CivPro Outline

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Federal Courts
- Have narrow scope
- Cases that were of national interest
Cases that arises from constitutional issues
Article III Section 2
- Constitution
- Outlines what federal courts can hear.
- Cases between citizens of different states.
Satisfied with minimum diversity (one plaintiff different from one def)
1332
- Enacted by congress.
We can’t expand powers of federal government, but can make it smaller.
- Like AIC limits powers.
- Required complete diversity.
A. Subject Matter Jurisdiction
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What court system you can file in – state or federal.
Power of courts to hear a particular type of dispute
Does Federal Question or Diversity allow court to hear the claim?
FQ and D flow into SMJ.
You can call for SMJ by either fulfilling (federal question) or (AIC and
diversity)
Diversity Jurisdiction
- Article 3 – asks for minimal diversity. But power is enacted from congress.
- Strawbridge Test requires complete diversity under S.1332
The burden of proving diversity is upon party bringing it to Fed.
i.
US. 1332 Original jurisdiction - AIC 75,000 + 1 cent
- No plaintiff can share state citizenship as defendant.
- All P’s diverse from All D’s
1) Citizens of different states
2) Citizens of state and alien. – may not have aliens on both side.
3) 1) plus aliens as additional party on both side.
ii.
Citizenship of Individual
1) U.S. Citizen + state domicile
iii.
DOMICILE/GORDON TEST – for STATE CITIZENSHIP. – Domicile on
day of filing.
 Presence in new state
 Intent to stay in new state indefinitely - ABSENCE of a plan to
leave.
 Can not lose old domicile until you acquire new one.
If U.S citizen moves to another country, then he loses his state domicile.
Gordon v. Steele – YES Diversity achieved.
- She left home. Established presence in Idaho.
- No definite plan to leave. No reasonable event.
- What is domicile on date of filing.
Rules of domicile
(a) person can only have one domicile at a time
(b) when in transition, you retain your original or last
domicile until you get a new one
(c) insurance companies assume the domicile of the
insured party in order to prevent forum shopping
(d) estate administrators assume the domicile of the
decedent whom they represent (again, prevents forum
shopping or manufacture of diversity jurisdiction by
appointing an out-of-state administrator)
(e) children have the same domicile as their parents or
guardians
(f) partnerships and unincorporated associations have no
domicile of their own; citizen of every state where
partner is a citizen
(g) class actions have the domicile of the party who is
representing the group interest
(h) corporations
(i) place of incorporation, and
(ii) principle place of business (headquarters or
“nerve center,” location of assets, where
manufacturing takes place, etc.)
(iii) usually count subsidiary domicile for parent
company as well
Amount in Controversy
St. Paul Mercury Rule – GOOD FAITH
- Good faith allegation that could win 75,000 + 1 cent or more.
- For dismissal - legally certain that claim is less than 75K.
- Not by constitution. Can change/has changed in history.
- Don’t have to win the full amount.
Counter claims can’t be added together.
Mas. V. Perry – YES diversity achieved. AIC met
- Mrs. Mas did not establish new domicile.
- U.S women don’t lose state citizenship by marrying an alien.
- Didn’t recover full amount but COULD have.
Aggregation – Rule 1.
- A single plaintiff may aggregate all claims against a single def. to avoid
multiple suits
Aggregation – Rule 2
- Two or more plaintiffs may not aggregate their claims unless the claims are
for a “common undivided” interest.
Aggregation 3
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Can’t aggregate claims against two or more defendants unless claims are for
a common undivided interest.
“Common undivided interests” *****DON’T GET CONFUSED YOU DUMB BITCH****
- Rare
- Can be used for trusts
- Not individual accidents. If H (40) and W (50) sue a D. AIC is not met – cause
individual claims. Not a common interest.
Diefenthal v. CAB – NO AIC
- Not allowed to sit in smoking section of plane.
- Claimed 50,000 in damage (at time AIC amount was 10k).
- Courts were legally certain that their damages were less than 10k.
