Civil Procedure Jurisdiction & Venue Subject Matter Jurisdiction Diversity of citizenship Case must be more than $75,000 from the plaintiff’s perspective. If the court finds that there is a legal certainty that the case is not going to be worth more than 75k then the case could be dismissed. If one claim is more than 75k, the plaintiff can add more claims even if they are not in excess of 75k. One plaintiff can add several claims to reach 75k against one defendant. If multiple plaintiff if one of the plaintiffs has one claim in excess of 75k then multiple plaintiffs can join against the same defendant even if they don’t meet that amount. If no plaintiff meets the 75k then not allowed to join the suit. If class action if one of the named members of the class meets the 75k figure, then that is okay. Complete diversity of citizenship All plaintiffs must be diverse of all the defendants. Cannot reside in the same state. Domicile present location and intent to stay. Citizen of state A v. citizen of foreign country yes Foreign country v. foreign country no Corporation Citizen of any state where they are incorporated or have principal place of business. Cannot improperly enjoin a party just to obtain diversity jurisdiction. Federal Question Jurisdiction Plaintiff’s claim must be based on federal law. Must be plead in the plaintiff’s complaint well pleaded complaint rule. Federal issue must be obvious. Maritime, Copyright, Trademark, IP, Patent federal issues. Supplemental Jurisdiction When the federal court adds a case to a current case that by itself could not have met subject matter jurisdiction. Court would allow supplemental jurisdiction if the new case or party derives from a common nucleus of facts. Same transactions as the current case. Diversity the new case or party cannot destroy diversity jurisdiction. Allowed Compulsory counterclaim Joinder in compulsory counterclaim Crossclaim Impleader of 3rd party defendants. Not allowed Original plaintiff vs. 3rd party Defendant Compulsory joinder Joinder of defendants Intervention If the defendant is the one trying to add a claim or party, generally supplemental jurisdiction will be allowed. If the plaintiff is the one trying to do it generally supp. Jurisdiction will not be allowed. However, the court has discretion to apply supp. Jurisdiction, but it is not required. Personal Jurisdiction In persona ability to bring individual to court. When the person is physically in the state. Except if you are physically present because you are forced to be there or there is another lawsuit you are involved in. When the person is domicile in the state. If the person consents to be sued there. Out of state person long arm statute Is there a statute that allows state to have jurisdiction over john is state B? Even if there is, still need to pass the minimum contacts analysis. Can’t violate due process. Is it fair? Corporation Minimum contacts with a state if maintenance of the suit does not offend traditional notions of fair play and justice so that a defendant could reasonably anticipate being required to litigate in the state. Are the activities of that business systematic and continuous? In Rem Jurisdiction Trying to get jurisdiction over property. Action for quiet title. Quasi in Rem Going after property in order to satisfy a judgment against an individual. Service of Process Where? Only in the limits of the state where the district court sits OR Anywhere else allowed by state law. Exception—100-mile bulge provision. Out of state service will be allowed anywhere within 100-mile radius of the courthouse where the suit is spending but only applies to out of state people that will be brought in as additional parties. i.e. 3rd party defendants, and or indispensable parties. How? Must give adequate notice. Personal service done by someone over 18 that is not a party. Substitute service of process Leaving it at the house with an adult of suitable age. (someone likely to give it to you). Mail 1st class mail. If the D returns an acknowledgement form or a waiver form. Authorized agent. Any service of process that state law will allow. Out of state people 1st class mail Newspaper if no other reasonable way By serving a public official and they would give it to the D. Corporation Serve any officer or designated agent of the company. Anyone of sufficiently high placement in the corporation. Removal When a case is in state court, but someone wants to remove it to Federal Court. Removal will be okay when the case could have been in Federal Court in the first place. Only the defendant may remove the case to federal court. If there are multiple defendants, all defendants must join in the notice of removal. Defendant must file a notice of removal within 30 days of service of complaint. If Diversity cannot be removed more than one year after the beginning of the suit. No removal allowed if the defendant is a citizen of that forum state. If there are multiple claims and one of the claims is removable and the others are not, the entire claim can be