Theme
Topic
Rule
Page
Number number
Rule title
28 USC §1331
506 Federal Question
28 USC §2201
577 Remedy
577 Relief, further relief
declatory judgement - after reasonablre notice and
"further necessary relief may be granted" hearing
28 USC §1332
506 Diversity of Citizenship
28 USC §1335
511 Interpleader (statutory)
Interpleader
22
Federal Question
Remedy/
Declaratory
Judgment
28 USC §2202
47 Interpleader (rule)
Supplemental
Jurisdiction
Removal
What does it mean?
"controversies" arising between "citizens
of different states" and "between a
state, or the citizens thereof, and foreign
states, citizens or subjects" (Art. III, §2)
"Courts shall have original jurisidction….
If two or more adverse claimaints of
diverse citizenship are claiming"
"joinder for interpleader is proper even
though the claims lack a common origin
or the plaintiff denies liability to any
claimant"
"arising under the Constitution, laws, or
treaties of the United States"
"any court of the US… may declare the
rights… of any interested party …
whether or not relief is sought"
Diversity
Jurisdiction
Subject Matter
Jurisdiction
Relevant Text
28 USC §1367
517
28 USC §1441
527
28 USC §1446
531
28 USC §1447
533
28 USC §1448
533
12(h)(3)
38
Complete diversity, $75k minimum
Strawbridge v. Curtiss (1806) pg. 77 (complete diversity)
Hertz Corp v. Melinda Friend (2010) pg. 96 (PPB= nerve center)
Minimal diversity, $500 minimum, not federal
question
State Farm Fire v. Tashire (1967) pg. 80 (told us that there was an interpleader exception to complete diversity)
complete diversity $75k minimum, federal question
absent diversity
no amount in controversy
Louisville and Nashville RR v. Mottley (1908) pg. 103 (not enough to anticipate a federal claim in a defense, it needs to be in the
wellpleaded complaint)
Loophole around mottley BUT skelly rule was implemented to close the loophole in regards to 2 questions court must ask
UMW v. Gibbs (1965) pg. 108 (two claims would be part of the same case if they derive from the same common nucleus of operative
fact)
Owen Equipment v. Kroger (1978) pg. 113 (where the core claim is founded solely on diversity, additional claims asserted by D are
within the court's supp jurisdiction but additional claims by P are severely limited for example claims made by a P against are TPD are
limited to diversity actions, same case/controversy, excluded from supp) (reasoning is that a P could defeat requirement of complete diversity by suing a diverse person and waiting for
"courts shall have supplemental
EXCEPTIONS in (b) that does not apply over claims by them to implead a nondiverse person)
jurisdiction over all claims that are so
plaintiffs against persons made parties unde
Exxon Movil Corp v. Allapattah (2005) pg. 126 (If the wellpleaded complaint contains at least one claim that satisfies the amount in
related to claims in the action… that they R14,19,20,24 or over claims by persons proposed to controversy requirement, and there are no other jurisdictional defects, the district court has original juridiction over the claim)
form part of the same case or
be plaintiff under rule 19, or seeking to intervene as (narrow that rule 20 co-plaintiffs and rule 23 unnamed class members can get around the amount in controversy as long as one
Supplemental Jurisdiction controversy"
plaintiff under rule 24
meets the amount)
generally any action brought in state court of which
the fedeal courts would have had original jurisdiction
may be removed by the defendant to federal district
court except in diversity cases, the action is
"any civil action… may be removed by
removable only if no defendant is a citizen of the
Removal
the defendant"
state in which the action was brought
Louisville and Nashville RR v. Mottley (1908) pg. 103 (can only remove based on complaint, not answer)
Defendant must usually file for removal within 30
days of the time he receives service of the complaint;
Removal procedure
defendant files by submitting to the district court a
"notice of removal" setting out the facts that entitle
Removal, procedure after
him to remove; once the notice has been filed, the
removal
state court may take no further proceedings until and
Removal, service of process
unless the district court finds that no removal
afterwards
jurisdiction exists, and remands to the state court; all
"If the court determines at any time that
it lacks subject-matter jurisdiction, the
Louisville and Nashville RR v. Mottley (1908) pg. 103 (court decided there wasn't a well pleaded complaint so dismissed when it got
