Civ Pro Outline 2nd Semester

8/3/2019 Civ Pro Outline 2nd Semester

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Not email.i.Waiving party can accept service via maila.

Agreement to waive1.

Court can impose reasonable fees on non-waiving partyi.If party refuses to waive formal servicea.

Failure to waive, without good cause2.

FRCP 4(d)2 - Waiver

Instead of 21 daysi.Gets 60 days to responda.

Domestic Party1.

Instead of 21i.

Gets 90 days to responda.Foreign Party2.

FRCP 4(d)3 - Incentives

Follow State Lawa.Deliver process to party personallyb.

W/someone of suitable age; andi.Suitable discretionii.

Leave service at party's dwellingc.

Deliver to Authorized Agentd.

Service Requirements1.FRCP 4(e) - Individuals

Follow State Lawa.

Appointed by company; ori.Appointed by law.ii.

Deliver to Officerb.

Service Requirements1.FRCP 4(h) - Corporations

D must be served w/in 120 days after (amended) complaint is filed1.FRCP 4(m) - Time to Serve

FRCP 4 - ServiceThursday, April 28, 20119:34 AM

FRCP 4 Pa e 1


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Short and Plain Jurisdictional Statement1.Short and Plain statement of the claim showing that pleader is entitled to relief 2.A demand for the relief sought.3.

FRCP 8(a) - Complaint

Factual allegations in the complaint must suffice to raise a right to relief above the speculativelevel to a plausible level

1.Twombly/Iqbal

State Short and Plain defenses to each claim against ita.Admit or deny allegationsb.

In responding, D must (within 21 days (60 if formal service waived)):1.

A party may deny all allegations generally; ora. Deny each allegation specifically.b.

General and Specific Denials2.

A party must, in good faith, deny part of the allegation and admit the resta.Denying Part of an Allegation3.

Statement has effect of a deniala.Lacking Knowledge4.

Failure has effect of an admissiona.Failing to Deny5.

Statement has effect of an admissiona.Neither Admits or Denies6.

FRCP 8(b) - Answer

Failure results in defense being waived.a.D must include any affirmative defenses in answer1.

Affirmative Defenses suggest that even if everything P says is true, P still cannot win as amatter of law.

a.

P's failure to admit/deny/submit defenses = P's admissioni.Considered a counterclaim requiring P to admit or deny and submit defenses.b.

Effect of Affirmative Defense2.

FRCP 8(c) - Affirmative Defenses

Even if contradictorya.A party may set forth 2 or more statements of the claim or defense1.

FRCP 8(d)2 - Alternative Pleading

FRCP 8Thursday, April 28, 20118:48 AM

FRCP 8 Pa e 2


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A party must state with particularity the circumstances constituting fraud or mistake.a.Fraud/Mistake1.

FRCP 9(b)

FRCP 9 Heightened PleadingThursday, April 28, 20119:20 AM

FRCP 9 Pa e 3


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Every paper submitted to the court must be signed by the attorney or the party if unrepresented1.FRCP 11(a) - Signature

Harrassmenti.Paper is not submitted for an improper purpose .a.

Warranted by existing law or based on non-frivolous argument for extending law.i.Paper is legally sound .b.

Known evidentiary support; ori.Anticipated evidentiary support.ii.

Paper has a genuine basis for its factual allegations.c.

Warranted by factual evidence; ori.

Based on belief or lack of knowledge.ii.

Paper has a genuine basis for its denials.d.

By signing, filing, submitting, or advocating, Attorney or Party represents:1.FRCP 11(b) - Representations

Must be made separately from all other motions.a.Must describe specific alleged misconduct.b.

Motion1.

Must be served upon alleged violator 21 days prior to filing w/court.a.Service2.

Provides opportunity for violator to correct violation.i.Moving party must wait 21 days after service to file with court.a.

Filing3.

Court can order attorney or party to show cause why conduct is not in violation.a.Sua Sponte4.

FRCP 11(c) - Sanctions

Alleged violating party is afforded 21 days between service and filing of motion for sanctionsto correct error, mistake, or violation.

a.Yonkers1.

Safe-Harbor Provision

FRCP 11 - Signatures, Representations, SanctionsThursday, April 28, 20119:23 AM

FRCP 11 Pa e 4


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60 if service waived domesticallyi.90 if service waived internationallyii.

D must answer within 21 daysa.General Rule1.

FRCP 12(a) - Answer

Answer or Motion must be filed by D w/in 21 days from the date served (60 if formal servicewaived).

a.

P/D must answer crossclaim/counterclaim w/in 21 days from the date servedb.

General Rules1.

12(b)1 - Lack of SMJi.

12(b)2 - Lack of PJii. 12(b)3 - Improper Venueiii.12(b)4 - Insufficient Processiv.12(b)5 - Insufficient Servicev.12(b)6 - Failure to state a claim upon which relief can be granted.vi.12(b)7 - Failure to join party under Rule 19vii.

Motions must be made w/or before first response.a.

NEVER waivedi.Rule 12(b)1b.

Waived if not consolidated in 1st responsei.Rule 12(b)2 - 12(b)5c.

D believes that either pleader failed to meet Rule 8(a); or1)D believes that even if everything in P's pleadings is true, D is not liable2)

Reason why assertedi.

All factual allegations are accepted as true; and1)All reasonable inferences are drawn in P's favor.2)

Procedurallyii.

Rule 12(b)6d.

Must be raised before jury deliberationi.Rule 12(b)6 & 12(b)7e.

12(b)2.

