Federal Civil Procedure New York Bar Exam Preparation Condensed Revision Notes

Federal Civil Procedure New York Bar Exam Preparation Condensed Revision Notes

FEDERAL CIVIL PROCEDURE

I PERSONAL JURISDICTION (PJ)

COURT’S POWER OVER PARTIES

Q= POWER OVER D?

2 PART TEST: 1 SATISFY STATE STATUTE & 2 CONSTITUTION – DUE PROCESS

# IN PERSONAM JURISDICTION P IMPOSE OBLIGATION ON D

CONSTITUTION – DUE PROCESS = DOES D “HAVE SUCH MINIMUM CONTACTS WITH FORUM SO JURISDICTION DOESN’T OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE?”

PJ= CONSTITUTIONAL IF D 1 DOMICILED IN FORUM 2 CONSENTS 3 VOLUNTARILY PRESENT IN FORUM WHEN SERVED BUT IF NONE:

CONTACT, RELATEDNESS & FAIRNESS

CONTACT CONTACT B/W D & FORUM STATE CONTACT = 1 PURPOSEFUL AVAILMENT (REACH OUT TO FORUM) I.E. USED ROADS, SENT EMAIL, SOLD PRODUCT + EFFECT IN FORUM 2 FORESEEABILITY: FORESEEABLE THAT D COULD GET SUED IN FORUM 3 RELATEDNESS B/W CONTACT AND P’S CLAIM- DOES P’S CLAIM ARISE FROM D’S CONTACT WITH FORUM, YES= SPECIFIC PJ, NO= IF COURT GENERAL PERSONAL JURISDICTION (GPJ)= D CAN BE SUED ON CLAIM THAT AROSE ANYWHERE IN WORLD. FOR GPJ= D MUST BE “AT HOME” IN FORUM= WHERE DOMICILED. CORPORATION “AT HOME” = 1 WHERE INCORPORATED 2 PPB D NOT “AT HOME” CAN ONLY BE SUED FOR CLAIM ARISING FROM THOSE ACTIVITIES = SPJ. FAIRNESS *SPECIFIC PJ CASES ONLY!!!  1 BURDEN ON D AND W/S= ONLY “SEVERE DISADVANTAGE IN LITIGATION” (TRAVELLING IS OK) 2 STATE’S INTEREST = PROVIDE FORUM FOR ITS CITIZENS HARMED BY OUT OF STATERS 3 P’S INTEREST = MAY BE INJURED AND WANTS TO SUE AT HOME

II SUBJECT MATTER JURISDICTION (SMJ)

COURT’S POWER OVER CASE

STATE COURTS= GENERAL SMJ = CAN HEAR ANY CASE

FEDERAL COURTS (FC) = LIMITED SMJ, 2 TYPES OF CASES 1 DIVERSITY OF CITIZENSHIP (DOC) + ALIENAGE* AND 2 FEDERAL QUESTION (FQ)

-----------

1 DIVERSITY OF CITIZENSHIP (DOC) + ALIENAGE*: 1 CASES B/W CITIZENS OF DIFFERENT STATES (DIVERSITY) OR  CITIZEN OF STATE AND CITIZEN OF FOREIGN COUNTRY (ALIENAGE) & 2 AMOUNT IN CONTROVERSY EXCEEDS $75K.

1 CASES B/W CITIZENS OF DIFFERENT STATES (DIVERSITY) OR  CITIZEN OF STATE AND CITIZEN OF FOREIGN COUNTRY (ALIENAGE)

COMPLETE DIVERSITY RULE: ANY P CANNOT BE FROM SAME STATE AS ANY D.

“GREEN CARD” ALIEN DOMICILED IN US STATE = ALIEN (CANT HAVE DIVERSITY BUT MAYBE ALIENAGE). SPECIAL RULE= GREEN CARD ALIEN DOMICILED IN SAME STATE AS LITIGANT ON OTHER SIDE = NO ALIENAGE. US CITIZEN DOMICILED ABROAD = NO ALIENAGE & NO ALIENAGE AS NOT CITIZEN OF US STATE.

STATE OF CITIZENHIP = STATE OF DOMICILE (ONLY ONE DOMICILE)

NEW DOMICILE TEST = 1 PHYSICAL PRESENCE & 2 INTENT TO MAKE THAT YOUR PERMANENT HOME

TEST FOR DIVERSITY = WHEN CASE IS FILED

CITIZENSHIP OF CORPORATION = 1 STATE OF COUNTRY WHERE INCORPORATED 2 PPB (MORE THAN 1 STATE OF CITIZ)

PPB= WHERE MANAGERS DIRECT & CONTROL CORPORATE ACTIVITY “NERVE CENTRE” / HEADQUARTERS

CITIZENSHIP OF PARTNERSHIP/LLC = CITIZENSHIP OF ALL OF ITS MEMBERS

2 AMOUNT IN CONTROVERSY EXCEEDS $75K.

P’S CLAIM MUST EXCEED $75K NOT EXACTLY $75K

DON’T COUNT COST/INTEREST ON CLAIM

WHATEVER P CLAIMS IN GOOD FAITH = OK UNLESS “CLEAR TO LEGAL CERTAINTY” THAT CANNOT RECOVER MORE THAN $75K

WHAT P WINS = IRRELEVANT TO JURISDICTION

AGGREGATION= ADDING 2 OR MORE CLAIMS TO MEET THE MINIMUM REQUIREMENT. FACTUALLY UNRELATED CLAIMS OK B/W 1 D AND 1 P

IF NO DIVERSITY, CAN FILE CLAIM IN STATE COURT

JOINT CLAIMS= TOTAL VALUE

EQUITABLE RELIEF= P V. D FOR INJUNCTION- P’S VIEWPOINT = 1 DECREASE TO P’S PROPERTY BY MORE THAN $75K? D’S VIEWPOINT= COST MORE THAN $75K TO COMPLY WITH INJUNCTION?

