Federal Procedure New York Bar Exam Preparation Condensed Revision Notes


Federal Procedure New York Bar Exam Preparation Condensed Revision Notes

FEDERAL PROCEDURE

  1. Right Court? – Personal Juris(PJ), Subject matter (SM), Venue; 2. Learning about case: Service of process, pleadings, Discovery; 3. Multipart cases: Party joinder, class action; 4. Adjud. : injunctions, pretrial, trial; 5. Apellate review: Final Judg., Interlocutory, Standard of Review; 6. Preclusion: Claim Preclusion, issue preclusion

FIRST: RIGHT COURT

A: PJ: COURT’S POWER OVER PARTIES à P FILED = COURT AUTOMATIC POWER OVER P. BIG Q PJ OVER D. PJ: CAN P SUE D IN THIS STATE? à PJ 2-STEP ANALYSIS: 1. SATISFY STATE STATUTE & 2. SATISFY CONSTITUTION (DUE PROCESS) à SAME ANALYSIS IN FED. + STATE COURT

B: IN PERSONAM JURIS.: P TO IMPOSE PERSONAL OBLIGATION ON Dà ANALYSIS: 1. STATUTORY: JURISDICTION IS OK IF MEETS CONSTITUTIONAL TEST.

2.CONSTITUTIONAL ANALYSIS: IF D IS 1) DOMICILED IN THE FORUM; 2) CONSENTS; 3) VOLUNTARILY PRESENT IN THE FORUM WHEN SERVED W PROCESS. IF NONE TRUEà ASSESS SET OF FACTORS UNDER: a. CONTACT: MUST BE RELEVANT CONTACT B/W D & FORUM STATE. 2 FACTORS: 1) PURPOSEFUL AVAILMENT à D MUST REACH OUT; CANNOT BE ACCIDENTAOL CONTACT: e.g. tried to make money in forum, used roads, marketed product, sent tortious email to p there. Can d purp. Avail w/o setting foot in forum? – yes, by causing effect in forum (sending a tortious email to state); 2) FORESEEABILITY: FORESEEABLE THAT D COULD BE SUED IN THIS FORUM.

  1. RELATEDNESS B/W THIS CONTACT & P’S CLAIM à P’S CLAIM ARISE FROM D’S CONTACT W FORUM = SPECIFIC PJ. IF NOT, THEN OK IF COURT HAS GENERAL PJ = D CAN BE SUED THERE FOR CLAIM THAT AROSE ANYWHERE IN WORLD. REQUIREMENT: 1. D MUST BE @ HOME (DOMICILED) IN FORUM. E.G. D domiciled in VA. D can be sued in VA on claim arose in Antarctica, b/c VA gen. PJ over D. CORPORATION @ HOME WHERE INCORPORATED + PRINCIPAL PLACE OF BUSINESS. E.G. Wal incorp. In DEL, principle bus. In ARK. Operates in every state, 1000+ employees in TX. No PJ in TXà not incorp. + no PPB.

SO: IF D= NOT @ HOME= ONLY SWUED FOR CLAIM ARISING FROM THOSE ACTIVITIES = SPECIFIC PJ.

  1. FAIRNESS: SPECIFIC PJ CASES ONLY, NOT IN GEN. JURIS! SO IF D @HOME= END. JUR FAIR/REASONABLE? 1) BURDEN ON D & WITNESSES (doesn’t mean most convenient forum, constitutionally OK if travel hardship, unless severe disadvantage in litigation à difficult to meet, as relative wealth + travel hardship not determinative); 2)STATE’S INTEREST: FORUM STATE MAY WANT TO PROVIDE FORUM FOR CITIZENS, ALWAYS MENTION IF P IS CITIZEN OF FORUM; 3) P’S INTEREST: MAY INJURED & WANTS SUE @HOME.

SUMMARY CONSTIT. TEST:

CONTACT: PURPOSEFUL AVAILMENT; FORESEEABILITY

RELATEDNESS: GENERAL V. SPECIFIC

FAIRNESS: SPECIFIC ONLY. BURDEN/ CONVENIENCE; STATE’S INTEREST; PLAINTIFFS INTEREST

  1. IN REM & QUASI REM JURISDICTION: POWER OVER D’S PROPERTY IN FORUM. MUST BE ATTACHE DBY [email protected] OUTSET. D’S CONTACT MUST MEET CONSTITUTIONAL TEST.
  2. SM JURIS. : COURT’S POWER OVER THE CASE. STATE OR FEDERAL? STATE: ANY CASE EXCEPT ARISING UNDER SOME FED. LAW: PATENT INFRINGEMENT, BANKRUPTCY, SOME FED. SECURITIES & ANTITRUST CLAIM (BUT MOST ARISING UNDER FED. LAW CAN BE HEARD BY STATE COURT). FEDERAL: LIMITED SMJ, 1) DIVERSITY OF CITIZENSHIP (ALIENAGE)à 2 REQ: (1) B/W CITIZENS OF DIFF. STATES (DIVERSITY) OR B/W CITIZEN OF STATE & FOREIGNER (ALIENAGE) AND (2) AMOUNT EXCEEDS $75K + 2) FED. QUESTION

RIGHT LITINGANTS FOR DIVERSITY / ALIENAGE: a. COMPLETE DIVERSITY RULE: ALL P’S = CITIZENS OF DIFF STATE THAN D.   b. CITIZENSHIP OF A NATURAL PERSON: US STATE OF DOMICILE = US STATE OF CITIZENSHIP. ALWAYS 1 DOMICILE! ESTABLISH NEW DOMICILE: 1) PHYSICAL PRESENCE + 2) INTENT TO MAKE PERMANENT HOME ( relevant factors: job, buy house, join civic organisat., register to vote, qualify instate tuition)  (WASHINGTON DC = STATE FOR DIVERSITY PURPOSES; TEST FOR DIVERSITY WHEN CASE FILED = DO NOT CARE WHAT HAPPENS TO CIT/SHIP AFTER FILED/ BEFORE CASE FILED). c. CIT/SHIP OF CORP: 1) STATE INCORP + 2) STATE/COUNTRY OF PPB à UNLIKE HUMANS, CAN HAVE 1+ PLACE OF CIT/SHIP E.G XYZ CORP (INC. IN or W ppb IN ut) SUES D (UT)= NO DIVERSITY, UTAH ON BOTH SIDES. PPB OF INCORP= DIRECT & CONTROL CORP. ACTIVITY= “NERVE CENTRE” / HEADQUARTERS. d. CIT/SHIP OF UNINCORP. ASSOC. (LLC OR PART/SHIP) = CIT/SHIP OF ALL MEMBERS. E.G. XYZ PART/SHIP = PARTNERS CITIZENS OF 18 STATES = PART/SHIP CIT/SHIP ALL 18 STATES + DON’T CARE WHERE XYZ FORMED AS ONLY RELEVANT FOR CORPS. CIT/SHIP OF DECEDENTS, MINORS, INCOMPETENT à THROUGH REP ONLY, REP’S CIT/SHIP IRRELEVANT.

2) AMOUNT IN CONTROVERSY ( IN ADD. TO DIVERSITY/ ALIANAGE): P’S CLAIM MUST EXCEED $75K. CANNOT COUNT ONTEREST ON CLAIM, BUT OK IF RECOVERING INTEREST AS CLAIM. WHATEVER P CLAIMS IN GOOD FAITH IS OK, UNLESS CLEAR TO LEGAL CERTAINTY THAT CANNOT RECOVER MORE THAN $75K. CANNOT INCLUDE PUNITITIVE DAMAGES IN K CASES. IF SUES FOR MORE THAN $75K & ONLY WINS $10K à STILL OK, ONLY AMOUNT SUING FOR COUNTS.

AGGREGATION à ADDING 2+ CLAIMS TO MEET >$75K: 1 P VS 1 D; AGGREGATION OF FACTUALLY UNRELATED CLAIMS = OK; NO LIMIT OF NUMBER OF CLAIMS THAT CAN BE AGGREGATED. E.G.  IF p1 v D1 + P2 v D1 = cannot aggregate + no fed. Question = state court. IF JOINT CLAIMS = TOTAL VALUE OF CLAIMàe.g. P sues joint tortfeasors X, Y & Z for $75000.01 = ok. IF JOINTà #  PARTIES IRRELEVANT.

EQUITABLE RELIEF: P SUES D FOR INJUNCTION TO TEAR DOWN D’S HOUSE THAT BLOCKS P’S VIEW: TEST IF 1) P’S VIEWPOINTà W/O INJUNCTION, P’S PROPERTY DECREASES BY >$75K IN VALUE  OR 2)D’S VIEWPOINT: COST TO D >$75K TO COMPLY W INJUNCTION. IF EITHER =OK.

  1. EXCLUSIONS: EVEN IF DIVERSITY & ALIENAGE MET, FED. COURTS DECLINE: DIVORCE, ALIMONY, CHILD CUSTODY, PROBATE ESTATE
  2. FED. QUESTION CASES: P’S COMPLAIN ARISES UNDER FED. LAW (E.G. FED. CONSTITUTION; LEGIS.). CIT/SHIP & AMOUNT IRRELEVANT.

WELL PLEADED COMPAINT RULE- P MUST ASSERT FED. RIGHT. E.G. P hires D to build a house. D fails to build, but argues that fed. Environment statute prohibits building @ that place. P sues D for specific performance, argues that FED stat does not apply. So complaint mentions fed. Law & raises fed. Issue, but not FQ b/c P is not enforcing fed.

Unless claim is based on fed. Law, regular tort, K, prop/ty claims=state claims

  1. SMJ OVER ADDITIONAL CLAIMS (INCL. SUPPLEMENTAL JURIS.): ONCE CASE IN FED. COURT (UNDER DIVERSITY OR FQ), EVERY SINGLE ADDITIONAL CLAIM IS TESTED FOR DIVERSITY & FQ. FED. COURT CAN STILL HEAR EVEN IF NO DIVERSITY OR FQ, IF IT INVOKES SUPPLEMENTAL JURISDICTIONà NON-FEDERAL & NON-DIVERSITY CASES TO FED. COURT, BUT CASE MUST ALREADY BE IN FED COURT.

SUPPL. JURIS. TEST: claim - have “common nucleus of operative fact” w claim that invoked FED. SMJ.

