preparation materials

- Prepared in anticipation of litigation

- Protected from discovery

- Party must object

- Rule 26(b)(3)(B): Work-Product that is absolutely protected = mental impression, conclusions, opinions, and legal theories

- Party can override work-product by proving: Substantial need or information is not otherwise easily available

- Extent to which a party may inquire into oral and written statements of witnesses, or other information, secured by an adverse party's counsel in the course of preparation for possible litigation after a claim as arisen

- Must disclose any witness who may provide expert opinion testimony at trial

- If retained to give expert testimony, must provide written report: Statement of all opinions and basis/reasons for opinions; Facts or data considered; Exhibits that will be used; Qualifications (including publications list for prior 10 years); List of cases in which testified at trial or depo in prior 4 years; Compensation paid for study and testimony

- If no report required, disclosure must state: Subject matter on which witness is expected to testify; and
Summary of facts and opinions of expected testimony

- May dispose any identified testifying expert

- Rule 26(b)(3) trial preparation protection for any draft report or disclosure under Rule 26(a)(2)

- Trial preparation protection for communications between attorney and expert, unless relate to compensation or identify facts/data/assumptions given to and considered by/relied on by expert in forming opinion

- Cannot discover facts known or opinions held by non-testifying expert who has been retained in anticipation of litigation or to prepare for trial except: As provided in Rule 35(b); or
"On showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means."

- Spoliation is the destruction or material alteration of evidence or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation

- Duty to preserve evidence

- Duty NOT to destroy or materially alter evidence

- Limits: Only applies to potential litigants when litigation is reasonable foreseeable

- No general civil duty against spoliation

- Authority to sanction litigants for spoliation

- Duty to inform all relevant players -- Only people who need to preserve are both parties and attorneys (Zubulake)

- Defendant is served or appears in lawsuit

- Rule 26(f): At least 21 days before scheduling conference or a scheduling order is due, parties must hold Rule 26(f) planning conference

- Rule 26(a)(1)(C): At planning conference or 14 days after it, parties make initial disclosures
- Court must issue a Rule 16(b) scheduling order

- Rule 26(d)(1): Only after planning conference, parties may typically serve discovery requests

- Early in case; Have to turn over at least 14 days before Rule 26(f) conference

- Do not have to ask for permission

- Rule 26(a)(2) requires a party to disclose: Name (plus address and phone numbers if known) of each individual the party may use to supports its claims or defenses (i.e., witnesses) - "unless the use would be solely for impeachment";
Copy or description of all documents, electronically stored information, and tangible things the party may use to support its claims or defenses - "unless the use would be solely for impeachment";
Calculation of damages claimed'
Copies of insurance policies

- Under Rule 26(e) -- Duty to supplement or correct

- Rule 34

- Broadly defined: documents, tangible items, electronically stored information

- Only serve on party

- Non-party may be compelled to produce documents as provided in Rule 45

- Rule 33

- Only to parties -- under oath and signed

- Written questions; Answered in writing under oath

- Unless stipulation from opponent or permission of the court, limited to 25 interrogatories including discrete subparts

- Must state objections with specificity

- Rule 36

- Admit only if you do not intend to contest the assertion at trial

- Admissions binding only in this lawsuit

- Admitted if fail to object/answer

- Rule 30

- Can dispose parties and non-parties

- Limited to 10 depositions of 7 hours, without leave of court or stipulation

- Notice may include Rule 34 request

- Rule 30(b)(6) depositions

- Objections = Concise; Non-argumentative and non-suggestive

- Instruct not to answer only when: Necessary to preserve privilege; To enforce a limitation directed by court; To present motion under Rule 30(d)(3)

- Rule 35

- Only can obtain a court order to examine a party, or someone in a party's custody or legal control (very narrow -- does not include employer/employee)

- Must obtain a court order

- Must show mental or physical condition for which exam is sought must be "in controversy"

- Requires good cause

- Signature certifies to best of knowledge, information and belief formed after a reasonable inquiry:
1) Disclosure is complete and correct when made; and
2) Discovery request, response, or objection is:
-- "consistent with these rules and warranted by existing law ...;
-- not interposed for any improper purpose ...; and
-- neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery ..., the amount in controversy, and the importance of the issues at stake in the action."
-- "Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed ...."
-- "If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation."