FRCP 12(b) - Defenses/Objections

Can only be brought after pleadings are closeda.Timing1.

Only matters in pleadings are considered.a.Evidence2.

MSJ considers pleadings and outside facts, JOP considers pleadings only.a.Vs. MSJ3.

FRCP 12(c) - Motion for Judgment on the Pleadings

Otherwise, court can strike portions of or entire pleading.a.If ordered, pleader must amend within 14 days1.

FRCP 12(e) - Motion for More Definitive Statement

P/D can motion to strike pleading (or portions of) if pleading is insufficient as a matter of law.1.FRCP 12(f) - Motion to Strike

FRCP 12 Defenses/ObjectionsThursday, April 28, 20119:23 AM

FRCP 12 Pa e 5


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Unless material in pleading is defamatory or embarrassing.i.Disfavored and Uncommona.

FRCP 12 Pa e 6


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Claim arises out of same T/O as opposing party's claim.a.Must be brought if:1.

Claim is waived.a.Failure to bring:2.

SMJa.PJb.Venuec.

Must satisfy:3.

If T/O is satisfied.i.Supplemental JDX may be established under 1367a.

If fails to satisfy SMJ/PJ/Venue4.

Claim does not have to be brought if it is the subject of another action.a.Caveat5.

FRCP 13(a) - Compulsory Counterclaim/Crossclaim

Claim is not compulsorya.Claim does not arising out of same T/Ob.

May be brought if:1.

SMJa.PJb.Venuec.

Must Satisfy:2.

Because no T/Oi.Supplemental JDX not likelya.

If fails to satisfy SMJ/PJ/Venue3.

FRCP 13(b) - Permissive Counterclaim/Crossclaim

Claim arises out of same T/O as original claim; anda.It is between co-parties on the same sided of the v.b.

May be brought if:1.FRCP 13(g) - Crossclaims

FRCP 13 Counterclaim/CrossclaimThursday, April 28, 20119:23 AM

FRCP 13 Pa e 7


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Original D must serve TPD within 14 days of serving its original answer.a.Called "Impleader"b.

Original D may sue a 3rd Party D (TPD) who may be liable to D for all or a portion of the claim.1.

SMJa.PJb.Venuec.

Requirements2.

As to original P and original D1)Rule 12 - Defenses/Objectionsi.

As to original P and original D1)Rule 13(a) - Compulsory Counterclaimii.

Must follow:a.

As to original P and original D1)Rule 13(b) - Permissive Counterclaimi.

As to original D, or other TPDs1)Rule 13(g) - Crossclaimii.

May followb.

TPD3.

As to P's claimi)TPD then must assert defenses/counterclaimsa)

Arising out of same T/O as P's claim against D1)Assert claim against TPDi.

Maya.Original P4.

Follow FRCP 14a.4th Party Practice5.

FRCP 14 - 3rd Party Practice

Rule 14 - 3rd/4th Party PracticeThursday, April 28, 20119:23 AM

FRCP 14 Pa e 9


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Within 21 days after serving pleading; ora.Within 21 days after being served with response; orb.

Within 21 days after being served with 12(b)(c)(e) motion.c.

Party can amend once as a matter of course without leave from court1.

(Cite Beeck)a)Liberally applied1)

"Freely give leave when justice so requires"i.Court should:a.

In all other cases, a party may ament with leave from court2.

FRCP 15(a) - Amending Before Trial

Unless amending would prejudice opposing party.i.If new issue arises, parties can amend pleadings.a.

During Trial1.FRCP 15(b) - Amending During/After Trial

The statute has run but allows relation back,a.Amendment relates to same T/O,b.

Within 120 days from original filing date, party received constructive notice of action.i.Within 120 days from original filing date, party knew, but for mistake in identity,action would have been brought against it.

ii.

Amendment changes a party's name; if c.

Amendments relate back to date of original pleading if:1.FRCP 15(c) - Relation Back

(e.g. - "John Doe" or "Unnamed Defendant")i.

Amendment's changing party's name will not relate back if incorrect name was stated basedupon a lack of knowledge.

a.

Only exception is 9th circuit.b.

Lacking knowledge of a person's identity is not a mistake1.Cite Krupski

FRCP 15 - Amending PleadingsThursday, April 28, 20119:23 AM

FRCP 15 Pa e 10


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PJ meti.SMJ metii.Venue metiii.

Definitiona.Feasible1.

Court cannot accord complete relief to existing parties without joining party; ora.Party to be joined as an interest in action that would be impaired without joining party; orb.Existing party would be subject to multiple or inconsistentc.

Must be joined if:2.

Court must join themi.If party has not been properly joined:a.

Court can join them as D or involuntary Pi.If party refuses:b.

Sua Sponte3.

FRCP 19(a) - Persons Required to be Joined "If Feasible"

Necessary party who cannot be added = Indispensible Partyi.When court cannot add a necessary party, court can elect not to continue with action at all.a.

Not Feasible1.

Effect on existing parties of not joining partya.

Protective provisions in judgmenti.Shaping Relief ii.Any other actioniii.

Ability to avoid effect by:b.

Adequacy of judgment without partyc. P's ability to recover if action dismissed.d.

Factors re: Dismissal/Continue2.

FRCP 19(b) - When Joinder is "Not Feasible"

FRCP 19 - Necessary/Indispensible PartiesThursday, April 28, 20119:24 AM

FRCP 19 Pa e 11


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Claims must arise out of same T/O or series of T/Os; anda.One question of law or fact common to all P's.b.