Defenses and objections
court must dismiss the action"
can be dismissed at any time, even after trial
to supreme court)
Traditonal Bases
"a court may exercise such jurisdiction
over persons, property, or status as
might have been exercised heretofore"
NYCPLR §301
Jurisdiction over persons,
616 property or status
NYCPLR §302
"transacts any business within the state"
"commits a tortious act within the state"
"commits a tortious act without the state
causing injury to person within the state
if he regularly does business or should
Personal Jurisdiction by acts reasonably expect consequences""owns
616 of non-domiciliaries
real property within the state"
long arm, acts which are basis of jurisdiction
traditional bases
Long Arm Statutes
Personal
Jurisdiction
Relevant cases
Pennoyer v. Neff (1878) pg. 139 (traditional bases)
Cooper v. Wyman (1898) pg. 149 (can't be served in state where you only appear to testify in another trial)
Hess v. Pawloski (1927) pg. 163 (driving in state= implied consent to rules)
Dubin v. Philadelphia (1938) pg. 183(implied consent to offer protection to citizens)
Milliken v. Meyer (1940) pg. 160 (domcile is enough to reach PJ and show other state full faith and credit in their decision)
International Shoe v. Washington (1945) pg. 166 (shoebox//minimum contacts)
Shaffer v. Heitner (1977) pg. 363 (QIR is irrelevant, minimum contacts must be met)
Kulko v. California (1978) pg. 200 (minimum contacts applied to domestic relations case)
World-Wide Volkswagen v. Woodson (1980) pg. 188 (Foreseeability into stream of commerce is not enough, but if D's conduct
should reasonably anticipate being haled into court)
Calder v. Jones (1984) pg. 201 (National inquirer could anticipate being haled into CA)
Burger King v. Rudzewicz (1985) pg. 202 (Significance of a contract's connections with forum state/ weigh "purposeful availement"
with fairness factors)
Asahi v. Superior Court (1987) pg. 219 (foreseeability in stream of commerce is not enough but need to purposefully direct toward
forum state by advertisment or solicitation) (split court so confusing holding)
Carnival Cruise v. Shute (1991) pg. 336 (forum selection clauses will be upheld if fundamentally fair)
J McIntyre v. Nicastro (2011) pg. 230 (confirms stream of commerce does not displace purposeful availment because you need to
manifest intent to submit to power of sovereign)
Goodyear v. Brown (2011) pg. 288 (general jurisdiction applies to individuals when domicile and corporations when essentially at
home (incorp and PPB) or exceptional circumstance)
Walden v. Fiore (2014) pg. 250 (D's contact with state, not with residents of the state)
Daimler v. Bauman (2014) pg. 302 (general jurisdiction applies only to corporations unless it is incorporated in state or PPB, except in
exceptional case)
BNSF Railway v. Tyrrell (2017) pg. 327 (Sotomayor concur/dissent says she thinks third exceptional situation doesn't exist as
discussed in goodyear and daimler)
Bristol-Myers Squibb v. California (2017) pg. 260 (sovereignty- need to ask threshold question if affiliation between controversy and
forum)
Personal
Jurisdiction
NYCPLR §318
Designation of agent for
622 service
NYCPLR §320
622 Defendant's appearance
"a person may be designated as an agent
in a writing with the consent"
"Defendant appears by serving an
answer or a notice of appearance"
requirements, when it confers PJ, limited appearance
"A person domicilied in the state… may
National Equipment Rental v. Szukhent (1964) pg. 157 (a party may consent to submit to the jurisdiction of a certain court before
be served with the summons without the
any cause of action has arise as a part of a commercial transaction//can consent by contract to designate an agent to recieve process
state… by any person authorized to make if subject to PJ under 301/302 service can be served
for them in forum)
service within the state"
under same manner outside of state
NYCPLR §308
Service without the state
621 giving personal jurisdiction
Service without the state
not giving personal
jurisdiction in certain
621 actions
Personal service upon a
617 natural person
NYCPLR §311
Personal service upon a
corporation or
618 governmental subdivision
personal service, service of summons
NYCPLR §312-a
619 Personal service by mail
particularly 312(a) - service by mail
NYCPLR §315
Service by publication
621 authorized
NYCPLR §327
623
NYCPLR §503
623
NYCPLR §508
624
NYCPLR §507
624
NYCPLR §509
624
NYCPLR §510
624
NYCPLR §511
625
28 USC §1391
519
28 USC §1397
522
NYCPLR §313
Serving Notice/