Corporate Citizenship
S1332(c)
- Place of incorporation
- Principal place of business
Hertz v. Friend – YES diversity.
- initially filed in state court.
- Lower courts ruled for Friend using a complicated method to judge where
money was.
- SC: Too complicated – apply “nerve-center test”
o HQ, where high ranking officials make decisions.
o Negative: nerve-centre can be moved at anytime
Federal Question Jurisdiction
 “Arises” under federal law – constitution or federal statute.
o Under Article 3.2 – constitution
o Section 1331 – district courts shall have original jurisdicrtion over all
civil actions arising under constitution + laws and treaties of US.
 Well-Pleaded complaint/Mottley Rule
o Rule of procedure. Fed jurisdiction cannot be acquired unless a Fed
issue is on the face of a complaint.
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Rule 12 H3 - If at any time court decides there is a lack of SMJ – must dismiss.
Not waiveable.
Louisville vs. Motley – NO Fed. Question
- Mottley’s added federal defenses in their complaint.
- Courts said that you can’t fulfill requirement by adding in anticipated defenses.
- Went to USSC twice.
o Didn’t hear it the first time b/c lower Fed courts never established
power.
o USSC doesn’t need well-pleaded complaint.
Removal
o Defendant has right to remove the case to Federal. (can’t move to
state)
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o Can’t go forum shopping and move to Fed court in another state.
 Has to stay in the same court.
o Can only move cases that can be filed in Fed court initially.
If procedural – def has 30 days after filing to remove it to Fed.
If Fed Question – unlimited time. Can be moved at anytime up until judgment
o Even if you remove Fed. Q can’t be remanded. Jurisdiction established
from day of filing.
If diversity *****DON’T GET CONFUSED YOU DUMB BITCH****
o Once a case becomes diverse 30 days.
 If case becomes diverse up within a 1 year period. Can be
removed.
o S.1441.b2 If Diversity issue: Def can’t be a citizen of the state where
case is filed to remove it. because no implicit bias.
If erroneous the P has 30 days to remand back.
All defendants have to agree to remove.
if defendants are served at different times, and a later-served defendant files
a notice of removal, and earler-served defendant may consent to the removal
even though that defendant didn’t intiaite removal
B. PERSONAL Jurisdiction
GENERAL JURISDICTION – “AT HOME”
o General jurisdiction- even if the claim does not arise out of the defendant’s instate contacts
 as long as the defendant has ongoing contacts with the state.
 exist for corporations when “the continuous corporate operations
within a state are so substantial and of such a nature as to
justify suit against it on causes of action arising form dealings
entirely distinct from those activities.
 Dealings are so massive.
SPECIFIC JURISDICTION
If not present within the forum territory
due process requires that in order to subject def. to in personam there needs
minimum contacts.
To not offend fair play and substantial justice.
Minimum Contacts Criteria
1. Quality and nature of defs forum contacts. – contacts with the states
2. NEXUS: Relationship bw the contacts and the issue.
(the forum contact needs to have caused the action).
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need to meet these before we can consider the reasonableness factors
1. Burden on def.
2. States interest in hearing the case
3. Plaintiffs interest in convenient forum
4. Efficiency
5. Furtherance of fundamental social pressures.
Price companies/defs pay for deliberate efforts to get business from or conduct
activities in a state.
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14 amendment – can’t deprive person of their liberty/property without due process.
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Whether courts power should apply to a person – if courts have authority to
hear case.
You can consent to PJ.
Two types of jurisdiction
In personum: courts jurisdiction over the parties.
 Need someone to appear voluntarily.
 Need someone to be served in the state.
In rem – if you own property within a state, there is jurisdiction. Need to own
property at the time of filing.
Quasi in rem – exists when land is attached to case, other than over
ownership.
Definitions:
o Specific jurisdiction- exists if the claim arises out of the defendant’s
deliberate contact with the state
o Collateral challenge- defendant must fail to appear in the court where the
plaintiff filed the original lawsuit.
