GENERAL RULES:
Under FRCP, a party who wishes to have a jury trial must file a demand with the court for a jury
trial. The demand must be made within 14 days after the last pleading related to the issue is
served or else the demand is waived.
Improperly plead complaints are vulnerable to motions to dismiss.
FRCP 35 governs physical or mental examinations. FRCP 35 states that the physical and mental
examinations are only available through court order where a person’s physical or mental
condition is an issue in the case; it requires the requesting party to show that the opposing party’s
health or condition is in controversy.
A judgment as a matter of law is a motion that may be made by any party at any time before
submission of the case to the jury, and the moving party must specify the judgment sought and
the law and facts on which the party is entitled to judgment. The motion may be granted only
after the nonmoving party has been fully heard on the matter and the court must find that a
reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that
issue. A motion for a new trial, however, is granted because of an error during the trial, because
the verdict is against the weight of the evidence, or because the verdict is excessive or
inadequate. The appellate court could decide that the party that lost is not entitled to a judgment
as a matter of law but is entitled to a new trial, thus reversing in part and affirming in part the
trial court’s rulings.
Insufficient service of process? Motion to dismiss
Federal question jurisdiction exists only when an issue of federal law is presented in the
plaintiff’s complaint (the “well-pleaded complaint” rule). Under this rule, the determination of
jurisdiction must be made by considering only the necessary elements of the plaintiff’s cause of
action, and not potential defenses.
There is a 30 day limit for filing a notice of removal. There is no requirement that the notice be
filed before the defendant files an answer. Removal of a state action to federal court is a right
that can only be exercised by the defendant. Any civil action commenced in a state court that is
within the original jurisdiction of a U.S. district court may generally be removed by the
defendant to the district court for the district and division in which the state court action is
pending.
In order for subject matter jurisdiction based on diversity to exist, the amount in controversy
must exceed $75,000 and no plaintiff may be a citizen of the same state as any defendant.
The court may exercise supplemental jurisdiction over a counterclaim that arises out of the same
case or controversy as the original claim.
Under Rule 12(b), the defense of lack of jurisdiction over the person must be asserted in a
responsive pleading or by motion before a responsive pleading is submitted. A failure to object
in accordance with Rule 12 waives the objection.
A federal court must generally determine whether personal jurisdiction exists as if it were a court
of the state in which it is situated. The service of summons in a federal action establishes
personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located.”
The court may not exercise personal jurisdiction over a defendant unless the long-arm statute
applies and the defendant has “minimum contacts” with the state in which the court sits, and the
exercise of jurisdiction would be fair and reasonable. Any attempt to gain in personam
jurisdiction, under whatever basis, is subject ot the requirement of minimum contacts.
When personal jurisdiction is based on the defendant’s ownership of property located in the
forum state (a quasi in rem action), a federal district court generally does not have personal
jurisdiction over the matter if the defendant’s contacts with the forum state are insufficient to
support long-arm jurisdiction over the defendant’s person. The mere existence of personal
property, such as a bank certificate or deposit, owned by the defendant and located within the
forum state is insufficient to permit the court to exercise personal jurisdiction.
A federal court with diversity jurisdiction must apply the state conflicts of law rules for the state
in which it sits.
A trial court has discretion to grant a motion for a new trial on all or some of issues for a variety
of reasons, including an excessive verdict. A court is not required to give a plaintiff the option of
remittitur instead of a new trial—it may do so at its own discretion.
A summary judgment constitutes a final judgment on the merits.
A court cannot exercise supplemental jurisdiction over a claim that was permissively joined
under Rule 20.
The DPC requires that the defendant have sufficient minimum contacts with the forum state in
order for a court to exercise personal jurisdiction over the defendant.
In an in rem action, the forum court generally has personal jurisdiction over a defendant when
the dispute centers on ownership of property located in the forum state. Under Rule 12, a
defendant may raise the defense of lack of personal jurisdiction in a pre-answer motion to
dismiss or, if no pre-answer motion to dismiss is made, in her answer.