IF CLAIM ARISES FROM SAME TRANSACTION AS UNDERLYING CASE= CAN GET SUPPLEMENTAL JURIS. B/C CLAIM SHARES COMMON NUCLEUS OF OPERATIVE FACT CLAIM THAT INVOKED FED. SMJ

LIMITATION: NO SUPPLEMENT. JURIS. FOR DIVERSITY CASES: WHEN CLAIM MADE BY P; AGAINST A CO-CITIZEN. SO RULE: DIVERSITY CASE= P CANNOT USE SUPPLEMENT. JURIS TO OVERCOME LACK OF DIVERSITY. LIMITATION IN DIVERSITY NEVER APPLIES TO FQ CASES + CLAIMS BY D!  IF NO CASE IN FED COURT= NO SUPPLEMENT. JURIS = NO CLAIMS INTO FED.COURT

SUMMARY: NON-FEDERAL, NON-DIIVERSITY CASE CAN BE HEARD IN FED. COURT IF MEETS “THE TEST” UNLESS 1. ASSERTED BY PLAINTIFF; 2. IN A DIVERSIITY OF CITIZENSHIP (NOT FQ) CASE & 3. Asserted against a citizen of the same state as plaintiff.

DICRETIONARY FACTORS: COURT HAS DISCRETION TO DECLINE SUPPLEMENT. JURIS. = IF COMPLEX STATE LAW OR STATE LAW ISSUE PREDOMINATES; + IF UNDERLYING CLAIM DISMISSED EARLY IN CASE E.G. SUMMARY JUDGEMENT

REMOVAL: TRANSFERS CASE FROM STATE COURT TO FED. COURT. ONLY D CAN REMOVE. IF IMPROPER= FED. COURT “REMAND” BACK TO STATE. D MUST: W/N 30 DAYS OF SERVICE OF 1ST PAPER THAT SHOWS CASE IS REMOVABLE. ALL DS SERVED W PROCESS MUST JOIN IN REMOVALàIF D1 MISSES 30 DAYS, CAN REMOVE WITH D2 ( 30 DAYS OF SERVICE LIMIT. STARTS ANEW W EACH NEW SERVICE OOF PROCESS ON NEW D)

CASES FOR REMOVAL:

  1. ANY CASE FOR DIVERSITY/ FQ: 2 EXCEPTIONS – ONLY IF ON BASIS OF DIVERSITY OF CITIIZENSHIP JURIS.
  2. NO REMOVAL IF ANY D = CITIZEN OF FORUM (INSTATE D RULE)
  3. NO REMOVAL IF +1 YEAR AFTER CASE FILED IN STATE COURT

* +2 DS: CASE MIGHT BECOME REMOVABLE IF CLAIM AGAINST INSTATE D IS DROPPED (W/N 30 DAYS OF DISMISSAL OF INSTATE D)

REMOVE ONLY TO FED. DISTRICT THAT EMBRACES STATE COURT WHERE CASE IS FILED.

GROUNDS OF REMOVAL = CASE INVOKES DIVERSITY OR FQ:

D MUST ATTACH ALL DOCS THAT ARE SERVED ON D IN STATE ACT. SERVE COPY OF “NOTICE OF REMOVAL” ON ADVERSE PARTIES. FILE COPY OF “NOTICE OF REMOVAL “ IN STATE COURT.

IF P = CASE SHOULDN’T MOVE = P MOVES TO REMAND TO STATE COURT. IF PROCEDURALLY IMPPROPER= MOVE TO REMAND W/N 30 DAYS OF NOTICE OF REMOVAL FILED. IF P’S GROUND FOR REMOVAL FED. COURT LACK OF SMJ= NO TIME LIMIT ON SMJ

WHAT LAW IN FED. COURT?

  1. THE ERIE DOCTRINE:

STEP1 SEE IF FED. LAW (FED. CONSTITUTION/STATUTE/ FRCP/FED. RULE OF EVIDENCE) CONFLICTS W STATE LAW= APPLY FED. LAW IF VALID BASED ON SUPREMACY CLAUSE.

VALID FRCP= IF DOES NOT MODIFY SUBSTANTIVE RIGHTS. MET IF RULE “ARGUABLY PROCEDURAL”.

STEP2. IF NO FED. LAW ON POINT, FED. JUDGE MUST APPLY STATE LAW IF ISSUE IS SUBSTANTIVE (4 CLEARLY SUBST. ISSUES):

1) ELEMENTS OF CLAIM / DEFENSE; 2) STATUTE OF LIMITATIONS; 3) RULES FOR TOLLING STATUTES OF LIMITATIONS; 4) CONFLICT (/CHOICE) OF LAW RULES. }IF THOSE IN DIVERSITY CASE, APPLY STATE LAW.

STEP3. IF NO FED. LAW ON POINT & ISSUE IS NOT LISTED:

DETERMINE IF ISSUE “SUBSTANTIVE” (VERY UNCLEAR, WEIGH FACTORS): a. OUTCOME DETERMINATIVE (APPLYING/IGNORING AFFECT OUTCOME?-IF YES = SUBSTANTIVE = STATE LAW) b. BALANCE OF INTERESTS (FED./STATE SYSTEM STRONG INTEREST IN APPLICATION OF RULE?) c. AVOID FORUM SHOPPING (IF FED. IGNORE STATE LAW, WILL IT CAUSE PARTIES TO FLOCK TO FED. COURT? IF YES=STATE LAW).

  1. FEDERAL COMMON LAW: ERIE= NO GENERAL FED. COMMON LAW.= GEN. COMMON LAW OF K, TORTS & PROP/TY = STATE LAW =FED. COURTS MUST APPLY STATE SUBSTANT. LAW.

BUT: CAN MAKE UP FED. COMMON LAW, E.G.     CONGRESSàSTATUTE THAT CREATES NEW CLAIM, BUT NO STATUTE OF LIMITATIONS. TO FILL GAP IN STATUTE, FED. COURT MAKE UP FED. COMMON LAW. + OTHER: INTL’ RELATIONS, ADMIRALTY, DISPUTES B/W STATES, RIGHT TO SUE FED. OFFICER FOR VIOLATION OF FED. RIGHTS.

III. VENUE: A. WHICH FED. COURTà COUNTRY DIVIDED INTO FED. DISTRICTS

  1. P MAY LAY VENUE IN ANY DISTRICT WHERE: ALL Ds RESIDE( problem: no such thing + special rule – IF ALL D’S IN DIFF. DISTRICTS OF SAME STATE= P VENUE WHERE ANY D RESIDES= DOMICILED) OR SUBSTANTIAL PART OF CLAIM AROSE } CHOICES DON’T APPLY TO REMOVED CASES.
  2. HUMAN RESIDES= DOMICILED; BUSINESS/ CORPORATION RESIDES IN ALL DISTRICTS WHERE SUBJECT TO PJ FOR CASE.
  3. TRANSFER OF VENUE à FED. DISTRICT COURT MAY TRANSFER TO ANOTHER DISTRICT COURT. ORIGINAL COURT= TRANSFEROR; WHERE CASE SENT = TRANSFEREE. ONLY TRANSFER WHERE COULD BE FILED= TRANSFEREE MUST BE A PROPER VENUE 7 HAVE PJ OVER Dà MUST BE TRUE INDEPENDENT OF WAIVER. à EXCEPT: COURT CAN TRANSFER TO ANY DISTRICT IF: ALL PARTIES CONSENT + COURT FINDS GOOD CAUSE FOR TRANSFER

2 TRANSFER STATUTES: 1. IF ORIGINAL DISTRICT=PROPER VENUE, COURT CAN TRANSFER ON CONVENIENCE OF PARTIES & WITNESSES & ON INTEREST OF JUSTICE.

RIGHT TO TRANSFER= NEVER, ALWAYS DISCRETIONARY. COURT LOOKS AT PRIVATE & PUBLIC FACTORS:

PUBLIC: WHAT LAW APPLIES, WHAT COMMUNITY SHOULD BE BURDENED W JURY SERVICE, DESIRE TO KEEP LOCAL CONTROVERSY IN LOCAL COURT.

PRIVATE: CONVENIENCE (E.G. WHERE WITNESSES AND EVIDENCE)

1 HUGE FACTOR IN FAVOUR: EXISTENCE OF VALID FORUM SELECTION CLAUSE. IF ENTERED K W TERM THAT DISPUTES LITIGATED IN PARTICULAR DISTRICT= ALMOST ALWAYS ENFORCED BY ORDER OF TRANSFER.

  1. IF ORIGINAL DISTRICT = IMPROPER VENUE à COURT MAY TRANSFER / DISMISS
  2. FORUM NON CONVENIENS à ANOTHER COURT @ CENTRE OF GRAVITY BUT DON’T TRANSFER TO THAT COURT: DISMISS OR STAY CASE (HOLD IN OBEDIENCE: NOTHING HAPPENS IN CASE; P WILL THEN SUE IN OTHER COURT) WHY DO THIS? B/C MORE CONVENIENT COURT IN DIFFERENT JUDICIAL SYSTEM (FOREIGN COUNTRY) àTRANSFER IMPOSSIBLE. DECISION BASED ON SAME PUBLIC/ PRIVATE FACTORS, BUT + STRONG SHOWING B/C RESULTS IN DISMISSAL/ STAY. IF P=RESIDENT OF PRESENT FORUM à DISMISSAL ALMOST NEVER GRANTED.

