Personal Jurisdiction
• Specific
• General
• Tag
• Consent
• Property
Answer/MTD/Counter-CrossClaims
• Rule 7 (Answers)
• Rule 8 (preclusion and other
affirmative defenses)
• Rule 12 (Defenses)
• Rule 13
(Compulsory/Permissive)
Subject Matter Jurisdiction
• Diversity (1332)
• Federal Question (1331)
• Supplemental (1367)
• Removal (1441)
• Venue (1391)
Notice Proper?
• Reasonably Calculated to
inform
• Copy of Complaint and
Summons
• Rule 4
• Rule 5
Complaint Complete and Filed
Correctly?
• FRCP 8(a) (Twombly-Iqbal)
• Short and plain
statement
• Entitled to relief
• Demand for relief
Joinder (Claims and Parties)
•
Compulsory/Permissive Claims
(Rule 13)
•
Derivative Liability (Rule 14)
•
Required Parties (Rule 19)
•
Permissive Parties (Rule 20)
•
Misjoinder (Rule 21)
•
Interpleader (Rule 22)
•
Class Actions (Rule 23)
•
Intervention (Rule 24)
Discovery Rules
• Rule 26 (b-c)
• 30, 31, 33, 34, 35, 36, 45
• Evidence and Sanctions (Rule
37)
Disposition Without Trial
Motions at Trial
• Judgment as a Matter of Law
(Rule 50(a) and (b))
• New Trial (Rule 59)
• Additur (not allowed),
Remittitur (allowed)
• Jury Instructions (Rule 51)
Post-Trial Motions
• Renewed Motion for JML
(Rule 50(b))
• Seizing Persons/Property
(Rule 64)
• Injunctions & Restraining
Orders (Rule 65)
• Appellate Review (1291-92)
•
•
•
•
•
Issue of material fact (Rule 56)
Burden-shifting, Celotex Standard
Motion for Default Judgment (Rule
55)
Judgment Offers (Rule 68)
Involuntary/Voluntary Dismissals
(Rule 41)
Preclusion – file under Rule 8 as
an affirmative defense
• Issue Preclusion
• Claim Preclusion
SPECIFIC PERSONAL JURISDICTION
PURPOSEFUL CONTACTS
• Availed itself of the privileges and benefits of conducting
• Activity Directed to the Forum State
business in the forum state
• Effects of the action were directed into/knew they
• Stream of Commerce “Plus”
would be felt in the forum state
• Developed product in the state
• Argument: “Sell in the US” means purposeful contacts
• Marketed the product in the state
w/every state
• Developed with state-specific requirements
• Property
• Contracts “Plus”
• International Shoe Standard
• Prior negotiations and contemplated future benefits in
• i.e. if claim is related to the property
the state
• Payments sent there
• Training in the state
• Negotiations conducted and agreement signed in the
state
ARISING OUT OF OR RELATED TO THE CLAIM
• Plaintiff’s claim arises out of Defendant’s forum-related activities
• Plavix “plus” – contacts between Defendant and forum state must be
related to Plaintiff’s claim
•
•
•
•
•
REASONABLENESS – must be reasonable as to not offend
traditional notions of fair play and substantial justice
Burden on the Defendant
Forum state interest in adjudicating the claim
Plaintiff’s interest in relief
Interests of the “several states”
Interest of foreign nations (if any)
GENERAL PERSONAL JURISDICTION
CITIZENS
State has general jurisdiction over all its residents
(citizens). One is a resident if it is a domiciliary
1.
2.
3.
CORPORATIONS
State of incorporation
Principal Place of Business
“Essentially at Home”
DOMICILIARY – defaults to last place where factors
existed
1. Physical presence
2. Intent to remain indefinitely
TAG “TRANSIENT” JURISDICTION
•
•
Split as to whether businesses can be brought in
this way. Depends on the jurisdiction and judge.
No tag if brought under
• Fraud
• Duress
• The result of a subpoena
CONSENT
1.
2.