FC’S DECLINE TO HEAR THESE CASES= DIVORCE, ALIMONY, CHILD CUSTODY, PROBATE ESTATE

---------------

2 FEDERAL QUESTION (FQ)

P’S COMPLAINT ARISES UNDER FED LAW / P MUST ASSERT FED RIGHT

TORT, CONTRACT, PROPERTY = STATE CLAIMS

----------------------

SUPPLEMENTAL JURISDICTION (SMJ OVER ADDITIONAL CLAIMS, COUNTERCLAIM, X-CLAIM)

CASE PROPERLY IN FED COURT- TEST EVERY ADDITIONAL CLAIM FOR SMJ

ADDITIONAL CLAIM= NO DIVERSITY OR FQ = SUPPLEMENTAL JURISDICTION

TEST FOR SJ = “COMMON NUCLEUS OF OPERATIVE FACT” WITH CLAIM THAT INVOKED SMJ = SAME T/O

LIMITATION= STATUTE -  NO SJ IN DIVERSITY CASE WHEN CLAIM BY P  V. CO-CITIZEN

SUMMARY OF SJ= NON FED, NON DIVERSITY CLAIM CAN BE HEARD IN FED COURT IF MEETS THE TEST UNLESS 1 ASSERTED BY P 2 IN DIVERSITY  ND 3 ASSERTED V. CO-CITIZEN

EVEN IF MEET SJ= COURT DISCRETION TO DECLINE JURISDICTION I.E. UNDERLYING CLAIM DISMISSED EARLY ON

-------------

REMOVAL

REMOVE FROM STATE TO FED COURT. REMOVL IMPROPER= FD COURT CAN REMAND CASE TO STATE COURT

D MUST REMOVE W/N 30 DAYS OF SERVICE

ALL D’S SERVED WITH PROCESS MUST BE REMOVED

NEW SERVICE= 30 DAY STARTS ANEW

P CAN NEVER REMOVE

ANY CASE THAT MEETS TEST FOR DIVERSITY OR FQ CAN BE REMOVED

REMOVING IN DIVERSITY CASE – D CITIZEN OF FORUM AND MORE THAN 1 YEAR AFTER CASE FILED IN STATE COURT = EXCEPTION & NO REMOVAL

REMOVE TO FED DISTRICT COURT THAT EMBRACES THE STATE COURT

NO COURT PERMISSION NEEDED FOR REMOVAL, FILE NOTICE OF REMOVAL + GROUNDS OF REMOVAL  (FQ / DIVERSITY)

P CAN REMAND TO STATE COURT IF CASE SHOULD NOT HAVE BEEN REMOVED

PROCEDURALLY IMPROPER REMOVAL = MOVE TO REMAND NO LATER THAN 30 DAYS AFTER NOTICE OF REMOVAL FILED & IF FED COURT LACKS SMJ= ANYTIME

---------------

WHAT LAW APPLIES IN FED COURT?

ERIE DOCTRINE: DIVERSITY CASE 1 IS THERE FED LAW ON POINT THAT DIRECTLY CONFLICTS WITH STATE LAW? = APPLY FED LAW (SUPREMACY CLAUSE) 2 NO FED LAW ON POINT FED JUDGE APPLIES STATE LAW IF THE ISSUES TO BE DETERMINED ARE SUBSTANTIVE (SOL, ELEMENTS OF CLAIM OR DEFENSE, CONFLICT OF LAWS, TOLLING OF SOL).

--------------------------

III VENUE

WHICH FED COURT – COUNTRY DIVIDED INTO FED DISTRICTS- P WANTS TO LAY VENUE IN PROPER DISTRICT

P MAY LAY VENUE IN ANY DISTRICT WHERE: 1 ALL D’S RESIDE OR 2 SUBSTANTIAL PART OF CLAIM AROSE

DOESN’T MATTER WHERE P RESIDES ONLY WHERE D

SPECIAL RULE= IF ALL D’S RESIDE IN DIFFERENT DISTRICTS OF SAME STATE P CAN LAY VENUE IN ANY DISTRICT IN WHICH ANY D RESIDES

TRANSFER OF VENUE

1 FED COURT MAY TRANSFER CASE TO ANOTHER FED COURT – “TRANSFEREE” MUST HAVE PROPER VENUE AND HAVE PJ OVER D- MUST BE TRUE AND INDEPENDENT OF WAIVER- COURT CAN TRANSFER TO ANY DISTRICT IF ALL PARTIES CONSENT & COURT FINDS GOOD CAUSE FOR TRANSFER

TRANSFER BASED ON CONVENIENCE OF PARTIES AND W/S’S & IN INTEREST OF JUSTICE BUT ALWAYS DISCRETIONARY WITH COURT- PUBLIC V. PRIVATE FACTORS SHOWING THAT “TRANSFEREE IS THE CENTRE OF GRAVITY” (GOOD REASON =FORUM SELECTION CLAUSE). IF ORIGINAL DISTRICT IMPROPER VENUE = COURT CAN TRANSFER OR DISMISS

FORUM NON CONVENIENS = THERE IS ANOTHER COURT THAT IS THE “CENTRE OF GRAVITY”= HERE COURT DISMISSES OR STAYS THE CASE (DOESN’T TRANSFER)- MORE CONVENIENT COURT IS ANOTHER JURISDICTION SO TRANSFER IS IMPOSSIBLE. P RESIDENT OF CURRENT FORUM –FNC NEVER GRANTED. OTHER COURT MUST BE “AVAILABLE” & “ADEQUATE” (P WILL GET HER DAY IN COURT).

-------

## LEARNING ABOUT CASE

I SERVICE OF PROCESS

SUMMONS + COMPLAINT = PROCESS

SERVICE BY 18+ & NON-PARTY

PERSONAL SERVICE- ANYWHERE, SUBSTITUTED SERVICE 1 D’S “USUAL ABODE” + “SUITABLE AGE + DISCRETION”, SERVICE ON D’S AGENT (CORP, OFFICER), METHODS FOR SERVING PROCESS THAT ARE PERMITTED BY STATE LAW IN STATE WHERE FED COURT SITS / SERVICE MADE, WAIVER BY MAIL: MAIL D COPY OF PROCESS + 2 WAIVER FORMS + PREPAID ENVELOPE – D EXECUTES AND MAILS WAIVER FORM TO D W/N 30 DAYS= D WAIVES SERVICE (ONLY FORMAL SERVICE OF PROCESS WAIVED)- P FILES WAIVER WITH COURT AND ITS EFFECTIVE (NO GOOD CAUSE + FAILURE TO RETURN WAIVER FORM= D PAYS FOR SECOND PROCESS)

RETURN OF SERVICE

SERVER FILES REPORT WITH COURT DETAILING HOW SERVICE WAS MADE (I.E. AFFIDAVIT)- FAILURE TO FILE= VALIDITY OF SERVICE NOT AFFECTED