- Rule 37(a): Motions to compel

- Rule 37(b): Failure to comply with order

- Rule 37(c): Failure to disclose/supplement/admit

- Rule 37(d): Failure to attend deposition or respond to Rule 33 or 34 requests

- Rule 37(e): Failure to preserve electronically stored information

- Rule 37(f): Failure to join in Rule 26(f) conference

- Request clerk enter a default when opponent fails to plead or otherwise defend

- Get judgment entered on default -- by clerk (if no appearance and sum certain); otherwise by court (if opponent has appeared, gets notice of request for judgment)

- Setting aside a default or a default judgment -- "good cause" or for reasons in Rule 60(b) such as excusable neglect, newly discovered evidence, fraud

- Rule 56: Court shall grant summary judgment if the movant shows that there is no genuine issue if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law

- Stated a claim and in the litigation stream but do NOT need to go to trial (remember: only go to trial to resolve disputes of facts)

- Before trial if a party shows there is no dispute on material facts then there is no need for trial

- In ruling on a summary judgment motion: The evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in the nonmovant's favor (Tolan)

- Plaintiff moves for SJ on her claim

- SJ movant must support motion with credible evidence entitling it to JML if not controverted at trial (i.e., must produce evidence to prove every element of claim)

- Defendant moves for SJ on plaintiff's claim

- SJ movant may submit affirmative evidence negating an essential element of nonmoving party's claim

- SJ movant may show, by reviewing the record, that the evidence is insufficient to establish an essential element of nonmoving party's claim

- Rule 16(a): Pretrial conference

- Rule 16(b): Scheduling order

- Rule 16(c)(2): Matters for consideration at pretrial conference

- Rule 16(d): Pretrial orders

- Rule 16(e): Final pretrial conference and order

- Rule 16(f): Sanctions

- 7th Amendment -- only applies in federal courts

- Preserves the right to jury trial existing in 1791
(common law = right to jury trial; equity = no right to jury trial)

- Applying 7th Amendment when cases involves both legal and equitable claims/defenses
1) Legal claims are tried to the jury (Jury decides common fact issues)
2) Judge hears equitable claims (Judge bound by jury's common fact determinations)

- Must demand jury trial or waived

- 1861: Jury selection pools are to represent fair cross sections of the community

- 1862: Specific protection for race, color, religion, sex, national origin, and economic status

- 1867(c): Must challenge jury pool before voir dire or 7 days after could've discovered

- Rule 48(a): 6-12 people sit on federal juries

- Rule 48(b): Unless parties stipulate otherwise, a unanimous jury verdict is required

- Challenges for cause: unlimited number; actual bias or presumption of bias; judge must press for unequivocal answer that juror would be impartial or partial

- Standard for challenging verdict based on inaccurate voir dire answer by a juror: juror failed to answer honestly a material question on voir dire and correct response would have provided basis for a challenge for cause

- 1870: 3 per side but judge has discretion to grant additional

- Can use peremptory challenges for any reason expect as limited by (Edmunson/JEB):
1) prima facie case showing pattern of using peremptory challenges based on race/gender
2) other side then has to justify challenges based on race/gender neutral explanation

- Grant a motion for JMOL if the judge decides that reasonable people could not disagree on the result

- Always discretionary

- Jury doesn't decide the case if granted

- Rule 50(a): Party has been fully heard on issue and court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
1) resolve the issue against the party
2) grant a motion for JMOL against the party on a claim or defense that can be maintained or defeated only with a favorable finding on that issue

- May be submitted at any time BEFORE case is submitted to jury

- When defendant moves for JMOL after plaintiff's case, the court must decide whether plaintiff has met its burden of production; If not, JMOL may be granted

- When plaintiff or defendant moved for JMOL at close of all evidence:
1) If there is substantial evidence of such quality and weight that a reasonable jury might reach different conclusions, JMOL should be DENIED and the case submitted to the jury
2) If evidence is overwhelmingly favors defendant (or plaintiff) a reasonable jury could not reach contrary verdict, JMOL may be granted

- Rule 50(a)(2): Can only move for this after the other side has been heard at trial

- Plaintiff presents evidence first; Defendant make the motion after Plaintiff fully presents evidence

- If defendant doesn't make motion, then presents evidence; Both plaintiff or defendant could make motion since both parties have been heard