Valid forum-selection clause, says “will” not
“may”
No motion to dismiss = waived right and
consented
SUBJECT-MATTER JURISDICTION - DIVERSITY
Citizens of Different States
Citizens & Aliens (except
when alien is permanent
resident of the same state)
• At the time of filing | Burden of proof on party claiming diversity, can be
challenged at any time | Determined by State of Domicile
• Businesses: PPB/State of Incorporation (no “essentially at home” here)
• Unincorporated entities: citizenship of all its members
• Stateless persons do not qualify
• Permanent residents citizenship = state of domicile
Section 1332 has all you could
need or want
AMOUNT IN CONTROVERSY
• Must exceed $75,000 including compensatory & punitive damages
• Punitive damages claimed cannot be excessive relative to
compensatory to meet amount in controversy
• Aggregation to meet amount in controversy OK if:
• Single plaintiff with multiple claims (related or unrelated) against a
single defendant
• Multiple plaintiffs with a single undivided interest (usually property or
would-be class action with insufficient numbers)
• Aggregation NOT ok when:
• Single plaintiff aggregating claims against multiple defendants
• Multiple plaintiffs aggregating unrelated and insufficient claims
Citizens w/Aliens (if aliens on
both sides then citizens
needed on both sides)
SUPPLEMENTAL JURISDICTION - 1367
A State claim can piggyback on
a federal question claim (or a
claim brought in diversity) if
there is a “common nucleus of
operative fact” between the
two claims
1367(a) – for claims brought
under a federal question,
supplemental jurisdiction
includes claims involving
joinder/intervention of parties
1367(c) – courts can decline to
exercise supplemental if:
• Novel/complex issue of
State law
• Claim substantially
predominates original
claim
• Court dismisses claims
over which it has original jx
• In exceptional
circumstances
1367(b) – for claims brought in
diversity, no supplemental
jurisdiction over claims by
plaintiffs against persons made
parties under Rule 14, 19, 20,
or 24.
REMOVAL JURISDICTION - 1441
1441(a) – Can remove to the
district court where it could
have been brought originally
under a Federal Q claim.
1441(b) – Removal solely
based on Diversity
1441(c) – For claims brought
under 1331 (Federal Q):
unrelated (not supplemental or
original) claim also removed to
federal court will be severed
and remanded (along
w/relevant parties)
•
•
•
•
1441(b)(1) – citizenship of
individuals sued under
fictitious names will be
disregarded
1441(b)(2) – May not be
removed if any of the parties
joined and served as
defendants is a citizen of the
State the action is brought in
1441(f) – Derivative removal
jurisdiction. If a civil action is
removed from a State court
that didn’t originally have
jurisdiction the District court
can still hear it
All defendants must agree to removal
30 days to remove (for diversity, 1-year)
Possible to waive right to removal
Plaintiff can contest removal by filing motion to remand
REMOVAL FOR CLASS ACTIONS
Class Action Fairness Act (CAFA)
• Amount-in-controversy must exceed $5m
• Doesn’t consider home-state defendant rule
• Authorized without consent of all defendants
• Not subject to 1-year time limit
• Not subject to ordinary remand orders
VENUE - 1391
1391(b)(1) – judicial district in which any defendant
resides if all defendants are residents of the state the
district is located in
1391(b)(2) – 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 matter of the action is situated
1391(b)(3) – (fallback) – if no jurisdiction under (b)(1)
or (b)(2), any judicial district in which any defendant
is subject to the court’s personal jx with respect to
such action
VENUE – 1400 – Copyright & Patent Claims
1400(a) – Copyright venue proper where Defendant or agent
resides or “may be found.”
1400(b) – Patent infringement claims brought where
Defendant resides or where Defendant committed acts of
infringement and has a regular and established place of
business
TRANSFER – 1404 and 1406
1404(a) – When all parties consent, to another valid venue.
1406(a) – District court shall dismiss or transfer to a venue the case could have
been brought in originally “in the interest of justice.”
Forum Non Conveniens – Court can dismiss when there is an adequate
alternative forum available.
Forum Selection Clause – the Supreme Court has ruled that the proper
enforcement of a valid forum selection clause is not a motion to dismiss, but a
transfer to the appropriate forum.0
Transferor Law – the court to which a case was transferred applies the transferor
law, except when there is a valid forum selection clause.
Apply Federal
Law
Claim FQ? (Not
diversity)
Apply State Law
State Substantive
Law?
Apply Federal Rule if rule “really regulates procedure,”
is constitutional under REA (always is), and does not
“abridge, enlarge, or modify any substantive State right)
Can these be read
together?