OTHER COURT=AVAILABLE & ADEQUATE. IF FOREIGN COURT DON’T TRIAL BY JURY/RECOVERY FOR EMOTIONAL DISTRESS≠INADEQUATE; ADEQUATE = P GETS DAY IN COURT (JUDGEMENT AMOUNT ETC IRRELEVANT)

SECOND: LEARNING ABOUT THE CASE

  1. SERVICE OF PROCESS
  2. D=ENTITLED TO NOTICE OF SUIT:

CONSISTS OF 1) SUMMONS (FORMAL COURT NOTICE OF SUIT & TIME FOR RESPONSE) AND 2) COPY OF COMPLAINT } = PROCESS

  1. ANY NONPARTY OF 18+ CAN SERVE PROCESS. DOESN’T HAVE TO BE APPOINTED BY COURT
  2. HOW? a) PERSONAL SERVICE: PAPERS GIVEN TO D PERSONALLY ANYWHERE. b) SUBSTITUTED SERVICE: OK IF D’S USUAL ABODE & PROCESS LEFT W 18+ & DISCRETION WHO RESIDES THERE (BUTLER IS OK B/C RESIDES THERE, BABYSITTER NOT GOODà NOT RESIDENT)

USUAL ABODE = COMMON SENSE (SUMMER HOUSE DURING SUMMER)

30 DAYS TO RESPOND TO INTERROGATORIES, IF MAILED THEN 3 EXTRA DAYS. CAN SERVE BY EMAIL IF OTHER PARTY CONSENTS.

  1. PLEADINGS
  2. COMPLAINT – FILING COMMENCES ACTION. 1. REQ:
  3. STATEMENT OF GROUND OF SMJ;P – no need to allege grounds of PJ / venue
  4. SHORT &PLAIN STAT/NT OF CLAIM, SHOWING ENTITLED TO RELIEF -MUST PLEAD FACTS SUPPORTING PLAUSIBLE CLAIM ( supreme court requires MORE DETAIL THAN JUST PUTTING OTHER SIDE ON NOTICE (fraud, mistake, & special damages, must be pleaded w particularity & specificity). Plausibility= judge uses experience & common sense
  5. DEMAND FOR RELIEF SOUGHT (DAMAGES, INJUNCTION, DECLARATORY JUDGEMENT)
  6. DEFENDANT’S RESPONSE. RULE 12 D TO RESPOND IN 1 OF: 1) BY MOTION 2) BY ANSWER. MUST DO W/N 21 DAY, IF NOT = DEFAULT. IF D WAIVED SERVICE àMUST RESPOND BY MOTION / ANSWER W/N 60 DAYS FROM WHEN P MAILED D THE WAIVER FORM.
  7. MOTIONS (RULE 12) ≠ PLEADINGS = REQUESTS FOR COURT ORDER
  8. ISSUES OF FORM 1) MOTION FOR MORE DEFINITE STAT/NT - PLEAD VAGUE D CAN’T FRAME RESPONSE; 2) MOTION TO STRIKE – AIMED @IMMATERIAL / SCANDALOUS THINGS
  9. RULE12(b) DEFENSES: CANNOT WAIVE 1,6,7; WAIVABLE 2,3,4,5

(1) LACK OF SMJ; (2) LACK OF PJ; (3) IMPROPER VENUE (à COURT STILL HAS DISCRETION TO TRANSFER EVEN IF DEFENSE IS WAIVED); (4) IMPROPER PROCESS (PROBLEM W PAPERS); (5) IMPROPER SERVICE OF PROCESS;  (6) FAILURE TO STATE A CLAIM; (7) FAILURE TO JOIN INDISPENSABLE PARTY

WAIVABLE= MUST BE PUT IN RULE 12 RESPONSE MOTION / ANSWER, OR ELSE WAIVED

BAR EXAM CLASSIC – IF D DOES NOT PUT 12(b) (2), (3), (4), OR (5) DEFENSES IN HIS FIRST RULE 12 RESPONSE à WAIVED  + OTHER HYPO: COURT HAS DISCRETION TO TRANSFER TO PPROPER VENUE EVEN THOUGH D WAIVED VENUE.

IF CASE IS FILED IN FED. COURT + NO SMJ à MUST DISMISS! IF CASE REMOVED FROM STATE COURT + FED. COURT LACKED SMJ, FED. COURT WOULD REMAND TO STATE COURT. If FILED IN FED. COURT + NO SMJ à COURT WILL DISMISS.

ANSWER = PLEADING. D à  RESPOND BY a. 1) ADMIT; 2) DENY; 3) STATE LACK OF SUFF. INFO TO ADMIT / DENY (EFFECT OF DENIAL)

FAILURE TO DENY ALLEGATION P = ADMISSION OF ALLEGATION à SAYING P LACKS PROOF ≠ DENIAL

DAMAGES = ONLY THING D IS NEVER DEEMED TO ADMIT ( EVERYTHING ELSE= DEEMED ADMITTED UNLESS DENIED)

  1. RAISE AFFIRMATIVE DEFENSES. INJECT NEW FACT INTO CASE, WHICH WILL ALLOW D TO WIN. CLASSIC AF. DEF = STATUTE OF LIMITATIONS; STATUTE OF FRAUDS; RES JUDICATA; SELF-DEFENSE.

D MUST ASSERT AFFIRM. DEF. IN HIS ANSWER, CAN NOT INTRODUCE @TRIAL.

  1. COUNTERCLAIM. CLAIM BACK BY D AGAINST P. PART OF D’S ANSWER. AFTER D SERVES COUNTERCLAIM, P MUST RESPOND W/N 21 DAYS.

2 TYPES: 1. COMPULSORY = ARISES FROM SAME T/O AS P’S CLAIM. MUST FILE THIS IN PENDING CASE, OR THE CLAIM IS WAIVED.

  1. PERMISSIVE: DOES NOT ARISE FROM SAME T/O AS P’S CLAIM.NOT REQUIRED TO FILE IN THIS CASE, MAY SUE IN A SEPARATE CASE. IF COUNTER CLAIM DOES NOT INVOKE DIVERSITY OR FQà TRY SUPPLEMENT. JURIS.
  2. CROSSCLAIM. CLAIM AGAINST CO-PARTY. MUST ARISE FROM SAME T/O AS UNDERLYING ACTION. NOT COMPULSORY- MAY SUE SEPARATELY. CROSSCLAIMS ALWAYS MEET TEST FOR SUPP. JURIS. BY DEFITION ( ARISES FROM SAME T/O + CLAIM NOT ASSERTED BY P)

IF D1 FILES CROSSCLAIM AGAINST D2 + D2 FILED AGAINST D1 = COUNTERCLAIM B/C AGAINST OPPOSING PARTY

  1. ADDITIONAL CLAIMS. ONCE FILED COUNTERCLAIM / CROSSCLAIM = CAN JOIN ADDITIONAL CLAIM TO IT, EVEN IF CLAIM HAS NOTHING TO DO W OTHERS. MUST INVOKE SMJ (DIVERSITY OF FQ, IF NOT MET à SUPPLEMENT. JURIS., IF NOT APPLIC. à CASE DISMISSED à STATE COURT).
  2. AMENDED PLEADINGS (BEFORE PLEADING FILED, BUT NOT ASSERTED TILL LATER)
  3. RIGHT TO AMEND: P = RIGHT TO AMEND ONCE W/N 21 DAYS AFTER D SERVES FIRST RULE 12 RESPONSE (BY MOTION / ANSWER). ; D= RIGGHT TO AMEND ONCE W/N 21 DAYS OF SERVING ANSWER
  4. IF NO RIGHT TO AMEND à SEEK LEAVE OF COURT. AMENDMENT GRANTED IF “JUSTICE SO REQUIRES” & UNLESS DELAYED, PREJUDICE AG/ST SOMEONE, AMENDMENT FUTILE (ADD CLAIM THAT DOESN’T EXIST UNDER LAW)
  5. VARIANCE: EVID. @TRIAL ≠ WHAT PLEADED – IF P INTRODUCES EVIDENCE @TRIAL THAT WAS NOT IN COMPLAINT + D DOESN’T OBJECT à AT / AFTER TRIAL P CAN MOVE TO AMEND COMPLAINT TO CONFORM TO EVIDENCE (P MOVES FOR VARIANCE) = ENSURES THAT PLEADINGS MATCH WHAT WAS TRIED. IF @TRIAL D OBJECTS TO EVIDENCE OF P (WAS NOT IN COMPLAINT) à EVIDENCE INADMISSIBLE B/C “AT VARIANCE W PLEADINGS”
  6. AMNDMNT AFTER STATUTE OF LIMITATIONS HAS RUN ( RELATION BACK):

RULE AMNDED PLEAD. RELATION –BACK: AFTER P FILES COMPLAINT & SERVES PROCESS + SEEKS TO AMEND TO ADD NEW CLAIM BUT NEW CLAIM TIME-BARRED B/C SOL RANàI F NEW CLAIM =SAME CONDUCT / T/O  OF ORIGINAL CLAIM à RELATES BACK (TREAT NEW CLAIM AS IF WAS FILED SAME TIME AS ORIGINAL CLAIM SO SO ITS TIMELY + NO SOL)

  1. SUPPLEMENTAL PLEADINGS – ADD CLAIM / EVIDENCE TO PLEADING AFTER CASE FILED B/C OF NEW EVENTS à E.G. P sues D breach of K + after filed, D ran over P w car. P moves to file supplemental pleading ( tort claim to exist. Case). DISCRETIONARY, COURT WILL GRANT UNLESS IT WILL DELAY OR PREJUDICE.
  2. RULE 11 – APPLIES TO ALL DOCS EXCEPT DISCOVERY: L SIGNS DOCS = CERTIFIIES THAT TO BEST OF KNOWLEDGE & BELIEF, AFTER REASONABLE INQUIRY: (1) PAPER NOT FOR IMPROPER PURPOSE AND (2) LEGAL CONTENTIONS WARRANTED BY LAW (OR NONFRIVOLOUS ARGUMENT FOR LAW CHANGE), AND (3) FACTUAL CONTENTIONS & DENIALS OF FACTUAL CONTENTIONS HAVE EVIDENTIARY SUPPORT (OR ARE LIKELY TO AFTER INVESTIGATION) +   MAKE THIS CERTIF. EVERY TIME PRESENT POSITION TO COURT  - CONTINUING CERTIFICATION.

IF VIOLATION ( ASSERTION OF BASELESS CLAIM) RULE 11 SANCTIONS MAY BE ORDERED AG/NST PARTY & / ATTORNEY / LAW FIIRM ( OR ANY COMBINATION à COURT TO DECIDE). COURT MUST GIVE RULE 11 VIOLATER CHANCE TO BE HEARD BEFORE RULE 11 SANCTIONS. PURPOSE: TO DETER, NOT PUNISH à OFTEN NON-MONETARY SANCTIONS ( ATTEND PROFESSIONALISM CLASSES). IF MONETARY à TO COURT, NOT OTHER PARTY. CANNOT FILE FOR VIOLATION IMMEDIATELY, 21 DAY SAFE HARBOR TO FIX PROBLEM, IF NOT = MOTION CAN BE FILED.