P may join with other P's if they assert a right to relief jointly, severally, or in the alternative:1.

Same rules applya.P may wish to join several D's2.

FRCP 20 - Permissive Party Joinder

FRCP 20(a) - Permissive Party JoinderThursday, April 28, 20119:24 AM

FRCP 20 Pa e 12


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Occurs when P/D does not claim ownership.a.P/D can interplead all prospective claimants to resolve claim:1.

SMJa.PJb.Venuec.Amount in Controversyd.

Requirements2.

FRCP 22 - Interpleader

Rule 22 InterpleaderThursday, April 28, 20119:25 AM

FRCP 22 Pa e 13


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Typically 40 or more.1)Class is so numerous that joinder is impracticable.i.

Numerositya.

Class has a common question of law or fact.i.Commonalityb.

Class has claims/defenses that are typical of the representative parties.i.Typicalityc.

Class' interests will be adequately represented by representative parties.i.Adequacyd.

One or more parties may sue as a representative for an entire class if:1.Rule 23(a) - Prerequisites

Prosecuting separate actions by individual members of class would create a risk of inconsistent adjudication.

i.Definitiona.

No Notice Requirementi.No Opt-Out Requirementii.Class is Mandatoryiii.

Requirementsb.

Incompatible Standards Class1.

Prosecuting separate actions by individual members would prejudice some due to alimited amount of funds available to resolve entire class' claims.

i.Definitiona.

No Notice Requirementi.No Opt-Out Requirementii.Class is Mandatoryiii.

Requirementsb.

Limited Fund Class2.

Party opposing the class has acted or refused to act on grounds that apply generally tothe class.

i.

Even though money is available, injunction must predominate class' interest inresolution.

ii.

Definitiona.

No Notice Requirementi.

No Opt-Out Requirementii.Class is Mandatoryiii.

Requirementsb.

Injunctive Relief Class3.

Class must have a common question of law or facti.Class' question must predominate individual members' questionii.

Definitiona.

Class members must receive notice of pending action.1)Noticei.

Class members can opt-out of class1)Opt-Out Optionii.

Requirementsb.

Damages Class4.

Rule 23(b) - Classes

Rule 23 - Class ActionsThursday, April 28, 20119:25 AM

FRCP 23 Pa e 14


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Class is Optionaliii.

1331 is not a problema.

CAFA resolvesi.1332 is problematicb.

SMJ1.Special Issues

Class is 100 members or more; anda.Aggregate claim is $500m or moreb.

A class is automatically certified if:1.

Named Parties onlyi.Minimal Diversity is sufficienta.

13322.

If 2/3 or more of class, and at least 1 of main Ds, is from forum state; anda.If action giving rise to suit occurred in forums stateb.Class will not be certified.c.

Local Action Exception3.

Class Action Fairness Act

FRCP 23 Pa e 15


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Generala)Abstractb)Asserted on behalf of publicc)

Interest cannot be:1)

If party has a substantial genuine and protectable interest that would be impaired orimpeded by disposition.

i.

Party's interest is not adequately represented by existing parties.ii.

Court must allow intervention:a.

Stare Decisis effect on future litigation of interesti.Res Judicata effect on future litigation of interestii.Binding effect of decision on similarly situated partiesiii.

Complexity of action.iv.

Factors Determining Sufficiency of Interestb.

Upon Timely Motion1.FRCP 24(a) - Intervention of Right

If party has a claim or defense that shares a common question of law or fact withoriginal action

i.

Not allowed if intervention will prejudice existing parties' rights; or1)

No time is specified as to an unreasonable delaya)Cause undue delay2)

Judge can exercise discretionii.

Court may allow intervention:a.

How long did intervenor know about suit before attempting to intervene?i.Will intervention prejudice existing parties?ii.Will intervenor suffer prejudice if not allowed to intervene?iii.Are there any unusual circumstances?iv.

Permissive Factors re: Delayb.

Upon Timely Motion1.FRCP 24(b) - Permissive Intervention

Rule 24 - InterventionThursday, April 28, 20119:25 AM

FRCP 24 Pa e 16


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Any (non-privileged) matter that is relevant to a party's claim or defensea.Discoverable1.

Subject Matter is broader than Relevant Matteri.

Court May expand discoverable matter from that which is "relevant" to anything relating tothe "subject matter" of the claim or defense

a.Court's Discretion2.

Courts can shift payment to Requesting party.i.Responding party generally paysa.

Costs3.

FRCP 26(b)1 - Scope in General

Requested information is unreasonably cumulativea.

Requested information can be obtained for another more efficient sourceb. Requesting party had ample opportunity to obtain informationc.Burden in obtaining information outweighs the benefit of the information sought.d.

Court May Limit Where:1.FRCP 26(b)2 - Limitations

Keep certain information confidentiala.Narrow Scope of requestb.Deny discovery altogether.c.

Party can seek protective order to:1.

Party must meet an confer before filing protective order.2.

FRCP 26(c) - Protective Orders

Communication is made fore the purpose of securing opinion of law;i.Communication is made for the purpose of securing legal representation;ii.

Communications from client (or prospective client) to attorney (or member of attorney'sstaff) are privileged if:

a.

Communication was expressed to attorney (or staff) publicly or in a social setting.i.

Communication from client (or prospective client) to attorney (or member of attorney'sstaff) are not privileged if:

b.

If communication is expressed to a member of a corporation, the entire corporatebody is bound by privilege.

i.Corporationsc.

Attorney/Client1.

Cite Hickman1)Unless requesting party can prove substantial need for documentsi.