Opportunity to be
NYCPLR §314
Heard
Venue
"by delivering the summons"
personal service, service of summons
"if service cannot be made by another
prescribed method with due diligence"
"When the court finds that in the interest
of substantial justice the action should
be heard in another forum, the court … when a court can stay/dismiss a case for
Inconvenient Forum
may stay or dismiss the action"
inconvenient forum // FORUM NON CONVENIENS
"the place of the trial shall be in the
county in which one of the parties
Venue based on residence resided when it was commenced"
"the place of the trial.. To recover a
chattel may be in the county in which
any part of the subject of the action is
situatied at the time of the
Actions to recover a chattel commencement of the action"
"The place of the trial of real property
shall be in the county in which any part
Real property actions
of the subejct of the action is situated"
"the place of the trial shall be in the
Venue in county designated county designated by the plaintiff"
"not a proper county" "impartial trial
Grounds for change of place cannot be had" "convenience of material
of trial
witnesses"
Time for motion or demand served with Defendant can move to change place of trial to a
Change of place of trial
answer or before answer is served
proper county within 15 days of service
Answers question of which federal district court shall
"a civil action may be brough in which
try the action? Gives three methods for deciding
any defendant resides… a substantial
venue: defendant's residence, place of events,
part of the events… subjecct to the
escape hatch (if no district could be brought where
Venue, generally
court's personal jurisdiction"
defendant has ties)
Any civil action of interpleader may be
brough in the judicial district in which
requirements of venue under §1335 interpleader
Interpleader
one or more of the claimants reside
actions simplified
28 USC §1404
523 Change of venue
28 USC §1406
523 Cure or waiver of defects
4
"Matrimonial" "judgement is demanded"
"levy upon property"
17 Summons
"For the convenience of parties and
witnesses"
"Dismiss, or if it be in the interest of
justice, transfer"
Service// waiving service// serving an
individual//Territorial limits of effect
service// proving service
Federal ct to federal ct only, court has jursidction
(venue proper, but better venue exists) Federal
statute authorizing court to court transfers
Mullane v. Central Hanover Bank and Trust (1950) pg. 399 (balancing test used to determine whether the particular form of notice
meets the requirements of due process such as expense of notification by mail and the availability of names and addresses) (use best
way to notify, sometimes publication is necessary)
Piper Aircraft Company v. Reyno (1981) pg. 434 (the mere fact that the law of alternative forum is less favorable to P is no grounds
for denying D's motion for forum non conveniens and is not even substantial weight and weight is even weaker when P is foreign)
Stewart v. Ricoh (1988) pg. 523 (erie case where federal law 1404 governs venue change in forum selection clause, not state law
looking unfavorably on venue transfer)
Atlantic Marine v. US District Court for Texas (2013) pg. 446 (1406 only applies to violations of federal venue statute, not to
violations of the parties' forum selection clause so we look to 1404// we only look to public interest facts like court congestion and
applicable law, we don't look at P's interest because that is embodied in clause, and only a transfer under 1404 in relation to forum
selection clause will be granted (in violation of clause) in extraordinary circumstances
Transfer where original venue improper
(k)(1): 100 mile bulge to party joinder under 14 or 19
(k)(2): Only used under federal question and only
works if defendant is not subject to PJ of any state///
Fed court can take jurisdiction if defendant’s contact
with the nation as a whole are enough to take
jurisdiction///However, since international shoe
analysis applies to states (because of 14th
amendment) we do not know what would be
National Equipment Rental v. Szukhent (1964) pg. 157 (service to an appointed agent is ok under 4(e)(1))
constitutional under the 5th amendment
Hanna v. Plumer (1965) pg. 503 (Erie case where 4(e)(2) is procedural)
Erie
28 USC §1652
State laws as rules of
552 decision
28 USC §2072
Rules of procedure and
572 evidence
Scope and Form
1
17 Scope and Purpose
2
17 Form of Action
7
Pleadings Allowed; Form of
30 Motions and Other Papers