COURT CAN RAISE RULE 11 VIOLATION ON ITS OWN (SUA SPONTE)

USUALLY COURT ISSUES “ORDER TO SHOW CAUSE” WHY SANTCIONS SHOULD NOT BE IMPOSED. COURT MUST GIVE PARTY CHANCE TO BE HEARD BEFORE IMPOSING SANCTION.

III. DISCOVERY

  1. MANDATORY DISCLOSURES: MATERIALS MUST BE PRODUCED EVEN THOUGH NOONE ASKS:
  2. INTIAL DISCLOSURES: EACH PARTY MUST DISCLOSE W/N 14 DAYS OF RULE 26(f) CONFERENCE a. IDENTITIES OF PERSONS WHO HAVE DISCOVERBLE INFO THAT YOU MAY USE TO SUPPORT CLAIMS / DEFENSES. MUST GIVE: NAMES, TEL. #S, SUBJECT ON WHICH THEY HAVE INFO (HARMFUL TO CASE).

E.G. P  KNOWS W (NONPARTY) àHARMFUL INFO TO P’S CLAIM, P NOT REQ. TO DISCLOSE W’S ID B/C DOES NOT SUPPORT P’S CASE.

IF PARTY FAILS TO ID = CANNOT USE AS A WITNESS IN CASE UNLESS (1) SUBSTANTIALLY JUSTIFIED; (2) HARMLESS

(b) MUST PRODUCE COPIES/ DESCRIPT. OF DOCS + THINGS THAT MAY BE USED TO SUPPORT CLAIMS / DEFENSES + ESI (ANY ELECTRONICALLY STORED INFO) + TANGIBLE THINGS

ONLY DOCS & THINGS W/N PARTY’S CONTROL MUST BE DISCLOSED à IIF NOT IN PARTY’S CONTROL = NO NEED TO DISCLOSE

(c) IF CLAIMING MONETARY RELIEFà MUST PROVIIDE “COMPUTATION” SUPPORTED BY DOCS / ESI OF AMOUNT SOUGHT

(d) INSURANCE COVERAGGE. D MUST DISCLOSE INSURANCE IF COVERS ALL / PART OF JUDGEMENT àEXISTENCE NOT ADMISSIBLE @ TRIAL (DISCOVERABLE BROADER THAN ADMISSIBLE)

  1. EXPERT WITNESSES (EW) ≠ CONSULTING EXPERT= HELP PREPARE CASE, NOT CALLED TO TESTIFY @ TRIAL( FACTS + OPINIONS GENERALLY NOT DISCOVERABLE, UNLESS EXCEPT. CIRCUMSTANCE).

EXPERT WITNESSES= SOMEONE W SPECIAL SKILL/TRAINING HIRED TO RENDER OPINION IN CASE. MAY BE USED @ TRIAL. MUST DISCLOSE TO OTHER PARTY: IDENTITY (NAME, PHONE, SUBJECT) + WRITTEN REPORT PREPARED BY EW.           MUST INCLUDE: 1) OPINIONS EW WILL EXPRESS; 2) BASIS FOR OPINIONS; 3) FACTS USED TO FORM OPINIONS; 4) EW’S QUALIFICATIONS; 5) $ EW BEING PAID

PARTY MAY TAKE DEPOSITION OF EW. IF TAKING DEPOSITIONà SHOULD SUBPOENA EW TO COMPEL ATTENDANCE + PARTY MAST PAY EW REASONABLE FEE PH.

WORK PRODUCT = REPORT & DRAFTS OF EW + COMMS B/W L & EW

DOCTOR ≠ EW B/C DEVELOPED OPINION FOR PURPOSE OTHER THAN THIS LITIGATION (DAY JOB)

  1. PRETRIAL MANDATORY DISCLOSURE. W/N 30 DAYS BEFORE TRIAL, MUST GIVE DETAILED INFO ABOUT TRIAL EVIDENCE ( ID OF WIT. TO TESTIFY / BY DEPOSITION & DOCS (ESI, THINGS FOR TRIAL)
  2. DISCOVERY TOOLS: PARTY CAN 1ST REQUEST DISCOVERY FROM O PARTIES (ASSUM. NO ORDERS/ STIPULATIONS). ISSUE: TOOLS USED TO GET INFO FROM NON-PARTIES
  3. DEPOSITIONS. LIVE TESTIMONY IN RE: TO QUESTIONS BY COUNSEL / PRO SE PARTIES. NORMALLY ORAL, CAN BE WRITTEN (READ BY COURT REPORTER). DEPONENT TESTIFIES UNDER OATH. DEPO RECORDED BY SOUND / VIDEO / STENOGRAPHICALLY & CAN TRANSCRIPT. NOT REQ. TO REVIEW ALL RELEVANT FILES + NOTES BEFORE BEING DEPOSED). CAN TAKE DEPO OF PARTY/ NON PARTY, NON-PARTY à SUBPOENA TO COMPEL ATTENDANCE. PARTYà NO SUBPOENA, SERVE NOTICE OF DEPOSITION.

SUBPOENA “DUCES TECUM” = SHOW UP + BRING REQ. DOCS

FARTHEST NON PARTY CAN BE REQ. TO TRAVEL TO HAVE DEPO TAKEN = 100 MILES FROM RESIDENCE / PLACE OF EMPLOYMENT

LIMITS ON DEPOSITION: CANNOT TAKE >10 DEPOSITIONS; DEPOSE SAME PERSON X2 W/O COURT APPROVAL/ STIPULATION. DEPO CAN’T EXCEED 7 HOURS A DAY UNLESS COURT ORDERS/ PARTIES STIPULATE.

USE OF DEPOS @ TRIAL (SUB. TO RULES OF EVIDENCE): 1) IMPEACH DEPONENT; 2) ANY PURPOSE IF DEPONENT IS ADVERSE PARTY; 3) ANY PURPOSE IF DEPONENT (REG/LESS WHETHER PART) IS UNAVAIL. FOR TRIIAL, UNLESS ABSENCE PROCURED BY PTY SEEKING TO INTRO EVIDENCE.

  1. INTERROGATORIES: WRITTEN QUESTIONS, ANSWERED IN WRITING UNDER OATH. CAN SEND TO PTIES ONLY. PTY TO RESPOND W ANSWERS/OBJECT. W/N 30 DAYS OF SERVICE. MUST ANSWER FROM INFO W/N YOUR CONTROL ( IF IN YOUR FILES, MUST LOOK UP). MAX # OF INTERROG. = 25 (INCL. SUBPARTS). IF ANSWERS TO INTERROG.L CAN BE FOUND IN BUSINESS RECS & BURDENSOME TO FIND ANSWERS, RESPONDING PARTY CAN ALLOW REQUESTING PARTY TO HAVE ACCESS TO RECS. @TRIAL= CANNOT USE YOUR OWN ANSWERSTO INTERROGATORIES. OTHERS ARE OK PER RULES OF EVIDENCE.
  2. REQUESTS TO PRODUCE: REQ. TO MAKE AVAIL. FOR REVIEW &COPYING DOCS / THINGS INCL. ESI OR TO PERMIT TO ENTER DESIGN. PROP/TY TO INSPECT, MEASURE ETC. MUST RESPOND W/N 30 DAYS OF SERVICE, STATING MATERIAL WILL BE PRODUCED OR W OBJECTION. CAN MAKE REQ. TO PRODUCE TO PARTIES + NON-PARTIES, BUT SUBPOENA NON-PARTY. REQUESTING PARTY SPECIFIES THE FORM FOR ESI TO BE PRODUCED.
  3. MED. EXAM (PHYSICAL/ MENTAL): MUST GET COURT ORDER. MUST SHOW: PERSON’S HEALTH IN CONTROVERSY & GOOD CAUSE. ANY PRTY OR SOMEONE IN PRTY’S CUSTODY OR LEGAL CONTROL CAN BE ORDERED. VERY NARROW: ONLY PARENT + CHILD RELATIONSHIP.

PTY SEEKING ORDER CHOOSES SUITABLY LICENSED PERSON TO PERFORM EXAM. IF TESTED PARTY REQUESTS COPY OF REPORT = WAIVED PRIVILEGE TO REPORT BY HIS OWN DOCTOR.

  1. REQUEST FOR ADMISSION: WRITTEN REQUEST THAT SOMEONE ADMIT THINGS. SENT TO PARTIES ONLY. 30 DAYS TO RESPOND. RESPONDER CAN SAY “DON’T KNOW” ONLY IF MADE REASONABLE INQUIRY. FAILURE TO DENY=ADMISSION. USED TO AUTHENTICATE DOCS ( ADMIT OR DENY THAT…)
  2. PRTIES SIGN SUBSTANT. ANSWERS TO DISCOVERY UNDER OATH. EVERY DISCOVERY REQUEST & RESPONSE SIGNED BY COUNSEL CERTIFYING 1) IT IS WARRANTED; 2) NOT INTERPOSED FOR IMPROPER PURPOSE; 3) NOT UNDULY BURDENSOME
  3. DUTY TO SUPPLEMENT: ONGOING. IF CIRCUMSTANCES CHANGE, MUST SUPPLEMENT RESPONSE ( TO REQ. DISCLOSURE, INTERROGATORY, REQUEST FOR PRODUCTION, REQUEST FOR ADMISSION TO MAKE COMPLETE + CORRECT).
  4. SCOPE OF DISCOVERY: ANY/NG RELEVANT TO CLAIM/ DEFENSE THINGS REASONABLY CALCULATED TO LEAD TO DISCOVERY OF ADMISSIBLE EVIDENCE – BROADER THAN ADMISSIBLE. MOST PROVIDE THINGS EVEN IF HARMFUL TO PRODUCER à BROADER THAN ADMISSION. SOMETHING HARMFUL TO YOU NEED NOT BE DISCLOSED IN MANDATORY DISCLOSURES, BUT MAY BE DISCOVERABLE USING USUAL DISCOVERY TOOLS.

NET WORTH IRRELEVANT AS TO COMPENSATORY DAMAGES, BUT RELEVANT TO PUNITIVE DAMAGES

UNDER DOCTRINE OF PROPORTIONALITY: COURT HAS AU THORITY TO LIMIT DISCOVERY OF THE REQUEST IS CUMULATIVE OR IF BURDEN OUTWEIGHS IMPORTANCE OF ISSUE ( EVEN IF SOMETHING IS RELEVANT).