- Same as JMOL, expect used later on

- Case went to trial, but the jury returns a verdict for one side; Judgment is entered, and now the losing party makes a RJMOL motion

- If motion is granted the party bringing the motion wins, losing party judgment is reversed

- In short: Jury reached a conclusion that reasonable people could NOT reach

- To renew, must make motion for JMOL before case submitted to jury and then file renewed motion for JMOL within 28 days after entry of judgment

- To move for RJMOL, the party must have moved for JMOL at a proper time at trial; If party did not move for JMOL at a proper time at trial, then RJMOL is WAIVED

- Move for new trial within 28 days after judgment entry

- Court on its own initiative may order new trial within 28 days after judgment entry and must specify its reasons

- Reasons for granting new trial (common law): Flawed procedure and Flawed verdict -- against great weight of evidence

- Standard for deciding = miscarriage of justice or seriously erroneous result (Lind)

- Rule 50(c)(1):
-- If the court grants a renewed motion for JML, it must conditionally rule on any motion for a new trial - in case the JML is later reversed.

- Rule 50(c)(2):
-- If court conditionally grants a new trial, it does not affect the finality of the JML - if the JML is reversed, the new trial occurs unless the appellate court orders otherwise.
-- If court conditionally denies a new trial, the appellee (i.e., the party granted JML) may assert error in that denial - if the JML is reversed, the case proceeds as the appellate court orders.

- Rule 50(d):
-- A party against whom JML is entered (i.e., the party who won the jury verdict and opposed JML) can file a new trial motion within 28 days.

- Rule 50(e):
-- If trial court denies JML, the prevailing party may, as appellee (i.e., the party who won the jury verdict and opposed JML), assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the JML motion.
-- If appellate court reverses the judgment, it may order new trial, direct trial court to determine if new trial should be granted, or direct entry of judgment.

- A losing party

- Who raised the issue

- Who was not deterred from appealing

- Party receiving adverse judgment (judgment granting relief different from that requested)

- Unless Moot under Mootness Doctrine = Cannot appeal from judgment when circumstances have changed such that relief is no longer possible (e.g., settlement)

- Must persistently present all objections to trial court or cannot raise it on appeal (waived)

- Rule 46: Must state grounds for the request or objection

- Can attack judgment only on grounds argued and decided

- Exceptions = affirm on any ground; change in law during pendency of appeal; plain error review

- 1291: Generally can appeal only final judgments

- A final judgment ends litigation on the merits and leaves nothing for the trial court to do but execute the judgment

- Rule 54(b): Multiple claims or parties, and court directs entry of a final judgment as to one but not all

- 1292(a): Any order granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions

- 1292(b): Tct must certify:
1) such order involves a controlling question of law
2) as to which there is substantial ground for difference of opinion and
3) immediate appeal from the order may materially advance ultimate termination of the litigation

- Collateral Order Doctrine/Cohen Doctrine:
1) Conclusively determine disputed question
2) Separate from the merits
3) Effectively unreviewable on appeal from a final judgment (and important of right - see Lauro Lines)

- Writ of Mandamus: Case against district judge alleging judge refused to do duty or abused discretion; must be extraordinary error

- Prior state decision: Give same preclusive effect to decision as it would have in the courts of such state

- Prior federal decision: Give same preclusive effect to decision as it would have in the federal courts -- DEPENDS ON TYPE OF CLAIM

- Apply federal common law

- Restatement 2d Judgments

- Apply federal common law, which says judgment must be given same effect as it would have been given by the courts of the state in which the federal diversity judgment was rendered

- Semtek -- Judgment must be given same effect as it would have been given by the courts of the state in which the federal diversity judgment was rendered

- A party that has had an OPPORTUNITY to litigate a claim cannot relitigate the claim once final judgment has been rendered (i.e., can only sue on a claim once)
- Claim preclusion is an affirmative defense, should be raised in defendant's answer

- A new claim will be precluded if:
(1) Same Parties or Parties in Privity: The second case was brought by the same party against the same party (i.e. same P against same D)

(2) Same Claim:
-- Same transaction test (Restatement 2d Judgments -- Applied by federal courts and notice pleading states; Ask if same common core of operative facts in both cases)
-- Same cause of action test (Restatement First Judgment -- Ask if same evidence is necessary for both cases

(3) Final Judgment on the Merits in Original Claim
* A case is final even if it is being appealed
* Judgment is on merits except if based on either:
a) Jurisdiction
b) Venue, or
c) Indispensable Parties

- Generally separate individuals hold separate claims - no matter how closely they or their claims are related.