"The laws of the several states, except
where the constitution or treaties of the
United States or Acts of Congress
otherwise required or provide, shall be
reharded as rules of deicion in civil
actions in the courts of the United States, RULES OF DECISION ACT; state rules should govern in
in cases where they apply"
cases where they apply
"Such rules shall not abridge, enlarge, or
modify any substantive right"
"They should be construed,
administered, and employed by the court
and the parties to secure the just,
speedy, and inexpensive determination
of every action and proceeding"
"There is one form of action- the civil
action"
RULES ENABLING ACT; supreme ct can dictate rules
of procedure, shall not abridge substantive rights
just, speedy, inexpensive determination of every
action
civil action is only form of action
MECHANICS OF PLEADINGS// the complaint and the
answer
11
elements of complaints and types of defenses that
you use or lose
"need not allege" , fraud typically claims that the
"if an item of special damage is claimed, adversary will not be expecting unless his attenntion
33 Pleading special matters
it must be specifically stated"
is specifically called to them
each individual claim should be set forth in a
separate count and that the counts should in turn be
broken into numbered parafraphs each of which is
limited to the statement of a single set of
34 Form of pleadings
circumstances
"Every pleading, written motion, and
other paper must be signed by at least
one attorney of record in the attorney's
name or by a party personally if the party Attorney's cannot file a frivolous pleading and must
34 Signing Pleadings, Sanctions is unrepresented"
make a reasonable inquiry
12
Defenses and Objections:
When and How Presented;
Motion for Judgment on the
Pleadings; Consolidating
Motions; Waiving Defenses;
36 Pretrial Hearing
8
9
10
Pleadings and
Motions
31 General Rules of Pleading
Erie Railroad v. Tompkins (1938) pg. 467 (twin aims, PA law applie)
Klaxon v. Stentor (1941) pg. 482 (maintain Erie uniformity)
Guaranty v. York (1945) pg. 491 (statute of limitations falls within grey area and outcome determinative test so apply state statute of
limitations)
Byrd v. Blue Ridge (1958) pg. 498 (balance state and federal interests, chose federal interest in jury trial over state judge trial)
Hanna v. Plumer (1965) pg. 503 (outcome determinative test is not talisman so look at twin aims-- applied federal rule)
Burlington v. Woods (1987) pg. 520 (rules that incidentally affect substantive rights do no violate if they are reasonable necessary to
maintain the integrity of rules system so ok to federally review excessiveness of rewards also gives us analysis on how to know if rule
direct or indirectly conflicts)
Stewart v. Ricoh (1988) pg. 523 (conflict of whether to enforce statute or state policy looking unfavorably on forum selection clause
but apply federal statute)
Gasperini v. Center for Humanities (1996) pg. 528 (distinguished Byrd to only apply all or nothing choice, here wasn't all or nothing
so interpret rules with sensitivity to state interests and accomodated two interests)
Shady Grove v. Allstate (2010) pg. 539 (rule governing procedure is valid whether or not it alters the outcome of the case in a way
that induces forum shopping; all that matters is the rule applies and the rule is valid)
"a short and plain statement"
"affirmative defense"
Responsive pleadings reqs, Defenses, Motions// 12
(B)(6) MOTIONS!!!
Fuentes v. Tucker (1947) pg. 738 (A party may not present evidence relating to an issue that has been resolved through the
pleadings. To avoid unnecessary confusion and waste of time, the evidence presented at trial should only relate to the issues in
controversy. This means that if an issue has been removed from the trial because the defendant has admitted to the allegation in his
answer, the plaintiff may not present evidence relating to that allegation.)
Lubliner v. Ruge (1944) pg. 728 (When a party to an action contemplates submitting affirmative proof that by reason of the use of
intoxicating liquor, there was thereby a contribution to some act or omission, which it is alleged, constituted negligence, such fact
must be pleaded by such party)
Rannard v. Lockheed Aircraft Corp (1945) pg. 727 (Under the authorities it is sufficient to allege that defendant negligently did an
act, and that it caused damage to plaintiff. It is only where there is an entire absence of some essential allegation that a motion for
judgment on the pleadings may be properly granted.)