IF COURT FINDS DISCOVERY NOT REASONABLY ACCESSIBLE, PTY SEEKING DISCOVERY CAN SHOW GOOD CAUSE FOR DISCOVERY + COURT MAY ORDERPRODUCTION BUT ALLOCATE EXPENSES B/W PARTIES (WHEN LARGE COST TO PRODUCE INFO)

  1. PRIVILEGE. OBJECT TO DISCOVERY ON BASIS OF EVIDENTIARY PRIVELEGE – CONFIDENT. COMMS B/W ATTORNEY & CLIENT
  2. WORK PRODUCT / TRIAL PREP. MATERIALS ( PREP IN ANTICIPATION OF LITIGATION). PROTECTED FROM DISCOVERY. CAN BE GENERATED BY ANY PARTY OR ANY REPRESENTATIVE OF PARTY ( NEED NOT BE L).  WITNESS STAT/NT DISCOVERABLE IF PARTY SHOWS: 1) SUBSTANTIAL NEED + 2) NOT OTHERWISE AVAILABLE = QUALIFIED WORK PRODUCT. ABSOLUTE WORK PRODUCT= CANNOT BE DISCOVERED. ABSOLUTELY PROTECTED B/C 1) MENTAL IMPRESSIONS; 2) OPINIONS; 3) CONCLUSIONS; 4) LEGAL THEORIES.

IF REPORT GENERATED SOLELY B/C STATE REQUIRES = NOT PREPARED IN ANTICIPATION OF LITIGATION ≠ WORK PRODUCT. IDENTITY OF PPL W DISCOVERABLE INFO= DISCOVERABLE≠ WORK PRODUCT. PARTY HAS RIGHT TO REQUEST ITS OWN STAT/NTS.

  1. ASSERTING PRIVILEGE OR WORK PRODUCT. WITHHOLD DISCOVERY / SEEK PROTECTIVE ORDER BASED ON PRIVILEGE / WORK PRODUCT= MUST CLAIM PROTECTION EXPRESSLY & DESCRIBE MATERIALS IN DETAIL à MATERIALS PROTECTED BY DATE, AUTHOR, RECIPIENT & PRIVILEGE / PROTECTION CLAIMED. PRIVILEGE LOG = WHEN WITHOLD DISCOVERY / SEEK PROTECTIVE ORDER BASED ON PRIVILEGE OR WORK PRODUCT.

IF PRODUCE PRIVILEGED/ PROTECTED MATERIAL INADVERTENTLY à NOTIFY OTHER PARTY PROMPTLY. OTHER PTY MUST RETURN, SEQUESTER / DESTROY IT PENDING DECISION BY COURT ABOUT WHETHER THERE HAS BEEN A WAIVER.

  1. ENFORCEMENT OF DISCOVERY RULES. 1. 3 WAYS COURTS GET INVOLVED:
  2. PROTECTIVE ORDER: IF RESPONDING PTY SUBJECTS DISCOVERY TO ANNOYANCE, EMBARRASSMENT, UNDUE BURDEN / EXPENSE (E.G. ESI not reasonably accessible). MUST CERTIFY THAT TRIED IN GOOD FAITH TO GET INFO W/O COURT INVOLV.- ASKED OTHER PTY TO MEET & CONFER. IF COURT AGREES à IT CAN 1) DENY DISCOVERY; 2) LIMIT IT 3) PERMIT ON CERTAIN TERMS.
  3. PARTIAL RESPONSE TO DISCOVERY REQUEST: RESPONDING PTY ANSWERS SOME Qs BUT OBJECTS TO OOTHHERS. REQUESTING PARTY à MOTION TO COMPEL ANSWERS & COURT WILL DECIDE WHETHER OBJECTIONS LEGITIMATE.
  4. NO RESPONSE TO DISCOVERY REQUEST: RESPONDING PARTY FAILS TO ATTEND DEPOSITION, RESPOND TO INTERROGATORIES, OR TO RESPOND TO REQUESTS FOR PRODUCTION.
  5. SANCTIONS AG/NST PTY: PTY SEEK. ACTIONS MUST CERTIFY TRIED IN GOOD FAITH TO GET INFO W/O COURT. a. PARTIAL RESPONSE à 2 STEPS: 1) MOVE FOR ORDER COMPELLING PRTY TO ASNWER UNANSWERED QS + COSTS (INCL. ATTORN. FEES) OF BRINGING MOTION. 2) IF PTY VIOLATES ORDER, RAMBO SANCTIONS + COSTS (& ATTORN. FEES RE MOTION) & COULD BE HELD IN CONTEMPT FOR VIOLATING COURT ORDER ( EXCEPT REFUSAL TO SUBMIT TO MED. EXAM = NO CONTEMPT). b. NO RESPONSE: RAMBO + COSTS (INCL. ATTORN). NO NEED TO GET ORDER COMPELLING ANSWERS.

RAMBO SANCTIONS (CHOICES FOR JUDGE): € ESTABLISHMENT ORDER (EST. FACTS AS TRUE) € STRIKE PLEAD. OF DISOBEDIENT PTY (AS TO ISSUES RE DISCOVERY) € DISALLOW EVID. FROM DISOBEDIENT PTY (ISSUES RE DISCOVERY) € DISMISS P’S CASE ( IF BAD FAITH SHOWN) € ENTER DEFAULT JUDGEMENT AGAINST D (IF BAD FAITH)

IF PTY FAILS TO PRODUCE ESI IN GOOD FAITH = NO SANCTIONS, ONLY IMPOSE IN EXCEPTIONAL CASES.

THIRD TOPIC: MULTIPARTY LITIGATION

  1. PROPER DS & PS. P IS PLANNING CASE & WANTS MULTIPLE PS / DS. IF CO-PS: CAN SUE IF ARISE FROM SAME T/O & RAISE AT LEAST 1 COMMON Q. CO-DS: AGAINST # OF DS IF ARISE FROM SAME T/O & RAISE AT LEAST 1 COMMON Q. ASSESS WHETHER CASE INVOKES DIVERSIITY OR FQ.
  2. NECESSARY & INDISPENSABLE PARTIES. CASE FILED. COURT MIGHT FORSE NON PARTY (ABSENTEE) TO JOIN IN CASE B/C ABSENTEE IS NECESSARY (REQUIRED). NECESSARY TEST: € a. IF COURT CANNOT ACCORD COMPLETE RELIEF AMONG EXIST. PTIES (WORRIED ABT MULTIPLE SUITS) W/O A €OR b. A’S INTEREST MAY BE HARMED IF NOT JOINED (PRACTICAL HARM) € OR c. A CLAIMS INTEREST THAT SUBJECT PTY (D) TO A RISK OF MULTIPLE OBLIGATIONS.

JOINT TORTFEASORS = NEVER NECESSARY

  1. CAN A BE JOINED? IF A NECESSARYà SEE IF JOINDER FEASIBLE: 1) PJ OVER A 2) JOINING A WILL NOT GOOF UP DIVERSITY JURIS. ( COURT DETERMINES WHETHER A WOULD COME AS P OR D TO SEE IF BRINGING A IN WILL GOOF UP DIVERSITY. IF FEASIBLE à COURT ORDERS YOUR JOINDER.
  2. IF A CANNOT BE JOINED (E.G. NO PJ OVER A). COURT MUST: 1) PROCEED W/O A; OR 2) DISMISS ENTIRE CASE. DECISION BY: a) ALTERNATIVE FORUM AVAILABLE? (MBY STATE COURT); b) ACTUAL LIKELIHOOD OF HARM TO A? ; c) CAN COURT SHAPE RELIEF TO AVOID THAT HARM TO A?

IF COURT DISMISS= A INDISPENSABLE

HINT: 2 JOINDER RULES W “C”- COUNTERCMAIL & CROSSCLAIM – B/W EXIST. PTIES; CLAIMS W “I”= JOINING SOME1 NEW TO CASE. 

  1. IMPLEADER (3RD PTY PRACTICE): D BRINGS SOME1 NEW. NEW PTY = 3RD PTY DEFENDANT (TPD) à LIABLE TO TPD & SHIFTS ALL / PART OF LIABILITY TO TPD (ALL = INDEMNITY; PART= CONTRIBUTION – PRO-RATA PORTION OF CLAIM). NEVER COMPULSORY. IF D CLAIMS NOT LIABLE = CANNOT IMPLEAD, AS D CAN ONLY SHIFT HIS LIABILITY I.E. MUST BE LIABLE TO P.

STEPS FOR IMPLEADING TPD: a) D FILES 3RD PTY COMPLAINT NAMING TPD; AND b) SERVE PROCESS ON TPD (MUST HAVE PJ OVER TPD).  RIGHT TO IMPLEAD W/N 14 DAYS OF SERVING ANSWER à 14+ = COURT PERMISSION

AFTER TPD JOINED: 1) P MAY ASSERT CLAIM AG/NST TPD IF ARISES FROM SAME T/O AS UNDERLYING CASE. 2) TPD MAY ASSERT CLAIM AG/NST P IF ARISES FROM SAME T/O AS UNDERLYING CASE. SMJ: ASSES EACH CLAIM SEPARATELY à DIVERSITY, FQ OR IF NEITHER àSUPPLEMENT. JURIS.

  1. INTERVENTION: NON PARTY BRINGS SELF TO CASE. CHOOSES TO COME IN AS P (ASSERT CLAIM) OR D (DEFEND CLAIM). COURT MAY REALIGN IF ON THE “WRONG” SIDE. APPLY TIMELY. INTERV. OF RIGHTà A’S INTEREST MAY BE HARMED IF NOT JOINED & NOT ADEQUATELY REPRESENTED (SAME AS TEST b FOR NECESS. PTIES).

PERMISSIVE INTERVENTION: A’S CLAIM/ DEFENSE & PENDING CASE HAVE AT LEAST 1 COMMON Q. DISCRETIONARY W COURT. USUALLY OK UNLESS INTERV. CAUSES DELAY / PREJUDICE TO SOMEONE.

SMJ. ASSESS CLAIM BY / AGAINST INTERVENOR FOR SMJ (DIVERSITY/ FQ, IF NEITHER SUPPLEMENT. JURIS.)

