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Civ Pro Outline
Terms in this set (395)
Personal jurisdiction refers to _________________.
The power of a court to exercise authority over a defendant; determined on a case by case basis
What is the first question you ask yourself when decided if a federal district court can exercise personal jurisdiction over a defendant?
Can the state in which the federal district court is located exercise personal jurisdiction over the defendant under its long-arm statute?
When dealing with personal jurisdiction under FRCP 4k1a, if a state in which the federal district court is located exercise personal jurisdiction over the defendant under it's long-arm statute, what question do you ask yourself?
If the state does have authority under the long-arm statute, is the exercise of personal jurisdiction constitutional under the due process clause of the 14th amendment?
What does it mean for the exercise of personal jurisdiction to be constitutional?
It complies with the requirements of the Due Process Clause of the 14th Amendment.
Any judgment rendered in absence of personal jurisdiction is _________________ and is not ______________.
Null and unenforceable in the state; entitled to Full Faith and Credit by sister states
If judgment is lawfully obtained under personal jurisdiction, you can ________________ until your judgment amount is fulfilled. (full faith and credit)
Go after defendant's property in all of the states
When is due process under the 14th amendment satisfied?
When the defendant:
1. Consents to be subject to the forum
2. Served in the forum
3. Domiciled in the state
What are the two types of personal jurisdiction?
General and Specific
When a state court has general jurisdiction over a defendant, __________________________.
Plaintiff can sue him in the state court on any claim regardless of whether P's claim arises from or relates to defendant's activity in that state.
When does General jurisdiction arise?
1. A defendant is served in that state
2. Defendant is domiciled in that state
3. Defendant is incorporated in that state
4. Defendant has its headquarters or principle place of business in that state
When does a court have specific jurisdiction?
When the plaintiff can sue the defendant in a state on a particular claim because that claim arises out of or relates to defendant's activity in that state
What is the basis for general jurisdiction over corporations?
A corporation must be at home in that state; incorporated, headquartered, or where the the principle place of business is
Where is a corporation's principal place of business?
Where the corporation's officers direct, control, and coordinate the corporation's activities; "nerve center"
Service on a corporate officer ____________________
Gives notice but does not establish personal jurisdiction over the corporation
What is the basis for general jurisdiction over individuals?
1. Domicile (there can only be one)
2. Service in forum
If a corporation is incorporated in or has principal business in the foreign state, __________________.
It can be subject to general jurisdiction even if the action did not occur in the state.
What was going on in Daimler?
Daimler is a German public stock company that manufacturers Mercedes-Benz vehicles in Germany. Daimler has contact with a U.S. subsidiary in Delaware that does most business with New Jersey but has some contacts in California, as well as a subsidiary in Argentina. U.S. subsidiary distributes cars across U.S. Question was whether California can have jurisdiction over Daimler for war crimes that a Mercedes-Benz plant committed during Argentina's "dirty war"?
What was the courts holding and rationale in Daimler?
Holding: California cannot have jurisdiction
Rationale: compared to the company's other national and international contacts, the contacts here are not sufficient enough to render Daimler "at home" in the state of CA. Since the company had little connection to CA, and the suit has nothing to do with actions occurring in the state, CA can't have jurisdiction because it would allow global companies to be subject to jurisdiction as long as they did any business with the state.
Tag jurisdiction applies to ___________, not ________.
Tag jurisdiction is also known as _____________.
What is tag jurisdiction?
It allows personal service upon a physically present defendant to suffice jurisdiction without regard to whether the defendant was only briefly in the state or whether the cause of action was related to activities in the state.
For specific personal jurisdiction, the activity involved must be _________________.
What was going on in International Shoe Co. v. Washington?
St. Louis company with salesman in Washington. Salesman rented rooms, made sales. Salesmen have no offices, show 1 shoe, and send contracts to St. Louis. Washington court holds jurisdiction over International Shoe.
According to International Shoe, in terms of a corporation, a company's activity can qualify as _________________.
Under the rule of purposeful availment, IF D engages in systematic and continuous activity and P's claim arises from or relates to that activity, THEN ________________.
The state may constitutionally exercise Personal jurisdiction on the defendant.
Under the rule of purposeful availment, IF D engages in a single or isolated act in state and P's claim does not arise from or relate to that activity, THEN __________________.
The state may not constitutionally exercise personal jurisdiction over D.
Under the rule of purposeful availment, IF D engages in a substantial amount of systematic and continuous activity in the state and P's claim does not relate to or arise from that activity, THEN _________________.
The state may constitutionally exercise Personal Jurisdiction over D. (General Personal Jurisdiction)
Under the rules of purposeful availment, IF D engages in single or occasional acts in the state and P's claim does relate to or arise from that activity, THEN _____________.
The state may or may not be able to exercise personal jurisdiction over D.
What was significant about International Shoe?
It was the first time the Supreme Court says that we need to abandon the test in Pennoyer
What was the holding in International Shoe?
Affirmed the Washington court's holding that there was personal jurisdiction over International Shoe.
What is purposeful availment?
Benefitting from state laws and / or the state's economy through minimal contacts; degree of contact / activity with the forum state
What does the test in International Shoe involve?
It focuses on whether the Defendant's activities constitute "minimum contacts" such that jurisdiction is consistent with "traditional notions of fair play and substantial justice"
Under specific personal jurisdiction, in order for due process to exist, a defendant must have ___________ with the state and ____________ must be considered.
Minimum contacts; fairness factors
What are minimum contacts composed of?
Purposeful availment and relatedness
What was going on in World-Wide Volkswagen v. Woodson?
A family bought a car in NY from a company that distributed in NY, NJ, and CT. The family got in a car accident in Oklahoma. Neither the company nor the plaintiffs were domiciled in California.
What was the holding and rationale in Volkswagen?
Oklahoma did not have jurisdiction because Volkswagen did not purposely avail itself to the benefits of the state of Oklahoma and there was no relevant contact between them and the state. Volkswagen has no contacts, ties, or relations with the state of Oklahoma.
What did Volkswagen say about foreseeability?
It is not a sufficient benchmark for jurisdiction
What are the five fairness factors that came out of Volkswagen?
1. Burden on the defendant
2. Plaintiff's interest in obtaining convenient and effective relief
3. Forum state's interest in adjudicating the dispute
4. Interstate judicial system's interest in obtaining the most efficient resolution
5. Shared interest of several states in furthering social politics
What was going in Bristol-Myers Squibb Co. v. Superior Court of CA?
BMS is incorporated in DE and headquartered in NY. BMS engages in some activity in CA but not in developing, marketing, manufacturing, labeling, or packaging the drug at hand, Plavix. 86 CA residents and 592 non CA residents from 33 other states tried to sue BMS for the controversy regarding plavix in CA. Specific Personal Jurisdiction?