 This failure to appear eventually results in a default judgment
against the defendant.
 The plaintiff can then take that judgment to a state where the
defendant resides or has assets and can ask the court in that
state to enforce the judgment there under the Full Faith and
credit clause.
 Can not argue on the merits of the case, this is a risky move
Pennoyer v. Neff – NO personal jurisdiction. Lower courts reversed.
 Suit within a suit. Initially in state court – second suit in Fed court.
 Mitchell (Oregon) sues Neff (Cali) over lack of payment. Gets title of his
property.
 Mitchell sells land to Pennoyer.
 Neff arrives and finds Pennoyer on land.
o 14th Amendment – can’t deprive people of land.
 Judgment of lower courts invalid because jurisdiction over Neff never
established.
 Pennoyer = presence.
3 options to object to personal jurisdiction
1. Default (fail to show up) on first judgment and then wait until plaintiff tries to
enforce.
2. When you defend – it has to be your first objection. But can bring up other
merits. Risk of waiving PJ when you do this.
3. “Special Appearance” to object to PJ. But easy to get pulled in to talk about
other things.
International Shoe v. Washington – YES Personal jurisdiction
 expanded Pennoyer: If no in personum jurisdiction. Need minimum contacts
test.
o International shoe was systematic and continuous in their dealing in
WA.
 They didn’t have any offices, but had 13 salespeople who made 30k in
commissions. Resided in state and rented spaces. The corporation was found
present “ in rem”
McGee – YES PJ
 A single contact (contract!) that gives rise to the dispute can suffice for
nature and quality and nexus.
 Insurance company reached out.
 Other considerations of reasonableness (justice and fair play)
 Ongoing relationship
World Wife Volkswagen v. Woodson – NO PJ. Nexus not met
 Foreseeability alone is not enough for minimum contacts- defendant
has to purposefully avail itself of the state.
 They did avail themselves of OK but the nexus was not met
 Reasonableness factors are irrelevant until nature and quality and
nexus are met to at least some minimum standard
 Systematic procedure. Lack of purposefulness.
Burger King – YES PJ
 Singe contract may or may not be enough… depends on nature and quality,
and nexus
 But McGee- single contact enough so the Court turned to reasonableness
factors
 Contract in Burger king
 Before: negotiation (deliberately reached into FL)
 During: language of contract (voluntarily accepted long term-exacting)
 After: further contacts with the state (continued to profit on trademark over 20
year relationship)
Asahi – NO PJ
 can be subject to PJ in a state if they put products into the “stream of
commerce”
 a different way to satisfy minimum contacts test than purposefulness
 a state must show that D purposefully established minimum contacts by
directing products toward a particular state
 although asahi did place products into the stream of commerce that eventually
got to CA, they did not market/ anticipate sales in CA
 also would have been unreasonable to have PJ over asahi
 Justice Stevens: inquiry should have ended when it was found unreasonable.
Additional test not needed.
 Justice Brennan – stream of commerce is good reason. Foreseeability should
sometimes be enough. Asahi wanted profit.
o But still no jurisdiction, it would be unfair.
O’connor: Asahi didn’t think about stream needed purposeful availment.
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Daimler – NO General PJ
 A company is at home in a state if they are incorporate there
 have their principle place of business there,
 or have such a systematic and continuous affiliations with the forum to
make it home (relative to other forums)
Burnham – YES PJ
 Presence- the court has personal jurisdiction over the defendant if he is
served with process while present within the boundaries of the state
 Scalia: traditional notions of fair play and substantial justice. Pennoyer.
o Tradition=fair.
 Brennan: using police protection so only fair. Entering state in modern
technology.
Long Arm Statutes
- Tied to an out of state def.
 State statute granting personal jurisdiction (within constitutional limits)
 Some states grant the total constitutional authority (CA)
o Will satisfy both min contacts and LA statute
 Enumerated statutes – describe specific conduct.
o grant less than the constitutional authority
 some focus on where the tortious act is.
 Still has to relate to cause of action.