  1. CLASS ACTION. REPS SUE ON BEHALF OF GROUP. 1. REQ. - ALL: a. NUMEROSITY (TOO MANY MEMBERS FOR PRACTICABLE JOINDER); b. COMMONALITY: SOME ISSUE IN COMMON TO ALL CLASS MEMBERSà RESOLUTION OF ISSUE WILL GENERATE ANSWERS FOR EVERYBODY IN 1 STROKE. e. TYPICALITY à REPS CLAIMS ARE TYPICAL OF THOSE OF THE CLASS d. REPRESENTATIVE ADEQUATE: REP FAIRLY & ADEQUATELY REPS CLASS.
  2. FIT CASE W/N 1 OF 3:
  3. TYPE 1: PREJUDICEà CLASS TREATMENT TO AVOID HARM (PREJUDICE) EITHER TO CLASS MEMBS OR NONCLASS PTY.

--MANY CLAIM LIMITED FUND OF MONEY. IF IINDIVIDUALLY, FUND DEPLETED BEFORE ALL CLAIM/TS GET TO COURT= LATER CLAIM/NTS = NOTHING. TO AVOID, CLASS = EVERYBODY RECOVERS AT LEAST PORTION.

  1. TYPE 2: CLASS SEEKS INJUNCTION OR DECLARATORY JUDGEMENT B/C D TREATED CLASS ALIKE. E.G. EMPLOYMENT DISCRIMINATION CASES. CAN’T SUE FOR DAMAGES.
  2. TYPE 3: DAMAGES 1) COMMON QS PREDOMINATE INDIVIDUAL QS AND 2) CLASS ACTION SUPERIOR METHOD TO HANDLE DISPUTE. E.G. MASS TORT CASES (BUS CRASH à COMMON Q: DRIVER NEGLIGENT?; INDIVIDUAL à DAMAGES)
  3. COURT MUST CERTIFY CLASS ACTION. MUST “DEFINE CLASS & CLASS CLAIMS, ISSUES, OR DEFENSES”. AFTER, COURT MUST APPOINT CLASS COUNSELà MUST FAIRLY & ADEQ. REP INTERESTS OF CLASS.

TYPE 3 CLASS = COURT MUST NOTIFY MEMBERS THAT THEY ARE IN CLASS. INDIVIDUAL NOTICE (USUALLY BY MAIL) TO REASONABLY IDENTIFIABLE MEMBERS. NOTICE TELLS: a) THEY CAN OPT OUT; b) BOUND IF DON’T OPT OUT; c) CAN ENTER SEPARATE APPEARACE THROUGH COUNSEL } ONLY TYPE 3!!! REP PAYS TO GIVE NOTICE. ALL MEMBERS BOUND EXCEPT THOSE WHO OPT OUT.OF TYPE 3. NO RIGHT TO OPT OUT IN TYPE 1 OR TYPE 2 (BOUND BY JUDGEMENT IN CERTIFIED CLASS ACTION). PTIES CAN SETTLE/ DISMISS CERTIFIED CLASS ACTION ONLY W COURT APPROVAL. IN ALL TYPES, COURT à NOTICE TO CLASS MEMBS TO GET FEEDBACK ON WEHTER CASE TO BE SETTLED / DISMISSED. IF TYPE 3 = COURT MIGHT GIVE 2ND CHANCE TO OPT OUT.

  1. SMJ – AS LONG AS REP IS DIVERSE FROM ALL DS, AND REP’S CLAIM EXCEEDS $75K, CLASS ACTION WILL INVOKE DIVERSITY.
  2. CLASS ACTION FAIRNESS ACT (CAFA): GRANTS SMJ SEPARATE FROM DIVERSITY OF CIT/SHIP JURIS. LETS FED. COURT HEAR CLASS ACT. (OF AT LEAST 100 MEMBERS)IF ANY CLASS MEMBER ( NOT JUST REP) IS OF DIVERSE CIT/SHIP FROM ANY DEFENDANT & IF AGGREGATED CLAIMS OF CLASS EXCEED $5MLN = MAKES EASIER FOR INTERSTATE CLASS ACTS TO GO TO FED. COURT. THERE ARE COMPLICATED PROVISION TO ENSURE LOCAL CLASSES DO NOT STAY IN FED. COURT (OR IF REMOVED FROM STATE COURT, REMANDED TO STATE COURT).

FOURTH TOPIC: ADJUDICATING DISPUTE

  1. PRELIMINARY INJUNCTIVE RELIEF.

A: P PLANS TO SUE D + WORRIED THAT D WILL DO SOMETHING BEFORE TRIAL THAT WILL PREJUDICE P’S CASE. GET INJUNCTIVE RELIEF= COURT ORDER THAT D 1) DOES SOMETHING; 2) REFRAINS FROM DOING SOMETHING. COURT= NERVOUS, B/C MERITS OF UNDERLYING DISPUTE NOT DECIDED.

PRELIMINARY INJUNCTION = ORDER TO MAINTAIN STATUS QUO UNTIL TRIAL.

TEMPORARY RESTRAINING ORDER (TRO) = MAINTAIN STATUS QUO BEFORE HEARING ON PRELIM. INJUNC.

  1. TRO: COURT DOES SM/NG W/O NOTICE TO THER PARTY = EX PARTE. COURT CAN ISSUE TRO EX-PARTE ONLY IF 1) APPLICANT FILED PAPER UNDER OATH SHOWING THAT IF NOT ISSUED= IMMEDIATE & IRREPARABLE HARM; AND 2) APP’S L CERTIFIES IN WRITING ORAL/WRITTEN EFFORTS / WRITTEN NOTIICE TO D OR D’S LOR WHY SUCH NOTICE NOT REQUIRED.

COURTàTRO = APP A BOND (SECURITY) TO COVER OTHER SIDE’S COSTS & DAMAGES CAUSED IF TURNS OUT RESTRAINT IS WRONGFUL.

TROà MUST STATE TERMS IN SPECIFICITY, DESCRIBE IN DETAIL WHAT D TO DO / REFRAIN FROM DOING + WHY ISSUED + WHY THREATENED INJURY TO P IRREPARABLE. IF COURT ISSUES= MUST BE SERVED ASAP.

COURT ISSUED: D à MOVE TO DISSOLVE. MODIFY TRO. TRO EFFECTIVE FOR 14 DAYS ONLY (OR LESS IF COURT), AFTER IF APP = GOOD CAUSE, MAY BE EXTENDED FOR 14 MORE DAYS. TRO CANNOT EXCEED 28 DAYS.

  1. PRELIMINARY INJUN.: STATUS QUO UNTIL COURT CAN ADJUDICATE UNDERLYING CLAIM ON MERITS. NEVER EX PARTE!

BURDEN ON APP TO SHOW: 1) LIKELY TO SUFFER IRREPARABLE HARM IF INJUN. NOT ISSUED; 2) LIKELY TO WIN ON MERITS OF UNDERLYING CASE; 3) BALANCE OF HARDSHIPS FAVOURS (THREATENED HARM > HARM TO OTHER PARTY); 4) INJUNC. IN PUBLIC INTEREST. NEVER RIGHT, ALWAYS DISCRETIONARY.

IF COURT GRANTS à APP MUST POST A BOND. COURT MAY CONSOLIDATE HEARING ON MOTION FOR PRELIM. INJUN. W TRIAL ON UNDERLYING CASE.

PRELIM. INJUN. àMUST STATE TERMS IN SPECIFICITY,  DESCRIBE IN DETAIL WHAT D MUST DO/REFRAIN FROM + WHY ISSUED. COURT MUST MAKE SOECIFIC FINDINGS / FACT & SEPARATE CONLUSIONS OF LAW IN GRANTING/ DENYING= IMMEDIATELY APPEALABLE

II PRETRIAL ADJUDICATION

  1. VOLUNTARY DISMISSAL. IF P WANTS TO WITHDRAW CASE à ANYTIME NO PROBLEM MOVE FOR VOLUNTARY DISMISSAL. P HAS RIGHT! WANT? – FILE “NOTICE TO DISMISSAL”à MUST DO BEFORE D SERVES ANSWER OR MOTION FOR SUMMARY JUDGEMENT (MSJ). IF TIMELY = CASE DISMISSED W/O PREJUDICE (JUST ONCE!)= P CAN REFILE. IF P FILES NOTICE OF DISMISSAL IN 2ND CASE à DISMISSED W PREJUDICE = P CAN’T REFILE.
  2. DEFAULT & DEFAULT JUDGEMENT: D = NO RESPONSE TO COMPLAINT IN TIME (21 DAYS AFTER SERVED W PROCESS; 60 DAYS FROM MAILING OF WAIVER IF WAIVED SERVICE).
  3. DEFAULT= NOTATION BY COURT CLERK ON DOCKET SHEET OF CASE. COURT DOESN’T ENTER AUTOMATICALLY. P MUST DEMOSNTRATE TO CLERK D FAILED TO RESPOND IN TIME. UNTIL DEFAULT ENTERED, D CAN RESPOND MY MOTION OR ANSWER (EVEN IF 21+ DAYS). EFFECT OF ENTRY = CUTS OFF D’S RIGHT TO RESPOND. ENTRY ≠ ENTITLE P TO RECOVER. P NEEDS DEFAULT JUDGEMENT IN ORDER TO RECOVER.
  4. GET DEFAULT JUDG/NT: a) CLERK CAN ENTER JUDG/NT IF 1) D MADE NO RESPONSE AT ALL; AND 2) CLAIM ITSEFL FOR A SUM CERTAIN IN MONEY; AND 3) CLAIMANT GIVES AFFIDAVIT (SWORN STAT/NT) OR SUM OWED; AND D ≠ MINOR/ INCOMPETENT } IF NOT TRUE, b) P GOES TO COURT (NOT CLERK) à JUDGE WILL HOLD HEARING & DISCRETION TO ENTER JUDG/NT. D WILL ONLY GET NOTICE OF HEARING IF APPEARED IN CASE. DEFAULT JUDG/NT= CAN’T GET MORE $ THAN PLEADED (ONLY RELIEF PLEADED FOR).
  5. MOTIONS TO SET ASIDE: D MAY MOVE TO SET ASIDE DEFAULT JUDG/NT BY GOOD CAUSE (EXCUSABLE NEGLECT) AND VIABLE DEFENSE.
  6. MOTION TO DISMISS FOR FAILURE TO STATE CLAIM (FCRP12(b)(6)) à IF P’S CLAIM FAILS TO STATE CLAIM, CASE CAN BE DISMISSED à COURT IGNORES P’S LEGAL CONCLUSIONS, LOOKS ONLY @ ALLEGATIONS OF FACT IN COMPLAINT & IF FACTS WERE TRUE, WOULD P WIN JUDG/NT.--> IF FACTS TRUE + NO WIN FOR P = CASE DISMISSED B/C LAW DOES NOT RECOGNISE CLAIM ON THESE FACTS. COURT MIGHT LET P AMEND TO TRY TO STATE CLAIM.