What type of case was Volkswagen?
Stream of commerce / Specific Jurisdiction
What type of case was International Shoe?
Stream of commerce / Specific Jurisdiction
What type of case was Daimler?
What was the holding and rationale in Bristol Meyers Squibb?
There was no specific personal jurisdiction. The suit must arise out of or be a result of the defendant's actions within the forum. Here, the arguments of the non-residents parallel the arguments of the CA residents but that is not sufficient as their claims are not RELATED to the activity within the forum state. (no activity that took place linking the case to California)
What was going on in McIntyre?
Nicastro injured his hand while using a machine in NJ. McIntyre is located in England and attended a conference in the US, not in NJ, and McIntyre also never marketed nor shipped goods to NJ. Specific Jurisdiction over McIntyre?
What was the majority opinion in McIntyre?
No jurisdiction because Stream of Commerce cannot supersede the due process clause.
It is different to direct business at a country than at an individual state.
There was no specific activity directed at NJ, therefore they did not purposely avail themselves to the forum.
Foreign manufacturers should not need to be aware of / responsible for how far their products travel as it would be detrimental if the same test applied to small business owners. Adopt the O'Connor approach
What was the concurring opinion in McIntyre?
No jurisdiction because there is no precedent that the single sale of one machine is sufficient to assert personal jurisdiction.
The plurality opinion is too broad in that it allows too many states to have jurisdiction.
The defendant would have to create a special state related design in order to be considered purposely availing itself. (Advertising / Marketing) Could be done without physical or monetary presence in the state.
Modern day stream of commerce could be too severe in that it would require every product manufacturer to be subjected to / understand every tort law of every state and the way the different courts apply that law.
What is the dissenting opinion in McIntyre?
Should be specific personal jurisdiction over McIntyre since the respondent suffered at his workplace in that state using McIntyre's shearing machine.
Foreign manufacturer hoped to derive substantial revenue from the United States market and NJ is the fourth largest market. The machine did not arrive in NJ randomly or fortuitously.
Ginsberg wants the issue to be viewed holistically. Says you can't skip over purposeful availment to get to other issues (the fairness factors). Wants the purposeful availment to be considered with the fairness factors. Channeling Brennen in Volkswagen
What was going on in Hanson v. Denckla?
The plaintiff established a trust in DE and then moved to FL. Did Florida have personal jurisdiction over the DE bank?
What type of case was McIntyre?
Stream of Commerce / Specific Personal Jurisdiction
What was the holding and reasoning for Hanson v. Denckla?
Florida does not have jurisdiction because the Delaware bank did not purposely avail itself to Donner. They didn't reach out to her in Florida.
What was going on in McGee v. International Life Insurance company?
CA resident (McGee) bought life insurance policy from an AZ insurance company. TX company bought the AZ company and reinsured McGee. McGee died in CA of suicide. Does CA state court have jurisdiction?
What was the holding and rationale in McGee?
California Court had jurisdiction because it purposely availed itself to the benefits of the state of California when it reached out to the California resident.
What was going on in Burger King?
Plaintiffs established a Burger King franchise in Michigan. Burger King's primary offices are in Miami. To start the franchise, Plaintiffs negotiated with the Miami office mostly in Miami, signed a contract with the Miami office, one plaintiff went to training in Miami. Florida's long arm statute extends jurisdiction to any person, citizen of FL or not, who breaches a contract in FL by failing to perform acts required by the contract to be performed in this state as long as the cause of action arises from the alleged contractual breach. Issue was whether FL's long arm statute jurisdiction went against the Due Process of the 14th Amendment / Specific Personal Jurisdiction?
What was the holding and rationale in Burger King?
Didn't offend the Due Process Clause of 14th Amendment
Defendants met the requirements for making minimum contacts with the forum. Purposely availed himself by creating a "substantial connection" with FL.
Defendants entered into contracts with Burger King that expressly said that Florida's law would govern disputes, therefore giving them fair notice.
Defendants have burden to show that the forum is unconstitutionally inconvenient. Here, they didn't point to other factors to establish this. Inconvenience is not substantial enough to make FL's jurisdiction unconstitutional
What type of case is Burger King?
Breach of contract / Specific Personal Jurisdiction
What type of case is McGee?
Breach of Contract / Specific personal Jurisdiction
What type of case is Hanson?
Breach of Contract / Specific Personal Jurisdiction
What was going on in Keeton v. Hustler Magazine?
Hustler distributed magazines discussing the Plaintiff, injuring her reputation. Plaintiff sued in NH because statute of limitations wasn't up there. Sued for activity carried out in all 50 states.
What was the holding in Keeton?
NH has jurisdiction because the distribution of the magazines was sufficient enough to cut as minimal contact with each of the states.
New Hampshire had substantial interest in cooperating with other states, since this way hears the case for the damages in all the Staes.
What was going on in Calder v. Jones?
An actress residing in California was written about by Calder, a Florida resident. Calder contacted individuals and conducted interviews of people residing in California in order to write the article which was posted in the National Enquirer. Does California have specific personal jurisdiction?
What was the holding and reasoning in Calder?
California has jurisdiction, because the defendant engaged in intentional activity purposely directed at an individual and had effects on that individual in another state.
What is the Calder Effects Test?
If a defendant engages in an intentional activity that is purposefully directed at an individual and has effects on that individual in another state, the court can hold jurisdiction.
What type of case is Calder?
Defamation / Specific Personal Jurisdiction
What type of case is Keeton?
Defamation / Specific Personal Jurisdiction
What was going on in Walden?
Professional gamblers who lived in Nevada stopped over in an Atlanta airport on their way back from a gambling trip. Their money was seized by a police officer working for federal government. Does Nevada have specific personal jurisdiction?
What was the holding and reasoning in Walden?
Nevada does not have specific personal jurisdiction because he did not establish minimum contacts (purposeful availment & relatedness) with the state of Nevada.
The Due Process Clause of the 14th Amendment says a non-resident defendant must have substantial connections with the state in which he is sued.
What is Quasi-In-Rem Jurisdiction?
It allows a court to adjudicate a civil dispute even if the court can't get personal jurisdiction over the defendant.
Under Quasi-In-Rem Jurisdiction, the plaintiff _______________.
Attaches property of the defendant located in the state
Under Quasi-In-Rem Jurisdiction, once the property is attached, the court has the authority to decide the dispute provided that __________________________.
The plaintiff's claim arises from / relates to defendant's ownership of property
If the plaintiff wins under Quasi-In-Rem jurisdiction, the property is ________________ and the money is ______________.
Auctioned off; used to pay off Plaintiff's judgement
Under Quasi-In-Rem Jurisdiction, if the proceeds of the auction are not sufficient to compensate the plaintiff, _____________________.
Plaintiff is not entitled to enforce that judgement against any other property.