If a plaintiff has failed to allege facts sufficient to support a cognizable legal claim, then a
12(b)(6) motion to dismiss for failure to state a claim is appropriate.
A nonparty such as a private law firm has the right to intervene when a federal statute grants that
right.
In order to bring a class action under CAFA, the total amount in controversy must exceed $5
million. Only minimal diversity between the parties is required. The number of class members
must be at least 100.
Unless otherwise agreed by stipulation or ordered by the court, each party must provide to the
other parties for inspection and copying, any insurance agreement under which an insurance
business may be liable to satisfy all or part of a possible judgment in the action or to indemnify
or reimburse for payments made to satisfy the judgment.
Orders concerning injunctions are appealable immediately as a matter of right. Injunctive orders
are the exception to the general rule that non-final judgments ordinarily cannot be appealed (the
final judgment rule).
When parties file suit to an improper venue, a court must either dismiss the case or transfer the
case to a venue where the action could have initially been brought.
Federal Rule 56 does permit a defendant to obtain a judgment in its favor on the basis of
affirmative defenses.
The collateral order doctrine is a narrow exception to the finality requirements for appeals.
Under this doctrine, a claim or issue may be immediately appealable if it is too important to wait.
There are three requirements: (1) the lower court must have conclusively determined the
disputed question; (2) the issue must be separate from and collateral to the merits of the main
issue of the case; and (3) the issue must be effectively unreviewable on an appeal from the final
judgment.
Typically applies to immunity and double jeopardy
Specific performance is a purely equitable remedy.
A party who has made a motion for judgment as a matter of law during the trial has the option to
make a renewed motion for judgment as a matter of law, following a judgment being entered
against them. The party simply must renew its motion no later than 28 days after judgment is
entered against them.
ESSAY ANSWERS:
The issue is whether, under the federal rules, a defendant may amend its answer after the
close of discovery and to add a well-established affirmative defense.
Generally, the Defendant’s answer must state any avoidance or affirmative defense that
the defendant has, or that is deemed waived. However, the Rules also provide that
pleadings can and should be amended by leave of the court when justice requires it.
Courts will generally permit the amendment unless it would result in undue prejudice to
the opposing party.
The issue is whether summary judgment is appropriate when Plaintiff’s response to
discovery supports Defendant’s affirmative defense but there might remain issues of
material fact.
A motion for summary judgment should be granted if the pleadings, discovery, and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law. A
genuine issue of material fact exists when a reasonable jury could return a verdict in
favor of the non-moving party. In a ruling on the motion for summary judgment, the
court is to construe all evidence in the light most favorable to the non-moving party and
resolve all doubts in favor of the non-moving party.
At issue is whether [party] should be allowed to intervene as a matter of right when it has
an interest in the action.
Under Rule 24, a nonparty has the right to intervene in an action when, upon timely
motion, (1) the nonparty has an interest in the subject matter of the action; (2) the
disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s
interest is not adequately represented by existing parties. The burden is on the seeking
party to intervene.
Temporary restraining order
A temporary restraining order preserves the status quo of the parties until there is an
opporutnity to hold a full hearing on whether to grant a preliminary injunction. A TRO
has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO
can be issued without notice to the adverse party if the moving party can show (1) that
immediate and irreparably injury will result prior to hearing the adverse party’s
arguments and (2) the efforts made at giving notice and the reason why notice should not
be required. Additionally, the party seeking a TRO must post a bond to cover the costs in
the event the TRO is issued wrongfully.
The issue is whether [party] could obtain a preliminary injunction to prevent [other party]
from [doing something].
A preliminary injunction can be issued if the opponent is given notice and the court holds
a hearing on the issue. A party seeking a preliminary injunction must establish that (1) the
party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in
the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in
the best interest of the public. Additionally, the party seeking the preliminary injunction
must provide a bond to cover the costs in the event the preliminary injunction is issued
wrongfully.