removable. Plaintiff trying to remand case back to state court if he believes that it was improperly removed. Remand notice of removal within 30 days of filing. Defendant has burden to show that removal was proper. Venue The proper Federal District to hear the case. Venue is based on the defendant’s residence. Venue is proper: Where the defendant resides. Multiple any district where the defendant resides if all defendants live in the same state. Where substantial part of the events took place. If one or two don’t apply wherever one defendant is reachable. Venue of a corporation Any district where they have their principal place of business or any district in their state of incorporation. FORUM NON CONVENIENS If venue is proper in the first place, but now someone is trying to get the case transferred, the court may transfer the case to another venue for the convenience of the parties and in the interest of justice. The laws of the original state will apply. If venue not proper then the judge must choose whether to dismiss; or if it is in the interest of justice, the court may transfer the case to any district where it would have originally been brought in. Anywhere where the parties’ consent to have the case heard. When it is more convenient for the case to move to another country then the case will be dismissed. Pretrial Procedures Complaint Filed with the court with a summons signed by the clerk of courts. Served to opposing party Filing commences the action for statute of limitation purposes. Service must be within 90 days Must have Short and plain statement for jurisdiction Statement of claim statement of the facts Demand for relief Damages Instances where the complaint needs to be pled with specificity: Fraud Special damages Answer Responds to the claim either denying or admitting the claims Whatever is not denied will be deemed admitting. Must be served 21 days after service of the complaint Affirmative Defenses Must explicitly pled in the answer itself. Contributory negligence Statute of frauds Illegality or duress Statute of limitations Amending Pleadings Generally, courts are very liberal Amendment as of right once within 21 days of service of pleading Amendment by leave of court needs permission of court if it is not within 21 days and the court will allow it if justice so requires. Relation back sometimes the amended pleading relates back to the original pleading filed. Claim or defense arose out of the same conduct, transaction or occurrence of the original pleading. Changing party Arose of same conduct, transaction or occurrence Within 90 days of filing the complaint the party that is now going to receive the complaint received enough notice so that they won’t be prejudice. If the new party knew or should have known that the action will be brought but for a mistake in the party’s ID. Rule 11 When the lawyer signs a pleading to submit to court Knowledge, info and belief signs that what they are signing is true. Legal argument is warranted by existing law Allegations have evidentiary support Allegations not being presented for improper purpose. Adding or Changing Parties and Claims Counterclaim Defendant raises a claim back at Plaintiff Compulsory counterclaim Same transaction or occurrence as the original claim Court already has supplemental jurisdiction Permissive Counterclaim Not out of the same transaction or occurrence Needs its own independent jurisdiction Adding Parties Permissive joinder Multiple plaintiffs can join if their claims come from the same transaction or occurrence Question of law and fact is common Plaintiffs made join multiple defendant if they meet the same elements and at the option of the plaintiff. Compulsory Joinder Party needs to be joined because it would be unfair to litigate without them. Necessary Party Completely relief cannot be afforded without them joining the action and their interest would be impaired. If party cannot be joined because of jurisdiction then the case can still go forward. Indispensable party Because if not joined then they would be prejudiced. If it cannot join due to jurisdiction then the case MUST be dismissed. A party can join as many claims as they want as long as they have subject matter jurisdiction Class Actions 4 basic pre-requisites for a case to classify as class actions Size so large that not trying it as a class action would be impractical Common question the question of law and fact of all plaintiff is common Typicality claim of representative must be typical of the class. Fair representation the representative of the class will fairly represent the interests of the class. 