Civil Procedure Outline PDF

Civil Procedure Outline **[INTRODUCTION]** +-----------------------------------------------------------------------+ | **[Marbury v Madison]** | | | | Art III: Supreme Court has original jurisdi...

Civil Procedure Outline **[INTRODUCTION]** +-----------------------------------------------------------------------+ | **[Marbury v Madison]** | | | | Art III: Supreme Court has original jurisdiction in all cases | | affected ambassadors, other public ministers and consuls, and those | | in which a state shall be party. Otherwise, SC has appellate | | jurisdiction (aka reviewing). | | | | Art VI: Constitution is supreme. | | | | Case at bar, SC lacks jurisdiction here. Paradoxically by doing that, | | SC is establishing that they have the power to determine their power | | and to decide when they have jurisdiction. | +-----------------------------------------------------------------------+ **[TROs/Preliminary Injunctions]** +-----------------------------------------------------------------------+ | **[FRCP 65]** | | | | Preliminary injunctions & temporary restraining orders. | +-----------------------------------------------------------------------+ **[Preliminary injunctive relief]**: temporary; done to maintain the status quo until the case can be fully litigated and resolved with finality (tends to be prohibitory rather than mandatory). - [Key standard]: likelihood of wining ultimately on the merits (why there's a hearing), and why there has to be a "mini win" asap (can't wait for the full process). - [Winter v Natural Resources Defense Council] (2008): pl seeking a preliminary injunction must establish: (1) that he is likely to succeed on the merits; (2) that he's likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. **[Temporary Restraining Order (TRO)]**: only when there's circumstances of the greatest urgency; allows party to obtain on an ex parte basis (without first giving notice to the opposing party); only in exceptional circumstances. - Also a mini-win; difference is that its ex-parte (no opportunity to be heard nor is notice necessarily required) (rare to get -- due process concerns); also no requirement to prove the likelihood of wining. - Requires affs demonstrating (a) immediate and irreparable injury and (b) justifying lack of notice to other party. - Maximum duration: 14 days. - Preliminary injunction hearing at earliest possible time. Injunctions have more of a process than TROs (usually involves a hearing/need to prove that there's a likelihood to win on the merits); TROs are more common in family court (not really in fed courts, so fed courts mostly just have injunctions). **[DUE PROCESS]** Due Process requires that the Defendant be given adequate notice of the suit ([Mullane]) and be subject to the personal jurisdiction of the court ([International Shoe]). **[Notice ]** [Personal Service]: Ideal [Substitute service]: delivering the summons to a person of a suitable age/discretion at the df's actual place of business/dwelling/place of abode + mailing a copy to df's last known address. [Nail and mail]: affixing the summons to the door + mailing a copy to df's last known address. [Publication service]: printing in a newspaper. (*NOTE FRCP doesn't recognize this, but some states do; need to follow state-specific service rules* (FRCP 4(e)(1))). +-----------------------------------------------------------------------+ | **[Mullane v Central Hanover Bank & Trust Co.]** | | | | \[common trust fund\] | | | | **Notice needs to be reasonably calculated, under all the | | circumstances**, to apprise interested parties of the pendency of the | | action and afford them an opportunity to present their objections. | | | | NY banking law's requirement (simple ad in paper) are too lax for | | what's at stake, and thus violates Due Process. | | | | Personal Service is the gold standard, but not always possible; here, | | however, mailing was a practical option and way better than a news | | ad. | | | | *Note -- for the potential parties who were unable to be identified, | | news notification was the only option, and thus in those | | circumstances, reasonable.* | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Baidoo v Blood-Dzraku]** | | | | \[Facebook summons\] | | | | NY's CPLR allows for a judge to assign a mode of service if all | | others (substitute and nail and mail) are impracticable. Under these | | specific circumstances, FB messenger does seem to be the only/most | | practical way for df to receive notice, so it was allowed here. | | | | *Note* that technically, publication was available, but the | | costs/also the chances of df seeing it are low; Aff. showed that df | | regularly uses FB, so that would be the best way to get it to him. | +-----------------------------------------------------------------------+ **[The Opportunity to be Heard]** Requires that before a court can enter a judgment depriving a person of life, liberty, or property, the court must make reasonable efforts to provide the person **notice** of the proceedings and give them the **opportunity to be heard** by the court. +-----------------------------------------------------------------------+ | **[Fuentes v Shevin]** | | | | \[stove taken away through replevin\] | | | | Opportunity to be heard needs to be granted at a meaningful time and | | in a meaningful manner. | | | | Constitutional right to be heard is meant for there to be a fair | | process to protect one's use and possession of their property. | | | | Subsequent hearing can't undo a wrongful deprivation. | +-----------------------------------------------------------------------+ After *Fuentes*, court refines its view in determining the validity of pre-deprivation procedures and creates a test in *Matthews v Eldridge*. (Essentially just a cost-benefit analysis). [***Matthews v Eldridge*** **Test**]: 1. Nature of the property interest at stake; evaluating the private interest that would be affected. - Don't need to be complete or permanent, even temporary and partial may be sufficient to merit due process protection. - Looking at the potential harm and the benefit of retaining a particular item. - For example, taking away someone's car that they use to get to work. 2. The risk of erroneous deprivation and the probable value (if any) of additional/ substitutive safeguards; and - Risk of erroneous deprivation depends on how good the claims are; conclusory = higher risk. - Value of safeguards -- should we wait for a Complaint for more facts? 3. The interest of the party seeking the prejudgment remedy and, if relevant, any ancillary interest of gov't. - Incl. the fxn involved and the fiscal/admin burdens that the add'l or substitute procedural requirement would entail. *Note* the *Matthews* test is a balancing test; one factor isn't inherently more important than another, need to argue which factors will be the deciding factors. - If you're doing a *Matthews* test and notice in prong 2 that the item is extremely valuable/rare, you could mention the possibility of a TRO. Example of *Matthews* test in action: *Connecticut v Doehr*: 1. Property interests are significant. 2. Even if there is not a complete/permanent deprivation of real property, there is still a substantial risk of erroneous deprivation; the requirements were merely a skeletal affidavit; a judge could not make an assessment off something so one-sided. 3. The interests in favor of *ex parte* attachment are too minimal; plaintiff has no interest in the estate, it was only to ensure the availability to satisfy judgment if he prevailed. Therefore, this process of prejudgment attachment of real estate without prior notice or hearing violates Due Process. *Fuentes* and *Doeher*: when/if there should be a hearing. However, can do a cost-benefit analysis to every aspect of the hearing process to question if it violates Due Process, i.e. the adequacy of a hearing (*Van Harken*). +-----------------------------------------------------------------------+ | **[Van Harken v City of Chicago]** | | | | \[Chicago parking laws\] | | | | New parking ticket procedures do not violate Due Process; doing a | | *Matthews*/cost-benefit analysis, the benefits of a new system do not | | outweigh the costs. | | | | Suggests that the plaintiff has to proffer an alternative; | | cost-benefit isn't about just the current procedure, but one that | | compares: does the costs of the alternative procedure outweigh the | | benefits of the current procedure? | | | | Need to ask: | | | | What's the cost-benefit of the current? What's the cost-benefit of | | the alt? And then the cost-benefit analysis of swapping procedures. | | | | (*Note*: still need to ask what the chances of erroneous deprivation | | of life/lib/property is based on the current procedure are). | +-----------------------------------------------------------------------+ **[Personal Jurisdiction]** Both state and federal courts need Personal Jurisdiction over a Defendant to enter judgment. - Note that a federal court needs both PJ and Subject Matter Jurisdiction (more later). - Defendant can waive Personal Jurisdiction. **[Establishing PJ: Defendant is a Person]** I. ***In personam* jurisdiction** *Pennoyer*: Jurisdiction over the person. Can be achieved *via*: 1. **[Presence]**: if defendant is served in the state (due to df being their voluntarily), court has PJ. AKA "tag jurisdiction" (*Burnham v CA*). 