Garcia v. Hilton Hotels (1951) pg. 730 (A motion to dismiss should not be granted unless it appears to a certainty that the plaintiff
would be entitled to no relief under any state of facts, which could be proved in support of his claim)
Sinclair Refining v. Howell (1955) pg. 737 (rule 8(b)(6) applies)
Swierkiewicz v. Sorema NA (2002) pg. 675 (Employment discrimination does not need to include such facts, but instead must contain
only “a short and plain statement of the claim showing that the pleader is entitled to relief”)
Bell Atlantic Corporation v. Twombly (2007) pg. 680 (easier standard for pleading than Conley, but conclusory statements are not
enough,12(b)(6) motion should be granted if the complaint does not suggest the existence of a specfic set of facts that would make it
plasible to infer that the defendant is liable) (PLAUSIBLE STANDARD)
Erickson v. Pardus (2007) pg. 704 (err of trial court to dismiss for a pleading being too conclusory, all he needed to state was a short
and plain statement)
Ashcroft v. Iqbal (2009) pg. 708 (expanded plausible standard to apply to all federal court civil suits not just antitrust matters, and
the fed trial court can draw on judicial experience and common sense in decided if the complaint justifies a plausible inference of
liability)
13
Anatomy of a
lawsuit
Parties
Compulsory counterclaim: arises out of same
transaction and does not require diff jurisdiction//
against opposing party
Permissive counterclaim: granted at court's
discretion
13(g) cross claim against a co-party in same
transaction occurrence and ask for actually relief
38 Counterclaim, Crossclaim
15
"Amendments before trial"
"amendments during and after trial"
Amended and Supplemental "relation back of amendments"
40 Pleadings
"supplemental pleadings"
extremely liberal policy of amendment of the
pleadings
15c relation back
16
Pretrial Conferences;
41 scheduling; management
Conference to simplify the isse; Provides for early
involvment of judge
14
Third Party Practice
39 (Impleader)
17
Plaintiff and Defendant:
44 Capacity, Public Officers
19
Joinder of Parties
45 (compulsory)
20
Joinder of Parties
46 (Permissive)
22
28 USC §1335
23
47 Interpleader (rule)
511 Interpleader (statutory)
"Faciliating settlement"
"Real party in interest" "capacity to sue
or be sued" "minor or incompetent
person"
"joinder for interpleader is proper even
though the claims lack a common origin
or the plaintiff denies liability to any
claimant"
"Courts shall have original jurisidction….
If two or more adverse claimaints of
diverse citizenship are claiming"
Class Action Fairness Act of
507 2005
§1332(d)
CAFA
Friedman v. Transamerica (1945) pg. 751 (courts can deny to amend when it doesnt promote justice, similar to a human trying to fly
it just won't happen)
Humphries v. Going (1973) pg. 757 (amendment to second complaint surpassed statute of limitation but it was the same transaction
or occurance so defendant should've been on notice, and the delay was likely due to the defendant so court allowed expiration)
Harris v. US Secretary of Vet Affairs (1997) pg. 743 (an affimative defense can only be raised in a responsive pleading, not a
dispositive motion (which the trial court can order entirely disposing all or part of claims in favor of moving party without need for
further proceedings)
Krupski v. Costa Crociere (2010) pg. 762 (change of parties is okay and the amendment relates back either when p does not know of
D2's existence or the P knows of D2's existence but thinks that D1 is the correct party)
Heileman Brewing v. Joseph Oat Corp (1989) pg. 969 (A federal district court has the authority to order litigants who are represented
by counsel to appear in person at a pretrial conference for the purpose of discussing settlement. Although the Federal Rules of Civil
Procedure do not explicitly give such authority to courts, the Rules are not meant to encompass the exclusive powers of district
courts. District courts have an inherent power to manage the process of litigation. Included in those powers under Rule 16 is the
authority to discuss settlement of a case at a pretrial hearing)
Allstate v. Hugh Cole Builder (1999) pg. 818 (Rule 14(a) governs the impleader of third-party defendants and an impleader is
permitted only in cases where the third-party’s liability was in some way derivative of the outcome of the main claim.An entirely
separate and independent claim cannot be maintained against a third party under Rule 14, even though it does arise out of the same
general set of facts as the main claim. Impleader is narrower than compulsory counterclaims and cross-claims in that it must involve
an attempt to pass on to the third party all or part of the liability asserted against the defendant)
when a defending party may bring in 3rd party &
plaintiff may under (b)
The assignee must sue in his own name because it is
he who will benefit from the judgment and the same Naghiu v. Intercontinental Hotels (1996) pg. 806 (Plaintiff is not a real party in interest because Rule 17 has not been satisfied as to
rule covers subrogation
the loss of personal property. Plaintiff is not a bailee of money, but instead more of a servant.)