Documents and other tangible things produced in anticipation of litigation are privilegeda.Work Product2.

Privileges

Expresselya.Impliedly - Sharing privileged information with a 3rd party.b.

Party can waive privilege:1.

Party cannot raise privilege over same documents.a.Once waived2.

Waiver

Rule 26 - DiscoveryThursday, April 28, 20119:25 AM

FRCP 26 Pa e 17


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(e.g. Thoughts, Ideas, Theories, Opinions )a.Attorney's mental impressions are never discoverable1.

FRCP 26(b)3 - Mental Impressions

AC Privilege protects communications.1.WP Privilege protects document/tangible things.2.

Differences

FRCP 26 Pa e 18


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Deposition has not been stipulatedi.Deposition is of one in prisonii.Deposition is unreasonably lengthyiii.

Unless:a.Party can be deposed without court leave1.

FRCP 30 - Deposition

Depositions are limited to 7 hours1.Parties and Non-parties can be deposed.2.

FRCP 32 - Depositions

Unless court approves additional.a.Limited to 25 questions1.

Parties only2.

FRCP 33 - Interrogatories

Responding party must produce in a reasonably usable form; ora.In the form the document/ESI is customarily stored in.b.

Party can request production of documents or ESI1.

Court can allowi.Court can preventii.Court can allow a sampleiii.

Parties Resourcesa)Needs of Caseb)Amount in Controversyc)Importance of Issuesd)Importance of discovery in resolving issues.e)

Factors1)Court can shift the costs of production to the requesting partyiv.

Court's discretiona.Responding party may or may not have to produce documents/ESI if it is not reasonably accessible2.

FRCP 34 - RPD/ESI

Parties only1.For good cause2.

FRCP 35 - Physical/Medical Examinations

If discovery issues cannot be resolved, requesting party can file a motion to compel.a.Parties must meet and confer in good faith prior to filing motion to compel.1.

FRCP 37 - Motion to Compel Discovery

Rule 32, 33, 34, 35, 37 - DiscoveryThursday, April 28, 20119:25 AM

FRCP 32-37 Pa e 19


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Unless court specifies otherwise1)Without Prejudicei.

P can voluntarily dismiss once without leavea.

P must file a notice of dismissal and serve it on opposing party.b.

Before D Pleads1.

If D does not consent, P can get leave from the court1)D must consent to dismissali.

Unless court specifies otherwise1)Court has discretion to dismiss with or without prejudiceii.

P can voluntarily dismissa.

P must file stipulation of dismissal (signed by all parties) and serve on opposing partyb.

After D Pleads2.

Unless court states otherwise1)Subsequent dismissals are with prejudicei.P can only voluntarily dismiss once without prejudice.a.

Court may order P to pay all costs associated to 1st claim; andi.Stay 2nd claim until P pays for 1st.ii.

If P dismisses and re-files against same partyb.

Dismissal is with prejudice.i.If P dismisses 2nd claimc.

Caveat3.

FRCP - 41(a) - Voluntary Dismissal

PJ/SMJ1)Venue2)Failure to Join a Party under Rule 193)

Unless dismissal is based uponi.Dismissal is with prejudicea.

If P fails to prosecute D may move, or Court may move sua sponte for Involuntary Dismissal.1.FRCP 41(b) - Involuntary Dismissal

Rule 41 - DismissalThursday, April 28, 20119:27 AM

FRCP 41 Pa e 20


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Depositionsi.

Documents1)ESI2)

Production of evidenceii.

Participation in:a.Non-parties can be subpoenaed1.

Interrogatoriesi.Physical Examii.Mental Examiii.

Participation in:a.Non-parties cannot be subpoenaed2.

FRCP 45 - Subpoenas

Rule 45Thursday, April 28, 20119:26 AM

FRCP 45 Pa e 21


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New Trial in front of New Jury1)Otherwise = Mistriali.

Jury verdict must be unanimousa.Federal Courts1.

Jury Trial

Equal to or greater than answering form questions.i.A special written finding on each material issue.a.

Jury finds for P or D; and1.Special Verdicts

Then jury finds for P or D and answers form questionsi.

Unless court presents jury with form questionsa.Jury finds for P or D1.

Dont know if jury decided case on emotion or law.a.Dont know if poor instruction tainted juries findingb.

Issue2.

General Verdicts

Rule 49 - VerdictsThursday, April 28, 20119:28 AM

FRCP 49 Pa e 22


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P/D can motion for JMOL at any time after a party has been fully heard but before case goes

to jury.

a.

Judgment soughti.Law and Facts entitling movant to judgmentii.

Motion must stateb.

Motion1.

If denied, matter is submitted to jury1)Reasonable jury could find for non-movanti.

Court will deny if a.

If granted, matter is taken out of juries hands1)No Reasonable jury could find for non-movanti.

Court will grant if:b.

Court must favor all evidence that favors non-movant.i.Court must favor only undisputed evidence that favors movant.ii.Court must not make credibility determinations or weigh evidence.iii.

Deferencec.

Standard2.

MSJ - No disputed evidencea.JMOL - Evidence may be in disputeb.MSJ - Based upon Pleading and Discoveryc.

Including statements at triali.JMOL - Based upon all evidence in recordd.

JMOL v. MSJ3.

FRCP 50(a) - JMOL

Only if P/D filed a JMOL beforehand1)P/D can file a renewed JMOLi.

After jury has heard and returned a verdicta.Motion1.

Motion must be filed no later than 28 days after judgment is enteredi.If motion addresses issue decided by jurya.