3 categories of class actions B1 Class action Impairment of the interest of the members of the class if not had. Class members may not opt out of the class Notice to all members is within the discretion of the court B2 Injunctive relief is sought Class members may not opt out of the class. Notice to all members is within the discretion of the court B3 Most common Common question among the members Superior method Class members may opt out All members need to receive notice Mail is okay/ reasonable methods If the class action is based on diversity Is the citizen of the representative that counts If one name members has a case themselves that meets the 75k + requirement other members may be part of the class even if their damages are less than the 75k+ requirement. Exception If there is 5 million or more at stake it is going to be okay even if individual members do not meet the 75k+ requirement. It is up to the court to certify the class as a class action If not, members can go on their own and hand a subclass If denied, it may be appealed Any settlement by the class action needs to be approved by the court Intervention When a party wants to join the suit when he/she wasn’t involved in the first place. As of right Don’t need the court permission if you have an interest in the property or transaction that is subject of the suit It would impair your ability to protect your interest Permissive Claim or defense that has a common question of law or fact to the suit Needs the court permission. Interpleader Where one party owes money to two or more people but does not to whom or how much and party forces them to fight it out among themselves. Types Statutory one person owns property claimed by two or more people Nationwide service of process is allowed If any two claimants are diverse, jurisdiction is okay and only $500 need to be at stake Person that owns the property starts the suit and deposit money or property with court or posts a bond Rule Complete diversity is required No nationwide service is allowed 75K required No requirement to deposit money in the court. Third Party A defendant that believes that a third party is liable to him for all or part of the claim, 3rd party can be impleaded into the suit. Crossclaim Claim by one party against a co-party Claim needs to be based on same transaction or occurrence as original claim Party must ask for some sort of actual relief/damage Discovery Info is discoverable if it is not privilege, relevant and proportional to the needs of the case. Work product IMMUNE from discovery Privileged. Unless substantial need for the material and you cannot without undue hardship obtain the information by any substantially equivalent means. Absolute immunity Mental impressions Conclusions Legal opinions and theories of the case Witnesses Names and locations of all people that can be called as witnesses Experts If called to testify info is discoverable. Expert must prepare a report with opinions, compensation, means and data used to achieve opinions. Not testifying that info only discoverable if exceptional circumstances making it impractical to obtain that info any other way. Duty to supplement information if what you initially supplied is incomplete or wrong. Must be done in timely manner. Methods If everybody is doing what they are supposed to be doing, court intervention not necessary. Deposition Written or oral Between a party or a non-party Can force a nonparty to take a depo through subpoena Limit of 10 depos per side Person cannot be deposed more than once without court’s permission Interrogatories Only to a party Written questions answered in writing 25 question limits Request for admission To a party Admit certain parties Once admitted, conclusively established. Request to Produce Papers, photos, any documents that may be available, relevant, and discoverable, in the other side’s possession, control or custody. Mental or Physical Examination Can be obtained if the condition is in controversy Need court order and good cause. If discovery is being used for bad purposes Object to the request of the discovery not relevant Go for protective order stops the discovery itself Embarrass, undue burden, harassment Compel discovery Party not complying with the discovery If party acted unreasonably then the court may order sanctions First fees and costs Bar defenses, sanctions, hold in contempt, dismissal Information can be used at trial. Deposition may be used to impeached. Pre-Trial Conferences and Orders Meetings between the parties and the court 3 types Conference of the parties Parties must meet to talk about the case, settlement, discovery issues and submit a discovery plan to the court. Scheduling Conference Court must hold a scheduling conference limiting time for motions and discovery within 90 days of filing the complain and file a scheduling order. Final Pre-Trial Conference Judge MAY have a final pre-trial conference to expedite the trial, settlement. If the court does it then the court must enter a pre-trial order. Can only be modified to prevent manifest injustice. Temporary Restraining Order v. Preliminary Injunction Temporary restraining order can be granted without notice to the opposing party Standard prevent immediate, irreparable harm. Expires at the time stated in order but can’t be longer than 14 days if trying to go longer then PI. Preliminary Injunction when you want the order to be longer than 14 days. Needs notice and hearing. Standard prevent