Provident Tradesmans Bank v. Patterson (1968) pg. 838 (A court should proceed without a party who should be joined if feasible if,
after examining the interests of the plaintiff, the defendant, the party to be joined, and the courts, the court determines in equity
and good conscience that proceeding is appropriate)
Helzberg v. Valley West (1977) pg. 828 (A person does not become indispensable to an action to determine rights under a contract
simply because that person’s rights or obligations under an entirely separate contract will be affected by the result of the action. Rule
19 of the Federal Rules of Civil Procedure states that when a person cannot be made a party to a lawsuit, the court must determine
whether the action should proceed without that particular party, or whether it should be dismissed. An indispensable party is a party
who, if absent from the lawsuit, could cause a judgment to be prejudicial to the participating parties in the litigation.)
persons must be joined if feasible, if not feasible,
Temple v. Synthes Corp (1990) pg. 824 (It is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit
reasons for nonjoinder
because joint tortfeasors are merely permissive parties.)
Puricelli v. CNA Insurance (1999) pg. 812 (both of the plaintiffs satisfy the requirements for proper joinder of parties under rule 20
may join as P or D under these conditions, protective (a) which is that the right to relief sought must arise out of the same transaction or occurrence and (b) a common question of law or
measures (sep trial)
fact)
complete diversity $75k minimum, federal question
absent diversity
Minimal diversity, $500 minimum, not federal
question
prerequisites, types, certification, conducting the
action, settlement, class counsel, attorney's fees
48 Class Actions
Rosenthal v. Fowler (1952) pg. 768 (Any counterclaim bearing a logical relationship to the main claim in the lawsuit may be
maintained despite a lack of independent subject matter jurisdiction.)
Baker v. Gold Seal Liquors (1974) pg. 771 (Rule 13(a) requires a defendant to plead counterclaim which arises out of the transaction
or occurrence that is the subject matter of opposing party’s claim and does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction// Transaction is a word of flexible meaning)
State Farm Fire v. Tashire (1967) pg. 80 (told us that there was an interpleader exception to complete diversity)
Hansberry v. Lee (1940) pg. 864 (res judicata cannot bind a plaintiff that was not adequately represented in a previous class action)
Zahn v. International Paper (1973) (once held that each class member had to meet $75K amount in controversy but likely overruled
in 1367 with supplemental jurisdiction)
Philips Petroleum v. Shutts (1985) (an absent plaintiff who does not opt out will be bound by the decision even if he lacked minimum
contacts with the forum state)
Exxon Mobil v. Allapattah (2005) pg. 126 (at least one named memver needs to satisfy the jurisdictional amount and supplemental
jurisdiction can apply in the diversity based class action)
Shady Grove v. Allstate (2010) pg. 539 (Erie case if this could go forward as class action)
Wal-Mart v. Dukes (2011) (says its okay to form a class action with ONE common question of law or fact)
Lowest threshold is $5M
Congress said that a class action can go forward if
there is minimal diversity (at least one plaintiff is
diverse with at least one defendant) and there is at
least $5M in controversy in the aggregate even if no
class member's claim is for more than $75,000
Coalition of Arizona and New Mexico v. DOI (1996) pg. 835 (Dr. Silver has a right to intervene in this action pursuant to rule 24(a)(2)
because (1)he has a substantial, direct, and legally protectable interest in the subject of the action between the Coalition and DOI, (2)
intervention of right (must), permissive intervention this interest may be impaired by the determination of the action, and (3) neither DOI nor the Coalition will adequately represent Dr.
(may), pleading req
Silver’s interest.)
24
52 Intervention
26
Duty to Disclose; General
Provisions Governing
54 Discovery
"Intervention of Right" "Permissive
Intervention" "Notice and Pleading
Required"
"Required disclosures" "discovery scope
and limits" "protective orders"
"supplementing disclosures and
responses" "conference of the parties;
planning for discovery" "signing
disclosures and discovery requests,
responses, and objections"
27
Depositions to Perpetuate
62 Testimony
preserve testimony before an action is filed &
before an action is filed// pending appeal pending appeal
mandated discovery rules: duty to disclose, scope &
limits, protective orders, timing, etc PRIVILEGED
MATERIALS!!!!