Test for jurisdiction:
1. “Long arm statute” allowed jurisdiction?
2. Is the jurisdiction constitutional?
a. Minimum contacts test – PJ particularly
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C. Venue
Refers to the particular court within a court system where a plaintiff can file
a lawsuit.
Populous states have more than one federal district court
28 U.S.C. §1391
o b1 – a district in which any def. resides, if all defs are from state.
o B2 – a district where events took place. Or part of property is located.
o B3 – If no district meets this, then any district where any def. is
subject to the court’s PJ
o (b)(1) – a judicial district in which any defendant resides, if all
defendants are residents of the state in which the district is located
o (b)(2) – a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated
o (b)(3) – IF THERE IS NO DISTRICT IN WHICH AN ACTION MAY
OTHERWISE BE BROUGHT AS PROVIDED IN THIS SECTION,
any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action with respect to such
action.
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D. NOTICE of SERVICE
needs to actually notify the defendant.
Personal service is ideal.
Leave notice with someone of proper age.
Serving D’s agent – for corps and companies. Only if in state for work.
E. TRANSFERS
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Statutory
o §1406 – If improperly filed and want to fix
o §1404 – If filed properly and want in more convenient forum
Applies when moving within the same court system.
Easier than dismissing and refilling.
Dismissal Rule
o Common Law: Forum non Conveniens
 Dismisses even though properly filed
o Used when:
 Move to another state or
 should be out of the country
o Must have:
 another forum to use this doctrine (heavier weight if US citizen)
 Public interest factors
 Private interest factors
Transfer moves case within the same court system (state court within the
same state; can’t be moved to federal system, can’t be moved to another
state)
Forum non Convenience dismisses the action and the plaintiff must re-file
elsewhere
o Use when the other forum is overseas
o Use when it should be in another state
Threshold Question – Is there another forum in which the case could have been
brought? ¾ If the answer is no, the FNC motion fails on face Piper Aircraft Co. v.
Reyno ¾ Rule – plaintiff may not defeat a motion to dismiss for FNC merely by
showing that the substantive law in the alternative forum is less favorable to him o
EXCEPTION – cases where the remedy provided by the alternative forum is “so
clearly inadequate or unsatisfactory that it is no remedy at all”
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F. ERIE DOCTRINE
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Federal courts dealing with state issues.
IF DIVERSITY: Federal courts must apply state legal rules on “substantive”
issues when adjudicating state law claims.
o Substantive: the core (essentially the meat of the lawsuit)
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o Because they don’t want forum shopping – it could cause two courts ruling
differently.
If Federal Q: substance and procedure are both federal law.
Federal procedural law will be used.
The Erie Decision - Marks a change from 100 years of precedence.
o Before this courts courts got do what they wanted. SWIFT V. TYSON
10TH AMENDMENT – not given to federal government in constitution, retained by
states.
G. STARTING A COMPLAINT
A civil action is commenced by filing a complaint with the court
Pleading: is all allegations.
Purpose of the Complaint
- Give notice to D.
- Initiates lawsuit.
- Establishes relief wanted + gives access to discovery
If filing in Fed court, why.
Need to be well-pleaded.
Good practice to include factual allegations to each element.
Rule 7(a): Pleadings that are allowed.
1. Complaint
2. An answer to a complaint
3. An answer to a counterclaim designated as a counterclaim.
4. An answer to a crossclaim
5. A third party complaint
6. An answer to a third-party complaint
7. If the court orders one, a reply to an answer.
Rule 8 – did not require fact pleading. But post TWIQBAL we do.
Rule 8(a): what must be included in the complaint.
1) short and plain statement of the grounds for jurisdiction;
(2) short and plain statement of the claim showing the pleader is entitled to relief; and
(3) a demand for relief sought
Rule 8(b): Defences, denials, etc
Rule 9(b): Heightened Pleading standard.
Rule 10
Sufficiency can be challenged under R12b6.
- All well-pleaded complaints needed to be taken as true.