What was going on in Connecticut v. Doehr?
The plaintiff submitted an application to the CT court for an attachment of Doeh'rs CT home for an assault that the plaintiff claims occurred. CT is one of three states that authorizes attachments without prior hearings in situations that do not involve heightened threat to plaintiff's interests.
What is Connecticut v. Doehr an example of?
What is Subject Matter Jurisdiction concerned with?
Whether a plaintiff can sue a defendant in any one of the 94 federal district courts
Subject Matter Jurisdiction arises from _____________.
Article III of the Constitution
Article III, Section two of the of the constitution lays out ____________ and tells us __________________.
The types of cases that federal courts can hear; What powers congress may confer on courts
Under Article III, Section two, if we want federal courts to hear certain controversies, _________________
Congress must pass a law to do so
What laws has congress passed to allow federal courts to hear certain controversies?
28 U.S.C. §1332 and U.S.C. §1331
What type of federal subject matter jurisdiction is granted under 28 USC §1331?
What type of federal subject matter jurisdiction is granted under 28 USC §1332?
Diversity of Citizenship
With subject matter jurisdiction, a defendant can __________ if it is in the same district where the state court was
Remove a case to federal court
What is the purpose of Diversity of Citizenship jurisdiction?
Prevent biases / promote fairness
What are the requirements for Diversity of Citizenship jurisdiction under §1332?
Complete diversity and the amount in controversy is greater than $75k
When is citizenship determined according to Rule 3?
At the date of the commencement of the action (summons and complaint filed).
Article III, §2 of the Constitution requires what for Diversity of Citizenship?
Minimal Diversity: 1 P different citizenship than 1 D
What is complete diversity?
None of the plaintiffs can have citizenship that matches any of the defendants
Strawbridge determined that for Diversity of Citizenship, "States" constitute _______________.
The 50 states, Washington D.C., and Puerto Rico
Under §1332, Citizenship is determined by______________.
A person's domicile
To prove a change in domicile under §1332, you need to show two things: _____________ and ____________.
Someone moves to a new state; has the intent to make that new state his home.
What was going on in Mas v. Perry?
Mrs. Mas was a domicile of MI and Mr. Mas was a domicile of France. Defendant was a domicile in LA - same state where Mr. and Mrs. Mas were graduate assistants. Each Mas party sued their landlord for watching them have sex through a two way mirror for $100,000. Issue was whether the party is considered a domicile in a certain state for purposes of diversity jurisdiction.
What was the holding and the reasoning for Mas v. Perry?
There is diversity of citizenship because Mrs. Mas and Mr. Mas were not domiciles of LA because although they moved there for graduate school, they did not intend on staying there once their studies were done.
The amount in controversy was was determined by the amount claimed by plaintiff in good faith. Federal jurisdiction not lost because a judgement of less than the jurisdictional amount is awarded.
What was going on in National Development v. Triad Holding?
Defendant had over 12 dwellings and his housekeeper was served by plaintiff at one which he considered a vacation home even though he stayed there 34 days out of the year and renovated extensively. Under FRCP 4(e)(2)(b) can a person have more than one residence for purposes of service?
What was the holding and rationale in National Development v. Triad Holding?
Court held that the home counts as a dwelling because in a highly affluent and mobile society, it is unreasonable to interpret 4(e)(2)(b) as a person only being able to have one dwelling house (in order to be served).
Defendant was actually living at the apartment on the day he was served so the plaintiff should not have been expected to do more. Reasonable effort to provide notice.
Under §1332, how is citizenship determined for a corporation?
By where the business is incorporated or where the state of the company's headquarters is (principle place of business)
What was Mas v. Perry an example of?
Diversity of Citizenship for individuals / Domicile
What was Triad Holding an example of?
Diversity of Citizenship / service
What is the rule that comes out of Hertz?
A company can only have one nerve center. The nerve center is the principal place of business (Headquarters) where corporation officers direct, control, and coordinate the corporations's activities
With representative suits under §1332(c)(2), citizenship is based on ________________.
The citizenship of the person being represented (decedents, minors, etc.), NOT the executor of the estate or guardian.
For the amount in controversy requirement under §1332, if a plaintiff seeks equitable relief and not a monetary amount, what do you assess?
The value to plaintiff: how much could plaintiff be harmed if equitable relief is not granted?
The cost to defendant: How much will it cost the defendant to comply?
Under §1332, if a plaintiff is seeking equitable relief and the value to the plaintiff or the cost to the defendant meets the $75K+ amount in controversy rule, _______________.
The court holds diversity of citizenship jurisdiction
Aggregation rules exist so that __________________.
A plaintiff may accumulate a claim of more than $75K
In terms of aggregation rules, what can a plaintiff do against one defendant?
Aggregate all claims against that defendant
In terms of aggregation rules, what can a plaintiff do against multiple separate defendants?
Plaintiff can't aggregate the claims against the multiple defendants.
In terms of aggregation rules, what can a plaintiff do against multiple defendants who are jointly and severally liable?
Plaintiff can aggregate all claims against the multiple defendants.
In terms of aggregation rules, can two plaintiffs aggregate claims against one defendant?
No, not unless they hold a single claim
Ex. Spouses selling one house to another person
Will a federal court take a case pertaining to divorce or probate of an estate if there is diversity?
No, because they consider them to be exclusively state matters
Under 28 USC §1331, the federal question must ____________.
Be an essential element of the complaint
Under Article III of the Constitution, ___________________ regardless of whether the question is in the complaint or in the answer.
Any federal question case can be raised
What are the two requirements under 28 USC §1331 when there is a right of private action?
1. The federal question must arise from the plaintiff's claims, not from the defendant's counterclaims or defenses (Well-Pleaded Complaint)
2. If the federal question arises from the plaintiff's claim, the federal question must be an important, substantial part of the claim
In regards to Federal Question Subject Matter Jurisdiction (§1332), congress sometimes creates laws that provide no rights of private action because ______________________
They want to create regulations for companies, not litigation
What does Mottley establish?
The well-pleaded complaint rule
What is the well-pleaded complaint rule?
A federal question claim under §1332 must be an essential element within the complaint rather than an "extra material."
If a federal question claim arises in the defendant's defense, ____________.
It is not a federal question claim
The well-pleaded complaint rule is not ______________. It is just something that _____________.
An alternative to an embedded federal question claim; courts require all the time
What is an Embedded Federal Question?
There is no private right of action; an essential element in the state law claim is a federal question
What was going on in Grable & Sons?
Grable Brough a state quiet title action in state court and Darue moved case to federal district court. Grable's land was taken due to federal tax delinquency and notice was provided via certified mail although the statute requires written notice to the owner of the property or being left at the usual place of business / abode. The issue was, if the state claim is addressing a substantial and disputed federal question, can the case be removed to federal court?