irreparable harm from happening. Jury Trials 7th amendment right to a jury trial At least 6 jurors not a requirement of 12 unless the parties stipulate to a different number. Verdict must be unanimous unless the parties agree otherwise. Demand must be made within 14 days after service of the last pleading. No right for actions in equity. If both legal damage and equity issues, legal issue is tried first in front of the jury and equity in front of the judge. Demand for jury trial may be withdrawn if all parties consent. In state trials there are no rights to a jury trial. # jurors vary state by state Verdict does not have to be unanimous. Parties can waive right to jury trial Bench trial in front of the judge Finder of facts and conclusions Judge can have a mini trial on one of the issues if he believes he can dispose of the case. Jury Selection Two different ways to dismiss a juror For cause any bias, connection to the case, the juror must be dismissed. No limit. Preemptory challenge “I don’t like the guy.” 3 challenges each party. Juror cannot be dismissed for race or gender Balance Pool of juror Representative of the overall community. Jury Instructions The judge instructs the jury about the law If a party wants to object to the instructions of the jury, they must do so before the jury goes in for deliberations or they lose it on appeal. Jury Deliberation A juror may take papers, exhibits, and notes into the room with them but nothing that was not introduced into evidence. Not allowed to do private experiments, studying documents outside the jury room. Jurors may not talk to non-jurors about the trials Misconduct Potential misconduct Prejudicial information Information that comes from outside/ third party A new trial can be ordered. A verdict will not be set aside if one juror testifies about his own or another juror misconduct. The problem needs to come from outside. Post-Trial Bias After trial turns out that juror had a bias during the jury selection that he or she failed to disclose, a new trial can be ordered if: The juror failed to answer the question honestly about a material question and A correct answer would have led to a valid challenge. Motions 12(b) Motion Defendant is attacking the complaint. Pre-answer motion Motion for lack of subject matter jurisdiction Can be raised any time. This right is never lost. Motion for lack of personal jurisdiction, motion for improper venue, motion for insufficient service of process Waived if not included in answer or 12(b) motion. Failure to join a party May be raised before or at trial 12(b)(6) Motion Motion to dismiss failure to state a claim Even if every fact is true, no recovery is plausible. Insufficient facts Dismissal is with prejudice unless the court says otherwise May be raised at any time before or at trial. Motion to Strike Before responding to a pleading, within 21 days of service of the pleading you can make a motion to strike for redundant, immaterial or scandalous information. Motion for Definitive Statement Before responding to the pleading, make a motion stating that the pleading is vague or ambiguous. Motion for Summary Judgment There’s no genuine dispute of material facts standard. 30 days after discovery If denied Not appealable. The moving party can use discovery and affidavits and they have the burden that there is no genuine dispute of material facts. Affidavit must be based on personal knowledge. Partial Summary Judgment is allowed. Directed Verdict—Judgment as Matter of Law Defendant can make the motion after the plaintiff’s case or either party after both sides rest. Standard reasonable jury would not have a legally sufficient evidentiary basis to find for the non-moving party. Evidence in the light most favorable to the non-moving party. Renewed Motion The first motion needs to be made for this opportunity to happen. Within 28 days of the verdict, if the judge agrees then the judge can overturn the verdict. Motion for Relief from Judgment When there is a clerical error, oversight, mistake on the judgment Fraud or misconduct by the other party Motion for New Trial If the error in the trial would have changed the outcome on the case If the judge erroneously admitted or excluded evidence Improper conduct by a party or witness, lawyer or jury. If the verdict is against the clear weight of the evidence. Newly discovered evidence Moving party must show: Evidence was discovered after end of trial Party was reasonably diligent in searching for the evidence before and/or during trial and could not find it The evidence is material Remitter A new trial could be ordered unless the party agrees to a reduction of the award because the verdict was excessive. Additur No additur in Federal Court. Verdicts and Judgments Default Judgment When party does not plead the case, or the defendant does not defend the case. Court enters default judgment. Dismissal Two types: Voluntary plaintiff voluntary dismisses their own case if that occurs anytime before the defendant serves the answer or moves for summary judgment Without