2. **[Domicile]**: subjective question (where does the defendant feel they live? Where do they work? "Reside"? Etc.) 3. **[Consent]**: can be express or implied (*Hess*). II\. ***In Rem* Jurisdiction** *Pennoyer*: jurisdiction over property. Limited to rights unique to the property. III\. ***Quasi in Rem* Jurisdiction**: courts adjudicate claims against out of state owner of in state property are unrelated to the property over which the court has jurisdiction, but only to the extent that any judgment for the plaintiff is enforceable only against the property, not the df herself (i.e. seizing property and recovering worth). +-----------------------------------------------------------------------+ | **[Pennoyer v Neff]** | | | | \[Oregon land case\] | | | | A state has jurisdiction over domiciled persons. If a non-domiciled | | person has property in a state, then jurisdiction is only extended to | | the property itself. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Hess v Pawloski]** | | | | \[PA guy car crash in MA\] | | | | Out-of-state drivers, by using the other state's roads, impliedly | | consent to jurisdiction and to appointing a state official as their | | "agent" for service of process. | | | | *Note: specific to accidents arising from using the roads.* | +-----------------------------------------------------------------------+ **[Establishing PJ: Defendant is a Business ]** **[General Jurisdiction]** I. **"At home"** - Df (business) can only have [one] home; this is essentially the "nerve center" and is arguable if it's the PPB or place incorporated. - *Perkins*: OH suit; DF mining company from Philippines but during WWII "relocated" to OH (not official, but CEO got an office there, that essentially was a "nerve center"). Even though the claim didn't arise in OH, court found OH had general jurisdiction. - *Helicopteros*: Peru company sued in TX. Company sent CEO and other employees to TX before for training; bought helicopter equipment from TX. This is not enough to constitute the kind of continuous and systematic general business contacts to support the exercise of PJ. II. **Registered Agent**: some states have statutes requiring businesses to designate a registered agent for service of process. III. **Consent** **[Specific Jurisdiction ]** For specific jurisdiction, due process requires: 1. **Df purposely avails itself** (benefits from that forums laws/benefits). a. *McIntyre* -- one machine in a state is not enough for a company to be "availing itself." And, purposefully availing to all states is not the same as each and every state. b. *Moffett* -- couple hundred products in the same state (state that is a huge poultry producer) is enough. (Generally, just a stream of commerce is not going to be enough; need actual targeting invovled). c. *Asahi* -- not just contact with the state; need additional actions by df purposely directed at the state; need evidence that defendant targeted the forum (won't be obvious on exam, but can argue -- i.e. df sold a widget and 99% of all widgets are used for manufacturing in NJ). 2. **A nexus between Df's contacts and Pl's claims.** 3. **That the exercise of jurisdiction over the df be fair and reasonable.** *Note that "stream of commerce" is an argument that could hold in specific jurisdiction, but never for general jurisdiction.* +-----------------------------------------------------------------------+ | **[International Shoe v Washington]** | | | | \[big personal jurisdiction case\] | | | | Due process requires only that in order to subject a df to a judgment | | in personam, if not present, he have a certain minimum contacts with | | it such that the maintenance of the suit does not offend traditional | | notions of fair play and substantial justice. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[World-Wide Volkswagen v Woodson]** | | | | \[NY car dealership; car accident in OK\] | | | | When a corp [purposely avails] itself of the state, it | | has clear notice that its subject to suit there. (i.e. not an | | isolated occurrence, but arises from the efforts of the df to do | | business in that state). | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[J. McIntyre Machinery v Nicastro]** | | | | \[English machine used in NJ\] PLURALITY; not majority opinion. | | | | The manufacturer did not intend for or direct its products to NJ; nor | | did it avail itself to NJ to benefit from its laws. The mere presence | | of a byproduct in a state does not render the manufacturer to be | | under that state's jurisdiction. | | | | **[Breyer Concurrence]** | | | | Agrees with the outcome, not the reasoning; reasoning should be more | | minimal. | | | | One item (here) wouldn't be enough, but there shouldn't be actual | | purpose; just a "regular flow" of sales; knowledge counts. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Ainsworth v Moffett]** | | | | \[Irish forklift in Ohio\] | | | | Based on Breyer's concurrence in *McIntyre*, the foreign company here | | had (or should have) knowledge that his product made its way into the | | forum state while still in the stream of commerce, and was not | | random; therefore, PJ is proper. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Goodyear v Brown]** | | | | \[bus case\] | | | | A connection so limited b/w the forum and the foreign corporation is | | an inadequate basis for the exercise of general jurisdiction; such a | | connection doesn't establish the "continuous and systematic" | | affiliation necessary. | +-----------------------------------------------------------------------+ **[FEDERAL SUBJECT MATTER JURISDICTION]** Once a state's PJ is established, the next question is whether the action may take place in federal or state court. State courts (which pre-date the Constitution) are courts of general jurisdiction, and may hear any claim (with strict and narrow exceptions, such as copyright cases or cases involving US Ambassadors). Article III of the US Constitution gives Congress the right to create federal courts. These federal courts are courts of limited jurisdiction, and only have jurisdiction over: (1) Federal Question and (2) Diversity. **[Federal Question Jurisdiction]** Codified as 28 U.S.C. § 1331 District courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the Unites States. - *Mottley* -- what "rising under" means: - Needs to be a cause of action. - Doesn't matter if eventually, case will be really hyper-focused on a federal question. The claim has to originally be a federal law. *Note* that state courts can hear questions of federal law, just need to apply supremacy clause. +-----------------------------------------------------------------------+ | **[Louisville & Nashville RR v Mottley]** | | | | \[free train 4 life\] | | | | A plaintiff's cause of action needs to be based on the Constitution | | and laws of the US to assert federal question jurisdiction. | | | | It is not enough to allege anticipated defenses to the cause of | | action/asserting that those claims would be invalidated by a | | provision of the Constitution; ultimately this is just a breach of | | contract claim. | | | | *Formalist approach (not functionalist), even if the case will end up | | mainly being about the constitutionality/interpretation of the | | federal statute, the COA itself needs to be a fed question/issue.