(e)(1) obligation to update interrogatory
(f) conference to plan for discovery
32
Persons before whom
63 depostitions may be taken within the US// in a foreign country
Stipulations about discovery
64 procedure
Depositions by oral
65 examinatiion
Depositions by written
68 questions
Using Depositions in Court
70 Proceedings
33
72 Interrogatories to parties
28
29
30
31
Disclosures and
Discovery
Cast a broad enough net to cover every
possibility
35
Producing documents,
electronically stored
information, and tangible
things, or entering onto
land, for inspection and
73 other purposes
Physcial and mental
74 examinations
36
75 Request for admission
37
Failure to make disclosures
or to cooperate in
76 discovery; sanctions
(a)(2) appropriate court
34
Trials
41
42
50
55
81 Dismissal of actions
Consolidating / Separating
82 Trials
when they may be taken, notice, delivery
use, objectioms
limits on (a)(1) to the amount of questions you can
ask, answers/objections, option to produce
documents instead
(b)((2)(E)(i) a lawyer cannot just scramble requirements in asking for documents and in
the papers and give to opposing party
producing documents
requirements for examinations
admission of facts, genuineness of documents, time
to respond/effect of no response
failure to comply with court orders, other failures &
motions made to compel cooperation// if you don't
do what you're supposed to do the court could issue
a sanction
c2 doesn't happen very often but you could be
entitled to attorney's fees
a plaintiff may voluntarily dismiss complaint without
prejudice any time before the defendant serves an
answer or moves for summary judgment and the
plaintiff may do this without leave of court but also
the claim may be involuntarily dismissed by court
order and is with prejudice
"Voluntary Dismissal" "Involuntary
Dismissal" "Dismissing a Counterclaim,
Crossclaim, or Third-Party Claim"
"For conveience, to avoid prejudice, or to
expediate and economize"
when a court can consolidate/separate issues
either party may move for a directed verdict that
takes the case away from the jury and determines
the outcome as a matter of law-- but now in federal
court it is called judgment as a matter of law-- after
the other party has been fully heard on an iffue if the
evidence is such that a reasonable person could not
differ to the result
Judgment as a matter of law
in a jury trial; related
motion for a new trial;
89 conditional ruling
96 Default Judgment
persons who need to be present for a deposition
(court reporter)
parties may modify discovery rules, depositions, per
agreement
when they may be taken, notice, examination/cross
examine, duration
"Entering a Default" "Entering a Default
Judgment" "Setting Aside a Default or a
Default Judgment" "Judgment against
the United States"
if the defendant has asserted a counterclaim and the
plaitiff neglects either to serve a reply or to move
against the coutnerclaim, a default judgment may be
entered against the plaintiff on the counterclaim (D)
Judgment
56
97 Summary Judgment
59
New trial; altering or
99 amending a judgment
"No genuine dispute as to any material
fact"
includes partial summary judgment, procedures //
pretrial motion
Arnstein v. Porter (1946) pg. 884 (credibility determinations are decisions that are left in the hands of the jury and therefore, a trial is
indispensible when the outcome of the case depends upon whether a given witness or witnesses are credible)
DiSabato v. Soffes (1959) pg. 905 (If upon all the papers and proof submitted, the action or claim shall be established sufficiently to
warrant the court as a matter of law in directing judgment, interlocutory or final)
Matsushita Electric Industrial v. Zenith Radio (1986) pg. 890 (court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law)
Anderson v. Liberty Lobby (1986) pg. 897 (A court ruling on a motion for summary judgment must be guided by the New York Times
“clear and convincing” evidentiary standard in determining whether a genuine issue of malice exists (meaning that the evidence
presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity))
Celotex Corp v. Catrett (1986) pg. 903 ( motion for summary judgment may be made pursuant to FRCP 56 “with or without
supporting affidavits." While the moving party does not need to present affirmative evidence, the nonmoving party is expected to
present some form of affirmative evidence to overcome the challenge)
requirements, when new trial can be made (Standard Latino v. Kaizer (1995) pg. 1016 (Judge Shadur usurped the jury’s role in deciding the most reasonable inferences from the evidence.
for granting a new trial= shocks the conscience or the That flies in the face of the seventh amendment and goes beyond the power of the district judge under Rule 59. The grant of a new
jury verdict is against the weight of the evidence)
trial was an abuse of discretion// jury's verdict should only be overturned in narrow circumstances)