FACTS ALLEGED MUST SUPPORT PLAUSIBLE CLAIM à JUDGE USES EXPERIENCE & COMMON SENSE.

MOTION FOR JUDG/NT ON PLEADINGS = SAME AS 12(b) (6), BUT IF MADE AFTER D ANSWERED.

  1. MOTION FOR SUMMARY JUDGEMENT (FRCP 56): IF NO NEED TO RESOLVE DISPUTES OF FACTà NO NEED FOR TRIAL à USE MSJ B/C P STATED CLAIM BUT NO NEED FOR TRIAL. PTY MOVING MUST SHOW: 1) NO GENUINE DISPUTE ON MATERIAL FACT AND 2) ENTITLED TO JUDG/NT AS A MATTER OF LAW. SUM JUDG. ALWAYS DISCRETIONARY. ANY PTY CAN MOVE W/N 30 DAYS OF CLOSE OF DISCOVERY. MOTION CAN BE PARTIAL (JUDG/NT ON 1 OF SEVERAL CLAIMS). COURT CAN LOOK @ EVIDENCE. COURT VIEWS EVIDENCE IN LIGHT MOST FAVOURABLE TO NONMOVING PARTY.

EVIDENCE= UNDER OATH= 1) AFFIDAVITS; 2) DECLARATIONS; 3) DEPOSITION TESTIMONY; 4) INTERROGATORY ANSWERS. PLEADINGS ≠ EVIDENCE, BUT YES= IF UNDER OATH ( USUALLY NOT). IF D FAILED TO DENY ALLEGATION à PLEADING CAN BE TREATED S FACTS ON SUMMARY JUDG/NT. EVIDENCE = FIRST-HAND, NO HEARSAY! IF EVIDENCE CREATES DISPUTE ON MATERIAL FACT à SUMMARY JUDG/NT MUST BE DENIED. IF DISPUTE REMOVED BY OTHER EVIDENCE à COURT CAN GRANT SUMM JUDG/NT.

III CONFERENCES & MEETINGS

  1. RULE 26(f) CONFERENCE. PARTIES MEET & CONFER AT LEAST 21 DAY BEFORE SCHEDULING CONFERENCE ( UNLESS COURT). DISCUSS CLAIMS, DEFENSES & SETTLEMENT. MUST AGREE ON & PRESENT TO COURT DETAILED DISCOVERY PLAN à ISSUE ABOUT DISCOVERY OF ESI + HOW WILL BE PRODUCED & ANY PROBLEMS RETRIEVING (DELETED FILES)
  2. SCHEDULING ORDER. UNLESS LOCAL RULE/COURT, COURT ENTERS ORDER SCHEDULING CUT-OFFS FOR JOINDER, AMENDMNT, MOTIONS ETC. ROADMAP FOR HOW LITIGATION PROCEEDS UP TO TRIAL.
  3. PRETRIAL CONFERENCES: TO PROCESS CASE & FOSTER SETTLEMENT. DETERMINES ISSUES TO BE TRIED& EVIDENCE TO BE PROFERRED @ TRIAL. RECORDED IN PRETRIAL CONFERENCE ORDER. FINAL PRETRIAL CONFERENCE ORDER SUPERSEDES THE PLEADINGS & BECOMES A ROADMAP. POINT: NO SURPRISES @ COURT.
  4. TRIAL, JUDG/NT, & POST-TRIAL MOTIONS.
  5. JURY TRIAL. DETERMINES FACTRS & RETURNS VERDICT. IF NO JURY=JUDGE FACTS + BENCH TRIAL.
  6. RIGHT TO JURY IN FED. COURT: SEVENTH AMENDMNT= RIGHT TO JURY IN CIVIL ACTIONS AT LAW, BUT NOT IN SUITS @ EQUITY. IF CASE = LAW + EQUITY (E.G. DAMAGES-LEGAL RELIEF + INJUNCTION –EQUITABLE RELIEF) à JURY DECIDES FACTS UNDERLYING LAW. TRIAL PROCEEDS: JURY ISSUES 1ST, THEN JUDGE ISSUES. 7TH AMENDMNT DOE SNOR APPLY IN STATE COURT. MUST DEMAND JURY IN WRITING W/N 14 DAYS AFTER SERVICE OF THE LAST PLEADING RAISING JURY TRIABLE ISSUE. IF NOT= WAIVE RIGHT TO JURY.
  7. SELECTION & COMPOSITION OF JURY: SELECTION (VOIR DIRE) à EACH SIDE CAN STRIKE POTENTIAL JURORS: a. FOR CAUSE ( IF POTENTIAL JUROR BIASED/ PREJUDICED/ RELATED TO PTY) – NO LIMIT FOR STRIKES. b. PEREMPTORY = NO NEED TO STATE REASON, LIMIT 3 PER SIDE à MAY ONLY BE USED IN RACE & GENDER NEUTRAL MANNER B/C STATE ACTION. # JURORS ON CIVIL JURY IN FED. COURT= MIN.6 , MAX.12. ALL JURORS PTCPATE, UNLESS EXCUSED FOR GOOD CAUSE (HEALTH PROBLEMS). JURY VOTE MUST BE UNANIMOUS.
  8. JURY INSTRUCTIONS: JURY DECIDES FACTS, BUT INSTRUCTED ON LAW BY JUDGE. PTIES SUBMIT PROPOSED JURY INSTRUCTION TO JUDGE. DO THIS @ CLOSE OF ALL EVIDENCE. BEFORE FINAL ARGUMENT & INSTRUCTION, COURT INFORMS PTIES OF INSTRUCTIONS TO JURY & REJECTIONS OF PROPOSED JURY INSTRUCTIONS + PTIES MUST BE ALLOWED TO MAKE SPECIFIC OBJECTIONS TO INSTRUCTIONS & TO REJECTION OF PROP. INSTRUCT. IF OBJECTIONS NOT MADE BEFORE JURY IS CHARGED (GIVEN INSTRUCTIONS) à PTY CANNOT RAISE A PROBLEM W JURY INSTRUCTIONS ON APPEAL, EXCEPT IF INSTRUCTION CONTAINED PLAIN ERROR THAT AFFECTS SUBSTAN. RIGHTS
  9. TYPES OF VERDICTS. JUDGE DECIDES VERDICT FORM FOR JURY. a. GENERAL (SAYS WHO WINS, IF P WHAT RELIEF); b. SPECIAL ( JURY ANSWERS SPECIFIC QS ABOUT FACTS IN DISPUTE. JUDGE REACHES LEGAL CONCLUSIONS BASED ON FACTS); c. GENERAL VERDICT W SPECIAL INTERROGATORIES (JURY GIVES INITIAL VERDICT + ANSWER SPECIFIC Q. Q ENSURE JURY CONSIDERED IMPORTANT ISSUES).

WHEN VERD. RETURNED: IF VERD. & ANSW. CONSISTENT à COURT ENTERS JUDG/NT.

  1. CHALLENGES TO VERD. (a) CORRECTABLE ERRORS: IF JURY ≠ FOLLOW INSTRUCTIONS/ VERD. INTERNALLY INCONSISTENT= SET VERD. ASIDE. THEN JURY INSTRUCTED TO RECONSIDER. IN COURT DISCRETION TO HAVE JURY RECONSIDER OR ORDER NEW TRIAL. (b) JUROR MISCONDUCT- COURT CAN SET ASIDE / ORDE RNEW TRIAL: --VERDICT “IMPEACHED” ON “EXTRINSIC” MATTERS ( IF JUROR= BRIBED/ BASED VERDICT ON INDEPEND. INVESTIGATION INSTEAD EVIDENCE TRIALà NEW TRIAL ORDERED. JURORS à INTERVIEWED / CAN TESTIFY ABOUT SUCH ABUSE – THEY CAN BE USED TO IMPEACH. BUT: NOT IMPEACHED ON INTRINSICà CANNOT ENQUIRE INTO JUROR’S MENTAL PROCESS. VERDICT NOT SET ASIDE IF MISCONDUCT HARMLESS (IF JUROR HAD CHAT W P DURING LUNCH+ CHAT NOT INVOLVED CASE = HARMLESS)
  2. NON JURY BENCH TRIAL (7TH AMENDMNT NOT APPLIED / PARTIES WAIVED): JUDGE DETERMINES FACTS à STATES FACTS ON RECORD OR IN WRITING + CONCLUSIONS OF LAW STATED SEPARATELY FROM FINDINGS OF FACT + ENTER JUDJJ/NT (VERY SHORT- WHO WINS, IF P - RELIEF)
  3. MOTIONS AT AND AFTER TRIAL: 1. MOTION FOR JUDG/NT AS A MATTER OF LAW (JMOL) = DIRECTED VERDICT à IF JUDGE GRANTS JMOLà CASE≠ JURY B/C REASONABLE PEOPLE COULD NOT DISAGREE ON RESULT. SIMILAR TO SUMM. JUDG( NO DSPUTE OVER MATERIAL FACT) EXCEPT THAT COMES UP @TRIAL, NOT BEFORE. COURT VIEWS EVIDENCE IN LIGHT FAV. TO NONMOVING PTY. PTY CAN MOVE FOR JMOL AFTER OTHER SIDE HEARD @ TRIAL.
  4. RENEWED JMOL (RJMOL): SAME AS JMOL BUT AFTER TRIAL. COURT ENTERS JUDG/NT FRO PTY THAT LOST JURY VERDICT (IN LIUGHT MOST FAV. TO NONMOVING PTY). MOVE W/N 28 DAYS AFTER ENTRY OF JUDG/NT. ABSOLUTE REQUISITE: MUST’VE MOVEDE FOR JMOL AT PROPER TIME @ TRIAL.
  5. MOTION FOR NEW TRIAL: JUDG/NT ENTERED, BUT ERROR @ TRIAL REQ. START OVER & HAVE NEW TRIAL. CAN BE NON-HARMLESS, BUT JUDGE THINKS SHOULD HAVE DO-OVER (pshpshhh). PTY MOVES W/N 28 DAYS AFTER JUDG/NT.