* | +-----------------------------------------------------------------------+ *Note* that in [Mottley], the court *sua sponte* raises subject matter jurisdiction; if the parties do not raise, it is important that the court does. +-----------------------------------------------------------------------+ | **[Gunn v Minton]** | | | | \[legal malpractice claim from patent case\] | | | | Although the state courts must answer a question of patent law to | | resolve Pl's legal malpractice claim, their answer will have no | | broader effects. It will not stand as binding precedent for any | | future patent claim nor will it affect the validity of Pl's patent. | | | | Although these cases may necessarily raise disputed questions of | | patent law, by their nature they are not going to be significant | | enough for the federal system to establish jurisdiction. | +-----------------------------------------------------------------------+ Unlike *Mottley* which was anticipating a likely defense, *Minton*, patent law (federal jurisdiction) was bound to come up. → In this case, to determine whether a state court may hear these Federal claims, the court did the *Grable* test: ***Grable* Factors** Federal jurisdiction over a state law will lie if a federal issue is: 1. Necessarily raised, 2. Actually disputed, 3. Substantial, and 4. Capable of resolution in federal court without disrupting the federal-state balance approved by Congress. **[Diversity Jurisdiction]** Codified as 28 U.S.C. § 1332 Need diversity of citizenship and for the amount in controversy to exceed \$75,000. +-----------------------------------------------------------------------+ | **[Strawbridge v Curtiss]** | | | | \[MA and VT dfs; MA pls\] | | | | Complete diversity requires that **no plaintiff be a citizen of the | | same state as any defendant**. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Hertz Corp v Friend]** | | | | \[dispute re Hertz's "citizenship"\] | | | | Principal place of business refers to the place where the | | corporation's high-level officers direct, control, and coordinate the | | corporation's activities (the "nerve center"). | | | | Here, Hertz established that its center of direction, control, and | | coordination is the same as its HQ, which is in NJ. | +-----------------------------------------------------------------------+ **[Citizenship ]** Diversity cases hinge upon whether the plaintiffs are citizens of different states than the defendants. Therefore, it is essential to determine where each party's citizenship is. I. **Humans** a. Humans can only have one domicile. b. Need to have intention AND action. [For example]: i. Full intention to live in CA but on the way crash, then not domiciled there. ii. Originally from MA, but lived in NY for 10 years for school, but never intended to stay past school, then domiciled in MA. iii. Determining intention -- may need to look at objective things (i.e. buying a house, getting a job, enrolling children in schools). II. **Corporations** c. May have multiple citizenships (*note that "domicile" is only a word used for humans; also note that corporations are "artificial persons"*). d. Always the state(s) of incorporation AND iv. *Note that generally, will only be incorporated in one state.* e. PPB -- principal place of business. v. *Could be the same as state incorporated; but that isn't what you look at. Instead --* vi. PPB is the "nerve center" -- a **single place within a state** where corporation officers direct, control, and coordinate the corporation's activities (*Hertz*). 1. Not just a board room, but the actual decision-making center. 2. Also not where the corp "does what it does" -- i.e. could have a huge manufacturing plant in another state; irrelevant. III. **Non-incorporated Businesses** f. The states where partners or members reside. g. Unlike incorporated businesses, these are [not] considered "citizens." **[Supplemental Jurisdiction]** 28 U.S.C. § 1367: when a civil action involves claims that are within the original jurisdiction of the federal courts and others that, if filed separately, would not be, supplemental jurisdiction exists over those claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III. - Essentially need T&O for supplemental claims. - Read a bit broader than T&O; but, if the non-federal question claims are overpowering, a court may decline. - Be careful with joinder: if plaintiff is adding a party that destroys diversity, then no more diversity jurisdiction. **[ERIE]** Fed courts in diversity action choice of law question. Erie problem -- need to divide what is substantive law and what is procedural law. This is because substantive law is based off that state's laws (incl. case law), but procedural law is based off the federal rules. Substantive = outcome-determinative. +-----------------------------------------------------------------------+ | **[Swift v Tyson]** | | | | Rules of Decision Act (RDA) requires federal courts to follow | | statutes, but not state-court interpretations of common law, and must | | interpret law on its own. | | | | *Note* in *Erie*, "laws" expands to include the decisions of courts. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Erie Railroad v Tompkins]** | | | | Federal courts exercising jurisdiction in diversity of citizenship | | cases would apply as their rules of decision the law of the state, | | unwritten as well as written. | | | | Twin aims of the *Erie* rule (according to [Hanna]): | | discouragement of forum-shopping and avoidance of inequitable | | administration of the laws. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Hanna v Plumer]** | | | | The REA allows the court to prescribe procedural laws. Therefore, it | | is Constitutional to apply [procedural] federal laws over | | procedural state laws; but if a law is substantive, then state law | | applies. | | | | "Procedure" isn't common sense; the question is: does it | | significantly affect the result of a litigation for a federal court | | to disregard a law of a state that would be controlling in an action | | upon the same claim by the same parties in a state court? / Will it | | make a difference ex-ante? | +-----------------------------------------------------------------------+ **[VENUE & TRANSFER]** Amongst the courts that has proper jurisdiction, venue and transfer address what the proper place for a case to be heard is. Forum non conveniens (similar to PJ) is about inconvenience for dfs and the connection between the dispute and forum. **Venue**: the place where a lawsuit may be heard. **Transfer**: the power of a court to send a case to another court within the same court system. Includes both districts and divisions (divisions are the specific courthouses within a district). - If the fed court where pl initially filed has PJ, and is the proper venue **28 U.S.C. § 1404**; more discretionary (venues proper but there may be reasons to transfer). - Lack of jurisdiction or venue **28 U.S.C. § 1406**. - Court can transfer *sua sponte*. **Forum non conveniens**: federal court may dismiss an action because there is a forum that is better suited to hear the case. +-----------------------------------------------------------------------+ | **[28 U.S.C. § 1390]** | | | | Venue = geographic specification of the proper court/courts for the | | litigation in a civil action that's w/in the SMJ of the district | | courts. | | | | Amongst federal courts. (Note: state court federal court is removal. | | | | Federal district (or division) federal district (or division) is | | transfer of venue). | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[28 U.S.C. § 1391]** | | | | Proper venue: | | | | - If all dfs live in the same state, but diff districts w/in the | | state, any of those districts are proper. | | | | - Or where a substantial part of the events occurred. | | | | - Or, if none of the 2 apply, then any jurisdiction in which any df | | is subject to PJ. | | | | Residency: | | | | - People venue is the fed crt of their domicile. | | | | - Corps state of PJ | | | | BUT, if multiple districts are in a state, then you ask the same | | minimal contacts question, but apply it to the venue (treat it as | | it's a state; if there's no such district, then it's the district | | with the *most* contacts out of all of them (i.e. a lesser bar | | than PJ)). | | | | - Non-US citizen may be sued in any district. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[28 U.S.C. § 1404]** | | | | Court may transfer to any other district/division where it may have | | been brought because of convenience and justice. | | | | **[28 U.S.C. § 1406 ]** | | | | If venue's improper, court my dismiss or transfer. | +-----------------------------------------------------------------------+ **[Removal]** 28 U.S.C. § 1441: Df moving case **from state court to federal court** (so long as federal court has jurisdiction). 