Erie Twin
Aims/Outcome
Derivative
ERIE DOCTRINE
ONLY APPLIES TO SUITS BROUGHT IN DIVERSITY
Put in something
about whether or not
it’s a codified rule
1. Prevent Forum Shopping? – basic Q: would P have
forum-shopped at the outset to avoid a contrary
outcome in a different court?
2. 2. Prevent Inequitable Administration of the Law? –
basic Q: If F judge ignored state law, would it cause
parties to flock to federal court?
Byrd Balancing Test – basic Q: would applying state law
deny a fundamental and essential right?
Apply Federal Law
Apply Federal Law
Apply State Law
PLEADING
NOTICE
• Must be reasonably calculated to
inform
• Must be actually desirous of
informing
• Must contain a copy of
• The summons
• The complaint
•
•
•
•
•
•
Rule 4(e) – service – follow state
law
Rule 4(f) – service outside US
(follow US treaty | if no treaty,
serve according to local law/as
foreign authority directs in
response to request/delivery by
hand or certified mail if local law
permits)
Rule 4(h) – Serving corporations
Rule 5 – Who gets it
Rule 8(d) – can state multiple
claims, can claim in the alternative
Rule 9(b) – Heightened pleading
for fraud or mistake (must bring
specific facts)
COMPLAINT – FRCP 8(a)
• Statement of Jurisdiction and Venue
• Short statement of the facts showing
entitlement to relief
• Prayer for relief (relief sought)
• Basically: who, what, where, when, how
Short & Plain
•
•
•
Must prove prima facie case
Old standard was “no set of facts”
New standard is “plausible pleading”
•
Must show facts (assumed to be true)
that give rise to a legal inference that
the claim is true (not just possible,
but actually plausible)
Twombly/Iqbal Standard
•
•
“Conclusory” allegations that are not “wellpleaded” must be disregarded, need not be
accepted as true
Remaining “factual” allegations are to be
assessed to be determined whether they
plausibly state a claim for relief
AMENDING A PLEADING
RULE 15
• (a)(1) – 1st amended complaint as a matter
of course (must be amended within 21
days of service)
• (a)(2) – after 21 days, need other party’s
or court’s (should be freely granted)
permission
• (a)(3) – response to amended pleading
must be within remaining time or 14 days,
whichever is later
•
•
•
•
RELATION BACK – RULE 15(C)
Amended complaint relates back to time
the original complaint was filed (getting
around SOL)
(1)(a) – law providing SOL allows relation
back
(1)(b) – amendment asserts claim/defense
that arose out of the conduct, transaction,
or occurrence set out or attempted to be
set out in original pleading
(1)(c) – if amendment changes party
name, that party has to receive notice
within 4(m) period and either knew or
should have known it was proper party but
for a mistake (stating “unknown” is not a
mistake)
RESPONDING
RULE 11 - STANDARDS
RULE 7, 8, 9 - PLEADING
• 11(b) – best knowledge, information, and belief
1. Not presented to harass, delay, needlessly
increase litigation costs
2. Claims warranted by existing law/nonfrivolous
argument to expand
3. Factual contentions have evidentiary support or
will have likely support after reasonable
opportunity for discovery
• 11(c)(2) – Motion for Sanctions made separately from
other motions, served under Rule 5, must not be
presented if challenged material is withdrawn or
corrected within 21 days.
•
•
•
•
•
•
•
•
7(a)(1) – Complaint
7(a)(2) – Answer to a Complaint
7(a)(3) – Answer to a counterclaim designated as a counterclaim
7(a)(4) – Answer to a crossclaim
7(a)(5) – Third-party Complaint
7(a)(6) – Answer to a third-party Complaint
7(a)(7) – if the court orders one, reply to answer
8(b) – must admit/deny each claim
• Denials must respond to substance, can be general or specific
as to a claim. Very bad idea to “deny generally”
• Deny in part, admit in part
• Lack of knowledge = denial
• Failure to deny = admission (if claim requires denial/admission)
• Preclusion
• 9(b) – fraud or mistake
RULE 12 - DEFENSES
•
•
•
•
•
•
•
12(b)(1) – lack of subject-matter jx
12(b)(2) – lack of personal jx
12(b)(3) – improper venue
12(b)(4) – insufficient process
12(b)(5) – insufficient service of process
12(b)(6) – failure to state a claim
12(b)(7) – failure to join a party under
Rule 19
RULE 13 – COUNTER/CROSS
CLAIMS
• 13(a) – Compulsory
• (1) Any claim exists at the time of service
• (a) arises out of the same
transaction or occurrence
• (b) does not require adding a party
over who the court cannot get
jurisdiction
• 13(b) – Permissive – any claim not compulsory
against an opposing party
• 13(g) – Crossclaim – by one party against a
coparty if the claim arises out of the same
transaction or occurrence as the subject matter
of the original action or of a counterclaim.