The issue is whether a judgment in a prior action preclude a nonparty from suing the same
defendant on a closely related claim when the nonparty and the original party are in a
family relationship.
The doctrine of claim preclusion (res judicata) provides that a final judgment on the
merits of an action precludes the parties from successive litigation of an identical claim in
a subsequent action. For claim preclusion to apply, the claimant and the defendant must
be the same (and in the same roles) in both the original action and the subsequently filed
action. Because application of claim preclusion is limited to the parties (or their privies),
a similar action by a different party would not be precluded.
The issue is whether a judgment rendered in an earlier action preclude a nonparty from
litigating an issue that was actually decided in the first suit.
The doctrine of issue preclusion (collateral estoppel) precludes the relitigation of issues
of fact or law that have already been necessarily determined by a judge or jury as part of
an earlier claim. Unlike claim preclusion, issue preclusion does not require strict
mutuality of parties, but only that the party against whom the issue is to be precluded (or
one in privity with that party) must have been a party to the original action. Other
elements necessary for issue preclusion to apply are that (i) the issue sought to be
precluded must be the same as that involved in the prior action; (ii) the issue must have
been actually litigated in the prior action; (iii) the issue must have been determined by a
valid and binding final judgment; and (iv) the determination of the issue must have been
essential to the prior judgment.
Trial courts have broad discretion to determine when issue preclusion should apply. If a
plaintiff could easily have joined in the earlier action, a trial judge should not allow use
of offensive collateral estoppel.
The issue is whether the defendants have sufficient contacts with State A to warrant
personal jurisdiction.
In general, due process requirements are satisfied if the nonresident defendant has
sufficient minimum contacts with the forum state such that the maintenance of the action
does not offend traditional notions of fair play and substantial justice. The scope of the
contacts necessary for the assertion of personal jurisdiction depends on the relationship
that the cause of action has with the forum states. When a cause of action does not arise
out of or relate to the defendant’s contacts with the forum, the court must resort to
general jurisdiction.
To determine whether a foreign corporation is subject to a state’s general jurisdiction, the
proper inquiry is whether a corporation’s affiliations with the forum state are so
“continuous and systematic” as to render the corporation essential “at home” in the forum
state. A corporate defendant is always “at home” in the state of the corporation’s place of
incorporation and, if different, the state of its principal place of business. In exceptional
cases, a corporate defendant’s operations in another forum may be so substantial and of
such a nature as to render the corporation “at home” in that state even if the state is not
the corporation’s place of incorporation or principle place of business, but such cases are
rare.
However, even when general jurisdiction is available, the court will have specific
jurisdiction over a defendant when the cause of action arises out of or closely relates to a
defendant’s contact with the forum state.
The Supreme Court has held that merely placing a product in the stream of commerce
with awareness that it might reach a particular state is not a sufficient basis to exercise
jurisdiction over the manufacturer of the product. Even when foreseeable, unless the state
was targeted, jurisdiction is not established.
At issue is whether the court has subject matter jurisdiction over the claims via federal
question, diversity, or supplemental jurisdiction.
Federal courts have original jurisdiction of all civil actions arising under the laws of the
United States. In general, if the cause of action is expressly created by federal law, and
federal law provides the underying right, then federal question jurisdiction will exist.
Under the well-pleaded complaint rule, the federal law must be presented in the
plaintiff’s complaint.
When the district court’s subject matter jurisdiction for a claim is based on the existence
of a federal question, additional claims against the same party can be heard by the court
through the exercise of supplemental jurisdiction if the common nucleus of the operative
fact test is met. Claims arise out of the same nucleus of operative fact if they are part of
the same case or controversy or should be tried together.