28 U.S.C. § 1446: To do so, Df files a notice of removal in federal court (and give notice to state court and plaintiff(s)); all dfs must agree. 28 U.S.C. § 1447: Pl can oppose with a motion to remand. **[INITIAL PLEADINGS]** +-----------------------------------------------------------------------+ | **[FRCP 2]**: there is one form of action -- the civil | | action. | | | | **[FRCP 3]**: a civil action is commenced by filing a | | complaint with the court. | | | | **[FRCP 4]**: what goes into a Complaint & Service Rules | | | | **[FRCP 7 & FRCP 8]**: Pleadings | | | | **[FRCP 12]**: (a) when answer's due; (b) motion to | | dismiss; (c-h) more info re: motions. | | | | **[FRCP 15]**: Amended/supplemental pleadings. | +-----------------------------------------------------------------------+ **[Complaints]** +-----------------------------------------------------------------------+ | **[Conley v Gibson]** | | | | \[Railway Workers\] | | | | Mainly gets overturned by *Twombly*, but a main takeaway that still | | applies is that **a df needs fair notice (whose suing who and what | | the nature of the claims are).** | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Bell Atlantic v Twombly]** | | | | \[AT&T\] | | | | A complaint must contain enough specific facts which, taken as true, | | suggest that some law was broken. | | | | Need enough that the court can conclude on the facts alone that the | | conclusion's plausible (if there's a [more obvious] | | alternative, then it's not plausible). | +-----------------------------------------------------------------------+ Conclusions vs facts: don't need detailed facts; just need grounds for entitlement to relief, which requires more than labels and conclusions. - Don't need detailed facts, but then what is sufficient? Probable vs plausible vs possible - Doesn't need to be so many facts that its probable. - But, enough facts so that it plausibly suggests pl's claim for relief (needs to nudge across the line from conceivable to plausible). - Must prove enough facts to raise a reasonable expectation that discovery will reveal merit in pl's claims. Allegations vs proof - A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable. - Did it occur or not is not a question for MTD. *Example:* **Legal conclusion**: negligence. **Facts**: surgeon was rushing (had a duty of care to not rush, and rushed). **Basis for saying surgeon was rushing:** surgeon was fumbling things, was saying that he had to get to a movie, it only took him an hour. *(This gives the facts, the basis that are needed to make the plausible claim)* *(Not a description of facts, but actual facts)* **How do you know**: facts of sources, video, witnesses *(Court does NOT ask that here, save for summary judgment).* In *Twombly*, the facts alleged are: "In the absence of any meaningful competition \... in one another's markets, and in light of the parallel course of conduct that each engaged in to prevent competition \... within their respective local \... markets \... , Plaintiffs allege upon information and belief that \[defendants\] have entered into a contract, combination or conspiracy to prevent competitive entry in their respective \... markets and have agreed not to compete with one another \.... Observable facts Not facts; bare assertion of conspiracy; strike - After striking, the observable facts left is that there's parallel conduct. - Court found that it is just as likely that its independent, so not enough information to deduce that its conspiracy. Could be explained by something totally neutral. *Twombly* sets a standard of what facts we look to; *Iqbal* attempts to answer what facts are enough. +-----------------------------------------------------------------------+ | **[Ashcroft v Iqbal]** | | | | \[9/11 confinement\] | | | | [Iqbal] bifurcates [Twombly]: | | | | 1\. Court accepts as true all allegations EXCEPT: | | | | A. legal conclusions; | | | | B. threadbare recitals of the elements of a cause of action; | | | | C. supported by mere conclusory statements. | | | | 2\. Based on what's left, is it plausible that the df acted (more | | than a mere possibility) (draw on judicial experience and common | | sense). | | | | Note: it's not plausible if it's between an obvious alternative | | explanation versus asking the court to infer. | +-----------------------------------------------------------------------+ **[Twiqbal Plausibility Analysis]** Example:\ "Brian drives a blue prius. I was hit by a blue prius. Therefore, Brian hit me." First, separate the well-pleaded facts from the legal conclusions. Left with: "Brian drives a blue prius. I was hit by a blue prius." Is that enough to state a claim that's plausible on its face that Brian hit me? Somewhat plausible, however, need to think of an alternative: someone else in a blue prius hit me. Using common sense/experience, it is more likely that it was just someone else. Answer sentence example: Just like [Twombly], no facts alleged to conclude unlawful conduct. Only possible reason would be if there is a special relationship, but she failed to plead that, and under [Conley], she failed to put df on notice as to why he's liable. In this example: Here, she is making out a claim by stating that she has regularly purchased the milk, but he stated she did not. The last sentence standing alone would be conclusory. However, in the context of the complaint, it is not, because she is able to establish the "why." "Damaged by reputation" may be conclusory, however, the case likely would not get dismissed from that. It is quite plausible that the facts that she alleged would damage her reputation. Alleging + showing \> alleging. **[Sanctions]** +-----------------------------------------------------------------------+ | **[FRCP 11]** | | | | **FRCP 11(b)**: representations to the court: aren't being presented | | for improper purpose (harassment, delay, etc.); are warranted by law; | | have (or will have) evidence to support; and denials are warranted. | | | | **FRCP 11(c)**: Violation of 11(b) -- \> sanction. | | | | **FRCP 11(d)**: Rule 11 is not applicable to Discovery. | +-----------------------------------------------------------------------+ Relevant question for Rule 11(b) is if the lawyer firmly and truly believes what they're pleading. - Lawyers are allowed to make mistakes, but to the best of their knowledge, after having done some inquiry, they're not violating Rule 11. - Would a reasonable lawyer having done a reasonable inquiry have made that mistake. - Hard to violate Rule 11 in terms of law - Defenses: the law itself is ambiguous, there is no existing law but the lawyer thinks there should be (extending the law -- i.e. Title VII only covers intent, but you firmly believe that it should be extended to cover outcome) (as long as its non-frivolous). +-----------------------------------------------------------------------+ | **[Brown v Ameriprise Financial Services]** | | | | \[coca cola complaint\] | | | | Near-wholesale copying of a Complaint with no showing of | | applicability to df is sufficiently egregious to warrant the | | "ultimate sanction" of dismissal. | | | | *Note: sanctions here were against the Pl because of the role she | | played (she has litigation experience and contributed directly)* | +-----------------------------------------------------------------------+ Rule 11 is not just about the fact occurring, but that there's evidentiary support that the fact occurred. (Need to know that discovery would reveal that there's evidence -- have to explicitly say in complaint/answer that you don't have support). - A shot in the dark is a sanctionable event, even if it somehow hits the mark. **[Answer]** Admits or denies each of the allegations in the complaint, and any additional allegations that the df wishes to include. - Don't have enough information to admit/deny is treated as a denial (if lying though, then violating Rule 11). - Don't need to confirm or deny abstract renditions of the law (i.e. battery is xyz.). - A denial places that specific allegation's factual claims in dispute, to be resolved through discovery. [Affirmative Defenses] - Can only be raised in the Answer. If not, you're waiving your defense. - If you forgot, amend; or can try to bring it up on appeal (hard argument since you did waive). - ALL affirmative defenses have to be in the Answer; if something new comes up in discovery, you need to amend the Answer to include. - Not making arguments about the law, but alleging additional facts (i.e. pl did this, so me hitting him was self-defense). +-----------------------------------------------------------------------+ | **[Perez v Gordon & Wong Group, P.C.]