Motion must be filed no later than 28 days after jury is discharged.i.If motion addresses issue not decided by juryb.

Timing2.

Sustain judgment on the verdict; ori. Order a new trial; orii.

Allows court to rectify poor decision by jury1)Reverse judgment and enterJMOL for moving partyiii.

Upon receipt of renewed motion for judgment the court can:a.Court's discretion3.

FRCP 50(b) - Renewing JMOL

Rule 50 - Judgment as a Matter of LawThursday, April 28, 20119:27 AM

FRCP 50 Pa e 23


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Must serve on opposing party1)P/D can file written request for desired jury instructionsi.

At close of evidencea.Timing1.

Court must inform parties of proposed instructions; andi.Proposed actions on P/D's written requestsii.

Before instructing jurya.

Court must allow parties to object before instructing jury.i.Objectionsb.

Court's Actions2.

And state why objection is raised.i.P/D must object to proposed instructions on the recorda.

Cannot appeal instruction later.i.If party does not objectb.

P/D Objections3.

FRCP 51 - Instructions to Juries

Rule 51 - Jury InstructionsThursday, April 28, 20119:28 AM

FRCP 51 Pa e 24


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Final resolution of case such that nothing remains to be resolved at trial level.1)Final Decision at district courti.

28 USC 1291a.

The order involves a controlling question of lawi.There is substantial ground for difference of opinionii.The immediate appeal would materially advance litigationiii.

Court certifies that:1)Interlocutory Orders re: Injunctions.i.

28 USC 1292(a)(1)b.

Multiple claims or multiple parties and if there has been a final judgment on a

portion of the claims or for a portion of the parties

1)Complex Litigationi.

FRCP 54(a) - Appeal is Permittedc.

Appeal is permitted Under1.

Appeal must be filed with the district courti.Filinga.

Appeal must be filed within 30 days of the decision on the claim, or part of the claim.i.Timingb.

Filing (28 USC 1292(b))2.

Appeals

FRCP 54 - AppealabilityThursday, April 28, 20118:50 PM

FRCP 54 Pa e 25


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D fails to file responsive pleading; ori.Fails to defend; andii.P requests itiii.

Clerk must enter default against D if:a.Entering Default1.

P's claim is for a sum certain; or1)Sum that can be made certain by easy computation; and2)P requests it3)

Clerk must enter default judgment + Costs against D if:i.By Clerka.

P's claim is for a sum uncertain; and1) P applies for it.2)

Court must enter default judgment + Costs against D if:i.By Courtb.

Entering Default Judgment2.

Default Judgment limited to amount prayed for in original pleading.a.Limitation3.

P must serve default/default judgment at least 3 days before hearing.i.If D, or D's legal representative has appeared:a.

No service is necessaryi.If no appearance has been made by or for D:b.

Service4.

D requests it.i.Court can set aside default for good cause if:a.

Setting Aside Default5.

Whether default was willful or the result of D's culpable conduct.1)Whether set aside will prejudice P2)

(e.g. Improper Service)a)Whether D's defense to default is meritorious3)

Factorsi.Court must follow FRCP 60(b)a.

Setting Aside Default Judgment6.

FRCP 55 - Entering Default and Default Judgment

Rule 55 - Default/Default JudgmentThursday, April 28, 20119:27 AM

FRCP 55 Pa e 26


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Citing to the record is sufficient1)P does not need to produce additional evidencei.

P may move for SJ on all or part of D's defensea.By P1.

Citing to the record is sufficient1)D does not need to produce additional evidencei.

D may move for SJ on all or part of P's claima.By D2.

Showing that movants citations to the record do not establish the absence of agenuine dispute is sufficient

i.Non-movant does not need to produce additional evidencea.

Defending Motion3.

Court must grant if there is no "genuine dispute as to material fact"; and [Cite Matsushita]a. Moving party is entitled to judgment as a matter of law.b.

Standard4.

Cite Andersoni.All evidence is viewed in light most favorable to non-movanta.

Deference5.

Motion must be made, at the latest, 30 days after close of discoverya.Motion must be made before case goes to juryb.

Timing6.

MSJ must be filed no later than 30 days after discovery closesi.12(b)6/12(c) motions can be filed up until case goes to juryii.

Timinga.

MSJ is supported by Pleadings and Discoveryi.12(b)6/12(c) motions are supported by Pleadings onlyii.

Supportb.

MSJ v. 12(b)6/12(c)7.

FRCP 56 - Summary Judgment

Rule 56 - Summary JudgmentThursday, April 28, 20119:27 AM

FRCP 56 Pa e 27


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For any reason which a new trial is supported by authority for action in law infederal court history

1)After Jury Triali.

For any reason which a rehearing is supported by authority for action in equityin federal court history

1)After Non-Jury Trialii.

Court May, on motion, grant new trial on all or some issues if:a.Grounds1.

Cite Daduriani.Where verdict is against great weight of evidencea.

Standard2.

Appellate court can remand for further findings; ora.

Appellate court can enter judgment as a matter of law for either party; orb. Appellate court can order new trial; orc.Appellate court can order remittur.d.

On Appeal3.

FRCP 59 - New Trial

Rule 59 - New TrialThursday, April 28, 20119:28 AM

FRCP 59 Pa e 28


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Requires notice.1)

Temporary injunction put in place by court until the matter at hand has been fullyadjudicated at which time preliminary injunction will either be dismissed or convertedinto a permanent injunction.

i.Definitiona.

FRCP 65(a) - Preliminary Injunction1.