E.G. 1) JUDGE GAVE ERRONEOUS JURY INSTRUCT.; 2) NEW EVIDENCE THAT COULD NOT HAVE BEEN GOTTEN BEFORE W DUE DILIGENCE; 3) MISCONDUCT BY JUROR / PTY/ L; 4) JUDG/NT AG/NST WEIGHT OF EVIDENCE (SERIOUS ERROR OF JUDG/NT); 5) INADEQ./EXCESSIVE DAMAGES.

IF PTY ENTITLED TO RJMOL, BUT WAIVED BY NOT MOVING FOR JMOL @TRIALà COULD MOVE FOR NEW TRIAL. NEW TRIAL LESS DRASTIC THAN ORDERING RJMOL B/C NEW TRIAL = START OVER, SO SAME PTY MIGHT STILL WIN; RJMOL RESULTS IN TAKING JUDG/NT AWAY FROM 1 PTY& GIVING TO THE OTHER.

  1. ADDITUR & REMITTITUR:

1 GROUND FOR NEW TRIAL: EXCESS. / INADEQUATE DAMAGES. STANDARD: DAMAGES FIGURE “SHOCKS THE CONSCIENCE”. NEW TRIAL = A LOT OF WORK, SO REMITTITUR OR ADDITUR.

REMITTà PLAYING HARDBALL W Pà P MINOR DAMAGE, BUT JURY AWARD $200K=SHOCKS CONSCIENCE à REMITTITUR= P EITHER TAKES LESSER AMOUNT(SET BY COURT) OR GO THROUGH NEW TRIAL. OK IN BOTH FED. & STATE COURT. MUST GIVE CHOICE (CAN’T SIMPLY SET FIGURE).

ADDITURà HARDPALL W D= P SERIOUS HARM, JURY $30Kà SHOCKS CONSCIENCE. JUDGE: PAY ++AMOUNT IN DAMAGES (COURT SETS) OR NEW TRIAL. ADDITUR ONLY OK IN STATE, UNCONSTITUTIONAL IN FED. B/C VILATES 7TH AMENDMNT.

  1. MOTION FOR RELIEF FROM ORDER OR JUDG/NT: DISCTRICT COURT SETS ASIDE ORDER/JUDG/NT IT ENTERED. GROUNDS 1. CLERICAL ERROR (ANYTIME); 2. EXCUSABLE NEGLECT (REASONABLE TIME, NEVER >1YR); 3. NEW EVIDENCE THAT COULDN’T HAVE BEEN DISC. W DUE DILIG FOR NEW TRIAL MOTION (REASONABLE, NEVER >1YR); 4. JUDG/NT IS VOID (REASONABLE TIME , NO MAX)

FIFTH TOPIC: APPEAL

  1. FINAL JUDG/NT RULE: APPEAL ONLY WHEN ULTIMATE DECISION BY TRIAL COURT OF MERITS OF ENTIRE CASE (FINAL). FILE NOTICE OF APPEAL IN TRIAL COURT W/N 30 DAYS AFTER ENTRY OF FINAL JUDG/NT. FINAL JUDG/NT WHEN TRIAL COURT HAVE NOTHING LEFT TO DO ON MERITS. E.G. DENIAL OF MOTION FOR SUMM. JUDG/NT ≠ FINAL (STILL ENTIRE CASE); GRANT OF MOTION FOR NEW TRIAL ≠ NO, MUST HOLD NEW TRIAL’ DENIAL OF MOTION FOR NEW TRIAL = YES, MUST APPEAL W/N 30 DAYS OF DENIAL OF NEW TRIAL. GRANT OF TRANSFER ≠; GRANT OF MOTION TO REMAND≠.

EXCEPT TO FINAL JUDG/NT (MAY BE APPEALABLE DESPITE NOT FINAL).

  1. INTERLOCUTORY ( NON-FINAL) REVIEW. 1. ORDERS REVIEWABLE AS OF RIGHT: ORDERS GRANTING, MODIFYING, REFUSING PRELIM. /PERMANENT INJUNCTIONS
  2. INTERL. APPEALS ACT: ALLOWS APPEAL OF NON FINAL IF (a) TRIAL JUDGE CERTIFIES THAT IT INVOLVES CONTROLLING ISSUE OF LAW (b) AS TO WHICH THERE IS SUBSTNT. GROUND FOR DIFF. OF OPINION AND (c) COURT OF APPEALS AGRESS TO HEAR IT.
  3. “COLLATERAL ORDER” EXCEPTION: APPELLATE COURT HAS DISCRETION IF ISSUE (a) DISTINCT FROM MERITS OF CASE (b) INVOLVES IMPTNT LEGAL Q; (c) ESSENTIALLY UNREVIEWABLE IF PRIES MUST AWAIT FINAL JUDG/NT.
  4. WHEN 1+ CLAIM IN CASE/ 1+ PTIESà TRIAL COURT EXPRESSLY DIRECT ENTRY OF FINAL JUDG/NT AS TO ONE / MORE OF THEM IF MAKES EXPRESS FINDING THAT NO JUST REASON FOR DELAY. (P.65)
  5. CLASS ACTIONà COURT OF APPEALS= DISCRETION TO REVIEW ORDER GRANTING / DENYING CERTIFICATION OF CLASS ACTION. MUST SEEK W/N 14 DAYSOF ORDER. APPEAL DOESN’T STAY PROCEEDING @ TRIAL COURT UNLESS COURT OF APPEAL/ DISTRICT COURT SAYS SO.
  6. EXTRAORDINARY WRIT (MANDAMUS / PROHIBITION) : ORIGINAL PROCEED. IN APPELLATE COURT TO COMPEL TRIAL JUDGE TO MAKE / VACATE PARTICULAR ORDER. ≠ SUBSTITUTE FOR APPEAL; AVAIL. ONLY IF LOWER COURT VIOLATES CLEAR LEGAL DUTY.
  7. STANDARD OF REVIEW BY APPELL. COURT: 1. DISTRICT JUDGE DECIDES Q OF LAWà DE NOVO. 2. IF NON JURY TRIAL + JUDGE Q OF FACT= COURT APPEALS AFFIRM UNLESS FIND. CLEARLY ERRONEOUS (AND DUE REGARD MUST BE GIVEN TO TRIAL JUDGE’S OPPORT. TO ASSESS WITNESS CREDIIBIILITY). 3. JURY TRIAL= JURY Q OF FACT à AFFIRM UNLESS REASONABLE PPL COULDN’T HAVE MADE THAT FINDING 4. DISCRETIONARY MATTERS (MOTION TO AMEND PLEAD., ALLOW PERMISSIVE INTERV., CASE MANAGEMENT ORDERS)à AFFIRM UNLESS DISTRICT COURT ABUSED ITS DISCRETION. 5. IF HARMLESS ERROR= NO REVERSAL ON APPEAL REQUIRED.

SIXTH TOPIC: PRECLUSION

  1. WHENEVER EARLIER CASE WATCH FOR PRECLUSIVE EFFECT OF PRIOR JUDG/NT ON MERITS: Q WHETHER JUDG/NT ALREADY ENTERED (CASE 1) PRECLUDES LITIG. OF MATTERS IN ANOTHER CASE (CASE2). IF C1 & C2 IN DIFFERENT JUDICIAL SYSTEMS (STATE AND FED.) COURT IN C2 APPLIES PRECLUSION LAW OF JUDIC. SYSTEM THAT DECIDED C1.
  2. CLAIM PRECLUSION (RES JUDICATA): ONLY GET TO SUE ON CLAIM ONCE= ONLY GET 1 CASE IN WHICH VINDICATE ALL RIGHTS TO RELIEF FOR THAT CLAIM. REQ: 1) C1 & C2 = BROUGHT BY SAME CLAIMANT AG/NST SAME D; 2) C1 ENDED IN VALID FINAL JUDG/NT ON THE MERITSà ANY JUDG/NT= ON MERITS (UNLESS COURT OTHERWISE) UNLESS BASED ON JURIS, VENUE, OR INDISPENSABLE PTIES (EVEN IF LITIGATED ON NOTHING). 3) C1 & C2 ASSERTED THE SAME CLAIM: MAJORITY VIEWà CLAIM= ANY RIGHT TO RELIEF ARISING FROM T/O OR OCCURRENCE; MINORITY VIEWà SEPARATE CLAIMS FOR PROOP/TY DAMAGE & PERSONAL INJURIES B/C/ DIFFERENT PRIMARY RIGHTS.
  3. ISSUE PRECLUSION (COLLATERAL ESTOPPEL): ISSUE WAS LITIG. IN C1; SAME IISSUE COMES UP IN C2. IF ISSUE PRECL. APPLIES= ISSUE NOT RELITIG. IN C2. IN C 2= DEEM ISSUE ESTABLISHED. REQ: 1). C1 ENDED VALID FINAL JUDG/NT ON MERITS; 2) SAME ISSUE LITIG. & DETERMINED IN C1; 3) ISSUE ESSENTIAL TO JUDG/NT IN C1 (W/O THIS ISSUE, JUDG/NT IN C1 =DIFFERENT); 4. ASSERTED ONLY AG/NST PTY TO C1 OR THEIR REP (CLASS ACTION); 5. TRADITIONALLY= USED ONLY BY SOMEONE WHO WAS PTY TO C1, BUT NOT REQ. BY DUE PROCESS, SOME COURTS REJECTED TO ALLOW “NONMUTUAL” ISSUE PRECLUSION= ISSUE PRECL. BEING USED BY SOMEONE WHO WAS NOT A PTY TO CASE 1. à (a) NONMUTUAL DEFENSIVE ISSUE PRECL. (THE ONE USING IT WAS NOT PTY TO C1 + D IN C2) ; (b) NONMUTUAL OFFENSIVE ISSUE PRECL. ( THE ONE USING WAS NOT PTY TO C1 + P IN C2)