INTERLOCUTORY[1] DOCS CAN BE SERVED INFORMALLY

3 EXTRA DAYS TO RESPOND IF INTERROGATORIES MAILED TO YOU

II PLEADINGS

COMPLAINT

FILING THIS COMMENCES ACTION

COMPLAINT: 1 STATEMENT OF GROUNDS: SMJ 2 SHORT AND PLAIN STATEMENT 3 DEMAND FOR RELIEF

STANDARD- “PLEAD FACTS SUPPORTING A PLAUSIBLE CLAIM” (BEFORE- ENOUGH DETAILS TO PUT OTHER SIDE ON NOTICE)- PLAUSIBILITY  = JUDGES USE EXPERIENCE AND COMMON SENSE […] “PARTICULARITY AND SPECIFICITY” HIGHER STANDARD FOR FRAUD, MISTAKE OR SPECIAL DAMAGES

  • D’S RESPONSE

RULE 12 = RESPOND BY 1 MOTION OR 2 ANSWER W/N 21 DAYS OF SERVICE BUT IF WAIVED SERVICE GET 60 DAYS FROM WHEN P MAILED YOU THE FORM

MOTIONS RULE 12

NOT PLEADINGS- REQUESTS FOR COURT ORDER

RULE 12(B) DEFENSES

“SOMETIMES POT VERY POWERFUL SO SMOKE IT” (SORRY- POOR ATTEMPT AT A MNEMONIC)

1 LACK OF SMJ 2 LACK OF PJ 3 IMPROPER VENUE 4 IMPROPER PROCESS (PROBLEM WITH PAPERS) 5 IMPROPER SERVICE OF PROCESS 6 FAILURE TO STATE CLAIM 7 FAILURE OT JOIN INDISPENSABLE PARTY – CAN BE PUT IN [MOTION TO DISMISS] OR [ANSWER]- 2,3,4,5 WAIVABLE – MUST BE PUT IN FIRST RULE 12 REPONSE MOTION OR ANSWER!!

COURT CAN STILL ORDER TRANSFER IF DEFENSE WAIVED

IF TURNS OUT THERES NO SMJ= COURT MUST DISMISS (EVEN WHEN PROCEEDINGS ARE ADVANCED)

IF CASE REMOVED FROM STATE COURT AND TURNS OUT NO SMJ= FED COURT MUST REMAND TO STATE COURT NOT DISMISS

ANSWER

D 1 RESPOND TO ALLEGATION OF COMPLAINT (ADMIT, DENY, STATE LACK SUFFICIENT INFO TO DO EITHER)

FAILURE TO DENY= ADMISSION

DAMAGES NEVER DEEMED ADMITTED AND OTHER THINGS DEEMED ADMITTED IF NOT DENIED

LACK OF SUFFICIENT INFO ONLY IF NOT WITHIN YOUR CONTROL- MUST INVESTIGATE

OR

D 2 RAISE AFFIRMATIVE DEFENSES

RES JUDICATA, SELF DEFENSE, SOF, SOL

MUST BE PLEADED IN ANSWER OR ELSE WAIVED

COUNTERCLAIM

CLAIM V. OPPOSING PARTY – PART OF D’S ANSWER

D SERVED COUNTERCLAIM- P MUST RESPOND W/N 21 DAYS

COMPULSORY COUNTERCLAIM- SAME T/O AS P’S CASE – FILE IN PENDING CASE OR CLAIM WAIVED

PERMISSIVE COUNTERCLAIM- DOESN’T ARISE FROM SAME T/O AS P’S CASE – MAY SUE IN SEPARATE CASE.

*EVERY SINGLE CLAIM IN FED COURT MUST HAVE SMJ

CROSS-CLAIM

CLAIM V. CO-PARTY –MUST ARISE FROM SAME T/O AS UNDERLYING CASE- MAY ASSERT HERE OR SUE SEPARATELY

CROSS CLAIMS ALWAYS MEET SUPPLEMENTAL JURISDICTION (IF NO DIVERSITY OR FQ)

ADDITIONAL CLAIMS

ONCE YOU FILE COUNTERCLAIM OR CROSS-CLAIM, CAN JOIN IN ADDITIONAL CLAIM EVEN IF NOTHING TO DO WITH THIS – MUST HAVE SMJ FOR ADDITIONAL CLAIM (DIVERSITY, FQ / SUPPLEMENTAL)- IF NONE, CLAIM DISMISSED, FILE WITH STATE COURT

--------------

AMENDED PLEADINGS

HAPPENED BEFORE PLEADING BUT WERE ASSERTED LATER

RIGHT TO AMEND = P HAS RIGHT TO AMEND ONCE W/N 21 DAYS AFTER D SERVES HIS RULE 12 RESPONSE […] D RIGHT TO AMEND ONCE W/N 21 DAYS OFF SERVING HIS ANSWER

NO RIGHT TO AMEND= SEEK LEAVE OF COURT – GRANTED IF “JUSTICE SO REQUIRES”- DELAY, PREJUDICE, FUTILITY (TRYING TO ADD A CLAIM THAT DOESN’T EXIST AT LAW) OF AMENDMENT – AGAINST

VARIANCE

EVIDENCE AT TRIAL DOESN’T MATCH PLEADING & IF D DOESN’T OBJECT, P CAN AMEND COMPLAINT TO ADD THIS VARIANCE (PLEADINGS MATCH WHAT WAS TRIED)- IF OBJECTION- EVIDENCE AT “VARIANCE WITH PLEADINGS” AND INADMISSIBLE

AMENDMENTS AFTER SOL HAS RUN – “RELATION BACK”

AMENDED PLEADINGS RELATE BACK IF THEY REFER TO SAME T/O AS ORIGINAL PLEADING (NO SOL PROBLEM)

----------------------------------

SUPPLEMENTAL PLEADINGS

THINGS THAT HAPPENED AFTER PLEADING FILED CONTRAST WITH AMENDED PLEADINGS (THINGS THAT HAPPENED BEFORE THE CLAIM WAS FILED BUT WERE NOT ASSERTED TILL LATER)- IN DISCRETION OF THE JUDGE WILL MOST OFTEN GRANT UNLESS WILL CAUSE DELAY / PREJUDICE

------------------

RULE 11 (ALL DOCS EXCEPT DISCOVERY) [CONTINUING RULE]