What was the holding and rationale of Grable?
The state claim could be removed to federal court because the federal tax issue was an embedded federal question.
Federal claim was substantial to the state lawsuit.
Wouldn't upset the intended congressional division of cases between state and federal courts because state quiet title actions very rarely involve a federal component.
What were the standards that the claim in Grable were examined under? (for examining embedded federal questions)
1. Whether the federal claim was substantial / essential to the lawsuit? Really an important federal issue?
2. Will it upset the intended Congressional division of cases between the state and federal courts? (will it undo Congress's intention to leave out the "private right of action" because they didn't want federal courts to be flooded with this type of lawsuit)
Why was the claim in Merrell Dow unable to be removed from state to federal court?
There was a state claim but the federal question component was part of the plaintiff's evidence, not the complaint.
Congress specifically didn't create a private right of action here for negligence per se cases because they wanted to prevent a flood of litigation. Not the courts place to make it happen against their wishes.
How are Grable and Merrell Dow different?
In Grable the decision is very limited and won't open a flood of litigation like Merrell Dow would.
What does the well-pleaded complaint rule apply to under §1332?
Cases where a private right of action occurs and embedded federal questions
Who can file a notice of removal?
How does a defendant file a notice of removal?
He gives the state court clerk a notice of removal and that notice divests the state court of jurisdiction
For removal, what should you be prepared to assess?
Subject matter jurisdiction and the in-state defendant rule
When a defendant files a notice of removal, what can the plaintiff do?
File a motion to remand in federal court
28 USC §1441 asks whether _______________.
A case is removable
Under 28 USC §1441, Only ___________ can remove a case
Under 28 USC §1441, ___________________, assuming that they all have been named and served
All defendants have to agree to remove the case
Under 28 USC §1441(b)(2), what is the in-state defendant rule?
A defendant cannot remove a claim if he or one of the defendants is a citizen of the state where the action is brought.
Under 28 USC §1441, a defendant can always remove ______________
Federal question cases
The in state defendant rule (28 USC §1441) does not apply if the case is ____________ OR ______________
Based on federal question; based on federal question as well as diversity
28 USC §1446 discusses __________________.
How a defendant removes a case.
Under 28 USC §1446, a defendant has ___________ days to remove once served.
Under 28 USC §1446, if 30 days have passed for one defendant but not another, ________________.
The earlier defendant can agree to remove based on the statute of limitations for the later-served defendant.
Under 28 USC §1446, a case can become removable _______________ (i.e. when a federal question is added) and ______________.
During a state court proceeding; upon amendment of the claim
Under 28 USC §1446, if a case becomes removable, the defendant then has ___________ to file for removal
Under 28 USC §1446, if a case becomes removable because the plaintiff voluntarily dismissed a non-diverse defendant, ________________.
Removal is acceptable
Under 28 USC §1446, if a case becomes removable because the court dismissed the claim against the non-diverse defendant _______________.
Not removable because the dismissal might be reversed on appeal
Under 28 USC §1446, defendant cannot move to remove a case under diversity of citizenship more than ________________ unless _____________.
1 year after the commencement of action; plaintiff acted in bad faith
What is 28 USC §1447 concerned with?
How a plaintiff can get a case that was removed to federal court back into state court
Under 28 USC §1447, a plaintiff can ________________
File for a motion to remand back to state court if he thinks there has been an error
Under 28 USC §1447, a plaintiff has ________ to file remand after ______________.
30 days; receiving renewal notice
Under 28 USC §1447, if a plaintiff wants to add a defendant that would destroy diversity, the court can either ______________ or __________________.
Deny joinder; allow joinder and remand case back to state court
28 USC §1391(b), Venue is proper in a federal court if a civil action may be Brough in a judicial district where _________________.
1. A defendant resides if all defendants are residents of the state where the district is located
2. Something important relating to the plaintiff's claim happened in that district
3. If there is no district in which an action could otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action
What is an example of 28 USC §1391(b)(3)?
A US citizen domiciled in Rome being sued in the US
What does 28 USC §1391(c) refer to?
Residency for venue purposes
Under 28 USC §1391(c), a natural person, including lawful aliens, are deemed to reside ________________.
In the judicial district in which they are domiciled
Under 28 USC §1391(c), an entity is subject to jurisdiction ______________.
In any district that could claim personal jurisdiction
What does 28 USC §1404 discuss?
Change of venue when the venue is filed correctly
What does 28 USC §1406 discuss?
Change of venue when the original venue is improper.
Under 28 USC §1404, what can a court do?
Transfer the case to another district or division where it might have been brought or to any district or division to which all parties have consented
Under 28 USC §1406, what can a court do?
Either dismiss or transfer the claim
What is a Goldlawr Transfer?
If the court wants to transfer a case under 1404 or 1406 and does not have personal jurisdiction, it can still transfer the case to a proper court.
What does FRCP Rule 12 deal with?
Under FRCP Rule 12, unless laid out by law, a party has _______________ to answer a claim
Under FRCP Rule 12, prior to an answer (pleading) what may be stated by motion?
1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim
7. Failure to join a party
Under FRCP Rule 12(b), what happens if you do not state defenses 2-5 in your original motion?
You are waiving these defenses
Which FRCP 12(b) motions are waivable?
1. Lack of personal jurisdiction
2. Improper venue
3. Insufficient process
4. Insufficient service of process
Under FRCP Rule 12(b), what happens if you do not state a lack of subject matter jurisdiction defense in your original motion?
You can bring it up later because lack of subject matter defense can never be waived
Under FRCP Rule 12(b), what happens if you do not state a failure to state a claim defense or a failure to join a party defense in your original motion?
You can bring it up at any point until trial
Prior to Erie, Federal courts in a diversity action would ______________________.
Apply the statutory law from the state it was located in as well as local common law
Prior to Erie, Federal courts would ask, ________________.
What is applicable substantive law?
Prior to Erie, Federal courts could _____________________. They also could ______________ instead of following state common law.
Initiate their own interpretations and rules of common law; "common-sense laws"
What is a complaint?
A set claim or allegation
What is someone doing when they file an answer?
a. Address allegations
b. admit in part / deny in part
c. 12b defenses or affirmative defenses
d. counterclaim [against p] / cross-claim [against 3rd party defendant]
What does it mean for a pleading to be sufficient?
The pleading is more than possible but not necessarily probably (subjective choice by a judge)
What was Twombly concerning?
Phone company case where ILECs were engaging in parallel conduct unfavorable to competition; Telecommunications Act
What was the holding and rationale in Twombly?
The court said that the plaintiffs failed to state a claim and the complaint should be dismissed.
The only fact in the claim was parallelism based on an illegal contract. This could align with illegal activity as easily as it could align with legal activity. Therefore the complaint was not sufficient.
