CIVIL PROCEDURE I. I. PERSONAL JURISDICTION (can consent. waive) VI. CONFLICT OF JURISDICTION BETWEEN ST & FED CTS II. DIVERSITY OF CITIZENSHIP JURISDICTION (X cons/waive) VII. FEDERAL RULES OF CIVIL PROCEDURE (여기까지 Forum Selection) III. FEDERAL QUESTION JURISDICTION VIII. ATTACK ON THE JUDGMENT AT THE TRIAL CT LEVEL IV. VENUE IX. FINAL JUDGMENT AND APPELLATE REVIEW V. REMOVAL JURISDICTION X. EFFECTS OF JUDGMENT ON FUTURE CASES PERSONAL JURISDICTION: JX over the parties/property A. can consent OVERVIEW CT’s power over the parties. Automatic power over P b/c P filed the case. The big Q: PJ over D. Can P sue D in this ST? Requirement: PJ must be authorized by ST statute AND Constitution (Due Process) b/c Fed CT analyzes PJ as if it were a CT of the ST in which it is located. B. STATUTORY LIMITATIONS ON IN PERSONAM JURISDICTION 1. Most STs require that D: 1. is voluntarily present in the forum ST at the time of service (Mostly, immunity to non-residents (transient JX)); 2. is domiciled in the forum ST; 3. has given expressed or implied consent to JX; 4. meets requirements of ST’s long arm statues by D’s acts. C. CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURISDICTION 1. Relatedness (1) General jurisdiction: For any cause of action (even NOT related to D’s contact), D’s systematic and continuous activity such that D is essentially at home in the ST = (individual) where domiciled; (Corp) incorporated OR PPoB (control/supervise …) (2) Transient jurisdiction - jurisdiction based on physical presence alone (3) Specific Jurisdiction (SJ. Long-arm JX): If P’s claim arises (related) from D’s contact with the forum + fair; 1. Sufficient nexus a. Traditional view: physical power to carry out its judgment b. Modern due process standard = D has minimum contacts with the state that it would not offend traditional notions of fair play and substantial justice. 1) Contact with the forum a) Contact must arise from purposeful availment with the forum ST, by conducting activities in that ST, thus invoking the benefits and protections of its laws e.g., living there, traveling, marketing a product there, using the roads - Causing an effect: Contact, if D causes an effect in the forum even if didn’t physically go to the forum. e.g., sending a tortious e-mail into the forum Stream of commerce: In addition to placing the product, D does some other acts to show its intent to serve a particular ST, SJ Internet cases: Maintenance of passive website (only for info) is insufficient for GJ, but if D is targeting readers in the forum (purposefully directing activities to the forum), SJ ∴ Active website: sufficient for GJ if D conducts significant business, GJ b/c it is essentially at home b) Foreseeability: whether D knew or reasonably should have anticipated that her activities in the forum made it foreseeable that she may be haled into CT there. 2) Fairness (required ONLY for Specific PJ, not for General PJ) a) Burden on D + Ws: Some burden is OK PJ, unless it is “so gravely difficult and inconvenient” that puts D at a severe disadvantage. Not looking for the best forum. -CT doesn’t care about: parties’ wealth, hard to travel, hard to get Ws in forum, 2. b) ST’s legitimate interest: Forum ST’s interest in providing redress for its resident (P). (e.g., If P resident, YES INTEREST) c) P’s interest in obtaining convenient and effective relief. e.g., injured and wants to sue at home d) Interstate judicial system’s interest in efficiency e) Furthering social policies. Notice : D must be notified of the lawsuit by a reasonable method of service and given an opportunity to appear and be heard. - Multiple/unknown parties Best practical means of notice needed. D. IN REM JURISDICTION E. e.g., condemnation, divorce, estate distribution, title registration CT has power to adjudicate rights of all persons with respect to a particular property in the ST. QUASI IN REM CT has the power to determine rights of particular individuals with respect to specific property within the CT’s control. (cannot be enforced against D’s other properties) minimum contacts needed. Permitted ONLY AFTER reasonable efforts to serve. SUBJECT MATTER JURISDICTION II. DIVERSITY OF CITIZENSHIP A. cannot consent to SMJ DIVERSITY AMONG THE PARTIES 1. Complete diversity when the action commenced (when case filed): fails if any P is from same ST as any D. (If a Q talks about citizenship, but doesn’t satisfy, still check for FED Q) ① Case is, at the time of filing (OR defect in diversity can be cured by dropping the party who prevents diversity) either between (1) citizens of different STs (DIVERSITY) or (2) citizen of a US ST and citizen of foreign country (ALIENAGE JX) AND ② a. Amount in controversy exceeds $75,000 (at the time of filing without a legal certainty that the amount is less than $75,000) Interpleader Exception: Fed. Interpleader Statute exception where “minimal diversity” (=at least one P must be of diverse citizenship from at least one D) and amount-in-controversy of $500 or more: enough for SMJ. e.g. 보험회사 b. Alienage jurisdiction: 1. citizen of a US ST v. Alien; AND 2. exceeds $75,000. Alien: Non-US citizen. e.g., FRANCE vs. CANADA No alienage/diversity b/c no citizen of a US ST. e.g., US ST citizen (NY) vs. Greencard PR (CA): Yes, Alienage JX; NO Diversity JX e.g., Alien vs. Alien No JX e.g., Partnership (ST A, Canada) v. ST A OR Alien No JX Special Rule: If US ST Citizen (CA) is domiciled in the same ST as the Greencard permanent resident (CA), then NO ALIENAGE, NO DIVERSITY, NO FED CT. SMJ, whatsoever c. Don’t care about citizenships BEFORE + AFTER the case was filed. 2. But Greencard PR may appear as additional parties as long as there are “Diverse US citizens” on both sides. Diversity when action commenced DC: treat it as a ST. Excluded Case of diversity: Unless related to actions upon ST CT’s decrees, Fed. CT doesn’t hear the following cases, even if SMJ is met: 1. Domestic Relations Proceedings (Issuance of decrees of Divorce, alimony, child custody); AND 2. Probate Proceedings (to probate an estate; annul a will; to reach property in the custody of a ST probate court). cf. Fed. CT DOES hear Criminal Proceedings under Fed Q JX. (Federal criminal statutes) 3. Questions of citizenship a. Individuals (including permanent resident alien) ST citizenship: Permanent home to which he intends to return Only one domicile at a time. Retain it until you change it. New domicile: ① Physical presence; AND ② intent to stay or remain permanently/indefinitely. b. Intent matters, NOT motive. Must be genuine, not temporary. Corporations ① ST or Country where it is incorporated; AND ② where it has its principal place of business (PPB) PPB: where corp.’s high level officers direct, control, and coordinate corporate activities. e.g., nerve center, headquarters - TIP: don’t confuse citizenship of Corp. for Diversity and where Corporate defendant is deemed to reside for VENUE purposes. c. d. Unincorporated association (Partnership or LLC) Citizenships of all members. Limited partnership: Citizenship of all members (all partners: general + limited partners) (a member can be a corporation) Legal representatives Citizenship of the decedent, minors, or incompetents, NOT their Representatives. Decedents, minors, or incompetents must sue/be sued through a Representative. e. Class actions f. Nonresident U.S. citizens 4. Domiciles of the Named members of the class who are suing. Prof. Ross? not a citizen of any ST (no domicile) and not an alien. Collusion (공모) and devices to create or defeat diversity Not allowed if it was made improperly or collusively (= NOT genuine) Class action’s selecting P on behalf of others, and genuine changing citizenship after c/a before suit’s commencement are possible. e.g., assigning a claim for collection as compensation purposes only to create diversity, the CTs look through the transaction, ignoring assignment, and declare that diversity does not exist. 5. Realignment (재편성) of parties according to their interest CT may realign the parties, according to their true interest. (change sides) So, CT’s realignment may create or destroy Diversity. e.g. Shareholder derivative action (SHH on behalf of corp. v. BOD) CT will realign the corp. as D to determine diversity 6. SUPPLEMENTAL (ancillary) JURISDICTION (a type of SMJ for both Diversity and Fed Q) G/R: CT may entertain additional claims w/ no SMJ, if the supplemental claim arises from “a common nucleus of operative fact” as the claim that invoked the Original Fed SMJ. arises from the same transaction or occurrence (T/O) Limitation: P cannot invoke supplemental JX, if Original Fed JX was based on Diversity. Exception to Limitation: In diversity case, P CAN invoke, if multiple Ps (including the additional one), and the claim by one P does not meet the amount-in-controversy requirement. e.g. P1 (VA) and P2 (VA) v. D (PA) on ST-law claims. P1: $100,000 claim. P2’s ($50,000) claim arises from the same T/O. P1’s claim: Yes Fed CT JX (Diversity SMJ). P2 CAN invoke Supplemental JX b/c under G/R (Yes), limitation (No), and exception to limitation (YES). Another Requirement: If Supplemental JX based on Diversity, there must always be “Complete Diversity”, when P? or P/D is bringing the additional claim. = Supplemental JX cannot be used to override the complete diversity requirement. (NOT TPP) But it can be used to overcome a lack of amount in controversy. Fed CT has discretion to decline Supplemental JX even when it did not dismiss its Federal claims, IF: original fed. claim is dismissed early in the case; ST law claim is complex or novel; ST law claims substantially predominates the federal claims; OR other compelling reasons. 7. e.g., If Orig. FED CLAIM is dismissed early, CT usually dismisses ST Claim w/o prejudice. Joinder or subsequent addition of parties a. Intervention of right: If Joinder breaks complete diversity, NO SMJ. b. Substitution (death, incompetency …) of parties: citizenship of substituted party is disregarded; original party controls. - If party is replaced (e.g., P sued wrong person), replacement controls. (Diversity could be lost) c. 아예 바꾸는 것임 Third party practice-impleader e.g., P (CA) v. D (NY), D2 (NY) Okay. - NO SMJ needed b/w TPD and TPP/Original P, unless P sued TPD. d. B. Cross-claims: Claim by one co-party against another. SMJ/Supplemental JX needed. JURISDICTIONAL AMOUNT 1. In controversy Do not include cost or interest, counterclaims, collateral consequences of judgment. Only amount in controversy claim itself. Must exceed $75,000. Whatever P claims in good faith without a legal certainty that the amount does not exceed $75,000 Include: Attorneys’ fees and interests that are recoverable by statute, K, OR as part of the claim E.g., $75,001: OK E.g., $75,000: NO (e.g. If law says P can’t recover punitive damages, then P can’t include punitive damages to exceed $75,000.) 2. What P actually wins is irrelevant. Aggregation of separate claims Diversity case 에서 더하는 것임 One P may aggregate claims against One D, even if the claims are unrelated. e.g., P v. D for (claims: K: 55,000 + N: 30,000): OK b/c P v. D e.g., P1 (30,000) + P2 (50,000) v. D: NO b/c not 1P v. 1D. No Fed SMJ. Go to ST CT One P may not aggregate separate claims against several Ds. For Joint Claims/joint tortfeasors (One P1 v. D1, D2, D3), P may aggregate the total value of the claim to exceed $75,000. Several Ps may aggregate claims against One D, if they seek to enforce single title or right in which they have common or e.g., P -> D1 and D2 for (D1: 60,000 + D2: 20,000): NO b/c aggregated separate claims against several Ds. e.g., P1 -> D1, D2, D3 : OK b/c it’s one claim. Any D can be liable for the full amount. undivided interest. 