Interim Injunction pending ruling on motion for preliminary injunctioni.Definitiona.

Likelihood of immediate and irreparable harm if not granted1)Movant must show:i.

Standardb.

No notice required to responding party(ies)1)Can be ex partei.

Noticec.

No longer than 14 days1)A brief periodi.

Durationd.

Drastici.Measuree.

FRCP 65(b) - TRO2.

Permanent (until further notice from court) injunction requiring party to do (or not todo) a certain act

i.Definitiona.

Likelihood of success on the merits if tried; or1)Likelihood of immediate and irreparable harm is not granted; or2)Balance of equities tips in movants favor; or3)

[Cite Earth Island]a)Injunction is in public interest.4)

Movant must show:i.Standardb.

Notice must be given to responding party(ies)i.Noticec.

FRCP 65(b) - Injunction3.

FRCP 65 - Injunctions and Restraining Orders

Rule 65 - Injunctions and Restraining OrdersThursday, April 28, 20119:28 AM

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State to Statea.

[Cite Nestor]a)Courts of the state would do so1)

Federal courts must give preclusive effect to state court judgments if:i.State to Federalb.

Full Faith and Credit Clause1.

Time1)Space2)Origin3)Motivation4)

COA5)

T/O - Transactional Test as to:i.2nd claim must be the same as that raised or that which could have been raised in 1sta.

When successors in property of any kind were in the 1st1)

(e.g. President of a company controls company)a)When a non-party controlled the 1st2)

(e.g. Virtually represented, sufficient alignment)a)When a non-party's interests were adequately represented in 1st3)

Privity exists in 3 scenariosi.

2nd claim must be between same parties (or those in privity with same parties) that were in1st

b.

1st claim must have been concluded on the merits.c.

Elements2.

Party bringing 2nd was unable to raise claim in 1sti.Party bringing 2nd was unable to seek certain remedy in 1stii.

2nd claim is not precluded when:a.Exception3.

Claim Preclusion - (Res Judicata)

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An identical party or its privies is Preclusive effect that prior judicial determinations have onthe re-litigation of certain issues.

a.Definition1.

No T/O1)Issue in 2nd is identical to issue in 1st.i.

Identical Issuea.

Issue in 2nd must have been actually litigated in 1st.i.Actually Litigatedb.

Issue in 2nd must have been necessary to the judgment of the 1st.i.+Necessary Resolutionc.

Offensive1)

A new P can prevent an identical D, or its privies, from defending a suit if identical D

already lost in the 1st suit on the same issue.

i.

Or Privies1)

A new D can prevent an identical P, or its privies, from suing if identical P already lostin the 1st suit on the same issue.

ii.

Identical Partyd.

Elements2.

Issue Preclusion - Collateral Estoppel

P could have joined 1st suit1)Generally disallowed if:i.

But, cannot be asserted against a party who was not in 1st suiti.No requirement that parties be identical (or privies)ii.

Occurs when P attempts to preclude D from defending suit because D lost in 1st suita.Sword/Offensive Use1.

Occurs when D attempts to preclude P from bringing suit for same issue P lost on in 1st suit.a.Shield2.

Non-Mutual Issue Preclusion (Sword/Shield)

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Reserved for questions of law or fact1.No deference is given to prior decision2.

De Novo

Reserved for questions of fact1.Deference is given to prior decision2.

Clearly Erroneous

(e.g. wrong law used, interpreted law incorrectly)i.Will only overturn decision if it was blatantly incorrecta.

Highly Deferential1.Abuse of Discretion

Standards of ReviewThursday, April 28, 20117:34 PM

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FRCP 4 - Service - Individuals, Corporations, Waiver1.FRCP 8 - Pleading - Complaint, Answer, Alternative2.FRCP 9 - Heightened Pleading - Fraud3.FRCP 11 - Signing, Representing, Sanctions4.FRCP 12 - Defenses, Objections, Motions5.FRCP 13 - Compulsory, Permissive, Crossclaims6.1367 - Supplemental Jdx7.FRCP 14 - 3rd, 4th Party Practice8.FRCP 15 - Amending Pleadings, Relation Back9.FRCP 19 - Party Joinder - Necessary, Indispensible10.FRCP 20 - Party Joinder - Permissive11.FRCP 22 - Interpleader12.FRCP 23 - Class Action13.FRCP 24 - Intervention of Right14.

FRCP 26 - Discovery15. FRCP 32 - Depositions16.FRCP 33 - Interrogatories17.FRCP 34 - RPD/ESI18.FRCP 35 - Physical/Mental Examinations19.FRCP 37 - Motion to Compel Discovery20.FRCP 41 - Dismissal21.FRCP 45 - Subpoena22.FRCP 49 - Verdicts - General, Special23.FRCP 50 - JMOL24.FRCP 51 - Jury Instructions25.FRCP 54 - Appealability26.FRCP 55 - Default27.FRCP 56 - MSJ28.FRCP 59 - New Trial29.FRCP 65 - Injunctions, TRO30.Preclusion - Issue, Claim31.Standards of Review - De Novo, Clearly Erroneous, Abuse of Discretion32.

Rule ShortlistThursday, April 28, 20118:38 PM

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Factual allegations in a complaint must suffice to raise a right to relief above the speculativelevel to a plausible level.

a.

Rule 8(a)b.

Twombly/Iqbal1.

A party must serve intended motion for sanctions on an opposing party 21 days prior tofiling with court . Safe-Harbor Provision.

a.

Rule 11b.

Yonkers2.