What was going on in Iqbal?
After the terrorist attacks of September 11, federal officials arrested and detained plaintiff under restrictive conditions. Plaintiff made a givens claiming that the former AG and FBI Director violated his first and fifth amendment rights.
What was the holding and rationale in Iqbal?
Plaintiff's allegations failed to state a claim, and the claim was dismissed.
The allegations were equally consistent with illegal and legal activities.
What is a motion?
Asks court to do something
What is an example of a motion?
A 12(b) motion to dismiss for improper venue
What is a pleading?
It gives the opposing side notice of what your allegations are
What does Rule 41 concern?
Dismissal of Actions
What concept did we get from Twombly?
When examining a complaint, you should omit conclusory claims and then look at the remaining facts.
Ask yourself, "do they state a plausible claim of relief?"
What rule did we get from Iqbal in regard to pleadings?
The probability standard is not akin to a probability requirement but asks for more than sheer possibility that a defendant has acted unlawfully.
Under FRCP Rule 41, Voluntary Dismissal is a _____________
Means by which a plaintiff can terminate a case and still preserve the right to recommence the action.
Under FRCP Rule 41, an Involuntary Dismissal occurs when _________________.
A plaintiff doesn't comply to rules or court order, so defendant can move to dismiss
Under FRCP Rule 41 concerning Involuntary Dismissals, if an ______________ is entered, the case is over forever.
Adjudication on merits
Under FRCP Rule 41, what are the exceptions to an Involuntary Dismissal adjudicated on the merits (without prejudice)?
1. Lack of jurisdiction
2. Improper venue
3. Failure to join a party
What do FRCP Rules 54 and 55 cover?
Under FRCP Rules 54 and 55, what are the three steps to enter a default judgement?
1. Obtain an entry of default
2. File a motion for entry of default judgment
3. If the motion is granted, submit the proposed judgment
Under FRCP Rules 54 and 55, What must you file in order to obtain an entry of default?
1. Written request for entry of default
2. Affidavit that proves you served the defendant they didn't answer
3. Entry of the default form with the court
Under FRCP Rules 54 and 55, what does filing the entry of default with the court accomplish?
1. It cuts off defendant's ability to respond by motion / answer
Under FRCP Rules 54 and 55, a plaintiff can only obtain an entry of default if _____________.
More than 21 days have elapsed
Under FRCP Rules 54 and 55, default judgements are not _____________. They are only entered when ______________.
Automatic; a plaintiff seeks it properly
Under FRCP Rules 54 and 55, when a plaintiff is filing a motion for entry of default judgment, you cannot _________________.
Ask for a greater amount than demanded in the complaint
Under FRCP Rules 54 and 55, when a plaintiff is filing a motion for entry of default judgment, the plaintiff files _____________
An affidavit showing the amount owed
Under FRCP Rules 54 and 55, when a plaintiff is filing a motion for entry of default judgment, the plaintiff what have to _____________.
Serve the defendant again
Under FRCP Rules 54 and 55, when a motion is granted and the proposed judgment in your favor is submitted, the court will then have ________________.
A hearing to determine damages
A plaintiff files to enter a default judgment because ____________.
The defendant didn't answer
Once a default judgment is entered against a defendant, _____________.
It is very hard to get out of
FRCP Rule 15 deals with ___________________
Amendment and supplemental pleadings
Under FRCP Rule 15, you are allowed to amend ___________________
Once as a matter of course within 21 days of after serving the complaint; within 21 days after Answer is served; or within 21 days of a 12b, 12e, or 12f motion is served
Under FRCP Rule 15, if a pleading is one to which a responsive pleading is required, you can amend ____________________ or ____________________
21 days after the service of a responsive pleading; 21 days after service of a 12(b) motion
What does FRCP Rule 15 concern?
What is variance?
When evidence is presented on a point that is not covered in the pleading; A disparity between what's proved and the evidence raised
Under FRCP Rule 15(b), you cannot introduce evidence at trial that _______________.
Does not relate to claims / defenses in the pleading
What is an example of variance?
When the pleading addressed a negligence claim but the evidence leads to a breach of warranty
FRCP Rule 15(b)(1) is relevant when a party _____________
A party objects to variance
Under FRCP Rule 15(b)(1) complaints ______________.
Can be amended
FRCP Rule 15(b)(2) is relevant when ______________.
An issue not raised by the pleadings is tried by the parties express or implied consent (didn't object)
Under FRCP Rule 15(b)(2), an issue that is not raised in the pleadings _________________
Is treated as if it was
Under FRCP Rule 15(b)(2), a party can _____________, but failure to do so ______________.
Move to amend the pleadings at any time (even after judgment); doesn't affect the result of the trial
FRCP Rule 15(c) relates to ______________
The statute of limitations when the plaintiff has asserted two claims
Under FRCP Rule 15(c), if the initial claim raised by the plaintiff was timely under the statute of limitations, _________________
The plaintiff may be able to assert a second claim even if the statute of limitations for that claim has expired
Under FRCP 15(c), a plaintiff can assert a second claim if: __________________.
1. Claim 2 arises from the same transaction as claim 1; AND
2. Claim 2 would have been timely if asserted at the same time as claim 1
What is the rationale behind FRCP Rule 15(c)?
The statute of limitations is in place to protect the defendant but if the defendant already had notice related to that incident already there is no harm in adding an additional claim related to the same incident
What does FRCP Rule 26(a)(1) discuss?
Under FRCP Rule 26(a)(1) when must initial disclosures occur by?
Within 14 days of the initial Rule 26(f) conference
Under FRCP Rule 26(a)(1), initial disclosures must include all the names of _____________________.
All the individuals you are likely to use at trial to support your claims
Under FRCP Rule 26(a)(1), initial disclosures include ____________, ____________, and _____________ that the disclosing party has that it may use to support its claims and defenses.
Copies and descriptions of all documents; electronically-stored information; tangible things
What does FRCP Rule 26(a)(2) discuss?
Expert Witness Disclosures
Under FRCP Rule 26(a)(2), expert witness disclosures are relevant _______________.
No later than 90 days before trial
What does FRCP Rule 26 discuss?
Disclosures / discovery
Under FRCP Rule 26(a)(2), ____________________ must be provided.
A report of expert's findings, conclusions, and opinions
Under FRCP Rule 26(a)(2), an expert cannot _____________.
Be involved in the case as a party
Under FRCP Rule 15(a)(2), if time has elapsed to amend a pleading, you can still amend by _______________.
Asking for court's permission or with the other party's consent
Under FRCP Rule 15(a)(2), a court will generally grant a motion to amend unless _______________.
It feels it would be too prejudicial
Under FRCP Rule 15, unless the court orders otherwise, any required response to an amended pleading must be made ___________________ or within _____________, whichever is later.