3. C. (Not merely several persons injured from a single accident) Counterclaims Compulsory counterclaim may invoke Supplemental JX ( so that no need to meet amount) Permissive counterclaim: Arising out of completely unrelated transaction. SMJ/Supplemental JX required. ERIE DOCTRINE G/R: Under the Erie doctrine, in diversity case, a Fed CT applies Fed procedural law and substantive law of ST in which it is sitting. (to discourage forum shopping & to avoid inequitable administration of justice) If there is Fed law on point, apply FED, as long as it is valid (“arguably procedural”). Supremacy Clause 1. No FED law, FED judge must apply ST law if the issue to be determined is “substantive” 2. 3. Substantive issues: ① Elements of a claim or defense ② Statute of limitations ③ Rules for tolling statutes of limitations ④ Conflict (or Choice) of law rules No FED law + issue is not one of above, FED judge must determine whether the issue is substantive by following factors: Outcome determinative test: If FED CT ignores ST law, would it affect the case outcome? If so, ST law. Balance of interests test: FED or ST system, which has strong interest in having its rule applied? AND Forum shopping deterrence: If failing to apply ST law would increase litigation in FED CT, ST law controlling size of jury verdict (unreasonable compensation), notice of claim; D. FED COMMON LAW (FCL) Erie held that FED CT cannot create FCL to govern ST law claims. e.g., general common law of K, torts, property: ST law. But Erie did not change FED CT’s authority to create FCL when: 1. Interpreting FED statute/Constitution 2. Based on Congress’ express/implied authorization, FED CT may fill in gaps in FED statute. Implied Right of Action: FED CTs may provide implied remedies of c/a, not specified in Fed statutes or constitution. - Implied remedies under Fed Statute: affirmative congressional intent needed (= there must have been a clear legislative purpose to imply the remedy) - The only allowed implied remedies under Fed Constitution: 4th amend protection from unreasonable searches and seizures; the EP right to nondiscrimination in employment on the basis of gender under the 5 th; Right of a prisoner to not be denied medical treatment under the 8th prohibition on cruel and unusual punishment. E. MULTIPARTY, MULTIFORUM TRIAL JURISDICTION ACT When at least 75 ppl died from a single accident: 1. Minimal Diversity is required (1P diverse from 1 D) + 2. one of three conditions: (1) One D must reside in a different ST from the place where substantial part of the accident took place; (2) Any two Ds must reside in different STs; OR (3) Substantial parts of the accident must have taken place in different STs. Anyone w/ claim arising from the accident is permitted to intervene as P, w/o SMJ/PJ/Venue requirements, and nationwide SOP is allowed. III. FED Q JURISDICTION A. FEDERAL Q Generally: Fed Constitution, FRCP, FRE (E). Specific: Admiralty (liability and maritime in rem), bankruptcy, patent, copyright, trademark, anti-trust, Civil Rights Act, Actions against foreign STs, Postal matters, IRS (Internal Revenue Service) cases, SEA (Securities Exchange Act), US is involved, consuls/vice-consuls are sued as Ds. FED Q must appear as P’s c/a in well-pleaded complaint. P must seek to enforce a FED right under FED law. law 하 권리 요구 FED (e.g., In violation of – federal statute) Mentioning Fed law, issue, defense NOT enough FED Q may arise, if a Corporate party was incorporated by Congress, and US owns more than ½ of the Corporation’s capital stock. (b/c it’s a federal agency, which can sue/be sued in federal court) B. SUPPLEMENTAL (PENDENT) JURISDICTION OVER ST CLAIMS when Orig. SMJ is Fed. Q Pendent Claims: If P has FED/ST claims, Fed Ct has discretion to hear ST law claim, if both arise from a common nucleus of operative facts, and P would ordinarily be expected to try them together. CT may exercise Pendent JX over the ST claim, even if federal claim is dismissed on the merits. However, the ST claim should probably also be dismissed w/o prejudice, if the Fed claim is dismissed before trial. IV. VENUE (which Fed CT’s district) Removal: D’s ST FED A. Remand: FED ST GENERAL RULES Transfer: FED FED (P or D can do it) Venue can be set by agreement (NOT SMJ) Proper Venue (only cares about D) (Not P or SMJ) ① If all Ds are residents of same ST, the judicial district where ANY D resides; ② the judicial district where a substantial part of: the events/omissions occurred, OR property subject to the action is located. (ONE OR MORE) e.g., Product defect: District1 where defective product was manufactured AND District2 where P was injured. e.g., K: District1 where K was entered AND District2 to be performed. - If X ① + ② Judicial district in which any D is subject to PJ with respect to such action. - If D does not reside in US, any district. But if more Ds, then apply rules above to Ds living in US. TIP: Removed cases CANNOT TRANSFER its Venue. B. RESIDENCE 1. Individuals (+ alien of PR resident): where he is domiciled 2. Business entities (Corp/Un-incorp.): all judicial districts which the entity is subject to PJ, with respect to the action. 3. Nonresident of US: whether US citizen or alien, may be sued in any district. Joinder of such D is not considered in determining where action should be brought. C. IMPROPER VENUE MAY BE WAIVED Considered waived unless objected in pre-answer motion 12(b) or answer D. TRANSFER G/R: CT has discretion to transfer the venue to a judicial district where the case could have originally been filed (SMJ + PJ + proper venue); OR parties consent. For transfer, NO PJ in transferring ST CT needed. Rare: Court can transfer to an improper venue if All parties consent; AND CT finds cause for transfer. Burden is on the person seeking the transfer. Transfer Statute #1 and #2 below ① #1. Proper More proper: For the convenience of the parties, Ws, and in the interest of justice. Such transfer overrides P’s choice of proper forum. ∴ CT looks at public + private interest factors to determine that the transferee is the center of gravity Public: (e.g., which law applies, what community should serve the jury, desire to keep the case in a local CT) Private: convenience - ② #2. Improper Proper: Transfer in the interest of justice; OR dismiss - (e.g. where Ws and E are) Apply originally applicable rules (including choice of Law Rules), in the new venue. Apply the law of ST where transferee CT sits, in the new venue. Forum Selection Clauses (FSC): If Parties agreed to litigate in a particular district by FSC, then FED CT will always transfer (by motion to transfer) unless exceptional public interest factors. (b/c Fed law enforces reasonable FSC) ★ Forum non conveniens 여기 불편하니 없애줄게, 다른 곳에서 할거지? Although another is center of gravity, CT dismisses or stays (suspend) the case instead of transferring, when transfer is impossible (e.g., due to different judicial system), and there is alternative adequate forum. (Then, P can sue in the other CT) e.g., Foreign court does not permit trial by jury or recovery for emotional distress. Adequate if the P will get her day in court. (Different remedies NOT matter as long as P will get her day in court, fair hearing.) V. By considering public + private interest factors Dismissal is almost never granted if P is resident of the present forum REMOVAL JURISDICTION D’s RIGHT A. ORIGINAL JURISDICTION NECESSARY G/R: D may remove a case from ST CT to FED CT embracing the Forum ST CT (SAME DISTRICT), if case could’ve originally been filed in FED CT. If both diversity and Fed Q SMJ exists, then removal is based on Fed Q JX. NO need JX in ST CT. Time: D must remove within 30 days of notice that shows the case is removable. (SOP/ pleadings/ amended pleadings …) If Ds are served at different times, a later served D may remove within 30 days after the notice. e.g. Process served on July 1. D makes a motion to dismiss on July 15. Ct denies the motion on Aug 1. D removes on Aug 2: TOO LATE D should’ve removed by July 31st (office hour). Limitation on removal: 1. No limitations on removal in FED Q cases. 2. Limitation on removal in Diversity Cases: D may NOT remove cases based on diversity, 1. if any D is a citizen of Forum ST (in-ST D rule); OR 2. more than 1 year after the case was filed in ST CT. e.g., P (NY) v. D (CA) in CA ST: NO Removal based on Diversity b/c D was in Home ST. However, Removal on Fed Q OK e.g., P (CA) v. D1(NY) D2 (WA) D3 (CA) in CA ST: NO Removal based on Diversity b/c D3 was in Home ST. Removal on Fed Q OK Exception to In-ST D rule: NOT in-ST D can remove if P voluntarily dismisses the case against that in-ST D, as long as it’s not more than 1 year after the case was filed in ST CT. Exception to 1-year: Even after 1 year, D2 may remove if P acted in bad faith by originally joining the in-ST D to prevent another D’s removal. e.g. P (CA) v. D1(NY), D2(DC) in NY ST CT. P voluntarily dismisses the case against D1, 6 months after the case was filed. D2 may remove within 30 days of service of dismissal. If removing a case w/ Fed Q. JX claim with other ST law claims (w no Diversity or Supplemental JX): The whole case is removed. Then, Fed CT must sever and remand the ST law claims back to ST CT. NOT REMOVABLE: Workers’ compensation claims are NOT REMOVABLE. (by statute) B. ONLY DEFENDANTS MAY REMOVE (WHO) C. VENUE (REMOVE TO WHERE?) All Ds must join in the removal (together or separately). P can NEVER remove, even if D files a counterclaim against P. Remove to Fed District CT embracing the Forum ST CT. (Same district) e.g. ST CT in Houston (Southern district CT) Fed CT in El Paso (Western district CT)? NO D. PROCEDURE FOR REMOVAL 1. Notice of removal - Filing: D must file the notice of removal stating the grounds; (e.g. SMJ) to the Fed CT, and send a copy of it to ST CT and adverse parties. 2. Right to Jury Trial: A party (P/D) must file a demand for Jury Trial after the case has been removed to the Fed CT, UNLESS 1. Already expressly demanded in accordance w/ ST law; OR 2. Applicable ST law doesn’t require an express demand. 3. Remand If removal was improper, P may move to remand, back to ST CT. ① Lacks SMJ may remand any time ② Some other reason P must remand within 30 days after notice of removal is filed in Fed CT. If not, P waives it. e.g. D removes diversity case but there was an in-ST D. Not SMJ issue so P must remand within 30 days ③ VI. If all FED claims are resolved, leaving only ST claims + NO diversity FED CT has a discretion to remand. CONFLICT OF JURISDICTION BETWEEN ST AND FED CTS A. FULL FAITH AND CREDIT B. NOT applied for procedure issues (W competency; admissibility of E) Recognition of judgments is required between ST and FED CTs and between FED CTs. INJUNCTIONS AGAINST ST COURT PROCEEDINGS 1. Pending ST proceedings: Fed CT may not enjoin a pending ST court proceeding, unless expressly authorized by statute or necessary in aid of its JX, or to protect or effectuate its judgments. - The case (NOT enjoined) coming to a final decision first will have preclusive effect on the other. 2. Threatened ST criminal proceedings (i.e., where ST court proceedings have NOT been instituted): Fed CT may not enjoin a threatened ST criminal proceeding, unless irreparable harm is clear and imminent (e.g., serious interference w/ First Amendment rights) and the appellate remedy is clearly inadequate to provide relief. VII. FEDERAL RULES OF CIVIL PROCEDURE A. B. COMMENCEMENT OF ACTION Commenced by filing a complaint with CT If ST rule says that action is commenced upon SOP for SOL purposes, that rule must be applied in diversity cases. (substantive) Service of Process (SOP) 1. How service is made What: must serve 1. Court Summons (formal CT notice of suit and time for response); AND 2. Complaint Who: By any NON-party person at least 18. How: - Summons : P gets Summons by presenting it to CT clerk for signature and seal. 1. Personal service: given to D personally anywhere 2. Substituted service: At D’s usual place of abode, to someone of suitable age and discretion and resides there (need not be related, but must reside there). NOT by mail; e.g., If D’s summer home, serving there in winter: NOT usual place of abode. 