A district court has discretion to decline to exercise supplemental jurisdiction (i) over
claims that raise new or complex state law issues or that substantially predominate over
claims within original federal jurisdiction; (ii) when the claims within the court’s original
jurisdiction are dismissed; or (iii) if there are other compelling reasons for declining
jurisdiction in exceptional circumstances.
Insufficiency of Service of Process—Waiver
A defendant may file a motion under FRCP 12(b) to raise several different defenses,
including failure to state a claim on which relief can be granted and insufficient service of
process. These defenses must be raised in the first pre-answer motion (or if none, in the
answer), or else they are generally waived. Although not specifically provided for in the
rules, courts have generally allowed a party to amend a motion to dismiss to raise an
omitted ground if the party acts promptly and before the court rules on the original
motion.
Cross-Claim
The Rules provide that an answer may state as a cross-claim any claim against a codefendant, as long as the cross-claim arises out of the same event that is the subject of the
original claim. The cross-claim must arise out of the same transaction or occurrence as
the original claim, involve the same factual or legal issues, and will be relevant to present
the same eyewitness evidence in support of proof of both claims.
Supplemental Jurisdiction
When a federal district court has jurisdiction over a claim, the court can assert
supplemental jurisdiction over additional claims which the court would not independently
have subject matter jurisdiction if they arise out of a “common nucleus of operative fact.”
CIVIL PROCEDURE
Claim preclusion (res judicata) requires:
(i)
Valid final judgment on the merits
(ii)
Sufficiently identical cause of action
(iii)
Sufficiently identical parties
What is a compulsory counterclaim?
Claim arises out of same transaction or occurrence that is the subject matter of the
opposing party’s claim and claim doesn’t require adding another party over whom the
court cannot acquire jurisdiction
Three types of personal jurisdiction:
In personam jurisdiction
In rem jurisdiction
Quasi in rem
Standard of review for findings of law is de novo
Three types of mandatory disclosures
(1) Initial disclosures
(2) Disclosures of expert testimony 90 days before trial
(3) Pretrial disclosures 30 days before trial
Under rule 15(a) a party may amend a pleading:
(i)
Once as of right within 21 days if no responsive pleading is required; or
(ii)
If a responsive pleading is required, within 21 days of service of the responsive
pleading or within 21 days of being served with a motion under rule 12(b),
whichever is earlier
The court should freely give leave to amend a pleading when justice so requires.
Preliminary injunction
(1) Likely to succeed on the merits
(2) Likely to suffer irreparable harm in absence of relief
(3) Balance of equities in his favor
(4) Injunction is in the best interest of the public
Any party may make a demand for trial by jury. The demand must be in writing. It may be filed
separately or made in a pleading. It must be served within 14 days after service of the last
pleading directed to the issue that is sought to be tried by a jury.
A party may file a renewed motion for judgment as a matter of law no later than 28 days after the
final judgment was made.
Certain equitable orders are reviewable immediately as a matter of right, including an order
granting, modifying, refusing, or dissolving an injunction; an order appointing or refusing to
appoint a receiver; and a decree determining the rights and liabilities of the parties to admiralty
cases in which appeals from final decrees are allowed.
A party may bring a motion for a judgment as a matter of law at any time before the case is
submitted to the jury. Note, if the party moves for JMOL after the close of the plaintiff’s case
and the motion is denied, then the party may be unable to pursue a RMJMOL after entry of
judgment unless the party also moves for JMOL after the presentation of all evidence.
Impleader is when a defendant brings in a third party who may be liable in whole or in part for
the plaintiff’s injury.
Federal question jurisdiction is jurisdiction that arises out of a federal statute or the constitution.
Under Rule 20 permissive joinder, the defendant to be joined does have to meet the requirements
of federal subject matter jurisdiction.
The defense of lack of subject matter jurisdiction can be made any time, even on appeal.
The standard used in deciding a motion for judgment as a matter of law is if the court finds that
there is insufficient evidence for a jury to reasonably find for that party. The court must view the
evidence in the light most favorable to the opposing party and draw all reasonable inferences
from the evidence in favor of the opposing party.