Within the time remaining to respond to the original pleading; 14 days after service of the amended pleading
What is another name for a 26f conference?
A case management meeting
What occurs during a 26f conference?
The parties confer to forumlate a discovery plan without the judge there.
26f conferences can occur ____________ or __________.
Face-to-face; by phone
What is another name for a 26f report?
A case management plan
What is a 26f report?
Parties submit written report to the judge outlining proposed discovery plan within 14 days of the 26f conference
What is another name for a Rule 16 Scheduling conference?
A pre-trial conference
A court will order parties to appear for a pretrial conference before issuing a scheduling order if _______________
Matters are not fully resolved by the Rule 26f report
At a pre-trial conference, _________ are present.
It is unusual for their not to be a _______________ even if things are perfectly laid out in a discovery plan.
Pursuant to Rule 16(b), unless the judge finds good reason for delay, the judge must _____________.
Issue a scheduling order
Under Rule 16(b) a scheduling order must be issued either ___________ days after the complaint is served or ___________ after any defendant appears.
Under FRCP Rule 126(a)(1), an initial disclosure must include a computation of ___________________
Each category of damages claimed by the disclosing party
Under FRCP 26(a)(1), initial disclosures require the inspection and copying of ________________
Any insurance agreement under which an insurance business may be liable
What is an expert?
Someone who has special knowledge of a field who offers his or her expertise within that field
What are the two types of experts that will be used in litigation?
Testifying experts and Non-testifying experts
Experts do not testify about __________
Facts of a case
Testifying experts ________________
Figure out how a particular product or technical concept works
Under rule 26(a)(2), if an expert will be testifying, you need to _____________ so that the other party can ____________________.
Disclose him to the other party; prepare to cross examine and get expert testimony of their own
Under Rule 26(a)(2), if an expert is going to testify, the expert must provide ______________.
A written report about what he is going to present
A testifying experts written report will include ____________.
Opinions, reasons for opinions, facts, data, exhibits, qualifications, and all past cases in which he has testified
Under Rule 26(a)(2), you do not need to disclose _____________
What does FRCP Rule 26(a)(2) deal with?
What does FRCP Rule 26(a)(3) deal with?
Under Rule 26(a)(3), a party must disclose the ___________ and ___________ of witnesses.
Under Rule 26(a)(3), a party must disclose __________ and ____________ they plan to use at trial (pre-trial blueprint)
Under Rule 26(a)(3), a party must disclose copies of __________ and ___________
Under Rule 26(a)(3), if testimony and documents are not disclosed, the court could _______________.
Prevent you from introducing that information at trial
What are the five discovery tools?
3. Requests to produce documents
4. Request for Admission
5. Physical and Mental examination of a party
FRCP Rules 30 and 31 discuss _____________.
What occurs during a deposition?
A witness is placed under oath and responds to questions
You can perform a deposition by _____________ when the person is out of state.
______________, can be deposed if they have discoverable information.
Anyone, party or non-party
When deposing a non-party, you must _____________
For a deposition of a non-party, without a subpoena, ______________.
The non-party is not required to attend
FRCP Rule 33 discusses _________________
The rules for deposition provide a ______________ limit.
10 depositions per side
FRCP Rule 31 allows a party to ____________________.
Serve a set of questions on another party that will be asked by the court officer.
What are the pros and cons of allowing a party to serve a set of questions on another party that will be asked by the court officer? (Rue 31)
Pro: The lawyer doesn't have to attend the deposition.
Con: Witnesses may know the questions in advance
What is an interrogatory?
A list of written questions that are sent to another party and witnesses are required to answer them under oath.
Interrogatories can only ___________.
Be sent to parties
A party has __________ days to respond to an interrogatory.
Interrogatories serve as a useful way to _______________ (names, dates, documents)
Obtain objective information
Rule 33 says that there is a ____________ limit for interrogatories.
25 per party
FRCP Rule 34 discusses ______________.
Requests to produce documents
Under rule 34, a party has to respond to requests to produce documents within _____________
30 days of being served with the request
Requests to produce documents require another party to produce for ____________, ___________, or ____________ all relevant documents or other tangible things.
Inspection, copying, or testing
Rule 34 only applies to parties, but you can obtain non-party documents during _____________.
Written requests to produce documents include ______________
Electronically stored information
Rule 35 discusses ______________.
Medical examinations of a party
A medical examination of a party requires _____________.
A court order
Under rule 35, ______________ selects the medical examiner who will complete the exam
The party requesting the medical examination
Under rule 35, the medical examiner must _______________.
Write up a report concerning the condition of the person
Under rule 35, who may be subjected to medical examinations?
A party or a non-party who is in custody or legal control of party
ex: parent and child
Rule 36 discusses ______________.
Requests for Admission
Requests for admission __________________.
Clarify what issues are and are not in dispute.
Requests for admission serve as a way for parties to ____________
Remove matters they believe shouldn't be in dispute
Requests for admissions are only used ___________
Under Rule 36, failure to deny is ___________.
A request for admission allows one party to ______________
Force the other party to admit or deny an discoverable matter
Rule 37 discusses ________________
Motions to compel discovery
Rule 37 applies when a _______________.
A party feels like he is not getting the info he is entitled to or a party is asked to disclose stuff far beyond what is required under the rules
What are the four factors that must be examined when considering the scope of discovery?
3. Whether the information is privileged
4. Whether the information is work product
Under Rule 26(b)(1), the information a party is trying to get must be ___________ to either the defense or claim
Under Rule 26(b)(1), just because something is relevant, it does not mean that it is ____________.
What is United Oil Co. v. Parts Associates, Inc. an example of?
Relevance under Scope of Discovery
What was going on in United Oil Co. V. Parts Associates, Inc.?
Certain chemicals in dyes as well as brake cleaning fluids may have caused plaintiff's liver damage. There were attempts to broaden discoverability to all products containing the same chemicals. The defendant said that discoverability of evidence should be limited to failure to warn claims and that the mere fact that a product contains the same chemicals does not make it a similar product.
What did we get from United Oil Co. V. Parts Associates, Inc.?
Discovery of similar, if not identical, models is routinely permitted in product liability cases.
In terms of relevance, you need not only ask about ________________.
Information that is admissible at trial
Ex: hearsay not admissible at trial but it can still be relevant if it leads to other things that are relevant or has something to do with the defense or claim
If the information is _____________, it is said to be relevant for discovery purposes.
Reasonably calculated to lead to admissible evidence
In terms of discovery, if information is considered proportional, it is not _________________ or ____________.
Unduly cumulative; burdensome
For something to be burdensome, the cost of getting the information is _________________.
Going to outweigh any benefit the other person is going to get
For something to be cumulative / duplicative, you ____________ or you __________________
Already have documents that have this fact; can obtain it from another source that is far more convenient
Proportionality transfers the burden from _______________ to _______________.