JOINDER
RULE 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
1. Can I do it under the rules? (generally
yes)
2. Is there SMJx and PJx?
COMPULSORY COUNTERCLAIMS: Rule
13(a) – “logically related” = same
transaction/occurrence, doesn’t require
adding a party the court doesn’t have jx
over
• If not raised, waived forever
Does not require standalone jurisdiction
PERMISSIVE COUNTERCLAIMS: Rule 13(b)
– Anything with standalone jurisdiction
• No risk of preclusion if not brought
CROSSCLAIMS: Rule 13(g): Suit against
coparty (same side of the suit).
• Must relate to the trans/occur of
original action, a counterclaim, another
crossclaim, or property involved in the
original action
• Can also claim derivative liability here
RULE 14: Third-parties (D brings in third
party D for derivative liability)
14(a)(1) – D as third party plaintiff. Has
14 days after original answer or must
obtain court’s leave to file
14(a)(2) – Third party defendant: (a) must
assert any rule 12 defenses (b) must/may
assert any counterclaim against third party
plaintiff under 13(a) and (b), (c) may
assert any defense to P’s claim, (d) may
assert against the P any claim arising out
of the transaction or occurrence that is
the subject matter of the plaintiff’s claim
against the third-party plaintiff
14(a)(3) – Plaintiff can assert any claim
against third party defendant any claim
arising… and third party D must assert any
12(b) defenses, followed by any 13(a), (b),
or (g) counter or cross claims
• P can sue 3rd party unrelated if
standalone jx (can aggregate)
14(b) – Plaintiff brings in third party in
response to a counter or crossclaim under
the same restrictions as 14(a)
RULE 19: Compulsory Party Joinder
(Required Parties). Person whose joinder
will not deprive the court of subjectmatter jurisdiction must be joined if:
2-step
19(a)(1)(A) – in that person’s absence, the
court cannot accord complete relief
among existing parties
Is the party a required,
necessary party?
19(a)(1)(B) – That person claims an
interest relating to the subject of the
action and litigating without them:
I. May impair or impede their ability to
protect that interest
II. Would leave the existing party subject
to substantial risk/inconsistent
obligations
Are they indispensable?
19(b) – Joinder not feasible – If cannot be
joined (no SMJx or PJx), court decides if
case should be dismissed based on:
• (b)(1) – whether a judgment might
prejudice that person or existing parties
• (b)(2) – if judgment would prejudice, if
protective provisions, special relief, or
other measures would lessen it
Dismiss
Rule 20: Permissive Party Joinder
Plaintiff joins the Defendants
20(a)(1) – Plaintiffs can join in one action
as plaintiffs if:
(A): they assert any right to relief jointly,
severally, or in the alternative with respect
to/arising out of the same transaction,
occurrence, or series of transactions or
occurrences; and
(B): any question of law or fact common
to all plaintiffs will arise in the action
20(a)(2) – Defendants can be joined in
one action as defendants if:
(A): any right to relief is asserted against
them jointly, severally, or in the alternative
with respect to/arising out of the same
transaction, occurrence, or series of
transactions or occurrences; and
(B): any question of law or fact common
to all defendants will arise in the action
Section 1335: Statutory
Interpleader
Rule 22: Rule Interpleader (does not limit
Rule 20 Joinder)
Plaintiff: When counterclaim
Defendant: think Trust co.
22(a)(1) – By a plaintiff. Persons with
claims that may expose a plaintiff to
double or multiple liability may be joined
as defendants and required to interplead.