** | | | | \[debt suit\] | | | | *Twiqbal* standard of plausible pleadings that aren't conclusions | | apply to affirmative defenses. | +-----------------------------------------------------------------------+ *Perez v Gordon & Wong* extends *Twiqbal* to Affirmative Defenses; depends on the jurisdiction though -- courts are split. - Both 8(a) and (b) say "short and plain" BUT 8(a) says "show" and 8(b) says "state" -- some courts hold that show vs. state is different enough to not extend *Twiqbal*; others (here) disregard that difference (both are Rule 8, and, by making an Aff. Defense, it has to be supported, just like a Complaint). **[Default Judgment]** Rule 55 provides for the entry of a default judgment against a df who fails to answer or otherwise defend the suit. A pl can also suffer a default judgment if they fail to answer or defend against a counterclaim. Note -- a pl failing to prosecute the case: 41(b) -- DWP (dismissal for want of prosecution). +-----------------------------------------------------------------------+ | **[FRCP 41]**: Rules re: Pl moving to dismiss. | | | | **[FRCP 54(c)]**: Default judgment (unlike other final | | judgments) must not differ in kind from, or exceed in amount, what's | | demanded in the pleadings. | | | | **[FRCP 55]**: Rules re default judgments. | | | | **[FRCP 60]**: Grounds for Relief from a Final | | Judgment/Order/Proceeding: mistake, excusable negligence; new | | information; fraud/misconduct by OPC; judgment's void; judgment's | | satisfied; any other reason that justifies relief. | +-----------------------------------------------------------------------+ **[DISCOVERY]** +-----------------------------------------------------------------------+ | **[FRCP 26]** | | | | **FRCP 26(a)**: Initial Disclosures; rules re experts. | | | | **FRCP 26(b)**: Discovery scope/limits. | | | | **FRCP 26(c)**: Protective Orders. | | | | **FRCP 26(d)**: Timing/Sequence. | | | | **FRCP 26(e)**: Supplementing. | | | | **FRCP 26(f)**: Discovery-Planning Conference. | | | | **FRCP 26(g)**: Need to sign off on Discovery. | | | | **[FRCP 30]**: Depositions. | | | | **[FRCP 33]**: Interrogatories. | | | | **[FRCP 34]**: Doc Production (no limit to requests). | | | | **[FRCP 35(a)]**: may submit an exam. | | | | **[FRCP 36]**: requests to admit. | | | | **[FRCP 37]**: sanctions re discovery noncompliance. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Mancia v Mayflower]** | | | | \[doc/rogg responses dispute\] | | | | Purpose of certification requirement (under 26(g)) is for attorneys | | to do an objectively reasonable inquiry. | | | | Boilerplate objections still persist, but it would be difficult to | | dispute the notion that the very act of making such boilerplate | | objections is *prima facie* evidence of a Rule 26(g) violation. | +-----------------------------------------------------------------------+ 26(g) allows for sanctions for the purpose of penalizing and deterrence (*whereas 11(c) sanctions are only for deterrence*). +-----------------------------------------------------------------------+ | **[Avista Mgmt v Wausau]** | | | | \[rock paper scissors\] | | | | Discovery disputes should be settled outside of court. | +-----------------------------------------------------------------------+ **[Spoliation]** A party in litigation (or prepping for) can't discard/destroy any relevant materials. +-----------------------------------------------------------------------+ | **[Mueller v Swift (Mueller II)]** | | | | \[Taylor Swift\] | | | | A spoliation sanction is proper where a party knew (should've known) | | litigation was imminent and that the adverse party was prejudiced by | | the destruction of the evidence. | | | | Destroying in bad faith allows for an inference that it would've been | | unfavorable. Here, not enough evidence of bad faith, just that he was | | unjustifiably careless, so are able to cross-examine on this issue. | +-----------------------------------------------------------------------+ **[Privileged Information]** **[Attorney-Client Privilege]** [Elements] - Communication between attorney and client (can be non-verbal, written, etc. so long as it is a communication). - Private, made without other people around. - Done for the purpose of getting legal advice. *If just one element is missing, then it is not AC. Look for: location (i.e. in attny office, then private and for legal advice), situation (i.e. question and answer rather than a mere observation)* Purpose is to encourage full communication b/w attorney and client. "Attorney" can be someone who is a representative of the attorney, but need to establish that the communication was being done on behalf of that attorney in that capacity. "Client" can also be prospective client, doesn't need to be under retainer or official, so long as its for legal advice and private (i.e. not just a conversation with someone who happens to be a lawyer). Note that A/C is [absolute] because of the policy that communication between attorneys and clients should be open and honest. Sometimes, things may be fuzzy between A/C or work product/can be considered both, but in those situations, its better to get it under A/C to make it more absolute. +-----------------------------------------------------------------------+ | **[Upjohn Co v US]** | | | | \[pharma company\] | | | | Communications amongst corp employees and corp lawyer are considered | | A/C when: | | | | - Corp lawyers are acting as such because their superiors directed | | it, | | | | - To secure legal advice | | | | - Through information that lower-level employees have (rather that | | upper-level) based on job function, | | | | - And the employees know why they're being questioned. | | | | *(Don't know if all of these are necessary, but according to this | | rule, they're sufficient).* | | | | Also note A/C protects only [communications], not the | | underlying facts. | +-----------------------------------------------------------------------+ **[Work Product Doctrine]** [Elements] - Done by the attorney (or, someone acting as a representative; for example, an investigator) - In anticipation of litigation or for trial - To establish that a doc was prepared in anticipation of litigation, a party must demonstrate that the threat of litigation was reasonably anticipated. *May* be discoverable if: (i) the information is fully inaccessible (i.e. the plaintiff died); or (ii) the information is [extremely] relevant and [substantially] hard to find (courts will weigh the proportionality -- i.e. a case worth \$100k but getting an interview would cost a party \$1mil). - Bar is higher for opinion work product (mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative) than docs. However, if circumstances require, then it is allowed. **[JURY TRIAL]** Venire/Jury Pool Voir Dire Bench trial -- judge assesses both facts and law. **Seventh Amendment**: in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. - Suits at common law (as opposed to equity) - Big decision back then is equity vs. law. Only those decided as law got juries. - Applying this amendment now, asking ourselves if this is the kind of suit that got a jury back in the day, and what kind of court would it go to (equity v law). +-----------------------------------------------------------------------+ | **[FRCP 47]** | | | | **FRCP 47(a)**: Court may permit examination of prospective jurors. | | | | **FRCP 47(b)**: Court must allow \[3\] preemptory challenges. \* | | | | **FRCP 47(c)**: Court may excuse a juror for good cause. | | | | \*Technically says "number... provided by 28 U.S.C. §1870" but 1870 | | says each party is entitled to 3. | +-----------------------------------------------------------------------+ Traditionally, preemptory strikes don't require explanation/justification. Challenges [for cause] are unlimited, but can be challenged for bias. +-----------------------------------------------------------------------+ | **[Edmonson v. Leesville Concrete]** | | | | \[race-based jury strikes\] | | | | Race-based preemptory strikes violate the equal protection rights of | | the challenged jurors under the Fifth Amendment's Due Process Clause. | | | | *Batson*: no race-based strikes based on race in | | [criminal] trials. Issue: criminal involves gov't actors, | | and thus, are bound by Constitution. Get around that for civil cases | | *via* the *Lugar* test, and find that by striking jurors, civil | | attorneys are expressing "governmental authority." | | | | *Lugar* Test: | | | | 1. Whether the claim resulted from state authority. (Here -- yes; | | racial discrimination is from the Constitution). | | | | 2. Whether this person is functionally a state actor. | | | | | | | | 1. Extent to which actor relies on gov't assistance and benefits; | | | | (Here, preemptory challenges do come from the govt). | | | | 2. Whether the actor's performing a traditional gov't fxn; and | | | | (Striking jurors "feels like" a gov't axn). | | | | 3. Whether the injury's aggravated in a unique way bc of gov't. | | | | (Taking place in courthouse; public; worse than outside | | courthouse). | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[J.E.B. v. Alabama ex rel.]