WHEN LAWYER OR PRO SE[2] PARTY SIGNS DOCS, SHE CERTIFIES THAT TO THE “BEST OF HER KNOWLEDGE OR BELIEF”, “AFTER REASONABLE ENQUIRY” 1 “PAPER NOT FOR IMPROPER PURPOSE” 2 “LEGAL CONTENTIONS WARRANTED BY LAW” 3 “FACTUAL CONTENTIONS AND DENIALS OF FACTUAL CONTENTIONS HAVE EVIDENTIARY SUPPORT”- MAKE THIS CERTIFICATION EVERY TIME YOU PRESENT “POSITION TO COURT”- CONTINUING CERTIFICATION – VIOLATION- RULE 11 SANCTIONS WILL OPERATE AGAINST PARTY/ATTORNEY/LAW FIRM- UP TO COURT TO DECIDE-BEFORE IMPOSING SANCTION- COURT MUST GIVE “CHANCE TO BE HEARD”- RULE 11 PURPOSE = DETER, NON-MONETARY SANCTIONS I.E. LAWYER HAS TO ATTEND PROFESSIONAL CLASS (LOL)- PARTY IN VIOLATION HAS SAFE HARBOR OF 21 DAYS – FIX PROBLEM AND AVOID SANCTIONS- IF DOESN’T FIX- MOTION CAN BE FILED BY OTHER PARTY, COURT CAN RAISE RULE 11 VIOLATIONS ON ITS OWN “SUA SPONTE”- WILL ISSUE “ORDER TO SHOW CAUSE” WHY SANCTIONS SHOULD NOT BE IMPOSED – MUST GIVE PARTY A CHANCE TO BE HEARD BEFORE IMPOSING SANCTIONS.

 

III DISCOVERY

MANDATORY DISCLOSURES

MATERIALS MUST BE PRODUCED

INITIAL DISCLOSURE

  • INITIAL DISCLOSURE W/N 14 DAYS OF RULE 26(F) CONFERENCE EACH PARTY MUST DISCLOSE 1 IDENTITIES OF PERSONS WHO HAVE DISCOVERABLE INFO THAT DISCLOSING PARTY MAY USE TO SUPPORT THEIR CLAIM/DEFENSE – NAME, TEL AND SUBJECTS ON WHICH THEY HAVE INFO (DON’T NEED TO GIVE INFO ABOUT S/M WHOSE HARMFUL TO CASE)- FAILURE TO IDENTIFY PERSONS = PARTY CANNOT USE PERSON AS A W/S UNLESS FAILURE TO IDENTIFY WAS HARMLESS OR SUBSTANTIALLY JUSTIFIED
  • DOCS AND THINGS- THAT YOU MAY USE TO SUPPORT YOUR CLAIMS / DEFENSES- MAY PRODUCE COPIES / DESCRIPTIONS – INCLUDES TANGIBLE THINGS & ESI (ELECTRONICALLY STORED DATA) - FAILURE TO DISCLOSE = CANNOT USE TO SUPPORT YOUR CASE UNLESS FAILURE HARMLESS OR SUBSTANTIALLY JUSTIFIED- ONLY THINGS IN YOUR CUSTODY/CONTROL MUST BE DISCLOSED
  • COMPUTATION OF MONETARY RELIEF- DOCS & ESI SUPPORTING IT
  • INSURANCE COVERAGE- D MUST DISCLOSE ANY INSURANCE THAT MAY COVER ALL OR PART OF JUDGMENT

EXPERT W/S

  • EACH PARTY MUST IDENTIFY EACH EW (EXPERT WITNESS) THAT MAY BE USED AT TRIAL (ORAL TESTIMONY)
  • CONSULTING EXPERTS- HELP TO PREPARE CASE BUT WILL NOT BE CALLED TO TESTIFY AT TRIAL- FACTS KNOWN OR OPINIONS GENERALLY NOT DISCOVERABLE
  • EW WHO “MAY BE USED AT TRIAL” – PARTY MUST IDENTIFY EW AND WRITTEN EXPERT REPORT – WRITTEN REPORT = 1 OPINIONS EW WILL EXPRESS 2 BASES FOR OPINIONS 3 FACTS USED TO FORM OPINIONS 4 QUALIFICATIONS 5 HOW MUCH EW BEING PAID
  • AFTER DISCLOSURE, PARTY MAY DEPOSE EW- SHOULD SUBPOENA EW TO COMPEL ATTENDANCE, PAY EW REASONABLE FEE/HOUR
  • WORK PRODUCT= EW REPORT AND DRAFTS & COMMUNICATIONS B/W EW AND LAWYER
  • EW HIRED TO “RENDER AN OPINION” IN THIS CASE BECAUSE OF SPECIAL KNOWLEDGE / QUALIFICATION
  • DOCTOR= OPINION FOR PURPOSE “OTHER THAN THIS LITIGATION” SO DOCTOR NOT EW
  • PARTY FAILS TO IDENTIFY EW + PROVIDE REQUIRED INFO= [PARTY CANNOT USE EW IN THIS CASE UNLESS FAILURE HARMLESS/JUSTIFIED

PRE-TRIAL MANDATORY DISCLOSURE

-NO LATER THAN 30 DAYS BEFORE TRIAL MUST GIVE DETAILED INFO ABOUT TRIAL EVIDENCE INC W/S, THINGS TO BE INTRODUCED AT TRIAL

DISCOVERY TOOLS

AFTER RULE 26(F) CONFERENCE = PARTY CAN FIRST REQUEST DISCOVERY FROM OTHER PARTIES

TOOLS TO GET INFO FROM OTHER PARTIES:

  • DEPOSITIONS: PERSON GIVES LIVE TESTIMONY IN RESPONSE TO Q’S BY COUNSEL – DEPONENT TESTIFIES UNDER OATH- DEPOSITION RECORDED + TRANSCRIPT- TESTIFIES FROM PRESENT RECOLLECTION – SHOULD SUBPOENA NON-PARTY TO COMPEL ATTENDANCE, NON PARTY= SERVE “NOTICE OF DEPOSITION”- SUBPOENA “DUCES TECUM” = REQUIRES PARTY TO BRING MATERIALS WITH HER- MAX 100 MILES FROM HOME/BUSINESS TRAVEL FOR NONPARTY- 10 DEPOSITIONS MAX, 1 DAY/7 HOURS MAX, CANT DEPOSE TWICE- USE OF DEPOSITIONS AT TRIAL 1 IMPEACH DEPONENT 2 ANY PURPOSE IF ADVERSARY 3 ANY PURPOSE IF DEPONENT UNAVAILABLE AT TRIAL
  • INTERROGATORIES: WRITTEN Q’S TO BE ANSWERED IN WRITING UNDER OATH- CAN SEND INTERROGATORIES TO PARTIES ONLY, REPONSE REQUIRED AFTER 30 DAYS OF SERVICE- MUST ANSWER FROM INFORMATION W/N YOUR CONTROL- MAX OF 25 Q’S – AT TRIAL CANNOT USE OWN ANSWERS TO INTERROGATORIES
  • REQUEST TO PRODUCE: SOMEONE MAKE AVAILABLE FOR REVIEW + COPYING OF DOCS OR THINGS INC ESI OR PERMIT YOU TO ENTER DESIGNATED PROPERTY TO INSPECT- RESPOND 30 DAYS OF SERVICE THAT MATERIALS WILL BE PRODUCED / OBJECTIONS – PARTIES & NON PARTIES OK BUT SUBPOENA NON PARTY
  • MEDICAL EXAM: MUST GET COURT ORDER- MUST SHOW THAT PERSONS HEALTH IN CONTROVERSY + GOOD CAUSE. PARTY OR SOMEONE IN PARTY’S CUSTODY OR CONTROL= NARROW (PARENT-CHILD)
  • REQUEST FOR ADMISSION: WRITTEN REQUEST THAT SOMEONE ADMITS THINGS- PARTIES ONLY – 30 DAYS TO RESPOND- MAKE REASONABLE ENQUIRY AND THEN SAY “I DON’T KNOW”. FAILURE TO DENY = ADMISSION

DISCOVERY- DUTY TO SUPPLEMENT: AFTER RESPOND TO DISCOVERY, THINGS CHANGE IN LIFE- MUST SUPPLEMENT RESPONSE IN LIGHT OF CHANGING CIRCUMSTANCES

SCOPE OF DISCOVERY

  • CAN DISCOVER “ANYTHING RELEVANT TO CLAIM OR DEFENSE”- REASONABLY CALCULATED TO LEAD TO DISCOVERY OF ADMISSIBLE EVIDENCE – BROADER THAN “ADMISSIBLE”- MUST PROVIDE EVERYTHING THAT’S RELEVANT EVEN IF HARMFUL (NEEDN’T BE DISCLOSED IN MANDATORY DISCLOSURE BUT MAY BE DISCOVERABLE UNDER DISCOVERY TOOLS)- TEST IS RELEVANCE NOT ADMISSIBILITY [LOOK BACK TO MANDATORY DISCL & COMPARE]
  • DOCTRINE OF PROPORTIONALITY- COURT – AUTHORITY TO LIMIT DISCOVERY IF REQUEST CUMULATIVE / BURDEN OUTWEIGHTS IMPORTANCE OF ISSUE
  • PRIVILEGE: OBJECTION TO DISCOVERY ATTORNEY-CLIENT
  • WORK PRODUCT: TRIAL PREP MATERIAL- PREPARED IN ANTICIPATION OF LITIGATION – CAN BE MADE BY ANY PARTY OR ITS REP. “QUALIFIED WORK PRODUCT” = DISCOVERABLE IF 1 SUBSTANTIAL NEED & 2 OTHERWISE NOT AVAILABLE “ABSOLUTE WORK PRODUCT”= CANNOT BE DISCOVERED INCLUDES MENTAL IMPRESSIONS, OPINIONS, CONCLUSIONS, LEGAL THEORIES.

ASSERTING PRIVILEGE

  • WITHHOLD DISCOVERY/ SEEK PROTECTIVE ORDER = CLAIM PROTECTION EXPRESSLY & DESCRIBE MATERIALS IN DETAIL- PRIVILEGE LOG
  • INADVERTENT PRODUCTION OF PRIVILEGED MATERIALS TO OTHER SIDE- NOTIFY IT PROMPTY AND THEY MUST DESTROY PENDING DECISION OF COURT

ENFORCEMENT OF DISCOVERY TOOLS

  • PROTECTIVE ORDER: DISCOVERY REQUEST SUBJECTS PARTY TO ANNOYANCE, EMBARRASSMENT, UNDUE BURDEN OR EXPENSE – MOVE FOR PO AND CERTIFY THAT SHE TRIED TO GET INFO FROM OTHER SIDE IN GOOD FAITH W/O COURT INVOLVEMENT = COURT CAN DENY, LIMIT OR PERMIT ON CERTAIN TERMS
  • PARTIAL REPONSE TO DISCOVERY REQUEST: REPONDING PARTY ANSWERS SOME Q’S BUT REJECTS OTHERS – REQ PARTY WILL MAKE MOTION TO COURT TO COMPEL ANSWERS
  • NO RESPONSE TO DISCOVERY REQUEST: RESPONDING PARTY FAILS TO REPLY, ATTEND ETC COMPLETELY
  • SANCTIONS V. PARTY
  • PARTY SEEKING SANCTIONS MUST CERTIFY THAT TRIED TO GET INFO W/O COURT INVOLVEMENT
  • PARTIAL RESPONSE: MOVE FOR ORDER COMPELLING PARTY TO ANSWER UNANSWERED Q’S – PARTY VIOLATES THIS ORDER = RAMBO SANCTIONS + COSTS
  • NO RESPONSE: RAMBO + COSTS- NO NEED FOR COURT ORDER
  • RAMBO SANCTIONS: ESTABLISHMENT ORDER (EST FACTS AS TRUE, STRIKE PLEADINGS OF DISOBEDIENT PARTY (ISSUES RE DISCOVERY), DISALLOW EVIDENCE FROM DISOBEDIENT PARTY, DISMISS P’S CASE, DEFAULT JUDGMENT V. D (BAD FAITH NEEDED)

MULTI PARTY LITIGATION

PROPER D’S AND P’S

CLAIMS- 1 ARISE FROM SAME T/O AND 2 RAISE AT LEAST 1 COMMON Q

ASSESS WHETHER PARTIES HAVE SMJ

NECESSARY & INDISPENSABLE PARTIES

  • COURT MAY FORCE NON PARTY TO JOIN CASE. NECESSARY= 1 W/O COURT CANNOT ACCORD COMPLETE RELIEF AMONG EXISTING PARTIES (MULTIPLE SUITS) 2 A’S INTEREST MAY BE HARMED** 3 INTERST THAT SUBJECTS PARTY TO RISK OF MULTIPLE LAWSUITS – JOINT TORTFEASORS NEVER NECESSARY
  • IS JOINDER FEASIBLE: 1 PJ 2 JOINDER WILL NOT GOOF UP DIVERSITY- IF FEASIBLE= COURT ORDERS YOUR JOINDER = DECIDED WHETHER D OR P) IF CANNOT BE JOINED 1 PROCEED W/O OR 2 DISMISS CASE (FACTORS COURT CONSIDERS – ALT FORUM, HARM TO YOU, CAN COURT SHAPE RELIEF TO AVOID HARM TO YOU)