3. D’s agent: Authorized agent of D to receive SOP e.g., Corp’s registered agent for service, officer, managing or general agent 4. Methods Permitted by ST law (law of the ST where 1. FED CT sits; OR 2. service is made); OR mail (waiver of SOF) e.g., might allow service by mail; e.g., when serving a minor or an incompetent person, consider ST law where the service was made. (Request for) Waiver of SOP by mail: P mails D 1. a notice; 2. request to waive formal service; 3. copy of the complaint; AND 4. two copies of the waiver form. - Waive: D executes (signs AND mails it back to P) within 30 days from the date that the request was sent (60 days, if D is outside of US). P files waiver in CT (= then, SOF has been made at the time of filing, even D executed late); OR actual SOF on D - No Waive: If D does not execute within 30 days (60 if off US), then P must serve formal SOP. If no good cause for failing to return the waiver form, D is liable or penalty (: D must pay the cost of service). Report of service: - A server who is civilian should report SOP to CT by Affidavit (sworn statement executed under oath) Even if he fails, SOF is still valid 2. Parties served outside ST, fine if 1. under ST’s statutes for extra-territorial service; (2) within 100 miles from the place of the action, if TPD or joinder; (3) permitted by FED statute (interpleader); OR (4) in case of FED Q, serves D who has no GJ, but has sufficient contacts with US, and that JX is not prohibited by statute. 3. Parties served in foreign country: Possible By International Convention (e.g., Hague Convention) If none, then 1. As directed by American Court, 2. Method allowed by the foreign country’s law, 3. Method directed by Foreign official in response to a letter of request (letter rogatory) from American Court, 4. Personal service in the foreign country (unless prohibited by law), OR 5. Mail sent by the clerk of the American court requiring signed receipt (unless prohibited by foreign law). 4. Immunity from SOP: (1) D is immune in a ST, if D is present in ST to appear as Party, W, or L in a different civil case; OR (2) If D was induced to enter ST for SOP by P’s fraud or deceit ( No PJ). 5. Service of other documents: No formal process. - Email allowed IF party agrees. OK by delivering/mailing to P’s attorney, or pro se (one w/o L). (answer, discovery, motion, pleadings, interrogatories) - Receiving party must respond in 30 days after received. If received by mail, 3 extra days to respond. C. TIME PERIODS 1. Counting time 2. D. P must serve within 90 days after P filed the case (complaint) (old rule 120). 91 days: X Extensions of time District CT may extend time periods. cf. NEVER EXTENDED: RJMOL, Motion to amend judgment, motions for new trial: within 28 days after entry of judgment; Motions for Relief from Judgment. INJUNCTIONS (Adjudication without (BEFORE) going to trial: Prelim Inj/ TRO; Default Jud; Mot. To Dismiss 12(b)(6), Summary Jud 56) PRELIMINARY INJUNCTIVE RELIEF Discretionary To maintain the status quo, P seeks CT order of injunctive relief that D either (1) does something or (2) refrains from doing something. CT is nervous about doing this b/c the merits of the underlying dispute have not been decided. Before getting a Preliminary Injunction, P may seek Temporary Restraining Order (TRO). 1. TRO: effective until the hearing on the preliminary injunction. - CT may issue TRO ex parte (w/o giving notice to the other party) ONLY IF: 1. shows that, if TRO is not issued, he will suffer immediate and irreparable harm; 2. L certifies in writing his efforts to give oral/written notice to the other party or his L; and why such notice should not be required under the circumstances; AND 3. provides security to pay for any damages incurred by the other party if it turns out the restraint is wrongful. - TRO is effective for no more than 14 days (or lesser time set by CT). If Applicant shows good cause for extension before expiration; OR the other party consents to an extension, it can be extended for up to another 14 days. So, a TRO cannot extend beyond 28 days. 2. - If CT extends TRO beyond 28 days, it may be treated as a preliminary injunction. - TRO grant/denial cannot be appealed as of right. Preliminary injunctions - effective during pendency (미결) of litigation - NO ex parte. CT’s notice to non-moving party is required. - Applicant must show all 4: (In TRO w/ notice, CT determines by considering below factors) 1. He is likely to succeed (win) on the merits of the underlying case; 2. He is likely to suffer irreparable (i.e., NOT adequate remedy at law) harm if the injunction is not issued; 3. The balance of hardship favors him (= threatened harm outweighs injury which would inflict on D if the injunction is issued (e.g., if harm on D can be compensated monetarily); AND 4. The injunction is in the public interest. - If issued, Applicant must post a bond. - CT may consolidate the hearing on the motion for preliminary injunction with trial. It may advance trial on the calendar (더 빨리). - In granting or denying the preliminary injunction, CT must make specific findings of fact and separate conclusions of law. ( difference from TRO) E. CT Order is immediately appealable ( Unlike TRO) PROVISIONAL REMEDIES: Pre-trial seizure of property to secure satisfaction of a judgment that may be entered. Procedures governed by ST law. Generally, the party seeking the remedy must make out a prima facie case on the underlying claim and show that the property will not be available after trial, if relief is not granted. 1. Garnishment: a court order directing that money or property in the hands of a third-party be seized 2. Attachment: a process to seize another’s property by a judicial writ/order to secure a judgment that is not entered 3. Replevin: a process where P takes possession of and holds disputed property during the lawsuit. F. PLEADINGS complaint, answer 1. Complaint - Must state 3 things: 1. grounds of SMJ; 2. a short and plain statement of claim showing that the pleader is entitled to relief; AND 3. demand for relief (≠ legal claim or language) - Modern Law: must plead facts supporting a plausible claim, and fraud, mistake, and special damages must be stated with particularity. 2. Pre-answer (e.g., pre-pleading) motion a. Motions: request for court orders. NOT PLEADINGS Answer: Pleading Motion to dismiss under FRCP/Rule 12(b) - Grounds: (1) lack of SMJ, (2) lack of PJ, (3) improper venue, (4) improper process (paper issues. S or C 둘 중 빠짐), (5) improper SOP (NOT paper issue. Not served properly. P 가 직접 함), (6) failure to state a claim (only attacks complaint), (7) failure to join an indispensable party - These defenses can be put in 1. first motion to dismiss; OR 2. in the answer. - (1) can be raised ANYTIME, even on appeal. If granted, dismiss; OR, if removed, remand it back to ST CT - (2,3,4,5) Must raise defenses in first response (motion/answer) b/c waivable. cf. improper venue? CT can still transfer the case later, in the interest of justice (for the convenience of parties) - (6,7) Can raise defense any time before/at trial. Motion to Dismiss for Failure to state a Claim (Rule 12(b)(6)) - CT consider whether alleged facts support a “plausible” claim, not a legal conclusion. In ruling on this motion, asks “if these facts were true, would P win a judgment?” and E. J uses her experience/common sense. (subjective). (If looks at E Summary Judgement 56) - If facts do not support a plausible claim, case should be dismissed. But, CT might let P amend to try to ST a claim. b. Motion for more definite statement: P/D can make this motion based on vague complaint before responding to value pleading. c. Motion to strike: Before responding to pleading (OR within 21 days after service of pleading if no response is permitted), P/D can strike any insufficient defense, OR redundant, immaterial, scandalous matter. e.g., P can attack D’s affirmative Defense. 3. Answer - Respond by 1. Denial; 2. Admission; OR 3. Lack of sufficient information to form a belief ( effect of a Denial) - Cannot assert 3. if answer is in D’s control. e.g., answer is in D’s record - If failed to deny, it’s admission. e.g., “P doesn’t have E I was intoxicated” Admission. - Damages: D is never deemed to admit. - Raise affirmative defenses can be made in answer by injecting a new fact into the case, which would allow D to win. e.g., SOL, SOF, res judicata, self-defense, contributory negligence. (But P need not answer to it) - If not in answer, waived a. Raise Counterclaim against P in the Answer. Time - G/R: D must respond by 1. Motion to Dismiss; OR 2. Answer, no later than 21 days after served (SOF). If D waived service, 60 days from receiving waiver form, 90 days if waived outside of U.S. - Responsive pleading must be served within 14 days after CT’s denial or postponement of the pre-answer motion. e.g., If pre-answer motion to dismiss gets denied, D must serve Answer within 14 days of notice of denial of the motion. b. Motion for more definite statement: If granted, the opposing party has 14 days after notice of order to obey. D’s Failure to answer (default and default judgment) - When D fails to answer in time, P can move for entry of default, and default judgment. - D may take Motions to Set Aside to have CT set aside entry of default by showing good cause (excusable neglect), and default judgment under Rule 60. Default - = Notation in case file by the CT clerk that there has been no answer in time Default is Not automatic: P must move for entry of default, and demonstrate that D failed to respond in time. - Until default is entered, D can respond by motion or answer (even beyond 21 days). - Entry of default cuts off D’s right to contest liability. - Entry of default does not entitle P to recover. P must get a default judgment to recover. Default judgment. If entered without satisfying below, VOID that judgment. - Before default judgment is entered, defaulting party may be heard at hearing to determine damages. - If D has appeared in the case, P should APPLY to the CT itself. - D gets notice of request for default judgement by first-class mail at least 7 days before the hearing. - J will hold a hearing and has discretion to enter judgment. - IF D has not appeared, CT Clerk can enter default judgment if all 4: (No need to see J.) 1. Default was entered, but D failed to appear; 2. The claim itself is for a sum certain in money; 3. Damages requested are NOT greater than amount in the complaint (what you originally pleaded is the cap in default judgment case); AND 4. 4. D is not a minor or incompetent. Counterclaims (in Answer) Claim against an opposing party. After D serves a counterclaim against P, P must respond under rule 12 within 21 days of service. (Now D on the counterclaim.) 2 types of counterclaims: 1. D’s counterclaim against P. (MUST assess SMJ/Supplemental JX) Compulsory counterclaim: arises from the same transaction or occurrence (T/O) as P’s claim. May have Supplemental JX Unless you have already filed the claim in another case, D must assert it in the pending case; OR the claim is waived. e.g., P v D on car accident. Later, D sues P on that accident, in a separate case: Dismissed. e.g., P v D. D moves to dismiss for improper service (didn’t answer yet). Motion granted, case dismissed. Here, D can sue P in a later suit, b/c D did not have to answer in the last suit. 2. Permissive: does not arise from same T/O as P’s claim; D is not required to file it in this case. You may sue on it in a separate case. 5. Must have SMJ. Supplemental JX only allowed, if some factual relationship b/w two claims Reply: P is NOT required to reply to D’s Answer unless if CT orders to do so. - No need to reply to an affirmative defense. P is deemed to deny/avoid the allegations in D’s defense. 