** | | | | \[striking based on gender\] | | | | Gender, like race, is an unconstitutional proxy for juror competence | | and impartiality. | | | | - Can only make gender-based jury classifications if there's an | | exceedingly persuasive justification. The only possibility is if | | it gender classifications can substantially achieve the objective | | of a fair and impartial trial. | | | | - Consider whether peremptory challenges based on gender | | [stereotypes] provide substantial aid to a litigant's | | effort to secure a fair and impartial jury. | | | | - It's unconstitutional because it relies on STEREOTYPES. | +-----------------------------------------------------------------------+ Taking both cases --\> to challenge a counsel's preemptory strikes that you believe are unconstitutional: 1. Identify the characteristic -- is it a protected class? a. Level of scrutiny for that class: race -- strict \| gender -- intermediate. 2. Civil litigator making preemptory strikes → acting with governmental authority (*Edmonson*, utilizing the *Lugar* test); therefore answerable to the Constitution. 3. Why were they stricken? b. To be allowed, the attorney needs to provide: i. A neutral explanation as to why each juror was stricken; or ii. A damn good reason. Idea behind preemptory challenges are that lawyers have intuition that they can use in figuring which potential jurors may have a bias/preconceived notion that would lead them to not view the trial fairly/impartially. - Generally ok if you use biases for that base -- i.e. people with higher education. - But if the hunch is based on a juror's gender, the question is if that furthers the state's interest in achieving fair and impartial trial. - If there's a bias against something that's super tied to gender (i.e. bald or ex-military) -- problem is with pretext, not with proxy. +-----------------------------------------------------------------------+ | **[FRCP 48]** | | | | **FRCP 48(a)**: at least 6 and no more than 12 jurors. | | | | **FRCP 48(b)**: UOS, verdict must be unanimous and returned by a jury | | of at least 6 members. | | | | **FRCP 48(c)**: After a verdict's returned; *via* party request or on | | its own, court may poll the jurors individually. If there's a lack of | | unanimity/assent, order further deliberations or a new trial. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Colgrove v Battin]** | | | | \[question about jury size\] | | | | As a whole, the Seventh Amendment is not concerned with the makeup of | | a jury; more focused on the right to a jury, not the characteristics | | of that jury. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[FRCP 49]** | | | | Form of verdicts: | | | | [General verdict]: simplest; jury says who wins and if | | pl, how much the df owes. | | | | [Special verdict]: jury makes specific findings of fact | | in response to a set of detailed, written questions about disputed | | issues of fact in the case. (i.e. in personal injury asking the jury | | if they find that df owed the pl a duty of care). | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[FRCP 38 & FRCP 39]** | | | | Jury demand. | | | | Has to be a written demand served on the party; can be in a pleading | | so usually just put in Complaint/Answer. | | | | Can waive jury trial; if demanded, can't unilaterally withdraw. | | | | If you could've demanded, but didn't, then need to motion for one. | | | | Advisory jury: gives the judge an opinion, but is not binding. | +-----------------------------------------------------------------------+ **["Suits at Common Law"]** **Seventh Amendment**: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Suits at common law = suits in which legal rights are to be ascertained and determined (extends to statutes) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **[Beacon Theaters Inc v Westover]** -- cases that involve claims for both legal and equitable relief, a jury will find facts and determine the legal relief; the court will take the jury's findings and decide a final equitable relief. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- *Note*: legal claim, looking to make whole (money\*); equitable claim, looking to prompt/stop a particular action (injunction). \*Note that sometimes monetary demands can be made in equity (see *Curtis*). Case law tends to resolve close cases in favor of finding a right to jury trial under the Seventh Amendment. --------------------------------------------------------------------------------------------------------------------------------------------------------------- **[Dairy Queen v Wood]**: In determining whether a suit is one "at common law," the mere label of a claim doesn't matter, it's about the content. --------------------------------------------------------------------------------------------------------------------------------------------------------------- +-----------------------------------------------------------------------+ | **[Curtis v Loether]** | | | | \[fair housing claim\] | | | | Two tests in determining whether a claim that didn't exist in 1791 | | (housing discrimination) is entitled to the 7^th^ Amendment right to | | a jury: | | | | 1. Is this claim analogous to a claim in common law in 1791? | | | | 2. Is the relief sought a traditional form of relief offered in the | | courts of law? | | | | *Note*: here they wanted injunctive relief, which would have gone in | | a court of equity, not a court of law. (Monetary relief is a sign | | that it's a legal relief, but doesn't automatically make it such; | | Title VII specifically says that the monetary relief available is | | equitable). | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Chauffeurs, Teamsters and Helpers v Terry]** | | | | \[Trucking company collective bargaining\] | | | | An employee who seeks relief in the form of backpay for a union's | | alleged breach of its duty of fair representation has a right to | | trial by jury. | | | | *Curtis* test: (1) cause of action is analogous to an action | | recognized at common law and (2) more importantly, the relief is | | legal in character. | | | | [Concurrence]: should drop prong (1); | | | | [Dissent]: prong (1) is as important as prong (2). **[\ | | ]** | +-----------------------------------------------------------------------+ **[SUMMARY JUDGMENT]** A party may move for Summary Judgment if there's no genuine dispute as to material fact. "Genuine" = evidence is so contradictory that if the matter went to trial, a jury could return a verdict for either party (*Muller I*). "Material" = pertains to an element of a claim or defense (*Muller I*). - Matters to the outcome of the case; an element that is necessary to prove in order to win (dispositive). Needs to be possible that a reasonable jury can go in either direction. +-----------------------------------------------------------------------+ | **[FRCP 56]** | | | | **FRCP 56(a)**: Either party may move for Summary Judgment. | | | | **FRCP 56(c): Procedures** | | | | (goes to 56(h)). | | | | *Note: judge can move sua sponte, motion not technically required.