Venue is proper when the claim is brought (1) in a judicial district in which any defendant
resides, if all defendants reside in the same state in which the district is located; or a judicial
district in which a “substantial part of the events or omissions” on which the claim is based
occurred, or where a “substantial part of the property” that is the subject of the action is located.
A Rule 12(b)(6) motion for failure to state a claim can be dismissed if it either
(1) Fails to assert a legal theory of recovery that is cognizable at law, or
(2) Fails to allege facts sufficient to support a cognizable claim.
In deciding a motion under Rule 12(b)(6), courts treat all well-pleaded facts of the
complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the
pleading in the light most favorable to the plaintiff.
A plaintiff may be joined as a permissive joinder if
(1) They assert any right to relief jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or
occurrences; and
(2) Any question of law or fact common to all plaintiffs will arise in the action.
The same circumstances apply to permissive joinder of defendants.
The summons and complaint must be served by the plaintiff within 90 days of filing
The required elements for a complaint are a short and plain statement of the grounds that
establish the court’s subject matter jurisdiction, a short and plain statement of the claim
establishing entitlement to relief; and a demand for judgment for the relief sought by the pleader.
Certain defenses are waived unless raised in the pre-answer motion. These defenses include lack
of personal jurisdiction, improper venue, insufficient process, insufficient service of process.
Notice is not required for a temporary restraining order when
(1) The moving party can establish, under written oath, that immediate and irreparable
injury will result prior to hearing the adverse party’s opposition; and
(2) The movant’s attorney certifies in writing any efforts made to give notice and the
reason why notice should not be required.
Each party has 3 peremptory challenges and an unlimited amount of challenges for cause.
Supplemental jurisdiction works for plaintiffs to be joined under Rule 20.
A temporary restraining order can remain in effect for no longer than 14 days.
When a class action is brought under a common legal or factual question, there are seven pieces
of information that must be stated in the notice provided to the members. (1) the nature of the
action; (2) the definition of the class; (3) the class claims, issues, or defenses; (4) that a class
member may enter an appearance through an attorney if the member so desires; (5) that the court
will exclude from the class any member who requests exclusion; (6) the time and manner for
requesting exclusion; (7) the binding effect of a class judgment on members.
There are four requirements for a class action. (1) A number of parties that would be impractical
to be joined together (numerosity); (2) a common legal or factual question (commonality); (3)
the claims or defenses of the representatives must be typical of the class (typicality); and (4) the
representatives must fairly and adequately protect the interests of the class (adequacy).
A defendant has 21 days to respond to a complaint.
Federal courts of appeals have jurisdiction over final judgments. A final judgment is a decision
by the court on the merits that leaves nothing for the court to do but execute the judgment.
Under the Erie Doctrine, federal law governs in a federal question claim.
A party may serve 25 interrogatories on another party.
The plain error rule permits an appellate court to take notice of a plain error that affects a
substantial right, even though a party failed to object or make an offer of proof at trial.
The standard of review for a court’s discretionary actions is abuse of discretion.
A party has 30 days to respond to interrogatories.
An injunction is a form of equitable relief mandating that a defendant perform a specified act or
prohibiting a defendant form performing a specified act.
Under the Erie Doctrine, in a diversity action, federal procedural law and state substantive law
will govern.
The due process requirement for in personam jurisdiction is the nonresident defendant must have
minimum contacts with the forum state that maintenance of the action will not offend traditional
notions of fair play and substantial justice.
A court will consider three factors when deciding to set aside a default judgment: (1) whether the
defendant’s failure to act was willful; (2) whether setting the default aside would prejudice the
plaintiff; and (3) whether the defendant has presented a meritorious claim.
A court has diversity jurisdiction when the parties are domiciled in different states and the
amount in controversy exceeds $75,000.
Default and a default judgment is entered against a party when a party fails to plead or otherwise
defendant an action and that failure is shown by affidavit.