Conley Case
- Petitioners worked for the RR. Were fired and replaced by white agents.
- Union said claims were insufficient.
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Conley court: a complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.
Court was very lenient. Overturned by Twombly and Iqbal.
TWOMBLY - Plausibility Standard
- Twombly alledged Bell Atlantic was entering into parallel contract to control market and
prevent competition.
o “parallel conduct”
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Court stated that this was a legal conclusion.
Legal conclusions needed to be PLAUSIBLE and not just conceivable to survive
o Look at facts to determine plausibility.
POLICY RATIONALE: there was a litigation boom and courts wanted to change
that.
Dissent: Shouldn’t overturn Conley. Need to give people a chance against corp
o Behaviour requires some sort of response.
IQBAL: Legal conclusion is not plausible if it is equally true or false.
FRAMEWORK
- Is an allegation purely factual?
o If yes, assume to be true to determine if plaintiff has ground for recovery.
- Is an allegation a legal conclusion?
o If yes, is the conclusion plausible in light of the facts alleged?
- Conclusions needed to be supported by factual allegations.
- Courts will decide which allegations are entitled to assumption of truth.
H. Responding To A Complaint
do nothing: if you have nothing to lose. But a judgment stands for 20 years.
collateral attack: not subject to PJ in another state, or when you didn’t get notice.
Respond via motion or answer.
- Respond within 21 days within service of process.
- Rule 4D: if you waive formal service of process you have 60 days.
- Motions are not pleadings.
- Answers are pleadings.
- Motion needs to be filed by the time answer is due.
Rule 12B: Motion to Dismiss
Need to assert before answer or in answer.
These 7 defences can be in the first Rule12 response or they are WAIVED.
Waiveable defences.
1. Lack of SMJ – never waived. can be raised anytime (even on appeal)
2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process
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these two can raised anytime throughout trial.
6. Failure to state a claim upon which relief could be granted
7. Failure to join a party under Rule 19.
Rule12E– Motion for a More Definite Statement.
Matos – court must decide if pleading is so vague that party can’t prepare a response.
Rule 12F – Motion to strike something from a pleading. Irrelevant allegations
- Can be by the opposing party or by the court sua sponte
Rule 12G – Joining Motions.
- Only allowed to file one pre-answer motion and can put any and all Rule 12
objections into this one motion.
o For disfavoured defences – they must be included – or must be brought
in 1st responsive pleading or waived.
Rule 12H – Waiving and Preserving
- Defences in 12b2-5 must be brought up in 1st responsive pleading, or they are
waived.
o Notice of Removal is not considered a responsive pleading.
Rule8B
- must respond to the complaint, line by line and respond to the complaint.
- admit or deny factual allegations of complaint.
- Assert any affirmative defences.
- Assert any compulsory counterclaims or cross claims.
- Rule8B5 say you don’t know.
- Failure to deny is an admission on any allegation except damages
Rule8C
- Affirmative defences: not denying, but raising a new fact. – legal excuse.
- Statute of limitations, staute of frauds (contract should have been writing).
- Must plead them or you waive them.
I. Amendments to Pleadings
Rule 15
o Amending without leave of court:
- Within 21 days of service of original pleading if no responsive pleading required.
- Within 21 days after responsive pleading served if one is required.
- Within 21 days after R12 motion is served.
- Only one amendment as a matter of course.
- All other amendments must have court’s permission or opposing party’s
consent.
o Amending before trial with leave of court, courts consider:
- The court should freely give leave when justice requires. Consider:
o Stage of litigation
o Reason for amendment
o Viability of amended claim or defense
o Reason for not including the new allegation in the original pleading.
Purpose of R15: efficiency.
Party opposing the motion has burden of proof – need to show why justice does not
justify amendment.
- Undue delay, unfair prejudice, futility, prior amendment.
Rule15C: pulling in new party but they should have known.
- relation back of amendments
- an amendment to a pleading relates back to the date of the original pleading
when:
- the amendment changes the part or the name of the part against whom a claim
is asserted.