IMPLEADER

  • D BRINGING SOMEONE NEW- TPD- NEVER COMPULSORY- INDEMNITY OR CONTRIBUTION
  • D- 3P COMPLAINT- NAMES TPD, SERVES PROCESS ON TPD- 14 DAYS OF SERVING YOUR ANSWER (AFTER- COURT PERMISSION)- MUST HAVE SMJ (DIVERSITY, FED Q, SJ)

INTERVENTION

  • NONPARTY BRINGS HERSELF INTO CLAIM
  • PERMISSIVE INTERVENTION- “AT LEAST ONE COMMON Q” CLAIM/DEFENSE & PENDING CASE- COURTS DISCRETION- UNLESS CAUSE PREJUDICE/DELAY- MUST HAVE SMJ (DIVERSITY, FQ, SJ)

CLASS ACTION

  • REP SUES ON BEHALF OF GROUP- 4 REQ MUST SHOW ALL: 1 NUMEROSITY (TOO MANY CLASS MEMBERS FOR PRACTICABLE JOINDER) 2 COMMONALITY (SOME ISSUES IN COMMON TO ALL CLASS MEMBERS) 3 TYPICALITY (REPS CLAIMS ARE TYPICAL OF THOSE OF THE CLASS) 4 REP ADEQUATE (WILL FAIRLY AND ADEQUATELY REPRESENT CLASS)
  • FIT CASE INTO: TYPE 1 “PREJUDICE” CLASS TREATMENT NEC TO AVOID HARM- ALLOW EVERYONE TO RECOVER AT LEAST PORTION OF CLAIM TYPE 2 “CLASS SEEKS INJUNCTION/DECLARATORY JUDGMENT” TYPE 3 “DAMAGES”- COMMON Q’S PREDOMINATE OVER INDIVIDUAL ONES AND C/A SUPERIOR METHOD TO HANDLE DISPUTE (MASS TORT CASES)
  • CASE NOT C/A UNTIL COURT CERTIFIES -> DEFINE CLASS AND CLAIMS + APPOINT CLASS COUNSEL (MUST FAIRLY AND ADEQUATELY REPRESENT INTERESTS OF CLASS)
  • TYPE 3 “DAMAGES”- COURT MUST NOTIFY C/M THAT THEY ARE IN A CLASS- INDIVIDUAL NOTICE (MAIL) TO ALL REASONABLY IDENTIFIABLE MEMBERS- NOTICE = 1 CAN OPT OUT 2 BOUND IF DON’T 3 CAN ENTER SEP APPEARANCE THROUGH COUNSEL – ALL MEMBERS BOUND BY JUDGMENT EXCEPT THOSE WHO OPT OUT (CANT OPT OUT FROM TYPE 1 OR 2)- PARTIES CAN SETTLE/DISMISS C/A ONLY WITH COURT APPROVAL
  • CONSIDER REP FOR DIVERSITY (CITIZENSHIP NOT MEMBERS)

ADJUDICATING DISPUTE

I PRELIMINARY INJUNCTIVE RELIEF

  • COURT ORDER- DO STH OR REFRAIN FROM DOING STH- MAINTAINS STATUS QUO BEFORE TRIAL -> TRO – ORDER TO MAINTAIN STATUS QUO BEFORE HEARING ON INJUNCTIVE RELIEF

TRO

  • EX PARTE TRO- APPLICANT FILES PAPER UNDER OATH SHOWING IF NO TRO WILL SUFFER “IMMEDIATE & IRREPARABLE HARM” & APPLICANTS LAWYERS CERTIFIES HIS EFFORTS TO GIVE ORAL/WRITTEN NOTICE TO D ON WHY SUCH NOTICE NOT REQUIRED – POST BOND-TERMS OF TRO- SPECIFICITY- 1 WHAT D MUST DO/REFRAIN FROM DOING, 2 WHY ISSUED, 3 WHY THREATENED INJURY IRREPARABLE-> COURT ISSUES TRO- MUST SERVE NOTICE ON D ASAP.- OTHER SIDE CAN MOVE TO DISSOLVE/MODIFY TRO- TRO= NO MORE THAN 14 DAYS – GOOD CAUSE EXTENSION OF +14 DAYS BUT NO MORE THAN 28 DAYS

PRELIMINARY INJUNCTION

  • MAINTAINS STATUS QUO UNTIL COURT CAN ADJUDICATE CLAIM ON MERITS- CANT BE GRANTED EX PARTE
  • BURDEN ON APPLICANT TO SHOW THAT 1 LIKELY TO SUFFER IRREPARABLE HARM 2 LIKELY TO WIN ON MERITS OF UNDERLYING CLAIM 3 BALANCE OF HARDSHIP FAVOURS HIM 4 PI IN PUBLIC INTEREST- PI ALAYS DISCRETIONARY- COURT GRANTS = APPLICANT POST BOND – MUST STATE TERMS WITH SPECIFICITY , DESCRIBE IN DETAIL WHAT D MUST / REFRAIN FROM DOING + WHY ISSUED- ORDER GRANTING PI= IMMEDIATELYY APPEALABLE

 

II PRE-TRIAL ADJUDICATION

VOLUNTARY DISMISSAL

  • P WANTS TO WITHDRAW CASE – P RIGHT TO VOLUNTARY DISMISSAL – “NOTICE OF DIMISSAL” BUT MUST DO BEFORE D SERVES ANSWER OR MOTION FOR SUMMARY JUDGMENT – TIMELY- CASE DISMISSED /O PREJUDICE (CAN BRING IT AGAIN)

DEFAULT/DEFAULT JUDGMENT

  • D DOESN’T RESPOND TO COMPLAINT IN TIME
  • DEFAULT: NOT AUTOMATIC- P MUST DEMONSTRATE TO COURT THAT D FAILED TO RESPOND ON TIME- D CAN RESPOND BY MOTION OR ANSWER UNTIL DEFAULT ENTERED- DEFAULT CUTS OFF D’S RIGHT TO RESPOND- CANT RECOVER AS NEED DEFAULT JUDGMENT
  • DEFAULT JUDGMENT: CLERK OF COURT CAN ENTER JUDGMENT IF 1 D MADE NO RESPONSE, 2 CLAIM FOR CERTAIN SUM OF $, 3 CLAIMANT AFFIDAVIT OF SUM OWED AND 4 D NOT MINOR/INCOMPETENT – IF ELEMENT NOT TRUE- P GOES TO COURT FOR DEFAULT JUDGMENT (NOT CLERK)- JUDGE = HEARING AND DISCRETION TO ENTER JUDGEMENT – D NOTICE ONLY IF APPEARED IN CASE (CAN ONLY GET $ THAT YOU PLEADED)- D -> MOTION TO SET ASIDE DEFAULT/DEFAULT JUDGMENT SHOW GOOD CAUSE+ VIABLE DEFENSE