* | +-----------------------------------------------------------------------+ Note that under 56(c), information has to be firsthand. A belief is not evidence. Pleadings can be plausible beliefs; however, in a motion for summary judgment, a plaintiff will not meet the burden of proof if they only have a belief, because a belief is not evidence. Pleadings are *never* evidence. - Not made under oath, just certified by an attorney. - Affidavits are made under oath, and are treated as testimony. Looking at facts in the light most favorable: - Take what the nonmoving party says as fact (unless it's just a belief) - See whether there's a debate. - Then, in the light most favorable to the nonmovant, ask if there is a preponderance of evidence to where a jury could debate and come out on either side. - Yes: needs a jury trial. - No: judge can make a decision on the basis of law. Credibility -- even if there are 100 vs. 1 affidavits, that is just a credibility issue. Credibility issues almost always go to the factfinder. - Even if a plaintiff theoretically has an incentive to spin a story, a court is not going to be the one to make that determination. +-----------------------------------------------------------------------+ | **[Mueller v Swift (Mueller I)]** | | | | \[Taylor Swift, MSJ issue\] | | | | The main factual dispute is genuine (battle of contradicting | | Affidavits, each party thinks they're right) and thus, MSJ is not | | appropriate. | +-----------------------------------------------------------------------+ If there's evidence, it might be enough to get past a MTD if it sounds like it would all work together to make a reasonable claim. If after, evidence isn't actually enough, then can MSJ. - i.e. have evidence of a signature -- passes MTD -- sees then that the signature doesn't belong to Df, so MSJ; no reasonable jury would find. - Have to square that with the fact that a court isn't going to weigh the evidence: sometimes easy (i.e. illegitimate or no evidence), but other times, it may involve contradicting evidence, in that case a court kind of would weigh just without saying that its what they're doing. - Important to keep track of which party is the movant. At trial, the burden's always with the plaintiff (higher expectations than the df); influences what the pl will have to show vs what the df does if moving to SJ. [The Celotex Trilogy] Set the standards for MSJ. +-----------------------------------------------------------------------+ | ***Anderson v. Liberty Lobby***: | | | | - Only disputes over facts that might affect the outcome will | | properly preclude the entry of SJ. | | | | - Must grant if there can be but one reasonable conclusion as to | | the verdict. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | ***Matsushita v. Zenith***: | | | | A lack of evidence that does not exclude the possibility of a | | simpler, more plausible theory will allow for a SJ. | +-----------------------------------------------------------------------+ A Pl's SJ must present evidence (affs, depos, docs, etc.). *Celotex* gets into what's required of a Df moving for SJ -- +-----------------------------------------------------------------------+ | ***Celotex v Catrett*** | | | | If a df is seeking SJM, they have the burden of persuasion (need to | | inform the court for the basis of their decision). They can produce | | evidence, or they can show that the pl lacks evidence to prove the | | pl's claim. | | | | Can bring evidence, but sufficient to rely on the record. | | | | Can't be conclusory, but need to point specifically to something, | | and, unlike MTD, need to point to evidence (not pleadings). | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Scott v. Harris]** | | | | \[highspeed chase\] | | | | The objective video is so undisputable, that even looking in the | | light most favorable to the non-movant, it is so obvious and clear | | what had happened. | | | | Normally judges will draw reasonable inferences in the light most | | favorable to the nonmoving party. However, they must be reasonable, | | and there needs to be a *genuine* dispute as to those facts; have to | | be possible to interpret in multiple ways, but here the video makes | | it so that no reasonable jury would. | +-----------------------------------------------------------------------+ **[Plaintiff is Movant]** Plaintiff: show that it's so clear that they'd win at trial, there's no point. - Need to win on every element. - Affirmatively show that it'd be unreasonable to conclude otherwise. Defendant: burden to show there's a genuine dispute to at least one element. - Show *via* own evidence or by attacking Plaintiff's evidence. **[Defendant is Movant]**\ Defendant: show (point to) Plaintiff's lack of evidence to support a sufficient claim. - Could also produce affirmative evidence negating an essential element of Plaintiff's claim. Plaintiff: burden to show there's a genuine dispute of material fact to all elements. - Needs to submit evidence to contradict. No matter who's moving, if it comes down to credibility, it must go to a trial. - *Note* once you are starting to "weigh" evidence in your head, then there's a dispute as to material facts. **[JUDGMENT AS A MATTER OF LAW (JMOL)]** JMOL has the same standard as MSJ, that no reasonable jury would be able to conclude otherwise. JMOL is after the nonmoving party has presented their evidence at trial (or even the end of the entire trial), but before the jury gives a verdict. If JMOL is denied and the case is submitted to the jury, the losing party can [renew JMOL]. - Meaning that post-verdict JMOL's are only available if that party moved for JMOL before the case went to the jury. - Sounds counter-intuitive for a judge to deny the fact that no reasonable jury could decide *x*, letting the jury decide *x*, and then saying that *x* was unreasonable. However, there is importance in preserving the jury system, and judges will typically be hopeful that a jury will make a "reasonable" decision on its own. +-----------------------------------------------------------------------+ | **[FRCP 50]**: judgment as a matter of law. | | | | **[FRCP 59]**: new trial. | | | | **[FRCP 61]**: errors generally aren't ground for a new | | trial. They need to be so major that it would influence the impact of | | the decision. | +-----------------------------------------------------------------------+ **[APPEALS]** Parties that lose in federal district courts have (w/few exceptions) the right to appeal. - Final judgment isn't limited to decisions that end the litigation in every aspect; it limits final decisions to those decisions that end litigation on the merits. - Don't have a right to a hearing. - Have to preserve your argument. **[JOINDER]** Can have a joinder of [claims] and a joinder of [parties]. +-----------------------------------------------------------------------+ | **[FRCP 13: CLAIMS]** | | | | **FRCP 13(a)(1)**: A pleading **must** state as a counterclaim any | | claim that\--at the time of its service\--the pleader has against an | | opposing party if the claim: -- (A) arises out of the **transaction | | or occurrence** that is the subject matter of the opposing party's | | claim; and -- (B) does not require adding another party over whom the | | court cannot acquire jurisdiction. | | | | **FRCP 13(a)(2)** Unless the claim is already pending in a different | | case. | | | | **FRCP 13(b)**: A pleading may state as a counterclaim against an | | opposing party any claim that is not compulsory. | | | | **FRCP 13(g)**: A pleading may state as a crossclaim any claim by one | | party against a coparty if the claim arises out of the transaction or | | occurrence that is the subject matter of the original action or of a | | counterclaim\.... | +-----------------------------------------------------------------------+ **[T&O Factors]** 1. Do the counterclaim and original claim share similar issues of fact and law? (Would consolidating the claims save resources)? 2. Will substantially the same evidence be used to support the claim and the counterclaim (Facts)? 