- Knew or should have known that the action would have been brought against
it, but for a mistake concerning the proper party’s identity.
o Defendants are protected by SOL but 15c limits that protection
You can change the parties as long
(1) the claim or defense relates back to original suit in original pleading
(2) give notice in reasonable time frame for persona to argue the merits
without prejudice and its foreseeable. Statute of limitations does not always
preclude a lawsuit from commencing.
Beeck v. Aquaslide – allowed to amend.
- Defendant initially admitted to manufacturing slide, but later moved to amend
it’s answer to deny.
- Separate trial was held to see who manufactured slide.
- Plaintiff suffered.
Krupski v. Costa Crociere
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Plaintiff sued the wrong company.
Both had the same agent – had CONSTRUCTIVE notice.
CoA denied relation back because P should’ve known
Overturned. Relation back is allowed, because the parties should have known.
J. Ethical Considerations and Sanctions
Lawyer conduct with respect to pleadings is enforced by Rule 11.
Applies to all documents presented in court.
- signature required certifies that to best of that person’s knowledge formed
after a reasonable inquiry under the circumstances:
Rule 11b
- it is not submitted for any improper purpose (harassment, delay, increase cost
of litigation)
- legal contentions are warranted by existing law or a non-frivolous argument to
alter existing law
- facts have evidentiary support or will likely have evidentiary support o denials
of facts are reasonably based on belief or a lack of information ¾ limited in
scope to conduct during pleadings (does not extend into discovery)
K. Joinder
o Remember: every claim in federal court, still needs a basis for SMJ and
need PJ.
Claim and Party Joinder by Plaintiffs.
o Rule18: joinder of claims
- You can join as many claims (related or unrelated) as you want against a party.
- Unrelated claims are not required to.
- This can’t be used for the first claim.
- Need an anchor claim.
o Rule 20A: Available to plaintiff to decide who may be joined on either side of V
- Permissive joinder of parties.
- Ask if same transaction or occurrence. T/O and common question of law or fact.
o Time
o Space
o Origin
o Similarities
o Efficiency
Claim and Party Joinder by Defending Parties.
Counterclaims
o Rule 13(a): compulsory counterclaim.
- Needs to arise out of the same T/O: if you don’t bring it you lose the ability to
bring it later.
- Allowed to tag along even if no SMJ, but if permissive than dismiss it b/c no
SMJ.
o Rule 13(b): Permissive counterclaims
Crossclaims
o Rule 13(g): Crossclaim against a co-party. Need to arise out of the same fact.
o Allowed to tag along even if no SMJ as 1367A grants supplemental
jurisdiction if out of the same T/O. Always met for compulsory crossclaims.
o First crossclaim needs to be related, then R20 allows additional
crossclaim.
o Rule 13(h): Joining Additional Parties.
Impleader
Rule 14 used when Def joins someone new.
o 3rd party defendant (TPD)– normally owes contribution to the D if found guilty.
o The plaintiff can also sue the TPD.
o Can’t deny liability, but can hold them jointly liable.
o Need SMJ.
L. Supplemental Jurisdiction
Joinder rules do not give SMJ, so use Supp. Jurisdiction.
Need to have SMJ in anchor claim.
o Used to be two separate things: Pendent or Ancillary Jurisdiction
28 U.S.C. 1367 (A) – when the courts have original jurisdiction can use Supp.
Jurisdiction to bring in claims related to same controversy.
(B) – if the jurisdiction is based solely on diversity, can’t use Supp. Jurisdiction over
claims by P’s in R14, R19, R20, R24.
(C) District courts may decline to exercise supplemental jurisdiction over a claim if:
- The claim raises a novel or complex issue of state law.
- The claim substantially predominates over the claim or claims which the court
has orig. jurisdiction
- The court has dismissed all claims over which it has orig jurisdiction.
TEST
1. Is there constitutional power?
2. Is there statutory power
3. Discretion of courts.
M. Discovery
Rule 26B1 – dictates what is within scope.