Joinder for interpleader is proper even if:
(A): claims don’t share common
origin/nucleus of operative fact; or
(B): the plaintiff denies liability in whole or
in part to any or all of the claimants
22(a)(2) – By a defendant: A defendant
exposed to similar liability may seek
interpleader through a crossclaim or
counterclaim
(a) District Courts have original
jurisdiction of any civil action
of interpleader… amount in
controversy = $500 if
Rule 24: Intervention
24(a): Intervention of Right – on timely
motion, court must permit anyone to
intervene who:
(1): is given right to intervene by Federal
statute
(2): claims an interest relating to the
subject of the action, and disposing of the
action may impair/impede movant’s
ability to protect its interest (unless
existing parties adequately represent the
interest)
24(b): Permissive Intervention – may
permit:
(1): is given conditional right to intervene
by Federal statute
(2): has claim/defense that shares with
the main action a common question of
law or fact
(1) Minimal diversity among
adverse claimants claiming to
be entitled to such money or
property and
(2) Plaintiff has deposited the
money/property/etc. into the
registry of the court
CLASS ACTIONS
Subject Matter Jurisdiction, Personal Jurisdiction, Venue
Rule 23(a) – Prerequisites
1. Numerosity (usually 40 or more, as little as 9 have been
accepted)
2. Commonality – common claim among the party members (types
of discrimination, for example)
1. Same injury
2. One central question of law
3. Single determination
3. Typicality – complaint of named plaintiff representative of the
complaints of the class
4. Adequacy of Representation
1. Attorney’s experience
2. Attorney’s financial means of carrying the class action to
completion
Rule 23(b) – Can it be maintained? Can be maintained if:
(1) – prosecuting separate actions by or against individual class
members would create a risk of:
• (1)(a) – incompatible standards class [where incompatible
standards of conduct for the party opposing the class would be
created]
• (1)(b) – limited fund class [where adjudicating separately would
substantially impair or impede the ability of the members not
parties to protect their interests]
(2) – Injunctive Relief Class [the party opposing the class has acted
or refused to act on grounds that apply generally to the class, so that
final injunctive relief/declaratory relief is appropriate respecting the
class as a whole
(3) – Damages Class
CLASS ACTION FAIRNESS ACT (CAFA):
• At least 100 people whose claims aggregate to at least $5 million
• Minimum Diversity Among Adverse claimants (not all the same on
either side)
• Red Carpet Removal
• Single D may remove
• Citizenship of D is irrelevant
• One-year time limit doesn’t apply
• Remand orders reviewable
• Unincorporated Associations – citizenship is where PPB or state of
incorporation
DISCOVERY
Rule 26(b)(1): Information relevant to
the claim or defense (look at pattern
jury instructions)
26(b)(2)(C) Proportionality: Burden is
on the resisting party to show
production is not unreasonably
cumulative, duplicative, or that there
is another more convenient (less
burdensome/expensive) option
Shift burden? Zubulake. See next:
1. Extent to which the request is
specifically tailored to discover
relevant info
2. Availability of such info from other
sources
3. Total cost of production compared
to amount in controversy
4. Total cost of production compared
to available resources (to each
party)
5. Relative ability of each party to
control costs and incentive to do
so
6. Importance of the issues at stake
7. Relative benefits to the parties of
obtaining the info
What can’t I discover?
26(b)(3): Materials prepared in
anticipation of a trial unless:
• Otherwise discoverable under
26(b)(1)
• Party shows it has substantial need
and can’t obtain substantial
equivalent by other means without
undue hardship
26(b)(5): Privileged Information
• Must expressly claim privileged
• Must describe the information
withheld in a manner that allows
other parties to assess the claim
without revealing
privileged/protected information
Privilege Log required
Work-Product: Anything prepared in
anticipation of litigation, even that
not prepared by or at the behest of an
attorney
26(b)(2)(B): Electronic info not easily
accessible (burden of proof on the
resisting party)
26(b)(3)(B): Protection Against
Disclosure – If the court orders
discovery of such anticipatory
material, it must “protect against
disclosure of the mental impressions…
legal theories… of a party’s
attorney/representative concerning
the litigation.”