6. 7. Inconsistent claims or defenses: A party may bring as many alternative claims or defenses as he may have, regardless of consistency. Amendments and supplemental pleadings (Motion) Amended pleadings (Motion to Amend Pleading) (1) Right to amend - A pleading may be amended ONCE within 21 days after serving: the pleading, OR a responsive pleading (complaint answer, pre-answer motion) if a responsive pleading is required. (2) Amendments may include waivable Defenses and Affirmative Defenses which were left out. If there’s NO right to amend - P/D may seek leave of CT. - CT will grant the right if justice requires so (usually granted) by considering delay, prejudice, and futility of amendment. (3) Variance - E (E) at trial does not match with what was pleaded. - If D doesn’t object, E is admitted and P can move to amend her complaint to conform to E, at or after trial. e.g., P sues for breach of contract. D answers. At trial, P introduces E that D assaulted (tort) him. D doesn’t object (b/c D is stupid). E of assault is admitted (b/c D didn’t object). And then, at or after trial, P can move to amend the complaint to conform to the E. (4) If D does object. E is inadmissible b/c it is at variance with the pleadings. Amendment after SOL has run (Relation Back) a. To join a new claim. - Amendment pleading “relates back” if 1. allowed by the ST law (in diversity case?); OR 2. it concerns the same T/O as the original pleading. Then, amended pleading is considered as if it was filed when the original pleading was filed. e.g. P files complaint and serves on July 1. SOL ran on July 10. On Aug 1, P seeks leave to amend to add a claim: Relates Back TREAT as if filed on July 1. (even though SOL ran + amended more than 21 days after complaint) b. Amendment pleading to change D (wrong D right D) relates back if: (1) It concerns the same T/O as the original pleading; (2) The new D had notice of the action that she will not be prejudiced in her defense on the merits, within 120 days of its filing; AND (3) Supplemental Pleadings - The new D knew/should have known that, but for a mistake, she would have been named originally. (Motion to File a Supplemental Pleading) It relates to things that happened after the pleading was filed. (Amended pleadings are about things that happened before the pleading was filed, but not asserted) - No right to file a supplemental pleading. Discretionary - CT will often do so, unless it will cause delay or prejudice. e.g., P v. D for breach of K. After the case is filed, D punches P. P wants to add a tort claim. Does P make a motion to amend the complaint? NO. P makes a motion to file a supplemental pleading. 8. Rule 11 a. NOT for discovery Certification upon presenting paper to CT Applies to all documents except discovery (treated by another rule). By presenting paper (pleading, motion …) to CT, L or pro se party certifies that, to the best of her knowledge/info and belief, after reasonable inquiry: (1) the paper is not for an improper purpose; (2) the legal contentions are warranted by law (or nonfrivolous argument for law change) ( NOT for client); AND (3) the factual contentions/denials of factual contentions have evidentiary support (or are likely to after further investigation). It’s a continuing certification: L/pro se party makes this certification every time they advocate a position contained in paper. (e.g., when you later advocate a position taken in the document. If I sign and file a document today, I am certifying them today. If 6 months from now, I advocate a position from that document, I am re-certifying 6 months from now.) b. Sanctions If there is a violation on certification, (e.g., by failure to reasonable inquiry, (1) assertion of a baseless claim NOT warranted by law; (2) factual contentions without evidentiary support), L, law firm, the party may be ordered sanctions. If unwarranted legal contention, only L/law firm liable. Purpose of Rule 11 sanctions is to deter, not punish. - In general, CTs impose non-monetary sanctions (e.g., require L to attend professionalism classes). - Monetary sanctions, if any, are generally paid to CT, not to the other party. - If warranted for effective deterrence (잘못 반복), CT may order to pay reasonable L’s fees & expenses caused directly to movant. If a party violates Rule 11, the other party must serve the motion for sanction on the party first, and that party in violation has a safe harbor of 21 days to fix the problem and avoid sanctions, but if she does not do so, then a party can file motion for sanction. G. Before sanction, CT usually direct the proponent party to show why sanctions should not be imposed. CT can raise Rule 11 problem on its own (“sua sponte”), not giving safe harbor of 21 days to the party in violation. JOINDER 1. Joinder of parties – compulsory/permissive joinder a. Compulsory Joinder can join if served within 100 miles from place where summons was issued Necessary and Indispensable Parties. CT might force some nonparty (“absentee”) to join in the case. An absentee (A) must be joined if he meets any of these tests: Without A, i) a. CT cannot accord complete relief among existing parties; OR b. A’s interest in the SM may: 1. be (practically) harmed (e.g., If B wins the case, A’s stock would be canceled) or have other parties subjects to substantial risk of multiple/inconsistent obligations. - Joint tortfeasors are never necessary parties. Then, A can be joined if the joinder is “feasible.” It is feasible if: (1) there is PJ over A and (2) joining A will not destroy ii) SMJ. If A cannot be joined (e.g., no PJ), CT must do one of two things: 1. Proceed without A; OR 2. Dismiss the entire case. iii) - CT makes this decision, by considering factors: (a) b. Permissive Joinder What the actual likelihood of harm to A is. (c) Whether CT can shape relief w/o harm to A. (Assess SMJ) Parties may join as P/D, IF the claim 1. arises from same T/O; AND 2. raises at least one common question. 2. Whether there is an alternative forum available. (b) Joinder of claims - Claim Joinder by P: P may join any additional claim against D, even if wholly unrelated to the original claim. (But Check SMJ) - Claim Joinder by D: See Counterclaim: Compulsory claim (must assert now), Permissive counterclaim (later OK) a. Class actions (Must Assess SMJ/Supplemental JX) : Representative(s) (= named parties) sues on behalf of group. ① Initial requirements. Must demonstrate all of these: i) Commonality: common issue to all class members so that resolution will generate answers for everybody in one stroke. ii) Adequate representation: The Rep will fairly and adequately represent class. iii) Numerosity: Too many class members for practicable joinder. no magic number; AND iv) Typicality: Rep’s claims are typical of those of the class. v) One of three types: 1. Separate claim would result as risk of inconsistent results. Class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party. (RARE) e.g., Many people have claims to a limited fund of money. If they sue individually, it would leave later claimants with nothing. (unfair, prejudices to them) Allow everybody to recover at least a portion of her claim. 2. Injunctive or Declaratory Relief is appropriate (NOT seek damages) b/c D treated the class alike. e.g., Employment discrimination, not being promoted as they should have been. 3. Common questions predominate over individual questions; AND 2. class action is the superior method to handle the dispute. e.g., Mass tort: bus crash injures 80 people, there will be individual questions about damages, but the common questions (Driver’s N) may predominate. And the class action may be superior to 80 separate suits. To be class action, CT must certify the class. - When CT certifies, CT must define the class, the class claims, issues, or defenses, and appoint class counsel. - If denied, can ask Court of Appeals to review the decision. For Type 3 class ONLY, CT must give individual notice (usually by mail) at the expense of rep to all reasonably identifiable class members that: (a) they can opt out; (b) they’ll be bound if they don’t; AND (c) they can enter a separate appearance through counsel. The parties can settle or dismiss a certified class action only with CT approval. And then, - In all types, CT gives notice to class members to get their feedback on whether the case should be settled or dismissed. ② If it's a Type 3 class, CT might give members a second chance to opt out. SMJ: As long as the rep is diverse from all Ds, and as long as the rep’s claim exceeds $75,000, the class action will invoke diversity JX. b. Class Action Fairness Act (CAFA) SMJ granted, even though no diversity, if meets 2 requirements. (rarely tested). This grants SMJ separate from diversity of citizenship jurisdiction. It lets a FED CT hear a class action (of at least 100 members) if 1. any class member (not just the representative) has diverse citizenship from any D; AND 2. the aggregated claims of the class exceed $5,000,000. This makes it easier for interstate class actions to go to FED CT. No FED JX if 1. Primary Ds are STs, ST officials, or other govt’l entities; 2. the class action solely involves a claim under federal securities law; OR 3. relates to the internal affairs of a corporation and is based on the laws of ST of incorporation. There are complicated provisions to ensure that local classes (where most class members and the primary Ds are citizens of the same ST) do not stay in FED CT; they get dismissed (or, if removed from ST CT, are remanded to ST CT). - Mandatory Decline of FED JX: FED District CT must decline JX IF: 1. More than 2/3 of the class members are citizens of the ST in which the action was filed, 2. A defendant from whom “significant relief” is sought is a citizen of that ST, 3. The “principal injuries” were incurred in the ST in which the action was filed; AND 4. No similar class action has been filed within the prior three years. - ST 가 하는게 더 좋을 거야 Discretionary Decline of FED JX: FED District CT may decline JX IF More than 1/3 but less than 2/3 of the class members are citizens of the ST in which the action was filed AND “primary defendants” are also citizens of that ST. - If so, CT considers 3 factors: 1. Does claim involve national interest? 