prejudice If after defendant answers, then will need court approval Involuntary when a case is dismissed by court order. Failure to stay a claim Failure to obey a court order Failure to prosecute Usually these dismissals are with prejudice Except if there is lack of jurisdiction, venue, or failure to join an indispensable party Judicial Bias Only challenge the judge for cause for bias when Appearance of bias Parties can waive the appearance of bias Recusal Personal knowledge of the facts of the case alone Judge acted as a lawyer with one of the other lawyers in a matter of controversy Judge expressed an opinion about the merits of the case while they are in their government employment. Him or his immediate family has a financial interest in the case or with one of the parties. Violates due process rights Claim Preclusion/ Res Judicata Same parties generally (John v. Bob) Stopping the same claim from being litigated by the same parties or anyone in privity. Same transaction or occurrence If there was a judgment on the merits in the first case. Merger Plaintiff wins the case Claims merges into judgment Cannot sue on same cause of action Barred Plaintiff loses case Barred from suing on same cause of action Plaintiff cannot split the claim Does not apply if lack of jurisdiction, settlement, or improper venue. Even if the law changes you cannot bring suit again. Collateral Estoppel/Issue Preclusion When the issues have already been litigated. Same or identical issue from being re-litigated Issue litigated and decided final judgment If there is a settlement or a default judgment no preclusion Issue must be necessary to the judgment Parties against who preclusion is asserted must have had a full and fair opportunity and incentive to litigate the issue in the first place. Typically requires 3 people Plaintiff v. defendant Second one either new plaintiff or a new defendant Only the actual parties can be bound Can’t preclude someone who was not a party in the same suit Defensive use P v. D P loses Now P wants to sue a new D on the same issue New D can use defensive use of collateral estoppel to stop P from bringing this suit Offensive Use P v. D P wins A new P wants to sue D Can’t do that Diversity Two different cases and the question of which preclusion rule applies Where was the 1st case decided? If Federal court, then the Federal preclusion rule applies If State court, then the second court applies the rules of the jurisdiction of that first case. Full Faith and Credit Each state must respect each other’s judgment. Appealability and Review & Law Applied by Federal Courts (Erie) Notice to Appeal Filing of the notice must occur within of judgment Grounds Objections at trials about the issues you may want to raise on appeal if not then they are waived. Issues of law rather than facts Errors Outcome would have been different No appeal if error was harmless Only can appeal if there was a final judgment on the merits Interlocutory Order Issued before a final judgment This cannot be appealed Exception collateral order exception Even if some issues are unresolved if there is a collateral order, determines a right collateral to the main issue and a delay will seriously impair that right. Requirements Order conclusively determines that disputed questions Resolves an important issue that is totally separate from the action Delay would cause irreparable damage Not Final Judgments Not appealable Lack of jurisdiction Improper venue Failure to join an indispensable party Multiple claims If there are multiple claims in a lawsuit and the judge enters a judgment in one of those claims, that is not a final judgment unless the court finds no reason to delay. Denial of summary judgment Not appealable until after the trial is over Order for a new trial Not appealable Partial Final judgment Not preferred to avoid piecemeal appeals Appealable Injunctions Granting or denying is appealable Certification or denial of a class action Standards of Review Any issue of law de novo review Mistake the court made, relevancy, admissibility, prejudice abuse of discretion Issue of fact clearly erroneous Erie Doctrine Choice of law Applies to diversity cases Federal law v. State Law Substantive state law applies; unless the issue is procedural Procedural venue If the question is about statute of limitations State substantive law Two different states state A v. State B Apply the law of the state where the Federal court sits. Where the case is being heard. Temporary Restraining Order Can be granted without prior notice against the restrained party if it appears from the facts that immediate irreparable harm will result. Expires at the time stated in the order. Can’t be longer than 14 days Preliminary Injunction Notice and a hearing before the injunction can be granted Party seeking must show Injunction not granted then irreparable injury will occur Likely to succeed on the merits of the case The harm to the moving party from not granting the injunction outweighs any of the other party’s harm if it is granted. 18