Discovery is party controlled (lawyers decide what is exchanged for most part).
3 essential requirements
1. Non-privileged matter.
2. That is relevant.
3. Proportional to the needs of case.
Rule 26B2 – limitations.
- Privileged matter is off limits.
- Attorney – client privilege. Conservation b/w attorney and client about legal
advice.
Work Product Doctrine
- Documents that are prepared in anticipation of litigation are protected.
- Always need to protect the mental impressions, conclusions, opinions or legal
theories.
- Protections can also be waived.
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And if the party shows it has substantial need for the materials to prepare its
case and cannot, without undue hardship, obtain their substantial equivalent
by other means
Party also has to disclose what they have withheld.
PRO: want to have something to protect lawyers work so things aren’t forgotten.
CON: it is less efficient – people interviewed twice. HOWEVER, can’t allow a party to
piggyback off another.
Hickman – created the WPD.
- Tugboat sank killing 5/9 crewmembers.
- An attorney interviewed the 4 surviving crew members.
- Opposing counsel wanted the content of the interviews + notes and memos.
- District court held material was not privileged.
- CoA revered stating was privileged.
- SCTOUS affirmed CoA – the witnesses are well-known, and you can access
them.
Claw Back Rule: if accidentally disclose material, you can ask for it back. Other side
must return it.
N. Discovery Tools
Two categories for people to use
Two Categories:
1. Rule26A – required disclosures.
- Witnesses (that you may use to support your case)
- Documents (that you may use to support your case)
- Damages (computations)
o Making it automatic, reduces costs.
o Disclosures made within 14 days of discovery conference.
2. Traditional Disclosures.
a. Interrogatories: R33 – written questions between parties. Good for
foundational stuff.
b. Document Requests – R34.
c. Depositions – R30 – depositions, only allowed to do it once.
- Live interview – need to be prepared. $$$$. Best tool.
d. Request for Admissions – R36
- to narrow scope. Establish foundation
e. Mental or physical examination of party - R35
- There has to be a reason.
O. Summary Judgment
PRETRIAL MOTION
Allows a court to dispose of a case before it gets to a jury.
1. Look at law and know what facts are material. (the determining factor –
need to have a REAL impact). Without this fact, the issue would be
different.
2. Look at evidence on record to know what the facts for each party are.
3. Dismiss if there is a genuine dispute of material fact.
Rule 56: The court shall grant summary judgment if party shows that there is no
genuine dispute as to any material fact and that party is entitled to a judgment as a
matter of law.
• A dispute about a nonmaterial fact is not enough to deny summary judgment.
• When a defendant seeks summary judgment, the plaintiff
must assert sufficient facts to show that there is some real
issue for trial.
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May file summary judgment anytime within 30 days after close of discovery
Slaven v. Salem – SJ granted
- Guy committed suicide in prison.
- P sued city under NEG. claiming officers knew he was wearing belt.
- Court found issue immaterial b/c for neg liability, need to show that D knew
that victim was suicidal. So belt/no belt is immaterial.
-
You can settle even after the verdict. Want to give party autonomy.
ADR: alternative dispute resolution
 Mediation: 3rd party to mediate. Just there to facilitate
 Arbitration: 3rd party non-judge.
 Parties choose rules + judge.
 Decision is binding, no appeals.\
o Burden of Proof – preponderance of the evidence must be more than 50%
- It requires a party to come forward to affirmative evidence as to every
element of a claim or defence.
- Whoever is asserting the claim carries the burden of proof.
o Burden of Production – is the evidence strong enough that a reasonable jury
could find in favour of the plaintiff.
o Submitting evidence to prove every element of the crime.
o Burden of proof is two parts- burden of production and burden of persuasion.
P. SECOND GUESSING THE JURY
Judgment as a Matter of Law - JMOL
JMOL – IN TRIAL OR POST TRIAL MOTION.
o Tool to remedy when a P fails to meet their burden of proof.