2. whether the claims will be governed by the law of the ST in which it was filed; AND 3. ST’s “distinct nexus” w/ the class members, the alleged harm, or the defendants? c. SHH derivative suits d. More in CMR pg. 26 In SHH Derivative suits, Corp is treated as P for determining JX amount, but treated as D for determining Diversity. Interpleader Interpleader: A stakeholder is permitted to require two or more claimants to litigate themselves to determine which one has the valid claim, in a situation where separate claims might result in double liability on a single obligation. Two Interpleader procedures: Rule 22 and Section 1335 (To satisfy FED SMJ) 1. Rule 22 Interpleader: requires 1) Complete diversity b/w stakeholder and all adverse claimants, in excess of $75,000 at issue; OR 2) Fed Q. claim. Rule 22 interpleader follows Regular Rules 2. (statutory) 28 U.S.C. section 1335 Interpleader: Only requires 1) minimum diversity between claimant; 2) $500 or more; 3) venue: any district where any claimant resides. Service may be worldwide. Simpler - Statutory interpleader requires stakeholder to deposit the largest amount in controversy. - CT may enjoin claimants from instituting any proceeding involved in interpleader action. e. Intervention (NEED SMJ/Supplemental) (Supplemental JX STATUTE – NO applied) After the case is filed, nonparty, as absentee (A) may intervene as P/D. Court may realign her if she came in on the “wrong” side. Her application must be “timely” 1. Intervention of right. A’s has right to intervene if 1. she claims an interest in the SM of the case; 2. her interest may be harmed if she is not joined; AND 3. she is not adequately represented by existing parties. (SM/H/R) 2. Permissive intervention. A’s claim/defense and the case have at least one common Q. decided by CT discretion. f. Third-party Practice (Impleader) (Must assess PJ + SMJ/(maybe) Supplemental. Diversity b/w D and TPD) After case began, D may bring TPD to shift the liability that D will owe to P, all (indemnify)/part (contribution) of his liability. Never compulsory to assert impleader claim. NOT for joint tortfeasors. e.g. bar fight. D says he did not touch P, and that D2 did it. (“Hey, I never did anything.”) Impleader is different. “Ok, you got me. If you win the case, you got me. But, I want to deflect my liability. I should not have to pay it. There is somebody out there who should have to pay it in whole or in part.” e.g., “If any party is liable, it’s X. Not ME.” NOT impleader. Steps for TPP: 1. D files a TP complaint naming the TPD, and stating TPD’s derivative liability (secondarily liable to D); AND 2. Serve process on the TPD. (must have PJ + SMJ over TPD b/c TPD is not coming voluntarily) Right to implead within 14 days of serving your answer. After that, you need CT permission. If the claim arises from the same T/O as the underlying case, P v. TPD as joinder of claims - CT may not grant it, and may sever any third-party claim to be tried separately, if that’s just. e.g., P (MO) sues D (KS) in FED CT for $100,000, invoking diversity. D impleads TPD (MO). Impleader claim? Yes, it invokes diversity. it’s by (KS) against (MO) that exceeds $100,000. Does it matter that P and TPD are citizens of the same ST? NO. Complete diversity is only for original parties. e.g., D’s impleader claim against TPD for contribution (only for $50,000)? No diversity. Supplemental? Yes b/c the claim meets the test (T/O) and the limitation does not apply (claim is not by a P) g. Cross-claims (P v. P; D v. D) (Must assess SMJ/Supplemental JX btw co-parties even No diversity) Claim against a co-party that must arise from the same T/O as the underlying action. NOT compulsory – you may assert it here or sue separately. e.g., P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled. It’s a diversity case. 1. Sterling should file a compulsory counterclaim against P b/c it’s against an opposing party and arises from the same T/O as P’s claim. Now, SMJ over the compulsory counterclaim b/c of diversity + $200,000 claim. 2. Sterling may file a crossclaim against Draper: But for cross-claims, SMJ? No diversity. NY vs NY (+ no FED Q); Supplemental JD? Yes - 1. from the same T/O as the case. 2. X limitation b/c this claim is not asserted “by the P.” If Draper files back against Sterling : counterclaim (sued D v. suing D) Additional claims - Once you file a counterclaim or crossclaim (or any claim) you can join an additional claim to it -- even if that claim has nothing to do with the others. H. Additional claim (like any claim in FED CT) must invoke FED SMJ/Supplemental JX. DISCOVERY 1. *discoverable: broader than ‘admissible’ Duty of disclosure - Required Disclosures. These materials must be produced even without the other party’s request. - If Ws below are used solely for impeachment, No need to disclose. - If fails to disclose the required disclosure, the party cannot use that E/Ws in the case unless the failure was substantially justified or harmless. a. Required initial disclosures. Within 14 days after the Rule 26(f) conference, each party must disclose: (unless otherwise stipulated/ordered) 1) Identity of individuals who is likely to have discoverable info that the party may use to support (NOT harmful) claims/defenses. 2) Copies/descriptions of docs and materials in the party’s control that he may use to support claims/defenses 3) Computation of monetary damages sought, and copies of materials to support the computation. 4) Copies of insurance agreements that might cover all/part of the judgment in the case. - Even though such insurance will not be admissible at trial. Discoverable is broader than admissible. *Exemptions from Initial disclosure: actions to review an administrative record; actions to enforce an arbitration award; pro se litigation brought by prisoners; actions to quash or enforce subpoenas; or habeas corpus petitions. b. Required Disclosure of expert testimony (EW) At a time directed by CT (otherwise, at least within 90 days before trial), each party must provide identification of EW who may testify, and written report prepared by EW at trial. The written report includes (1) EW’s opinions, (2) bases for the opinions, (3) facts used to form the opinions, (4) EW’s qualifications, (5) list of cases she has testified for the past 4 years, and (6) how much EW is paid (compensation). - Facts known/opinions held by consulting experts are discoverable only in “exceptional circumstances.” e.g., P is injured by D and goes to the hospital. Doctor treats P at the hospital. Is Doctor an EW? No. Doctor observed and treated P and developed opinions for purposes other than this litigation. (was just doing his job. He is just a regular W) So P does not have to identify Doctor as an EW. c. Required Pretrial Disclosures Within 30 days before trial, the party must disclose information about E (doc/exhibit) that she may use, and Ws who may testify or testify by deposition. Within 14 days after this disclosure, Party may serve objections to use of E/W. IF not, waived. (except for E that’s irrelevant, prejudicial, or confusing under FRE 402, 403) 2. Discovery of electronically stored information (ESI) Party should specify the form for producing ESI (hardcopy? Electronic format?). If not, any form of ESI. Parties have the duty to preserve ESI, when litigation is reasonably anticipated even if litigation has NOT yet been commenced. If a party had intent to deprive, CT may 1. presume the lost E was unfavorable to the party; 2. instruct the jury it may/must presume so (aka CT ordering an “adverse inference”); OR 3. dismiss the action or enter a default judgment. *Sanction for spoliation (문서파기), CT considers culpability of spoliating party and prejudice to the other party: 1. If in bad faith, severe sanction (adverse-interference); 2. If in good faith, modest sanction (shifting burden to spoliating party, reimbursing expenses that the other party incurs to discover. 3. Scope of disclosure and discovery Anything relevant to a claim/defense, and proportional to the needs of the case is discoverable. - CT has authority to limit discovery if not proportional (the request is cumulative; or the burden (e.g., expense) outweighs the importance of the issue) - If Party shows good cause for discovery, CT can 1. order production; AND 2. allocate the expense btw the parties. e.g. Driver has a recording of him hitting P. P requests for the recording, describing the accident: Not a “required disclosure” (automatic disclosure) b/c it’s harmful to D. However, YES MUST DISCLOSE b/c it’s RELEVANT, using regular discovery tools. Privilege exists: - Work product: Material prepared in anticipation of litigation made by party/rep is usually NOT discoverable. (e.g., draft report, disclosure of testifying experts, confidential communication btw experts and Ls; NOT retrieved materials. But identification of individuals w/ discoverable info is discoverable. - Qualified work product may be discoverable ONLY if 1. substantial need; AND 2. (otherwise unavailable) to avoid undue hardship in obtaining substantially equivalent information. - Absolute work product: 1. Mental Impressions, 2. Opinions, 3. Conclusions, AND 4. Legal Theories of rep/L may NOT be discoverable. - Party’s own prior statements regarding the case is NOT privileged. e.g., H sues S. S, fearing the suit, hired Private Investigator (PI), who interviewed G, W. PI writes a memo to S, with the following: (a) W’s statement regarding what happened; (b) PI’s conclusion that, based on what W said, there appears to be no defense; and (c) PI’s opinion that W is stupid and would be a bad W at trial. * Memo is protected work product b/c prepared in anticipation of litigation. Though the memo is work product, H may be able to discover if he shows 1) substantial need AND 2) it’s not otherwise available. here, maybe (a). * Absolute Work Product cannot be discovered. here, may NOT be (b) and (c). e.g., D hired a very expensive PI to find all eyewitnesses to the accident. If P requests ‘names of all ppl who have relevant information to the case: Discoverable. - To invoke privilege, a party must 1. claim it expressly; AND describe the materials in a privilege log. - Privilege log is a doc that lists the materials sought to be protected, by date, author, recipient, and privilege. It must be in detail enough to allow J to determine whether the material is protected. - If inadvertently produce privileged material, notify the other party promptly. The other party then must return, sequester (격리), or destroy it, pending CT’s decision about whether there has been a waiver. 4. Types of discovery Assuming CT order/stipulation does not provide otherwise, party CAN request discovery to the other party, only after the rule 26(f) conference. e.g., P serves process to D, along with interrogatories: NO. ONLY AFTER the Conference *Rule 27: Anyone who wants to perpetuate testimony, even before commencement of claim, may file a verified petition. CT may accept it IF it expects a suit to be brought, and testimony is at risk of being lost. *Minor exception: You can serve “Requests to produce” earlier, more than 21 days after SOP. i) Depositions (증언) Anyone = Deponent’s Live testimony in response to questions by L or pro se party, oral or written (if written, CT reporter read them); recorded by sound, video or stenographically (속기); a transcript can be made. - The deponent is NOT required to review all relevant materials before deposition. She testifies from her present recollection. - For deposition of a party, serve notice of deposition; For a nonparty, must subpoena him to compel attendance. - A subpoena “duces tecum” requires the deponent to bring requested materials with her. - Unless a nonparty agrees, for deposition, the non-party can be required to travel within 100 miles from where she resides or is employed. e.g., P sues Car Co. P wants to take the deposition of Car Co.’s engineer responsible for design, but don’t know who that is You “notice the deposition” of Car Co. and describe the matters for examination. Then, Car Co. must produce that person for the deposition. Another option: P could use ‘interrogatories’ to the Car Co. and simply request the identification of the Engineer, and then take Deposition of the engineer. - Limits: CANNOT: take more than 10 depositions; depose the same person twice; one depo exceeding 7 hours one day unless CT orders or parties stipulate. - Unless no object at the deposition, MAY use of depositions at trial (all subject to rules of E): (1) to impeach the deponent; (2) any purpose if the deponent is an adverse party; or/and (3) any purpose if the deponent (party or nonparty) is unavailable for trial unless that absence was procured by the party seeking to introduce the E. ii) Interrogatories (서면질문). Party; answer/objection w/n 30 days = Written questions (up to actual 25 questions