A party must be joined as a compulsory joinder under Rule 19 if: (1) complete relief cannot be
provided to existing parties in the absence of that person; (2) disposition in the absence of that
person may impair the person’s ability to protect his interest; or (3) the absence of that person
would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.
There are three types of class actions: (1) common question of law or fact, risk of prejudice, and
final equitable relief.
For the purposes of venue, a defendant business entity resides in its principal place of business or
where the business has been incorporated. If the entity is a plaintiff, it is deemed to reside only in
the judicial district in which it maintains its principal place of business.
There are six grounds for a court to grant a motion for a new trial: (1) error at trial that renders
the judgment unfair; (2) newly discovered evidence that existed at the time of the trial was
excusably overlooked and would likely have altered the outcome of the trial; (3) prejudicial
misconduct of counsel, a party, the judge, or a juror; (4) a verdict that is against the clear weight
of the evidence; (5) a verdict that is based on false evidence; or (6) a verdict that is excessive or
inadequate.
Two claims are considered related for purposes of supplemental jurisdiction if there is a common
nucleus of operative facts.
An objection to improper venue must be raised in a pre-answer motion or a defendant’s answer.
Seven defenses may be raised in a motion filed under Rule 12(b):
(1) Improper venue
(2) Improper process
(3) Improper service of process
(4) Improper subject matter jurisdiction
(5) Lack of personal jurisdiction
(6) Failure to state a claim under which relief can be granted
(7) Failure to join a necessary or indispensable party under Rule 19
The party who filed the motion for summary judgment has the burden of proof in a claim for
summary judgment. Once the movant makes a prima facie showing that SJ is appropriate, the
burden shifts to the opposing party to set forth specific evidence showing the existence of a
genuine issue of fact for trial.
An individual in the U.S. may be served in three ways.
(1) Personally serving the summons and complaint on the defendant
(2) Leaving the summons and complaint at the defendant’s usual place of abode with a
person of suitable age and discretion who resides there; or
(3) Delivering the summons and complaint to an agent appointed by the defendant or
otherwise authorized by law to receive service
The standard of review for findings of fact is clearly erroneous.
There are five bases for in personam jurisdiction:
(1) Voluntary presence
(2) Domicile
(3) Consent
(4) Long-arm statutes
(5) Attachment
CIV PRO SMARTSHEETS
Supplemental jurisdiction: allows a party to bring a state claim in federal court that does not
meet the requirement of SMJ. A fed court may exercise supplemental jurisdiction when such
claim arises from a common nucleus of operative fact as the other claims the court has SMJ over
(the claims must arise out of the same transaction or occurrence).
Limitations of SupJ:
-Supp. Jurisdiction CANNOT be used to overcome a lack of diversity. It
CANNOT be asserted if it would violate complete diversity.
A court MAY decline to exercise supp. juris. When:
(a) a claim raises a novel or complex issue of state law
(b) a claim substantially predominates over the other claim which the court has
SMJ
(c) the court dismissed all claims that had federal SMJ; OR
(d) in exceptional circumstances
Removal: defendant may remove a case to fed court (in the district where the state court case
was originally filed) if:
(1) the federal court has SMJ
(2) all defendants agree
(3) no defendant is a resident of the forum state;
AND
(4) removal is sought within 30 days of service of the summons or receiving the initial
pleading (whichever is shorter)
A plaintiff CANNOT remove a case to fed court
Long arm jurisdiction: to assert PJ over a non-resident:
(1) the state must have a long arm statute; AND
(2) must comply with constitutional due process: D must have sufficient minimum
contacts with the forum state so as to not offend traditional notions of fair play and
substantial justice.