- Due process prohibits binding non-parties to judgment with 6 exceptions (parties in privity) - Taylor v. Sturgell
1) Express agreement to be bound by prior action
2) Substantive legal relationships: successive property owners
3) Procedural representation: trustees, guardians
4) Party assumes control over prior litigation (public law litig.)
5) Party loses individual suit then sues as class representative
6) Special statutory schemes such as bankruptcy and probate

- Issue preclusion prevents relitigation 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)

- An issue will be precluded if:
(1) There was a valid final judgment on the merits in the first case

(2) Same Issue: The same issue was actually litigated and determined in the first case

(3) Issue was Essential to the Judgment: Judgment would have been different in the first case absent litigation of this issue
--Restatement 2d Judgments: none precluded, unless affirmed on appeal
--Restatement 1st Judgments: all precluded

(4) Asserted against ACTUAL party to previous case

There are 2 views on who may assert issue preclusion:
(1) Mutuality (traditional view): Only parties to prior litigation can assert issue preclusion

(2) Non-mutuality (modern view): Issue preclusion may be asserted by those who were not parties in prior litigation

- Can ONLY use on someone who has lost in prior case

- Can come up in two ways: Non-mutual defensive and non-mutual offensive

- Parklane: Trial judge may apply non-mutual offensive issue preclusion except where
1) plaintiff easily could have joined in earlier suit
2) application of issue preclusion would be unfair to defendant
-- Examples: low stakes/incentives in first case, inconsistent judgments, different procedural opportunities in second case that likely would cause a different result

- Court will look at: could new plaintiff have easily joined in the first case?

- Plaintiff who was not a party to the first suit is seeking to preclude a defendant from re-litigating issues which the defendant previously litigated

- Plaintiff is trying to preclude the defendant

- Trial judge MAY apply non-mutual offensive preclusion expect where:
1) Plaintiff could have easily joined (Not a "wait-and-see" plaintiff)
2) Application of issue preclusion would be unfair to defendant (ex: low stakes/incentives in first case, inconsistent judgments, different procedural opportunities in second case that likely would cause a different issue)

- One using issue preclusion was not a party to Case 1 and is a defendant in Case 2

- Must courts say such use is ok so long as the claimant had a full chance to litigate the issue in Case 1

- Defendant is trying to preclude the plaintiff

- A party can join any number and type of claims against a defendant

- When multiple plaintiffs or multiple defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved

- A party asserting a claim, counterclaim, crossclaim, or third-party may join, as independent or alternative claims, as many claims as it has against an opposing party

- Not mandatory; Look for preclusion concerns

- Must satisfy SMJ (For diversity: Plaintiff can aggregate all claims against defendant to satisfy AIC; For fed question: Can only be joined if the court has supplemental jurisdiction over claim -- needs to be regarded as part of the same case or controversy)

- Must satisfy PJ

- Rule 13(a): A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party of the claim:
-- Arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
-- Does not require adding another party over whom the court cannot acquire jurisdiction

- A counterclaim that arises out of the same transaction or occurrence

- Supplemental jurisdiction will apply under 1367(a)

- Preclusion may apply if fail to assert it

- A pleading may state as a counterclaim against an opposing party any claim that is NOT compulsory

- Need basis for SMJ

- Typically no preclusion if fail to assert it

- Counterclaim is a sword to impose remedy upon defendant

- Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim

- A party may state as a crossclaim any claim by one party against a coparty if the claim arises out of the same transaction or occurrence that is the subject matter of the original action

- The general rule is that crossclaims are permissive

- Coparties means parties on the same side of the V. (same position in lawsuit)

- Rule 20(a)(1 & 2):
-- Right to relief must be asserted by each plaintiff, or against each defendant
-- Arising out of the same transaction or occurrence, or series of transactions or occurrences, and
-- Common question of law or fact

- Rule 20(a)(3):
-- Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities

- Rule 14(a)(1): a defendant can join a non-party (third-party defendant) who is or may be liable to defendant for ALL or PART of the claim against the original plaintiff

- An impleader claim allows defendant to assert claims for indemnity or contribution against a third-party defendant for the claim the defendant is defending.