including subparts) to a party (NOT non-party) who must answer from his reasonably available information in writing. No excuse of saying I don’t know - The party can answer or object within 30 days from service to respond. - If the answers can be found in business records and it would be burdensome to find the answers, the responding party can allow the requesting party to access the records. iii) At trial, you cannot use your own answers to interrogatories. Request for Production - Anyone/objection w/n 30 days A may request the party to make A available to review and copy materials including ESI, or to permit A to enter designated property to inspect, measure, and etc. iv) - The party must respond in writing within 30 days of service, stating that the material will be produced or not. - A may subpoena the nonparty for the same thing. Medical exam (진료 받게하기) - Party(or in control/custody) A can get CT order that requires a party or someone in the party’s custody/legal control (e.g., parent-minor child) to get a physical/mental medical exam, by showing that that person’s health is in actual controversy and good cause. e.g., P sues Bus Co. regarding injuries suffered in a bus crash. P thinks Bus Driver caused the wreck b/c of his bad eyesight. Can P get a CT order that Bus Driver undergo a medical exam? No. He is not a party. (NOT include employee.) - The party seeking the order can choose the licensed doctor to perform the exam. - Examined person can request to see the result. But, then, he must produce all medical reports by his own doctors about that medical condition as it waives doctor/patient privilege regarding that condition. v) Request for admission. - Party/must respond w/n 30 days Written request to a party (NOT nonparty) that he admits things, who must respond (admit/deny/IDK) in writing, within 30 days of request. - If fails/objects to answer within 30 days, deemed admitted. And if the requesting party later proves that the matter is true, the requesting party may move to have the responding party pay the reasonable expenses, including L’s fees incurred in making that proof. The court must order payment unless 1. the admission had no substantial importance; OR 2. there was good reason for failure to admit. e.g., P sends D a request for admission saying “admit or deny that you were drinking alcohol while driving your car.” If D fails to deny specifically (or to object to the request) in writing within 30 days? deemed admitted. vi) - IDK is possible only if he states that he made reasonable inquiry, but he cannot find enough info to admit or deny. - Often, used to authenticate documents – “admit that this is the contract.” Parties sign every request/response to discovery under oath, indicating that (1) it is warranted, (2) it is not interposed for improper purpose, and (3) it is not unduly burdensome. - vii) Rule 11 does NOT apply to Discovery documents. Duty to supplement - 5. A must supplement his response, even w/o request (e.g., if circumstances have changed after his deposition) Enforcing Disclosure and Discovery - 3 ways CTs get involved in discovery disputes: For ALL THREE, requesting party must certify that he FIRST tried to get the information from the other party in good faith w/o CT involvement (= satisfies “meet and confer” requirement) a. Protective order (of responding party) - e.g., deposition by electronic means If the responding party claims that a discovery request subjects it to annoyance, embarrassment, undue burden, or expense (e.g., ESI is not reasonably accessible (e.g., deleted files); the request is cumulative; not proportional to the case), and the CT agrees, it can (1) deny; (2) limit; OR (3) permit discovery on certain terms. e.g. D requesting a protective order for the CT to limit P’s use of D’s trade secret to only litigation, and not for business. b. Partial response to discovery request. - If responding party responds, but objects to answer all Qs (objecting to them), requesting party may take a motion for an Order Compelling Disclosure or Discovery to ask the responding party to answer the unanswered questions, and to pay costs (including L’s fees) of bringing this motion. CT will decide whether the objections were legitimate. - IF the motion is granted, and the party violates the Order, he may be 1. held in contempt of CT for violating CT order; and 2. liable for sanctions (BUT NO contempt for refusal to submit to medical exam). - May be excused IF nondisclosure was substantially justified or other circumstances make award of expenses unjust. c. No response to discovery request - If responding party fails completely to respond to discovery request, CT may impose him RAMBO sanctions and costs (and L’s fees for the motion) as J chooses. No need to get an Order compelling answers. (a) Establishment order (establishes facts as true) e.g., D refused to answer Qs about his contacts w/ the forum for PJ. D only said, “Gee, there is no PJ. I don’t know how many contacts I had with the forum.” CT establishes that there is PJ, b/c he didn’t answer about K. e.g. Question on whether D was negligent. D refused to answer. CT establishes D was negligent. I. Conference & Meeting 1. (b) Strike pleadings of the disobedient party as to those issues (c) Disallow E from the disobedient party on those issues (d) Dismiss P’s case (HARSH Only when bad faith is shown) (e) Enter default judgment against D (HARSH Only when bad faith is shown) Judicial Management Preparing for Trial Rule 26(f) conference - parties-planning for discovery (In general, 14 days after service of last pleading) At least 21 days before scheduling conference, parties “meet and confer.” They discuss required initial disclosures, claims, defenses, settlement, and issue about preservation of discoverable info. Parties must present a detailed discovery plan to CT, within 14 days after the 26(f) Conference. The plan must include views and proposals on timing, issues about ESI, including how it will be produced and any problems retrieving it (e.g., deleted files), etc. 2. 3. Can’t use Discovery Tools after the 26(f) Conference, except for Request of Production Rule 16(b) scheduling conferences CT enters a scheduling order limiting time for joinder, amendment, motions, completion of discovery, or etc. This is a roadmap for how the litigation proceeds up to trial. Pretrial conferences To expedite the case and foster settlement. The final pretrial conference will determine the issues to be tried, and E and Ws to be offered at trial. This is recorded in the pretrial conference order, and supersedes the pleading. (NO SURPRISES AT TRIAL: fairness) 4. Sanctions CT may use sanctions against parties who fail to attend conferences, participate in good faith, or obey orders regarding conference. J. TRIAL 1. Jury trial problems Jury Trial. Jury determines the facts and returns the “verdict.” Bench Trial: J determines the facts, and must 1. record her “findings of fact” by stating on the record or in writing; 2. record After jury trial, then to J. her conclusions of law; AND 3. enter the judgment (e.g., who wins) a. A motion in limine is a pretrial motion to request that some testimony outside the presence of the jury to be excluded. Right to Jury Trial - 7th Amendment preserves the right to jury in FED civil claims but not in suits at equity. e.g., If a case involves both law (damages) and equity (equitable relief), Jury decides only the facts underlying the Legal Claim. - [Timing] Must demand the jury in writing within 14 days after service of the last pleading (can be included in pleading). If not, waived jury trial. e.g. P’s complaint, w/o demanding jury trial. Later amended complaint adds a new claim, and demanded jury trial: OK b/c the amended complaint was the last pleading raising jury triable issue. b. Jury trials in diversity cases: Fed CT must permit Jury Trial in any Diversity suit at common law, even though ST CT would deny a Jury. c. Jury size Unless the parties agree otherwise, there must be 6 to 12 jurors in civil jury in FED CT. Unless the parties agree otherwise, unanimous verdict is required. Generally, all jurors participate in the verdict, unless they’re excused for good cause e.g., Six jurors and one is excused for good cause. Can the remaining five return a verdict? No, we must have at least 6 unless the parties agree otherwise. d. e. Jury selection Venire (후보군): entire panel where jury is drawn In the jury selection (“voir dire”), each side might ask CT to strike potential jurors with potential bias: (1) Motion to strike “for cause” (e.g., partiality, prejudice, having even small stock in party) can be raised unlimitedly. (2) Peremptory strike with no cause: 3 times per side, except for Race/Gender-based discrimination. Jury instructions The jury decides facts, but is instructed on the law by J. Parties submit proposed jury instructions to the J, at the close of all E. CT informs the parties which instructions will be given and are rejected; and parties are allowed to object to given/rejected instructions on the record and out of jury’s hearing. If objections are not made before the jury is charged (given the instructions), the party cannot raise a problem with jury instructions on appeal or post-trial motion. - f. After jury is charged, CT can consider the objection if there was a plain error affecting substantial rights. Jury deliberations: Jurors may take all papers/exhibits in E/their own notes into jury room. NOT experiments, viewing property/places involved in the case, except by CT order. Communication w/ non-jurors regarding trial is prohibited. g. Jury verdicts J determines what verdict form the jury will use. - 1. General (verdict). This just says who wins with relief. - 2. Special (verdict). Jury answers specific written questions about the facts in dispute, and J reaches legal conclusions based on that. - e.g., Was the light green?, Did he owe duty? 3. General verdict with special interrogatories. (aka General verdict with written questions) (Interrogatories here is not a discovery type of interrogatories) Jury gives a general verdict but also answers specific question submitted. The questions ensure that the jury considered the important issues. Entry of judgment. - If general verdict, clerk of CT enters the Judgment. - If special verdict or general verdict with written questions, J reviews and approves a judgment and the clerk enters it. - If the verdict shows that the jury did not follow instructions or that it is internally inconsistent (e.g., answers v. verdict), 1. no judgment is entered (order a new trial); 2. CT instructs the jury to reconsider; OR 2. CT enters the right judgment. Juror Misconduct. - A verdict may be impeached based upon “external” matters, and a new trial can be ordered. e.g. if jurors were bribed, or based the verdict on their investigation of matters outside of CT instead of the E at trial - A juror cannot testify about Internal matters (things/statements made during jury deliberations), except to show extraneous (irrelevant) prejudice; OR outside influence. e.g. Intrinsic matters: New trial CANNOT be ordered, on the basis of a juror’s testimony that another juror was on drugs during deliberations or lied during jury selection to hide his bias. Another juror cannot testify about it. (판결에 영향 주지 않는 한) e.g. External matters: We can hear him about external outside influences, but not intrinsic matters. - A verdict will not be set aside if the misconduct was harmless. (e.g., juror chatted for a moment with P about the weather, NOT the case.) 2. Consolidation and separate trials: CT may consolidate then-existing actions when actions have a common question of law or fact. CT may separate trials of any claims (e.g., counterclaim, cross-claim), when separation will foster judicial economy. 