The court should freely give leave to amend when justice so requires .a.Rule 15(a)b.

Beeck Aquaslide3.

Lack of knowledge is not a mistake, cannot relate back amendment.a.Rule 15(c)b.

Krupski4.

Parties Resourcesi.Amount in Controversyii.Importance of Issuesiii.Needs of Caseiv.Importance of discovery in resolving issues.v.

Factors weighed to determine cost shifting in production of ESI [PAIN-I]a.

Rule 26b.

Zubalake5.

Communication/Documentation secured by attorney in anticipation of litigation isundiscoverable.

a.

Rule 26b.

Hickman6.

MSJ evidence is viewed in light most favorable to non-movanta.Rule 56b.

Anderson7.

MSJ is warranted only when there is no genuine dispute of a material fact.a.Rule 56b.

Matsushita8.

New Trial is only appropriate where judgment was against the great weight of the evidencea.Rule 59b.

Dadurian9.

Injunction is appropriate when it is in the public's interesta.

Rule 65b.

Earth Island Institute10.

All federal courts must give preclusive effect to state judgments when the courts of thestate issuing the judgment would do so.

a.

Claim Preclusionb.

Nestor11.

Cases to CiteThursday, April 28, 20118:56 PM

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Service

4D2 Waiver - Service by Mail (Not Email) - Must show good cause not to waive - or else payment

4D3 Incentives - 60/90d instead of 214E Individuals - State Law, Personally, At Home, Agent

4H Corporations - State Law, Officer

4M 120 Days after filing complaint

Pleading

8B Pleading - Claim, JDX, Prayer for Relief

8C Aff. Def - Must include or waived, Even if all true P still cant win as a matter of law

8D Alt. Pleading - Plead in alternative even if contradictory

Heightened Pleading

9B Heighten Pleading - Plead with specificity if fraud

Sanctions

11A Signature - Every paper must be signed

11B Representation - To court that Improper Purpose, Legally Sound, Basis for Allegations, Basisfor Denials

11C Sanction - Motion separately, serve party 21 days before filing, sua sponte

Defenses/Objections

12A Answer - Within 21 days

12B Motions1 - SMJ - Never Waived2 - PJ - Consolidated w/ 1st response3 - Venue - Consolidated w/ 1st response4 - Process - Consolidated w/ 1st response5 - Service - Consolidated w/ 1st response6 - Failure to State Claim - Filed before Jury7 - Failure to Join Rule 19 Party - Filed before jury

12C Jud on Pleadings -Brought after close of pleadings, considers only matters in pleadings

12E Def. Statement - D has 14 days to correct

12F Strike - P/D can strike portions of pleadings, unlikely unless defamatory

Counter/Cross

13A Compulsory - Must be brought same T/O, Failure = Waived, 1367 likely

13B Permissive - May be brought not same T/O, 1367 unlikely

13G Cross - May be brought same T/O, Same side of v.

Attack OutlineMonday, May 02, 20115:33 PM

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3rd Party Action

14 3PD - D can sue 3PD w/in 14 days of serving answer; P can sue 3pd once brought; 3pd can sueoriginal P

Amending Pleading

15A Amend b4 trial - 1 as matter of course; 21d after serving pleading, 21d after being served w/

response; 21d after 12(b),(c),(e) - After, w/leave15B Amend during trial - ok, unless prejudice other party

15C Relation back - Statute ran and allows, same t/o, Changing name - w/in 120 days party wasconstructively noticed, party knew but for improper name, it would be sued

Necessary Party Joinder

19A Necessary Party - Must be joined if: Court cant get complete relief without party, party has aninterest that would be impaired without joining, original party would facemultiple/inconsistent judgments

19B Indespensible Party - When necessary can be joined court can drop: Factors - Effect on

existing parties of not joining, avoiding effect (protective provisions in judgment, shapingrelief), adequacy of judgment without joining, P's ability to recover if dismissed.

Permissive Party Joinder

20 Permissive Party - P can join other Ps or several Ds - Same T/O or series of T/O, 1 commonquestion of law or fact

Interpleader

22 Interpleader - P/D does not claim ownership, can interplead who does

Class Action

23A Numerosity - Class is too big for joinder - typically 40+Commonality - Class has common question of law or factTypicality - Class has claims/defenses that are typical of representative partiesAdequacy - Class will be adequately represented by rep parties

23B Incompatible Standards - Adjudicating separately would be inconsistentLimited Fund - Only so much $ for entire classInjunctive Relief - Opposing party has acted, or refused to act, applying to entire class.Injunction must predominate class' interestsDamages - Class has common question law or fact; class predominates individual (Optional)

CAFA Class with 100ppl and $5mil auto certify; Minimal DiversityLAE Local Action Exception - 2/3 class, 1 D, and action arising in forum district = Class not

certifiable.

Intervention

24A Intervention - Court must allow if: Party has substantial genuine and protectable interest,Parties interest is not adequately represented by existing parties.

24B Permissive Intervention - Court may allow if: Party has claim/defense w/common question of law or fact. Court must factor prejudice to party by not allowing and prejudice to existing



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parties if allowed.

Discovery

26b(1) Scope - Any relevant non-priviledged matter; court can expand to subject matter; respondingparty pays, court can shift costs

26b(2) Limitations - Court can limit if: unreasonably cumulative, another more efficient source,Requesting party has opportunity to obtain, cost outweighs benefit of obtaining.