MOTION TO DISMISS FOR FAILURE TO STATE A CASE

  • P’S COMPLAINT FAILS TO STATE A CLAIM- BEFORE D ANSWERS- LOOKS AT P’S ALLEGATIONS OF FACTS – IF FACTS TRUE, WOULD P WIN JUDGMENT?- COURT LOOKS AT FACE OF COMPLAINT NOT EVIDENCE
  • MOTION FOR JUDGMENT ON PLEADINGS- AFTER D SERVED ANSWER

MOTION FOR SUMMARY JUDGMENT***

  • FRCP 56 P STATED CLAIM BUT MAY NOT NEED TRIAL (NEED TRIAL TO RESOLVE DISPUTES OF FACT) MOVING PARTY SHOW 1 NO GENUINE DISPUTE ON A MATERIAL FACT 2 ENTITLED TO JUDGMENT AS MATTER OF LAW (ALWAYS DISCRETIONARY EVEN IF THESE THINGS SHOWN)- MOVE FOR THIS NO LATER THAN 30 DAYS AFTER CLOSE OF DISCOVERY (ANY PARTY) – COURT CAN LOOK AT EVIDENCE IN SJ- “COURT VIEWS EVIDENCE IN THE LIGHT MOST FAVOURABLE TO THE NON-MOVING PARTY”- PARTIES PROFFER EVIDENCE: AFFIDAVITS, DECLARATION, DEPOSITION TESTIMONY, INTERROGATORY ANSWERS = EVIDENCE (BECAUSE UNDER OATH)- THERE MUST BE A DISPUTE OF FACT TO AVOID DEFAULT JUDGMENT (PLEADINGS – NOT EVIDENCE)

 

III CONFERENCES AND MEETINGS

  • RULE 26(F) CONFERENCE- 21 DAYS BEFORE SCHEDULING CONFERENCE, PARTIES MUST MEET AND CONFER – DISCUSS CLAIMS, DEFENSES AND SETTLEMENT – MUST AGREE AND PRESENT TO COURT A DETAILED DISCOVERY PLAN
  • SCHEDULING ORDER: ROADMAP OF HOW LITIGATION WILL PROCEED UP TO THE TRIAL
  • PRETRIAL CONFERENCE: PROCESS CASE AND FOSTER SETTLEMENT- FINAL PRETRIAL CONFERENCE- DETERMINE ISSUES TO BE TRIED AND EVIDENCE TO BE PROFERRED AT TRIAL- RECORDED IN PRETRIAL CON ORDER- SUPERSEDES THE PLEADINGS AND BECOMES ROADMAP FOR TRIAL (PREVENTS SURPRISES AT TRIAL)

IV TRIAL, JUDGMENT AND POST-TRIAL MOTIONS

  • JURY TRIAL: DETERMINES FACTS AND RETURNS VERDICT – NO JURY, JUDGE DETERMINES FACTS (BENCH TRIAL)- RIGHT TO JURY TRIAL IN FED COURT- 7 AMENDMENT- RIGHT TO JURY TRIAL IN CIVIL CASES BUT NOT SUITS IN EQUITY! I.E. DAMAGES OK – JURY ISSUES THEN JUDGE ISSUES (IF EQUITY INVOLVED)- MUST DEMAND JURY TRIAL NO LATER THAN 14 DAYS AFTER SERVICE OF LAST PLEADING RAISING TRIABLE ISSUE. IF NOT= WAIVE THE RIGHT TO JURY TRIAL. JURY SELECTION PROCEDURE= EACH SIDE MAY WANT TO STRIKE A JUROR – 2 TYPES OF CHALLENGES 1 “FOR CAUSE” – BIASED, PREJUDICED, RELATED, NO LIMIT ON NO. OF STRIKES FOR CAUSE 2 “PEREMPTORY” – RACE AND GENDER NEUTRAL MANNER- NO REASON FOR DISMISSING- 3 PER SIDE- FED COURT - MAX NO 12 AND MINIMUM 6 JURORS – UNANIMOUS VOTE REQUIRED FOR VERDICT. JURY INSTRUCTION: DECIDES FACTS BUT INSTRUCTED ON THE LAW BY THE JUDGE. TYPES OF VERDICTS: 1 GENERAL: WHO WINS AND RELIEF 2 SPECIAL: JURY ANSWERS SPECIFIC QUESTIONS ABOUT FACTS IN DISPUTE – JUDGE REACHES LEGAL CONCLUSIONS ON FACTS FOUND 3 GENERAL VERDICT WITH SPECIAL INTERROGATORIES: GENERAL VERDICT BUT MUST ALSO ANSWER SPECIFIC QUESTIONS SUBMITTED TO IT – WHEN VERDICT RETURNED, COURT ENTERS JUDGMENT. CHALLENGES TO VERDICT: 1 CORRECTABLE ERRORS: JURY DID NOT FOLLOW INSTRUCTIONS OR VERDICT INCONSISTENT – CAN BE SET ASIDE & JURY CAN RECONSIDER OR ORDER NEW TRIAL 2 JURROR MISCONDUCT: CAN SET ASIDE THE VERDICT AND ORDER NEW TRIAL- JURY BRIBED OR BASED DECISION ON INDEPENDENT INVESTIGATIONS INSTEAD OF EVIDENCE TRIAL – NEW TRIAL CAN BE ORDERED (THESE ARE “EXTRINSIC MATTERS” BUT CANNOT ENQUIRE INTO JUROR MENTAL PROCESSES – “INTRINSIC MATTERS”
  • BENCH TRIAL: CONCLUSIONS OF LAW STATED SEPARATELY FROM THE FACTS BY THE JUDGE + JUDGE MUST ENTER THE JUDGMENT
  • MOTIONS AT AND AFTER TRIAL: 1 MOTION FOR JUDGMENT AS MATTER OF LAW (JMOL)- DIRECTED VERDICT APPLIES IN JURY TRIAL- JUDGE RULES FOR A SIDE AND CASE DOESN’T GO TO JURY- MOTION BASED UPON EVIDENCE PRESENTED AT TRIAL “REASONABLE PPL COULDN’T DISAGREE WITH THE RESULT”- PARTY CAN MOVE FOR JMOL AFTER OTHER SIDE HEARD AT TRIAL
  • RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW (RJMOL): SAME AS JMOL BUT COMES AFTER TRIAL- W/N 28 DAYS OF ENTRY OF JUDGMENT = MUST MOVE FOR RJMOL (MUST HAVE MOVED FOR JMOL AT TRIAL –PREREQUISITE)
  • MOTION FOR NEW TRIAL: JUDGMENT ENTERED- ERROR T TRIAL= SHOULD HAVE NEW TRIAL. MUST MOVE W/N 28 DAYS AFTER JUDGMENT. RJMOL= TAKING JUDGMENT FROM ONE PARTY AND GIVING IT TO ANOTHER.
  • ADDITUR/REMITTITUR: GROUND FOR NEW TRIAL IS EXCESSIVE OR INADEQUATE DAMAGES- DAMAGES FIGURE “SHOCKS THE CONSCIENCE” (CAN HAVE NEW TRIAL)- AVOID NEW TRIAL –COURT MAY SUGGEST ADDITUR/REMITTITUR. REMITTITUR: P- TAKE LESSER AMOUNT OR GO THROUGH NEW TRIAL (OK IN FED AND STATE COURTS). ADDITUR: HARDBALL WITH D- D PAY GREATER AMOUNT IN DAMAGES OR GO THROUGH WITH A NEW TRIAL (NOT ALLOWED IN FEDERAL COURT ONLY STATE COURT)