The responding party; the party seeking information
What are factors to examine when considering proportionality in discovery?
1. The needs of the case
2. the importance of the issues at stake
3. The amount in controversy
4. The parties' access to relevant information
5. The parties' resources
6. Importance of discovery in resolving the issue
7. Whether the burden / expense of the proposed discovery outweighs it's benefit
What was going on in Zubulake v. UBS Warburg LLC?
Gender discrimination suit and sought emails related to her from 5 UBS employees. She picked one of the tapes to recover emails from. The total const of the restoration fro the 5 tapes was upwards of $19k.
What did we get out of Zubulake v. UBS Warburg LLC?
The 7 factor test to determine whether cost-shifting is warranted.
What is the seven factor test for cost shifting that we get from Zubulake?
1. Extent to which the request is specifically tailored to discover relevant information
2. Availability of information from other resources
3. Total cost of production compared to the amount in controversy
4. Total cost of production compared to the resources available to each party
5. Relative ability of each party to control costs and its incentive to do so
6. Importance of the issues at stake in the litigation
7. Relative benefits to the parties of obtaining information
For discover, even if information is relevant and not burdensome, it may be _____________.
Privileged information refers to ____________, not ____________.
Communications; underlying facts
What is an example of a privileged relationship?
Doctors and patients
The concept of privilege shows that some interests are________________.
Moer important than fact finding and truth seeking
Parties must ______________ that they are withholding privileged communications.
If a litigant thinks that something is secret or confidential, it does not meant that _____________.
It is privileged
The work product rule protects materials that are ________________.
Prepared in anticipation of litigation even if there is no litigation
The work product rule does not protect ________________.
Routine practice materials like reports pertaining to state regulation
The work product rule protects ___________ and ___________ and also protects from ___________ about those things.
Documents; Tangible things; Asking questions
___________ are subject to work product privilege but are not covered by FRCP
Unwritten recollections (i.e. Witness Interviews)
The work product rule does not protect against disclosure of information ___________________.
In the course of compiling the work product
What is an example of the work product rule not protecting against disclosure of information in the course of compiling the work product?
When someone admits they were drinking
The work product rule protects ___________ but not necessarily _____________.
Documents; all information on the document
The work product does not protect against disclosure of the ______________.
Names of witnesses
Under the work product rule, if you interview a person and don't plan to use them as a witness, you __________.
You have a compelling need to obtain information despite work product if you can demonstrate __________________ AND ________________.
A substantial need to obtain it; You cannot obtain it through other means
What are examples of situations in which you can overcome the work product rule by showing a compelling need?
Death, unavailability, cost
A party can obtain information that is subject to the work product rule if they demonstrate a _______________.
Opinion work product is _______________, regardless of whether substantial need is shown.
Why is opinion work product absolutely protected?
The court must protect from disclosure of conclusions, opinions, legal theories, and mental impressions
Work product is not limited to lawyers. Any materials generated by _______________ is covered.
Client or a party representative in anticipation of litigation
Regardless of the work product rule, anyone can ________________.
Get a copy of their own statement
A purchaser says that widgets are defective and threatens to refuse future delivery. The president of the company calls the sales rep and says "Write down what you talked about wth the purchaser." Litigation then ensues. Purchaser requests all documents talking about the contract. What is discoverable?
The notes after the phone conversation between the purchaser and the sales rep are NOT work product.
The Memo the purchaser writes to his boss IS work product.
Rule 56 discusses _____________.
When discussing summary judgment, the plaintiff has already ____________ the whole issue is whether we need to _______________.
Plausibly stated a claim; Go to trial
Rule 56 authorizes the court to enter summary judgment whenever there appears to be ________________ and where the movant ___________________.
No genuine issue of material fact; Asks for judgment as a matter of law
Summary judgment is filed _______________ and judgement is entered _____________
Before trial; before a trial or a jury
When is a motion for summary judgment usually made and by who?
At the end of discovery; the defendant
Why is the plaintiff more likely to move for summary judgment?
Because the plaintiff has the greater burden of proof. All the defendant needs to say is that there is a lack of evidence.
What are the two situations where motions for summary judgment are appropriate?
1. When the parties agree on facts and have a dispute about the law
2. Parties disagree about the facts but there's no genuine dispute -- one side has little if any evidence
In regard to summary judgment, Circumstantial evidence is not always ________ and can ____________.
Unreliable; Create a genuine issue of material fact
What does a court look at when deciding whether to grant a motion for summary judgment?
Evidence that is sworn to: depositions, affidavits, interrogatories, etc.
How are motions for summary judgment different from 12b motions to dismiss?
12 motions rely on pleadings whereas summary judgment occurs when the case is already in the litigation stream.
The court does not assess __________ when ruling on a summary judgment motion. Instead, the court reviews evidence _______________
Credibility; in the light most favorable to the non-moving party
_____________ is a close cousin to summary judgment.
How are directed verdicts different from motions for summary judgement?
Summary judgment rulings are based of of affidavits.
Directed verdict rulings are based off evidence presented at trial.
A plaintiff can move for summary judgment to ___________.
Dismiss a defense
A defendant can move for summary judgment to ______________.
Dismiss a claim based on a defense
Under rule 56, A court will sometimes grant ______________
Partial summary judgment
The party moving for summary judgment has the burden to ______________.
There is no genuine issue of material fact by giving evidence
When a party moves for summary judgment, the non-movant party then has to __________
Come back and show there is an issue of material fact
Under summary judgment, you cannot just say that the other side has no evidence, you must ____________
Point to actual evidence
Once a moving party offers some evidence of to support a motion for summary judgment, the other side has the burden of _______________
Showing evidence to rebut that and say there is an issue of fact
What are the two motions that can be made at trial?
A motion for judgement as a matter of law (JMOL)
A renewed motion for judgment as a matter of law (RJMOL)
What is another name for judgment as a matter of law?
A directed verdict
What is another name for a a renewed motion for judgment as a matter of law?
What does Rule 50a discuss?
Judgement as a matter of law
Under rue 50a, JMOL must ______________.
Be made by motion; the court cannot do this on its own
Under 50(a)(2), a party cannot move for JMOL until ____________.
The other side has been heard at trial
What is the standard for granting JMOL under rule 50(a)(1)?
Grant JMOL if a reasonable jury could not disagree on the result
What is the difference between a Judgment as a matter of law and a renewed judgment as a matter of law?
JMOL: made after trial before the decision is given to the jury
RJMOL: after the trial and judgment has been entered
When would a losing party make a RJMOL motion?
When the judge previously denied JMOL. The jury returned a verdict and judgement was entered on that verdict.
What is the standard for granting RJMOL?
A reasonable jury could not disagree on how the case should come out and the jury here was wrong
RJMOL motions must be made _____________.