Allows judge to check that jury doesn’t act irrationally.
Rule 50(a) Directed Verdict
- Notify the non-moving party that they failed to meet their burden & allow
opportunity to correct.
- Before jury deliberates.
Rule 50(b) Renew motion after Jury Verdict
- Must be on the same grounds as R50a motion.
- The movant may file a renewed motion and may include a request for a
new trial : RULE 59
Penn RR v. Chamberlain – Motion for JMOL: Granted.
- Guy got flung from the train car, and run over by the carts behind them.
- Employees in the group of cars stated that there was no collision.
- But 1 witness gives an account of a collision.
- District court gave DV in favour of RR. Appeals court reversed. USSC
upheld the district court.
- Jury would find in favour of the dead guy b/c of emotions not b/c of actual
evidence.
- The P witness did not contradict, because it was merely speculation.
Has the party with the burden of proof satisfied the burden of production?
THREE TESTS
1. The “scintilla” Test
- Very lenient – MINORITY
- The court considers ALL of the non-moving party’s evidence in light most
favourable to them.
- Does not consider the moving party’s evidence at all
2.“Plaintiff’s Evidence” Test
- Less lenient than 1.
- The court will consider the non-moving party’s evidence in the light most
favourable to them.
- Does not consider non-moving party’s evidence at all
3. The Federal Test
- The court will consider all of the non-moving party’s evidence in the light
most favourable to that party.
- The court will also consider any evidence produced by the defendant that
has not been impeached or contradicted.
- If the moving parties evidence is contradicted, it would result in the nonmoving parties evidence to be viewed favourably.
Q. Preclusion
Raised when a party thinks that a particular claim was already, or could have been,
litigated and therefore, should not be litigated again.
POLICY RATIONALE: Res judicata does not merely prevent future judgments from
contradicting earlier ones, but also prevents litigants from multiplying judgments, and
confusion.
Res Judicata = bars a party who has sued a D on a claim from suing
st
that D gain on the same claim, if the 1 case was decided after a full
opportunity to reach the merits PP Rationales: (important to address in a preclusion issue because it is based on a common
law doctrine, we just PP to justify)
Public confidence in judicial system
a. Fairness
b. Efficiency; “judicial economy”
Claim Preclusion – Res Judicta – REMOVING THE WHOLE THING.
1. Same Claim
2. Same Parties
3. Final Judgment on the merits. Where both parties given an oppurtunituy to
present on merits. THIS DOES NOT INCLUDE JUDGMENT ON BASIS OF
LACK OF PJ/SMJ OR VENUE)
- Default judgment is final here.
TWO tests
1. Same evidence – (narrower/disfavoured) if the evidence needed to sustain
the second suit would have sustained the first.
2. Same Transaction or Occurrence. – single group of operative facts.
- Time – when claim arose
- Space – geographic or decision making process
- Origin – derive from the same situation
- Motivation – nefariously sat on permit.
- Convenient trial unit in orig. claim
Exceptions to Claim Preclusion: clearly & convincingly shown that policies favoring
preclusion of a 2nd action are overcome
Parties have agreed that P may split her claim; or
Crt in 1st action expressly reserved P’s
right to 2nd action;
P’s 1st claim was restricted by SMJx or court & P wants to use that theory or form
of relief
npw;
1st judgment was plainly inconsistent with fair & equitable
substantive policy reason to give P option to sue;
Issue Preclusion/Collateral Estoppel – removing a piece of the claim.
- Same issue: be precise
- Actually litigated
- Actually decided: not decided from stipulation, admission or default
judgment.
- Essential to the judgment
- Same parties.
Majority Rule:
When default judgment has entered, none of the issues have actually been litigated
or decided.
Summary judgment is actually litigated/decided.
Lack of PJ: issue preclusion.
Restatement: when judgment is based on alternative, independent grounds, neither
ground is considered essential to the judgment, UNLESS
- The judgment is appealed and the court of appeals upholds all grounds.
Parklane Hosiery Co. v. Shore
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