3. Is there a temporal connection between the claim and counterclaim? Judges may construe T&O narrowly, and a claim may depend on the judge's interpretation/way of viewing T&O if it would be considered compulsory or permissive. Should look at factors, but generally can (and on exam, should) be weighed both ways. (I.e. a suit re a car accident, and a claim for defamation based on statements a party made about the crash). +-----------------------------------------------------------------------+ | **[FRCP 18]** | | | | A party asserting a claim, counterclaim, crossclaim, or third- party | | claim may join, as independent or alternative claims, as many claims | | as it has against an opposing party. | +-----------------------------------------------------------------------+ Rule 18 is promoting judicial efficiency. Not bringing a claim up will not bar someone from using it in the future, but courts will allow them for efficiency reasons. +-----------------------------------------------------------------------+ | **[FRCP 19: PARTIES]** | | | | [Persons Required to be Joined (19 (a)(1))] | | | | - Integral to the point that without them, relief can't be granted. | | | | - If something would hurt a person's interest if they were not | | joined; or if it would leave an existing party subject to | | substantial risks. | +-----------------------------------------------------------------------+ Example of a required party: A claims ownership of and attempts to sell property. B argues the property is owned by A, B, and C. If B sues A, then C is a required party. Another example: Contract between A, B, and C; a breach of contract claim, all parties to the contract must be included. +-----------------------------------------------------------------------+ | **[FRCP 20]** | | | | Multiple pls/dfs may join if: | | | | - They assert any right related to the same transaction, | | occurrence, or series of transactions or concurrences AND | | | | - There's a similar question of law and fact (at least one question | | has to be the same). | | | | *You can readily think of a factual or legal question common to both | | plaintiffs -- such as, "Did Aria drive negligently and cause the | | crash?"* | +-----------------------------------------------------------------------+ Example of compulsory parties: Company A is polluting the water. Farmer B brings a claim against A (pollution is destroying his crops). Fisherman C wants to sue for the pollution killing the fish. Although they have different claims, and are harmed in separate ways, the core of the issue (whether A is polluting the water) is the same. +-----------------------------------------------------------------------+ | **[FRCP 14]** | | | | Defendant can become a 3^rd^ party plaintiff if they bring in a | | nonparty who may be liable for all or part of the claim against it. | | | | Usually comes in the form of indemnification. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[FRCP 12(b)(7)]** | | | | Motion asserting the defense of: "failure to join a party under Rule | | 19" | | | | **[FRCP 21]** | | | | Misjoinder isn't a ground for dismissal. On motion or on its own, | | court may at any time add or drop a party, or sever any claim against | | a party. | +-----------------------------------------------------------------------+ Court has discretion to dismiss a party, so long as under 19(b) they're not indispensable. (If they are indispensable AND its impossible for the case to carry on without that specific party, then the court has to dismiss the case (i.e. an issue w/subject-matter jurisdiction). +-----------------------------------------------------------------------+ | **[FRCP 24]** | | | | **FRCP 24(a)**: on timely motion, court [must] permit | | anyone to intervene who: is given an unconditional right via fed | | statute; or claims an interest such that it would impede their | | ability to protect its interest (unless existing parties adequately | | represent that interest). | | | | **FRCP 24(b)**: on timely motion, court [may] permit | | anyone to intervene who: is given a conditional right via fed | | statute; has a claim/defense that shares w the main action a common | | question of law/fact. A fed/state officer/agent may intervene if a | | claim's based on a statute/regulation/order/etc. Court must consider | | if the intervention would unduly delay/prejudice the original | | parties. | | | | **FRCP 24(c)**: a motion to intervene must be served on the parties | | stating grounds and pleadings. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Martin v Wilks]** | | | | \[firefighter discrimination\] | | | | A person can't be deprived of his legal rights in a proceeding to | | which he is not a party. | | | | If one is a defendant, they have a requirement to counterclaim at | | that time (Rule 13). However, there is no rule that if you need to | | intervene as a defendant if you want to assert a "counterclaim" | | later. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Breaking Glass Pictures v Does 1-188]** | | | | \[BitTorrent\] | | | | Rule 20 permits (but does not require) joinder of parties when claims | | involving them arise out of the same transaction and they share a | | common question of law or fact. | | | | - Courts have considered BitTorrent swarms as "same transaction." | | | | - Court here/most courts argue that they are multiple transactions. | | | | So, under Rule 20, the parties were misjoined. However, court also | | argues that under Rule 21, they are going to use their discretion and | | eliminate the dfs. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[FRCP 42]** | | | | One alternative to joinder is consolidation of actions, which permits | | courts to combine hearings or even trials for cases arising out of | | distinct events so long as those cases raise common questions that | | the court can resolve in one swoop. | | | | Separate actions remain separate, merely are bundled. | +-----------------------------------------------------------------------+ **[RES JUDICATA]** [Res Judicata]: something already decided; once you go to court and lose, you can't go to court again to try and win. - Affirmative defense; raise in the Answer. - If judge got it wrong, then appeal; preclusion is important because there needs to be finality to law for its own sake. - Common law, developed overtime; no "rule" and different in each state, but are all almost identical. - Claim preclusion and issue preclusion. **[Claim Preclusion]** The final adjudication of a claim precludes any subsequent attempt to bring the same claim, including anything that could've been raised but wasn't. Same parties, same claims. [On the merits]: does *not* include cases that were dismissed for lack of jurisdiction; improper venue; failure to join (Rule 19); and dismissal without prejudice. [Same claim]: arising from the same events (there's a minority view that different claims from the same events can survive, but majority of courts will not allow). (Similar to rule on counterclaims). - Could have reasons why you *couldn't* have brought the claims (law changed, new facts, etc.); however, if you could have, you would have had to. Elements of Claim Preclusion: - Parties are identical or in privity; - Valid and final judgment on the merits; and - Same claim/cause of action. **[Issue Preclusion]** Issues of fact or law decided in an earlier case can't be relitigated by that party in a later case. Elements of Issue Preclusion: - Precise issue has been raised and litigated (each party had a full and fair opp); - Determination of the issue was necessary to the outcome of the prior proceeding; and - There was a final judgment on the merits. **[Nonmutual Issue Preclusion]** **Defensive**: a new df in second suit seeks to use issue preclusion against pl based on judgment from first suit (could be a new claim, new set of facts, new df: but can say that this precise issue was already decided against you and you lost). Saying that everything relies on a question of law, and that question of law has already been established. - EX: P sues D1 claiming that D1's product infringes her patent; court decides that P's patent is invalid; P later tries to sue D2 claiming D2's product infringes on the same patent. **Offensive**: a new pl in second suit seeks to use issue preclusion against df based on judgment from the first lawsuit. - EX: P1 sues D claiming D's product is defective and D knew of defect; P1 wins. P2 now sues D making the same claims as P1, invoking the prior determination of issue of knowledge against D. *Note*: this **can't** work for a pl who won trying to bring same winning claim against a bunch of new dfs -- those new dfs never had a fair chance to litigate their claims; why joinder is important. +-----------------------------------------------------------------------+ | **[Rose v Board of Election Commissioners for the City of | | Chicago]** | | | | \[election ballot\] Claim Preclusion. | | | | Same facts, but invoking a new law (raising a federal statute for fed | | court). However, the new law doesn't change the analysis; merely a | | different theory of recovery. | +-----------------------------------------------------------------------+ +-----------------------------------------------------------------------+ | **[Parklane Hoisery Co v Shore]** | | | | \[SEC claim re proxy statement\] | | | | Offensive issue prelusion should be limited. | | | | However, it would be ok here as: | | | | 1. Dfs had a full and fair opp to litigate their case; | | | | 2. The decision was fair; | |