Attorney/Client: Pertains to
communication | Occurred in
confidence exclusive of third parties
not party to privilege | between
licensed attorney acting as such and
client or between clients at behest of
such attorney | communication for
the purpose of giving/seeking legal
advice | not waived by
communication of such information
to third parties not privileged
• Protects communication, not facts
26(f): Parties are required to confer at
least 21 days before a scheduling
conference/scheduling order due
Exception: 26(a)(1)(B) – proceedings
exempt from initial disclosure
26(c) – Protective Orders
(1)– anyone from who discovery is sought
may move for protective order in the
court where action is pending or in the
court for the district where a deposition
will be taken. Such a motion must include
a certification that the movant has in
good faith conferred/attempted to
confer with other parties in an attempt
to resolve the dispute without court
action. The court may, for good cause,
issue an order to protect a person from
annoyance, embarrassment, oppression,
or endue burden or expense, including:
A. Forbidding disclosure or discovery
B. Specifying terms (including
time/place/allocation of expenses)
for disclosure or discovery
C. Prescribing alternative discovery
method
D. Forbidding inquiry into certain
matters/limiting scope to certain
matters
E. Designating the persons who may be
present while discovery is conducted
F. Requiring a deposition be sealed,
only opened on court order
G. Requiring trade secret/other
confidential research
development/commercial info not be
revealed/revealed in a specific way
H. Requiring parties to simultaneously
file specified documents or
information in sealed envelopes, to
be opened as the court directs
3-factor test for cost-shifting:
1. Is data relatively inaccessible?
2. Of the data that can be found (per
sample), is it likely to be useful?
3. 7-factor Zubulake
Main Q: Does the request impose an
“undue burden or expense” on the
responding party?
DISCOVERY: BUT WAIT THERE’S MORE!
35 – Physical and Mental
Examinations |
• (a)(1) – when a party whose
mental or physical condition is
in controversy and that
person is in its custody or
under its legal control
45 – Subpoenas
26(a) – Initial Disclosures
(usually made at discovery
conference per 26(f)).
Made within 14 days (unless
otherwise agreed upon)
36 – Requests for Admission |
Asking for “the truth of any
matters within the scope of Rule
26(b)(1)
30 – Depositions by Oral Examination –
Can state objections, but must answer
• Maximum of 7 hours of depositions
• Person being deposed is sworn in,
videotaped
• 30(a)(1)&(2) – with/without leave
• 30(b) – Notice of Deposition and
Other Requirements
• 30(c) – Examination and Crossexamination
• 30(d) – Duration, Sanctions, and
Motion to Terminate/Limit
• 30(g) – Failure to attend Depo/Serve
Subpoena; Expenses
33 – Interrogatories | Written questions
answered under oath. Required to
supplement
• (a)(1) – limited to 25 questions, can
consent to more per 26f
• (b)(2) – must serve
answers/objections within 30 days
after service (court can order change
or Rule 29)
• (d) – Possible option to produce
business records (find it yourself)
31 – Depositions by Written
Questions
37 – Failure to Make Disclosures or
Cooperate in Discovery: Sanctions
• (a)(3) – Motion to compel (and others)
• (b) – Failure to comply with a court order
• (c) – Failure to disclose, supplement an
earlier response, or to admit
• (e) – Failure to preserve ESI
Possibly Adverse Inference,
default/dismissal in severe cases
34 – Production – 30 days
• (a) – what you can request
• (b) – Requesting it a certain way
• (b)(2) – Responses and Objections
• (b)(2)(E)(i) – “must produce documents as
they are kept in the usual course of business”
• (b)(2)(E)(ii) – if not specified, form in which it
is “ordinarily maintained”
• (b)(2)(E)(iii) – Do not need to produce ESI
multiple ways
Obligation to preserve ESI if you
know/anticipate litigation
(Rimkus v. Cammarata) –
severity of sanctions depends on
level of prejudice created
DEFAULT JUDGMENT
54(b) – when there are multiple
claims/parties: unless all
claims/parties are ruled on, any
of them can be revised
54(c) – default judgment cannot
exceed the amount which is
demanded in the pleadings.
55(a) – affirmative relief: clerk
enters party’s default when they
have failed to plead or defend
and party seeking default
provides affidavit
55(b)(1) – when an individual
has not appeared, plaintiff’s
claim is for a sum certain
(specific amount) or can be
calculated, clerk enters default
judgment (person who didn’t
show up cannot be minor or
incompetent)
DISPOSITION WITHOUT TRIAL
55(b)(2) – All other cases: party
must apply to the court.
• If party against whom default
judgment is sought has
appeared – must be served
notice of default hearing at
least 7 days prior
• Court can conduct hearing to:
conduct an accounting,
determine damages, establish
the truth of any allegation by
evidence, or investigate any
other matter
55(c) – Setting Aside a Default
Judgment
Court may set aside entry of
default for good cause, and may
set aside final default judgment
under 60(b).