- Court must have PJ over impleaded party, generally the court will have supplemental jurisdiction (indemnity and contribution are state claims so no fed question juris)

- Once a third-party defendant is joined, they may make claims of her own against other parties as long as SMJ exists over EACH CLAIM (usually exists through supplemental)

- The original plaintiff may assert claims agains the third-party defendant arising from the same transaction or occurrence as plaintiff's original claim against the original defendant

- Should absent person be joined?
-- Incomplete relief among existing parties without absent person?
-- Absent person has interest relating to subject matter of action that may as a practical matter be impaired or impeded if absent?
-- Absent person has interest relating to subject matter of action that make existing party subject to multiple/inconsistent obligations?

- If no to all three questions, do not join.
- If yes to any question, ask if feasible to join (smj, pj, venue)?
-- If feasible, join.

- If not, ask if case should proceed without person?
-- Might judgment prejudice absent person or existing parties?
-- Can prejudice be lessened or avoided by ...?
-- Will judgment in person's absence be adequate?
-- Plaintiff have adequate remedy if case dismissed for nonjoinder?

- If case should proceed without person, proceed.
- If not, dismiss case because indispensable party.

- Joint obligation, on which all joint obligees or all joint obligors are not joined

- Ownership in property, in which all people claiming an interest are not joined

- Representative cases, in which representative or represented parties are not joined

- Limited fund or pool of assets, in which all potential claimants are not joined

- On timely motion, the court must permit anyone to intervene who:
-- Is given an unconstitutional right to intervene by a federal statute; or
-- Claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest

- On timely motion, the court may permit anyone to intervene who:
-- Is given a conditional right to intervene by a federal statute; or
-- Has a claim or defense that shares with the main action a common question of law or fact."

- In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights

- Interpleader allows a stakeholder to initiate a suit to compel multiple claimants (defendants) to that property to litigate the dispute. Interpleader is allowed under both federal statute and Rule 22.

- Rule 22: Under Rule 22, complete diversity is required between the stakeholder and all other claimants and an amount in controversy must exceed $75K.

- Federal Statute: Under federal statute, one claimant must be diverse from at least one other claimant and the amount in controversy must exceed $500.

Ex: Deceased had life insurance policy with DE Corp. having PPB in CA; claimants from NJ, NV, & CA all claim interest
* Rule 22 = Improper because lack diversity
* Federal Statute = Proper because claimants from different states

- Class actions may be maintained in federal court if authorized by Rule 23(a), which requires: --- class must be so numerous that joinder of all members is impracticable (numerosity)
-- questions of law or fact are common to the class (commonality)
-- the claims or defenses of the representative must be typical of the class (typicality)
-- the representative must fairly and adequately protect the interests of the class (adequacy of representation -- Hansberry)

- Comply with one Rule 23(b) class action type:
-- inconsistent obligations or limited fund
-- primarily injunctive or declaratory relief
--primarily money damages then must also show: predominance and superiority

- Court may direct appropriate notice to class members

- Requires individual notice to class members AND an opportunity to opt out

- Protects Due Process rights of absent class members by requiring: notice and opportunity to be heard; opportunity to opt out; and adequate representation at all times (Philips Petroleum)

Limits long term liability - binds present class members and future members; avoids large differences in verdicts across jurisdictions

- Diversity of Citizenship
-- look to citizenship only of class representatives (Supreme Tribe of Ben-Hur)
-- each class member had to satisfy AIC

- AIC
-- SCt ruled that supplemental jurisdiction applies to additional plaintiffs who fail to satisfy AIC requirement, as long as complete diversity of citizenship is satisfied and at least one named plaintiff satisfies AIC requirement (Exxon Mobil)

- Rule 23(e) requires court approval of any "settlement, voluntary dismissal, or compromise" of "the claims, issues, or defenses of a certified class"
-- after notice to all class members who would be bound
-- judge must conduct a hearing
-- and find settlement is "fair, reasonable, and adequate"
-- any class member may object to the proposal
-- an objection may be withdrawn only with court approval
-- if ∆ is subject to state or federal regulation, the regulatory authorities must be notified of the suit and a pending settlement (1715)