26b(3) Mental Impressions - Never discoverable26(c) Protective Orders - Preparing party can get a protective order to: Keep info confidential,

Narrow Scope, Deny discovery; Parties must meet and confer before PO

Discovery

30 Deposition - Party can be deposed w/out leave from court

32 Deposition Limits - 7hrs, Parties and Non-Parties

33 Interrogs - 25 questions, Parties only

34 RPD/ESI - Must be produced in reasonable usable form; Court can allow, prevent, allow

sample, shift costs (parties resources, needs of case, AIC, Importance of issues, importance of discovery to issues

35 Phys/Med exam - Parties only, good cause only

37 Motion to Compel - Parties must Meet/Confer to resolve, then file with court if necessary

Dismissal

41A Voluntary Dismissal Before D answers - P can dismiss without prejudice, file notice of dismissand serve.After D answers - P can dismiss with D's consent, file stipulation of dismiss and serve, or withcourt's consent, file notice of dismiss and serve

Dismissal - 1 time without prejudice, subsequently with prejudiceCaveat - If P refiles, court can order P to pay D's costs for 1sst action, If P dismisses 2nd =w/prejudice

41B Involuntary - If P fails to prosecute D or court can move for dismissal with prejudice: PJ/SMJVenue Failure to join 19 are without prejudice.

Subpoena

45 Subpoena Party - Rogs/Phys exam/mental exam/Depo/RPD/ESISubpoena Nonparty - Depo/RPD/ESI

Verdicts49 Jury Trial -Federal Jury Trials must be unanimous or new trial is ordered in front of new jury

Special Verdicts - Written finding on each material issueGeneral Verdict - Jury finds for P or D only unless court presents jury with special questions.Issue = Case decided on emotion or law? Did poor jury instruction taint jury?

Judgment as a Matter of Law

50A JMOL - Filed after 1 party heard but before goes to jury. Standard = Reasonable Jury.Deference = Favor all evidence favoring non-movant, only undisputed evidence favoring



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movant, court cannot make credibility determination or weigh evidence.

50B Renewing JMOL - P/C can renew JMOL only if 1 filed timely before jury, no later than 28 daysfrom jury's decision if issue decided by jury; or 28 days from discharge of jury if issue notdecided by juryCourt Can - Sustain judgment, reverse, order new trial

Jury Instructions

51 Jury Instruction - Parties can request JI, Court must advise parties of which JI to be usedbefore go to jury, party must object to JI before goes to jury - failure = unappealable.

Appealability

1291 DC Final Decision - Appeal is permitted after final resolution at trial level.

1292a Interlocutory - After court certifies that 1)order involves controlling question of law 2)substantial ground for difference of opinion 3) immediate appeals would material advancelitigation

1292b Filing/Timing - Must file with DC within 30 days of decision of claim or part of claim

54 Complex Litigation - Appeal is permitted in complex lit when x parties or x claims and final

judgment on a portion of the claims or for a portion of the parties.

Default

55 Default - Entered by clerkDefault Judgment by Clerk - If sum certainDefault Judgment by Court - If sum uncertainLimits - Amount prayed for in complaintService - If appearance has been made by party or representative P must serve default and judgmentSet Aside - Court can set aside default for good cause. Court can set aside default judgment if:1) Default was willful or result of D's culpable conduct 2) Default will prejudice P 3) Defendanthas a meritorious defense to default.

Summary Judgment

56 Summary Judgment by P/D- All or part of D's defense (p's claim) (No additional evidencenecessary citing to record is sufficient)Defending by P/D - No additional evidence necessary showing movant citations areinsufficient is sufficient.Standard - No genuine dispute as to material factDeference - All evidence viewed in light most favorable to non-movantTiming - At the latest, either 30 days after close of discovery or before case goes to jury

(whichever is first)

New Trial

59 New Trial Grounds - After jury trial - Any reason new trial is supported by action in law infederal court history; After non-jury trial - Any reason rehearing is supported by action inequity in federal court history.Standard - Verdict against great weight of evidenceAppeal - Court can remand for further findings, enter JMOL for either party, order new trial,order remittur



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Injunctions

65A Preliminary Injunction - Injunction between TRO and Permanent Injunction (Requires Notice),Movant must show like

65B TRO - Temporary Injunction put in place until court can hear Preliminary Injunction, Movantmust show likelihood of immediate irreparable harm, Notice not required, Drastic Measure,Brief (no more than 14d)Permanent Injunction - Effective until further order, Movant must show likelihood of successon merits, likelihood of immediate irreparable harm, balance of equities tips in movants favor,injunction is in pub interest.

Claim Preclusion

ClaimPreclusion

Elements - 1) 2nd must have been raised or could have been raised in 1st 2) 2nd must bebetween same parties or privies 3) 1st claim concluded on merits.Privies - Successors in property, non-party controlled 1st suit, non-parties interests wereadequately represented.Exception - Party unable to bring suit in 1st, Party unable to seek certain remedy in 1st

Issue Preclusion

IssuePreclusion

Elements - 1) Identical Issue 2) Actually litigated 3) Issue was necessary to resolution of prior suit 4) Identical party or priviesSword - P attempts to prevent D from defending because D lost 1st suit; Not allowed if Pcould have joined 1st suit.Shield - D attempts to prevent P from bringing suit because P lost 1st suit.

Standard of Review

Standard of Review

De Novo - New (No deference), Questions of Law or FactClearly Erroneous - Some deference is given, Questions of factAbuse od Discretion - Highly deferential, court will only overturn prior ruling if blatantly incorrect.

Civ Pro Outline 2nd Semester

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Transcript of Civ Pro Outline 2nd Semester