a. minimum contacts: (contacts + relatedness)
general: contacts are so substantial and of such a nature that D is
essentially at home; OR
individuals = domicile in state
corps = where corp is “at home” (state of incorporation or principal
place of business)
specific: connection between forum state and underlying controversy
AND lawsuit must relate/arise from D’s contact with the state
regularly occurring product sales in a state DOES NOT justify
jurisdiction of a claim unrelated to those sales
b. fair play and substantial justice
Service of process & notice:
Timing: summons and complaint MUST be served on D within 90 days after filed with
the court. Otherwise, the court must: (a) dismiss the action without prejudice against
defendant; OR (b) order that service be made within a specific period of time
Process server: service made be made by any person who is: (1) at least 18, AND (2) not
a party to the action
Method of service: the method o service must be consistent with DPC: reasonably
calculated to make the parties aware of the action and give them an opportunity to object.
Individual: may be served (a) personally; (b) via someone of suitable age and
discretion at the individual’s current dwelling or usual place of abode; (c) via an
agent (by appointment or by law); OR (d) in accordance with state law of the
forum state or where service is made
Corporation, partnership, or association: may be served (a) in accordance with
state law of forum state or where service is made; OR (b) to an officer or
managing/general/authorized agent
Foreign defendant: may be served via any manner NOT prohibited by
international agreement
Proper venue & transfer of venue:
Proper venue: venue is proper in any district where: any defendant resides (if all
defendants are residents of the forum state); a substantial portion of the claim occurred; a
substantial portion of the property is located; or if none of the above, then where any
defendant is subject to the court’s personal jurisdiction.
*Proper venue is determined at the time the action was filed
Transfer of venue: if venue was proper when the case was filed, the court MAY transfer
it if: needed for the convenience of the witnesses or in the interests of justice; AND the
case could have initially been brought in the receiving court (court has PJ and SMJ).
If venue was improper when the case was filed, the court MUST either: dismiss the
case OR transfer the case to a proper court if the interests of justice require it.
Forum selection clause: courts will enforce a forum selection clause UNLESS special
factors are present (significant/unusual hardship, inequality of bargaining power).
Erie: applies when fed case is brought under diversity of citizenship action. Fed courts will
apply federal procedural law BUT must apply the substantive law of the forum state in which it
sits.
Substance v. procedure:
Procedural law: civil procedure rules, statute of limitations (except in limited
circumstances), burden of proof, and rebuttable presumptions
Substantive law: choice of law rules, statute of frauds, irrebuttable presumptions,
statute of limitations that condition a substantive right or have a borrowing statute
When substantive federal law applies: federal law will apply for matters governed by
the U.S. constitution, laws that passed by Congress, and valid federal law that preempts
state law under the supremacy clause
Preliminary injunction: maintains the status quo pending the outcome of an action
May be issued only:
(1) upon notice to the adverse party, AND
(2) if the moving party gives security/bond (used to reimburse non-movant for injury
caused by the injunction if the moving party is not successful on the merits)
Traditional 4 prong test requirement:
(1) likelihood of P’s success on the merits
(2) likely threat of irreparable harm to the movant
(3) the harm alleged by movant outweighs any harm to the non-moving party
(balancing the harm); AND
(4) injunction is in the public interest
TRO: is an emergency remedy used to maintain the status quo pending the outcome of a
preliminary injunction application. To be used, a movant must allege immediate and irreparable
harm, and a court will analyze the same factors as a preliminary injunction.
Ex parte TRO: moving party MUST:
(1) provide specific facts in a sworn statement showing immediate and irreparable injury,
injury loss, or that damage will result before an adverse party can be heard; AND
(2) certify in writing any efforts made to give notice to the adverse party and WHY notice
should not be required
If granted, an ex parte TRO automatically expires after 14 days, UNLESS (a) the court
sets a shorter time frame for automatic expiration; (b) the court extends it for good cause;
or (c) the parties’ consent
The adverse party may move to dissolve or modify the TRO on 2 days notice
Amendments to pleadings:
As of right: allowed to amend once as a right within 21 days of service of:
The original pleading OR a responsive pleading or pre-answer motion to the
original pleading
By permission: in all other cases, an amendment is allowed:
With the opposing party’s written consent; OR with leave of the court upon
motion (should be freely granted when justice so requires)
Adding affirmative defenses: a party must set forth all affirmative defenses in the claim
alleged. If a party fails to do so, the pleading MUST be amended.