--------

BIG TOPIC: APPEAL

  • FINAL JUDGMENT RULE (FJR): CAN APPEAL ONLY FROM FINAL JUDGMENTS- ULTIMATE DECISION BY TRIAL COURT ON MERITS OF ENTIRE CASE. FILE NOTICE OF APPEAL IN TRIAL COURT W/N 30 DAYS OF FINAL JUDGMENT. DOES TRIAL COURT HAVE ANYTHING LEFT TO DO ON THE MERITS? [FJR Q]- IF YES, JUDGMENT NOT FINAL.
  • INTERLOCUTORY REVIEW: EXCEPTION TO FJR. INTERLOCUTORY ORDERS REVIEWABLE AS OF RIGHT. INTERLOCUTORY APPEALS ACT- ALLOWS APPEAL OF NONFINAL ORDER IF JUDGE CERTIFIES THAT IT INVOLVES A CONTROLLING ISSUE OF LAW FOR WHICH THERE IS GROUND FOR DIFFERENCE OF OPINION AND COURT OF APPEALS AGREE TO HEAR IT.
  • CLASS ACTION: COURT OF APPEALS HAS DISCRETION TO REVIEW ORDER GRANTING/DENYING CERTIFICATION OF C/A- W/N 14 DAYS OF ORDER MUST SEEK REVIEW AT COURT OF APPEALS
  • STANDARD OF REVIEW BY APPELLATE COURT: 1 DISTRICT JUDGE DECIDES Q OF LAW- DE NOVO STANDARD (NO DEFERENCE TO TRIAL JUDGE) 2 NON-JURY TRIAL, DISTRICT JUDGE – QUESTIONS OF FACT- COURT OF APPEALS AFFIRMS UNLESS THE FINDING ARE ERRONEOUS 3 JURY TRIAL, JURY DECIDES Q’S OF FACT, COURT OF APPEALS WILL AFFIRM UNLESS REASONABLE PEOPLE COULDN’T HAVE MADE THAT FINDING 4 DISCRETIONARY MATTERS- CA AFFIRM UNLESS COURT ABUSED ITS DISCRETION

 

BIG TOPIC: PRECLUSION

  • EARLIER CASE- PRECLUSIVE EFFECT OF PRIOR JUDGMENT ON MERITS- WHETHER JUDGMENT ENTERED PRECLUDES LITIGATION OF ANY MATTERS IN CASE 2. CASE 1 AND 2 IN DIFFERENT JUDICIAL SYSTEMS- COURT IN CASE 2- APPLY PRECLUSION LAW OF JUDICIAL SYSTEM THAT DECIDED CASE 1.
  • CLAIM PRECLUSION (RAISE JUDICATA): GET TO SUE ON CLAIM ONCE. CASE 1 AND 2 BROUGHT BY SAME CLAIMANT V. SAME DEFENDANT- CASE 1 ENDED IN VALID JUDGMENT ON MERITS UNLESS BASED ON JURISDICTION, VENUE, INDISPENSABLE PARTIES CASE 1 AND 2 ASSERTED SAME CLAIM = MAJORITY VIEW= SAME T/O MINORITY VIEW: DIFFERENT RIGHTS
  • ISSUE PRECLUSION (COLLATERAL ESTOPPEL): CASE 1 ENDED IN VALID, FINAL JUDGMENT ON MERITS, SAME ISSUES LITIGATED AND DETERMINED IN CASE 1, ISSUE ESSENTIAL TO JUDGMENT IN CASE 1, CAN ONLY ASSERT IP V. S/N WHO WAS PARTY TO CASE 1 (OR C/A), IP CAN BE ASSERTED- “NONMUTUAL” ISSUE PRECLUSION – S/N WHO WAS NOT PARTY TO CASE 1 AND D IN CASE 2. NONMUTUAL OFFENSIVE ISSUE PRECLUSION: NOT PARTY IN CASE 1 AND P IN CASE 2 (SEE 4 REQUIREMENTS ABOVE)- PROBLEM OF “MUTUALITY” AS ASSERTED BY P (HAVE TO BE D IN CASE 2)- CLEAR TREND IN LAW WILL ALLOW IT IF IT IS NOT “UNFAIR” (FACTORS: 1 FULL & FAIR OPPORTUNITY TO LITIGATE IN CASE 1; 2 COULD FORESEE MULTIPLE SUITS 3 COULD NOT HAVE JOINED IN EASILY IN CASE 1 AND 4 NO INCONSISTENT FINDINGS ON THE ISSUE*

 

 

 

[1] PAPERS OTHER THAN PLEADINGS. PLEADINGS = CLAIM + DEFENSE(THAT’S IT!)

[2] REPRESENTING HIMSELF / HERSELF- LITIGANT IN PERSON

     
Your experience on this site will be improved by allowing cookies.