3. Voluntary dismissal by P Before D serves an answer/a motion for summary judgment (OR, after that period, with leave of CT), P can move for voluntary dismissal by filing a notice of dismissal. Two-dismissal rule Otherwise, CT may do so w/ proper condition (e.g., all parties’ consents) SFF (불가능) v. FSF (가능) - If P files a timely notice of dismissal, the case is dismissed “w/o prejudice,” meaning that P can refile the case. - If P files a notice of dismissal in the second case, that dismissal operates as adjudication on the merits, and the case is dismissed “with prejudice” UNLESS the notice of dismissal stated otherwise. The party can NOT refile the case as claim preclusion. (applied if same Ds OR parties closely related to Ds) (To prevent D’s harassment of defending multiple actions) 4. Offer of judgment At least 14 days before trial, D may serve a formal offer on specified terms to settle P’s claim. If P accepts, judgment will be entered for that amount. If P rejects, and P’s judgment is less than D’s settlement offer, then P is liable to D for D’s costs incurred after the offer was made. 5. E of an unaccepted offer is not admissible except in a proceeding to determine costs. Motion for Summary Judgment “FRCP 56” In the litigation stream but before trial where P stated a plausible claim (now, NO motion to dismiss for certain subjects), any party can raise a motion for summary judgment no later than 30 days after close of discovery, by showing: (1) No genuine dispute on a material fact (through E in general); AND (2) The moving party is entitled to judgment as a matter of law. - Issue of credibility, mental state (e.g., motive, intent, conscience) is NOT suitable for summary judgment. It must be tested through a trial. Motion for partial summary judgment is allowed. CT may grant/deny it in its discretion, by considering E, in the light most favorable to the nonmoving party e.g., partial judgment for liability, but not damages: OK - For Motion to Dismiss on failure to state (Rule 12(b)(6)); Motion for Judgment on Pleadings, CT considers the face of the complaint, NOT E. Parties offer E of, with first-hand knowledge, (1) affidavits; (2) declarations; (3) deposition testimony; OR (4) interrogatory answers. (All under oath) NOT pleadings (e.g., complaint), unless it’s verified under oath - But pleadings might be “relevant” for summary judgment: if D failed to deny an allegation by P, (= D admitted that fact) it can be treated as fact (against D) on summary judgment. If opposing party needs time to find E to oppose the motion, CT may allow more time. But although not file E, such default is NOT ground of summary judgment. e.g., P was hit by a car driven by D. P sues D, alleging D ran a red light while P was in the crosswalk and crossing the street on a green light. D answers and denies these allegations. D moves for summary judgment, attaching affidavits from three witnesses saying that they saw the accident, D had the green light, and that P jumped in front of D’s car. (1) In response, if P relies on his complaint, which said D ran the red light: D entitled to Summary judgment b/c D gave E: affidavit. P gave mere complaints, NOT E. (2) Instead, P responds with an affidavit from somebody who swears that he “heard” about the accident and “was told that D ran a red light: D entitled to Summary judgment b/c we ignore affidavit based on hearsay. E must be “first-hand” knowledge. (3) Instead, P responds with deposition testimony from an alcoholic, drug addicted, convicted swindler (사기꾼) who swears that he saw the accident and the light was red for D: Summary Judgment for D is denied b/c it creates ‘a dispute on a material fact. (4) P responded that his pleading is admissible E: No, it cannot be. D entitled to summary judgment (5) Suppose an authenticated videotape of the accident scene completely discredits P’s witness’ version of the facts The CT can ignore P’s E and grant summary judgment against P. - Motion for Judgment on the Pleadings: On the face of the pleadings, the moving party is entitled to judgment. Summary judgment if accompanied by outside matters. 6. Motions at/after trial: 1. JMOL (at trial), 1. 2. RJMOL aka JNOV (after trial), 3. Motion for a New Trial (after trial) Motion for Judgment as a Matter of Law (JMOL aka “directed verdict”) (JMOL) After the other side has been FULLY heard at trial but before the case is submitted to jury, a party may move for JMOL at trial. e.g., After P presents her E at trial, D can move. CT considers E in the light most favorable to the nonmoving party. Granted if E presented at trial indicates that any reasonable person could not disagree on the result. Then, the case will NOT go to the jury. JMOL is a prerequisite for RJMOL. e.g. E coming in at trial is so clear and obvious, it can only go one way. And if a party moves for JMOL, the CT may say, You’re right It can only come out one way. Reasonable people could not disagree. Let’s enter JMOL. It does not even go to the jury. No disputed fact. Only about law. 2. Renewed Motion for Judgment as a Matter of Law (RJMOL aka judgment notwithstanding the verdict, JNOV) 3. Within 28 days after entry of judgment, a party may move for RJMOL. A party who move for RJMOL is limited to issues raised in JMOL. CT considers E in the light most favorable to the nonmoving party. Granted if E presented at trial indicates that any reasonable person could not disagree on the result. Then, the verdict is lost. Motion for New Trial (Rather than going to appeal) Within 28 days after judgment, a party may move for new trial based on any non-harmless (= serious) error that makes J consider re-do (do-over) such as: (1) J gave an erroneous jury instruction; (2) New E that could not have discovered with due diligence; (3) Misconduct by juror, party or L, etc.; (4) Judgment is against the weight of E (indicating serious error of judgment); (5) Inadequate or excessive damages. - Ordering new trial is less drastic than ordering RJMOL b/c the same party might still win. - Maybe a party was entitled to RJMOL but waived it by not moving for JMOL at trial. She could move for new trial. - If failed to make RJMOL/Motion for a New Trial based on insufficiency of E, the party is precluded from raising questions of evidentiary sufficiency on appeal. 7. REMITTITUR AND ADDITUR - When inadequate/excessive verdict (e.g., too much or small damages $) that shocks the conscience. 1. REMITTITUR: when excessive damages to P, CT gives P choice of either 1. taking a lesser amount (set by CT); OR 2. a new trial - Playing hardball with the “P”. (P 에게 강경) - Remittitur OK in ST and FED CT. 2. ADDITUR: when too small damages to P, CT gives D choice of either 1. paying a greater amount (set by CT); OR 2. a new trial. - Playing hardball with the “D”. - Additur OK in ST CT, but NOT in FED CT b/c violates P’s right to jury trial under 7th Amendment (unconstitutional) NOT unconstitutional when D is obviously liable + no dispute on damages 8. Motion for relief from order/judgment e.g., default judgment : A party may ask CT to set aside order/judgment entered. 1. Clerical mistakes can be corrected on any party’s motion without time limit. (e.g. misspelled names of parties) 2. Mistake, excusable neglect (e.g., excuse for default judgment); misconduct, fraud of the other – reasonable time (NO more than 1 year) 3. New E that could not have been discovered with due diligence for a new trial motion – reasonable time (NO more than 1 year) 4. Judgment is void (e.g., NO SMJ) – Reasonable time (No maximum) VIII. FINAL JUDGMENT AND APPELLATE REVIEW (1. Final Judgment? 2. Appealable (exceptions), 3. Standard of Review?) A. JUDGMENT 1. Final judgment rule: A party can appeal only from final judgments, an ultimate decision by the trial court of the merits of the entire case. - By filing notice of appeal in trial court within 30 days after entry of final judgment/Entry of an Order on a post-trial motion. - Extension of Time for Appeal: If not timely made, party must file Motion for Extension within 30 days after the time to appeal has expired, and show excusable neglect. District CT may extend the time for filing a notice of appeal by 1. 30 days from the time it would otherwise have run ; OR 2. 14 days from the date of the order granting the extension, whichever is later. - CT may ALSO reopen the time to appeal for 14 days, IF 1. Did not timely receive notice of entry of judgment, 2. Motion for Extension is filed within 180 days after the judgment OR within 14 days of receiving notice, which is earlier; AND 3. Opposing party will not be prejudiced. 2. If the trial court still has something to do on the merits of the case, it is NOT a final judgment, interlocutory order. - Interlocutory order may also be appealed under collateral order doctrine. -Denial of a motion for summary judgment? No. After denying summary judgment, the trial court still has the entire case before it. -Grant of a motion for new trial? No, because the trial must hold the new trial. -Denial of a motion for new trial? Yes, you must appeal within 30 days of that. -Grant of a motion to transfer the case to another district? No, that is not final, because the case is still pending at a district court. -Grant of a motion to remand to state court? In general. You cannot appeal a remand to state court. That is a statutory thing. 3. Multiple claims or parties. CT may give final judgment for some (NOT all) claims/parties, only by 1. express determination that there’s no reason for delay and 2. an entry of judgment. e.g., partial summary judgment e.g. P v. D. D makes counterclaim against P. CT enters partial summary judgment in favor of D on the first claim: NOT APPEALABLE as a final judgment b/c the counterclaim (other claims than the first claim) is still pending. IF CT Expressly finds that there’s 1. No reason for delay; and entry of judgment D can appeal on that partial summary judgment. 4. Collateral attack: Final decision on merits may be valid despite lack of SMJ (e.g., b/c nobody knew). But that final decision may be attacked in a later case (NOT by direct appeal), by balancing some factors: 1. Clear Lack of JX, 2. JX depends on Law, not facts, 3. CT is of limited JX (e.g., FED CT), 4. Question of JX was not litigated, AND 5. Strong policy exists against court’s acting beyond its JX. B. REVIEWABLE ORDER INTERLOCUTORY (NON-FINAL) REVIEW 1. Reviewable Interlocutory orders as of right 2. Interlocutory appeals act Orders granting, modifying, or refusing preliminary or permanent injunctions. (Not TRO) Review of nonfinal order is discretionary if 1. trial J certifies that: it involves a controlling issue of law as to which there is substantial ground for difference of opinion; and immediate appeal may materially advance ultimate termination of litigation; AND the 2. CT of appeals agrees to hear it. 3. Collateral order rule Appellate CT has discretion to hear ruling on an issue if the issue a. is distinct from the merits of the case, b. the legal matter is too important to be denied, AND c. is essentially unreviewable if parties must await a final judgment. (e.g. collateral claim/issue in a case) e.g., P sues ST Highway Department (SHD) for damages. SHD claims it is an “arm of the ST” and thus immune from suit under the Eleventh Amendment. Trial CT rejects the argument and orders SHD to be litigated: SHD can appeal this ruling as a collateral order (3rd requirement: immunity from suit would be lost, if SHD must wait until final judgment, to appeal.) e.g., D’s claim of governmental immunity in a case of its violation of protestor’s constitutional rights: (1) different issue from the violation; (2) grant of immunity would be completely outcome-determinative; (3) immunity gives D freedom from liability & burden of having to prepare for and going through a trial. 