Waived defenses: if the following defenses are NOT included in D’s first response
(answer/pre-answer motion) they are deemed waived:
Lack of PJ
Improper venue
Insufficient service of process
Insufficient process
BUT courts have allowed adding waivable defenses to MTD when: (1) promptly
made; AND (2) its prior to a hearing on the original motion
Same transaction or occurrence factors: courts analyze whether
(1) issues of fact and law are largely the same
(2) res judicata would bar a subsequent suit
(3) substantially the same evidence supports or refutes a claim
(4) If there is any logical relation between the claim and counterclaim
*the presence of any factor above supports that the claim arises out of the same
transaction or occurrence
Intervention as of right: a court MUST permit a non-party to intervene in an action if it
demonstrates:
(1) that the application to intervene is timely;
(2) an interest in the subject matter of the action
(3) that protection of this interest would be impaired; AND
(4) such interest is not adequately represented by existing parties in the action
Permissive intervention: a court MAY allow a non-party to intervene when the non-party:
(1) files a timely motion; AND
(2) either:
(a) has a claim/defense that shares a common question of law or fact with the
main action; OR
(b) is given a conditional right to intervene by federal statute
*the court must consider whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.
Summary judgment motion: a court will grant a SJ motion when:
(1) there is no genuine issue of material fact; AND
(2) movant is entitled to judgment as as matter of law
*the court MUST view the evidence in the light most favorable to the non-moving party
A SJ motion may be sought on the entire case or for certain issues (partial
summary judgment). If a motion to dismiss (or motion for judgment on the
pleadings) presents matters outside the pleadings, the court may treat the motion
as a SJ motion
Motion for judgment as a matter of law: may be brought at nay time before the case is
submitted to the jury.
JMOL will be granted if:
(1) the non-moving party has been fully heard on the issue during a jury trial; AND
(2) the court finds that a reasonable jury would not have a legally sufficient basis to rule
in favor of the non-moving party on that issue
*the court MUST draw all reasonable inferences in the light most favorable to the
opposing party
Renewal of JMOL: a party may renew its JMOL motion only if it moved before the case
was submitted to the jury. A renewed JMOL motion must be filed within 28 days of the
entry of judgment.
Motion for a new trial: court may grant a new trial for any reason for which a new trial has
been granted in federal court. Must be filed no later than 28 days after the entry of judgment.
Grounds for a new trial:
Error at trial that makes judgment unfair
New evidence surfaced that could not be obtained with due diligence for the
original trial
Prejudicial misconduct of a party, attorney, third-party, or juror
Judgment was against the weight of the evidence; OR
Verdict was excessive or inadequate.
Claim preclusion (res judicata): precludes a party from subsequently re-litigating any claim
that was or could have been raised
Elements: claim preclusion may be invoked when:
Parties are identical or in privity
Prior judgment was rendered by a court of competent jurisdiction
Final judgment on the merits in the prior action
Same claim was involved in both actions (same transaction or occurrence)
Privity exists when the non-party has a legally recognized relationship with the original
party and would be bound by a judgment against the original party
Issue preclusion (collateral estoppel): precludes a party from attempting ot retry an issue if
there has been a final judgment on the merits by a court of competent jurisdiction.
Elements: issue preclusion may be invoked when:
Valid and final judgment was rendered in the first action;
Issue is identical to the issue decided in the prior action;
Issue was actually litigated, determined, and essential in the prior action; AND
Party against whom enforcement is sought had a full and fair opportunity to
litigate the issue in the prior action
*Generally, a non-party to a prior action MAY assert issue preclusion