• Meritorious defense?
• Reasonable Promptness?
• Personal Responsibility?
• History of dilatory behavior?
• Option for less drastic
sanctions?
• Prejudice to other party?
SUMMARY JUDGMENT
56(a) – sought per issue. Moving
party (usually D) must show no
genuine issue of material fact.
• 56(b) – Within 30 days of
close of discovery
1) By pointing to an absence of
evidence necessary to prove
essential element (1 v 100)
(Celotex) [Equipoise = no “I
saw him hit by train” = not
sufficient] (Burden shifts
back to nonmoving party to
provide such evidence)
2) By providing evidence
affirmatively disproving
essential element (burden
shifts to nonmoving party to
generate other evidence)
Rule 68 – Judgement Offers: If D
is willing to settle and you turn it
down, you have to pay other
side’s costs if you end up getting
less than they offer
Genuine Issue of material fact
MOTIONS AT TRIAL
7th Amendment
• Must make request/demand within 14
days of service of last pleading (Rule 38)
• Courts of Law v Equity (money, jury –
grudge, judge)
• Law: for money, heard by jury
• Equity: seeking other party to do/not do
something, heard by judge
• Either side can request jury, waiver is
possible
50(a) & (b) (made together)
• (a) – Judgment as a Matter of Law
• Based on legality
• When equipoise or anything
concerning credibility, must go to
jury
• (b) – Renewed Motion for Judgment as a
Matter of Law (let the judge fake-bypass
jury’s decision. JNOV.
• Court can allow jury verdict, order
new trial, direct entry of
judgment as matter of law
“No reasonable jury could
conclude”
50(d) – Motion for new Trial under 59
against whom judgment as a matter of law
is rendered must be filed no later than 28
days after entry of the judgment
50(e) – If motion for JML fails, moving party
appeals, appellate court makes decision
59 – New Trial – Court may grant on motion
no later than 28 days after entry of
judgment:
• After a jury trial for any reason which a
new trial has heretofore been granted in
an action at law in federal court
• After a nonjury trial, for any reason for
which a rehearing has heretofore been
granted in a suit in equity in federal court
• 59(d) – for its own reasons within 28
days after entry of judgment for any
reason that would justify granting one if
a party moved for it (court must specify
reasons)
• Material error (as opposed to harmless
error) that creates substantial prejudice
(e.g. an unreliable witness)
So far contrary to the clear
weight of the evidence
Additur – when damages are assigned by
the jury but the judge increases the
amount. Illegal in Federal Court as violates
7th amendment but ok in State Court
Remittitur – when damages are assigned by
the jury, but the judge reduces the amount
and says to either take the reduced amount
or face a new trial.
RES JUDICATA & COLLATERAL ESTOPPEL - PRECLUSION
Res Judicata/Claim Preclusion:
When:
1: A prior action has concluded in
a valid and final judgment
2: A claim on the subsequent
action is the same as raised or
should have been raised in the
previous action (standard is
transactionally related)
3: The parties are identical to/in
privity with the parties in the first
action
3. Are the parties (or their
privities) the same? Six exceptions
to rule against nonparty
preclusion:
1) Consent to be bound
2) Substantive legal relationship
(successor in interest,
assignor)
3) Other adequate representation
(trustee)
4) Assumed control (insurance
co.)
5) Relitigation via proxy
6) Statutory provisions
(bankruptcy/probate)
1. Only 12(b)(6) with prejudice or
final judgment are considered a
valid and final judgment
Claim  Issue
2. Same claim?
Exception: when you were barred
from bringing the claim in the first
case
A. Transactional test – no claim
splitting
A. Are the two actions
based on the same
nucleus of operative
fact?
Collateral Estoppel/Issue
Preclusion
1. Was the issue actually litigated
and determined by a valid and
final judgment?
2. Was the issue essential to the
judgment?
3. Are they the same parties/in
privity? (mutual collateral
estoppel)
Non-mutual Defensive (D tries to
keep P from relitigating an issue P
lost on previously)
• Incentivizes all parties to join at
outset
Non-mutual Offensive (P tries to
keep D from relitigating an issue D
lost on previously)
• Not allowed when P could have
easily joined in the earlier
lawsuit, or when P is using
“wait and see”