4. Certification of class action CT of Appeals has discretion to review an order granting or denying certification of class action. You must seek review at the CT of Appeals within 14 days after the order. If granted, the proceeding is NOT stayed at district CT, unless the CT of appeals or district CT says so. 5. Orders made appealable (or non-appealable) by writ Extraordinary appellate writ (Mandamus OR Prohibition): An original proceeding in the court of appeals to compel the trial J to make or vacate a particular order. Not a substitute for appeal; available only if the district court is violating a clear legal duty. C. STANDARDS OF REVIEW BY CT OF APPEALS. 1. On matters of law When the district J decides questions of law, CT of appeals review by de novo standard. (처음부터. We simply do it on our own) District J gives a jury instruction that put the burden of proof at trial on the wrong side. Why does the CT of appeals review that de novo? b/c the content of jury instruction (on the law) is a question of law. 2. On questions of fact In a non-jury trial, when the district J determines questions of fact, the CT of appeals will affirm unless the findings are clearly erroneous. (giving deference to trial J) Also, must give due regard to the trial J’s determination of credibility of witnesses at trial. In a jury trial, when the jury decides questions of fact, the CT of appeals will affirm unless reasonable people could not have made that finding. 3. On mixed questions of law and fact: De novo. 4. On discretionary matters e.g., whether facts meets a legal definition: mixed Q of law and fact. On discretionary matters (e.g., whether to admit w’s testimony, whether to grant a motion to amend pleadings (when no right), to allow permissive intervention, whether to consolidate/separate), CT of appeals will affirm unless district CT abused its discretion. - No reversal is required if the error is harmless. Harmless error standard: Assuming that a ruling was erroneous, whether the error is sufficiently grave that it can be affirmed. D. STAY PENDING APPEAL Judgment is enforceable during pendency of post-trial motions unless CT otherwise orders. If appeal has been filed, no execution of judgment is allowed for 14 days after entry, except injunctions or receiverships. On appeal, a supersedeas bond is required in sufficient size, to satisfy the judgment, costs, interest, and damages for delay, should the appeal be dismissed or affirmed. E. SUPREME COURT JURISDICTION USSC may review any case in the Court of Appeals by certiorari. USSC may review cases from the highest ST court by certiorari for 1. the validity of ST/FED law; OR 2. validity of ST law in violation of Constitution or federal law. IX. EFFECTS OF JUDGMENT ON FUTURE CASES - ST1 ST2: ST’s law; A. FED in diversity : FED (But in general, ST where it sits) CLAIM PRECLUSION (RES JUDICATA) 3 requirements: Unless the claim could not have been asserted against D in Case 1; limited (e.g., remedy $) JX in Case 1 (NOT 2); OR the judgment in Case 1 was based on personal defense. (=NOT final judgment?!) 1) Case 1 and Case 2 were brought by the same claimant against the same D (or one in privity w/ D). e.g., A and B are involved in a car collision. Case 1: A sues B. The case is litigated and goes to final judgment. Case 2: B sues A to recover for his injuries from the same crash. Why does claim preclusion not apply? b/c the cases were not by the same claimant against the same D. 2) But Case 2 might be dismissed b/c Compulsory counterclaim rule Case 1 ended in a valid final judgment on the merits. - Any judgment is on the merits UNLESS the judgment was on JX (PJ, SMJ), venue, or indispensable parties. e.g., Case 1: P sues D. The case is dismissed for lack of PJ. Case 2: P sues D in a CT with PJ, asserting the same claim as in Case 1. D argues for Case 2 dismissal under claim preclusion: No dismissal, b/c Case 1 was not a judgment on the merits but on jurisdiction e.g., Case 1: P sues D. Default Judgment against D. Case 2: P sues D in another CT, w/ the same claims: Yes, Claim preclusion, b/c Case 1 was a judgment on the merits. (Not on JX, Venue, indispensable parties) 3) Case 1 and Case 2 asserted the same claim. (same T/O) - Majority (including FED law): if seeks any right arising from the same T/O - Important minority (some STs): Property damage and personal injuries from the same T/O are separate claims b/c they are different “primary rights.” Case 1: P sues D for personal injuries sustained in an auto collision. A valid final judgment on the merits is entered. Case 2: P sues D, for property damage from the same crash. Should the court dismiss Case 2 under the doctrine of claim preclusion? 1. Were Case 1 and Case 2 brought by the same claimant against the same defendant? Yes, they were both P vs D. 2. Did Case 1 end in valid final judgment on merits? Yes. 3. Did Case 1 and Case 2 assert the same claim? Split of authority. In majority view, claim preclusion. In Minority, No. B. ISSUE PRECLUSION (COLLATERAL ESTOPPEL) 5 Requirements: Not one held by guilty plea a. Case 1 ended in a valid final judgment on the merits. b. The same issue was actually litigated and determined in Case 1. Jury’s verdict for/against ~= NOT enough c. The issue was essential to the judgment in Case 1. (= the finding on this issue is the basis for the judgment) e.g., P sues D for negligence. Under applicable law, contributory negligence would bar P from recovery. D asserts the affirmative defense of contributory negligence. The case is tried and the jury makes the express finding that P was contributorily negligent. Judgment is entered for D. Is the finding on P’s negligence “essential?” Yes. It’s the reason why D won the case. d. Issue preclusion can be asserted against ONLY a party to Case 1 (or one in privity w/ D = one represented by the party- a class action) b/c of DPC. e. A current party (see below) (or someone represented by the party) can assert Issue preclusion. - Nonmutual” Issue Preclusion: when someone who was not a party to Case 1 tries to use issue preclusion in Case 2: (a) Nonmutual defensive issue preclusion: Non-party in case 1 can use issue preclusion if the other party had a full chance to litigate in case 1. e.g., Roommate, driving your car, is involved in a car collision with Joey. You are vicariously liable for Roommate’s acts. Case 1: Joey sues Roommate. Roommate wins, based on a finding that Joey was negligent, which caused the wreck. The CT enters final judgment for Roommate. Case 2: Joey sues you. Can you assert issue preclusion as to the finding of Joey’s negligence? (1) Did Case 1 end in a valid, final judgment on the merits? Yes. (2) Was the same issue litigated and determined in Case 1? Yes, Joey’s negligence. (3) Was that issue essential to the judgment in Case 1? Yes, it is why Roommate won. (4) Is issue preclusion being asserted against one who was party to Case 1? Yes, against Joey. (5) BUT, it is being asserted BY someone (you) who was NOT party to Case 1, and you are D in Case 2. Most CTs say it’s OK so long as Joey had a full chance to litigate in Case 1. (b) Nonmutual offensive issue preclusion: In general, NO. e.g., Same facts, except Case 2 is brought by you against Joey. You sue to impose upon Joey liability for damage to your car from the wreck Joey had with Roommate. You want to assert issue preclusion on the finding in the first case that Joey was negligent. (You don’t want to re-litigate on that issue) Can you? (1)-(4) As above, the first four requirements are all met. (5) The only tough part is the fifth, b/c issue preclusion is asserted non-mutually. And here, the person asserting it is a P. Under the mutuality rule, Majority Law: No issue preclusion allowed. *Trend (including FED Law): Yes Issue Preclusion allowed for nonmutual offensive, IF IT IS NOT “UNFAIR.” Factors: (a) Joey had a full and fair opportunity to litigate in Case 1. (b) Joey had an incentive to litigate strongly in Case 1 (he did b/c he knew that you owned the car, so he did not want to lose Case 1 b/c you might then sue him). (c) You (Case 2 P) could not have joined easily in Case 1. (if you could have, maybe you should have, and been bound by that judgment). (d) There are no inconsistent findings on this issue. – So if there had been multiple cases about this wreck, and sometimes Joey was found negligent and sometimes not, it would be unfair to let you get issue preclusion on a negligence finding. (litigate on that issue again b/c sometimes he was found negligent, sometimes not.) TIME PERIODS 14 Days Expiration of TRO: 14 days, additional 14 days possible. Motion for more definite statement: If granted, the opposing party has 14 days to obey the order. Motion to dismiss: Responsive pleading must be served within 14 days After motion to dismiss is granted/denied. Impleader (TTP): 14 days after serving D’s answer; otherwise, need CT’s leave Initial discovery: 14 days after 26(f) conference. Requirement of pretrial discovery: within 30 days before trial object within 14 days after the disclosure. Demand jury trial within 14 days after the last pleading constituting jury trial issue Offer to settle: at least 14 days before trial Appeal on certification of class actions: within 14 days after granting/denying certification. 21 Days Motion to strike: before responding to pleading or within 21 days after service of pleading if no responsive pleading is permitted. Answer (or motion): 21 days after served; If waived SOF, 60 days (90 days, if outside US) after receiving the waiver form Amended pleading: ONCE 21 days after serving pleading/responsive pleading or pre-answer motion. Fixing problem on certification based on Rule 11 motion, harbor safety of 21 days 28 Days RJMOL: within 28 days after entry of judgment; 30 Days Removal: 30 days after D receives notice that it is removable. Motion for new trial: within 28 days after judgment Waiver of SOF: 30 days (D outside US, 60 days) after the date that the request was sent. Service of other document: 30 days (33 days if mailed) after received. Discovery (interrogatory; request for production; request for admission): must answer/object within 30 days after service to respond. Summary judgment: within 30 days after the close of all discovery Appeal: within 30 days after entry of judgment; (extension: 30 days; can be extended 30 days/14 days(L); additionally extended 14 days … IF 180 days/14 days(E)) 90 Days SOF: 90 days after filing (may be extended) Requirement of expert testimony: within 90 days before trial, or as set by CT 1 Year Removal based on diversity: 1 year limit * Discretionary: supplemental JX, transfer, temporary restraining order, preliminary injunction, supplemental pleading, permissive intervention, summary judgment, Interlocutory appeal act, collateral order rule, amend pleadings (시간 놓쳐서 right 없을 때), consolidate/separate trials - Submit proposed jury instruction: at the close of E - Notice of hearing for default judgment by CT: within 7 days before a hearing, when D has appeared in the case. - P’s voluntary dismissal before D’s answer or motion to summary judgment (otherwise, need a leave of CT) - JMOL: After the other party has been heard, but before it is submitted to the jury - Removal (FED+ST): Remove all, and sever/remand ST claims. - Standard of reviews: Q of law and facts, de novo - Harmless: IF already admitted= required discovery, jury verdict, trial decision Waive - If P does not remand for reasons other than lack of SMJ within 30 days after the notice is filed. - If D does not raise affirmative defenses in his answer, waive. - If D fails to bring compulsory counter-claim in his answer, waive.