Within 28 days of judgment
You must _____________ or else you waive your right to RJMOL.
Move for JMOL at a proper time at trial
When ruling on RJMOL, what may the court do?
1. Allow judgment on the verdict (if the jury returned a verdict)
2. Order a new trial
3. Direct the entry of judgment as a matter of law
What is the clear trend behind claim preclusion?
If a plaintiff is going to bring a claim arising out of an incident, he must assert all claims that arise out of that incident (package claims into a single case along transactional lines)
Claim preclusion only precludes someone who ______________.
Initially asserted a claim (usually a plaintiff)
What are the three elements of claim preclusion?
1. The claim is arising from the same set of facts as the first claim
2. The parties in suit 2 are the same as the parties in suit 1 (or are in privity) AND are in the same posture
3. Suit 1 ended in a valid judgment on the merits
What does it mean for a judgment to be valid in regard to claim preclusion?
The court has subject matter and personal jurisdiction.
If a judgment ends because of failure to join a necessary party or because of lack of venue, ___________.
The judgment is not on the merits
In claim preclusion, what is meant by the phrase "the same claim"?
The claim encompasses all rights to relief stemming from a common nucleus of operative facts (the same transaction or occurrence)
When discussing Contracts cases in the context of Claim preclusion, the claim includes ________________.
All amounts due at the time the claimant files suit
Privity refers to ______________.
When some kind of special relationship between two people exist so as to make them the same person for claim preclusion purposes.
If the same interests are being represented between two people, there is _____________.
What are the two broad categories of privity under Claim Preclusion?
1. When someone in suit 2 is being represented by someone in suit 1
2. Successors in Interest
Privity / Claim Preclusion?
L1: P (trustee) ---> D (bank)
L2: P (beneficiary) ---> D (bank)
Claim preclusion applies because beneficiary is represented by the trustee
Privity / Claim Preclusion?
L1: P (guardian) ---> D
L2: P(minor) ---> D
Claim preclusion applies because guardian represented the interest of the child in L1
Privity / Claim Preclusion?
L1: P (mother for mother) ---> D
L2: P (mother for child) ---> D
No privity; no claim preclusion
Privity / Claim Preclusion?
L1: P (wife) ---> D
L2: P (husband) ---> D
No privity; no claim preclusion
What are examples of successors in interest in terms of claim preclusion?
Successive landowners; assignees (executor of an estate)
Privity / Claim Preclusion?
Neighbor A pumps chemicals and contaminates Neighbor B's yard.
B sues A and wins. B then sells the land to C. Neighbor C finds out about the land. Can C Sue A?
No because of the successive landowners rule privity / claim preclusion
Validity refers to the ____________.
Competency of the court
For claim and issue preclusion, a claim is valid when _________________
A court has subject matter jurisdiction and personal jurisdiction over suit one. Doesn't matter if judgement was wrong on the merits.
For claim preclusion what situation allows for suit one to survive even if there is no personal jurisdiction?
When a default Judgment is entered
What constitutes final in terms of claim preclusion?
Suit one ended at the trial level on summary judgment or from a directed verdict
Suit one ended at appeals
What does it mean for a judgment to be on the merits?
A trial is not required. If p wins suit one, it is always on the merits, even if a default judgment is entered.
If D wins suit one, it is on the merits except for when suit one was dismissed due to severe factors.
If D wins a case, it is on the merits unless the action was dismissed due to ______________.
1. Improper venue
2. Misjoinder / nonjoinder of parties
3. lack of subject matter jurisdiction
What is the goal to issue preclusion?
To prevent re litigation of the same issues; eliminating issues that were already established in suit one
What are the five elements of issue preclusion?
1. The same issue was litigated and determined in the first suit (not a default judgment)
2. The issue was essential to the judgment
3. Holding on the issue was a valid judgment on the merits
4. Issue preclusion is asserted AGAINST one who was a party in the first suit
5. Issue preclusion is asserted BY a party who was: a party in suit one; or he is asserting it defensively; or he is asserting it offensively and the Parkland factors are met
For issue preclusion, how do you determine if an issue was essential to the judgment?
Reverse the finding on the issue. Did the verdict in suit one change with the reversal?
If the verdict changed, it is essential.
If the verdict didn't change, it is not essential
If P sues D and it is found that P was contributorily negligent, D _______________ for negligence and P ________________ relitigate the issue of his own negligence.
Can sue P; cannot
What do the four Parklane factors assess?
Why we do not allow offensive issue preclusion
What are the four Parklane factors?
1. Prior inconsistent judgements in favor of defendant?
2. Could plaintiff in suit two joined suit one but chose not to ("wait and see" attitude)?
3. Is preclusion unfair to defendant? (First suit in rinky dink court with fewer procedural opportunities available to defendant?
4. Was there incentive for defendant to fully litigate / defend vigorously in the first suit?
A gym sues a patron to pay a cancellation penalty. The issue goes to trial. The court says that the gym is not entitled to receive the $500 because the contract was unconscionable. The gym sues a second patron for the same thing. The patron wants to assert issue preclusion.
Yes, even though the second patron was not a party to the first action, he can use issue preclusion since the gym was a party in the prior action.
What does Rule 4 discuss?
Under FRCP Rule 4, a human must be served a summons with _________ by __________________.
A copy of the complaint; someone who is eighteen or older and not a party in the suit
Under FRCP Rule 4, a human defendant can be served __________ or summons can be left at ______________ with someone who is ______________ who resides there.
Personally; the individual's dwelling; of suitable age and discretion
Under FRCP Rule 4, a business is served following the ______________.
State law where the business is incorporated
Under FRCP Rule 4, a business can be served by delivering a copy of the summons to _____________, _____________, or _______________.
An officer; a managing / general agent; any other agent authorized by appointment or law to receive the service
What does FRCP Rule 7 discuss?
Pleadings that are allowed
What pleadings are allowed under Rule 7?
1. A complaint
2. An answer to a complaint
3. An answer to a counterclaim designated as a counterclaim
4. An answer to a crossclaim
5. A third-party complaint
6. An answer to a third-party complaint; and
7. A reply to an answer if the court orders one
What is FRCP Rule 8 discussing?
General Rules of Pleadings
Under Rule 8, what must a pleading contain?
A short statement on the court's grounds for jurisdiction; why the pleader is entitled to relief; a demand for the relief sought
Under Rule 8, what must a response to a pleading contain?
Defenses to each claim asserted against it; admission / denial of allegations (affirmative defenses included)
What is Rule 9 discussing?
Pleading special matters
Under Rule 9, pleadings typically don't need to allege ______________ or _______________.
A party's capacity to sue or be sued (age); a party's authority to sue or be sued in a representative capacity (estate, parents)
What does FRCP Rule 10 discuss?
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