JURISDICTION AND VENUE

Personal Jdx: this is all about fairness to ∆

General Jdx: π can sue ∆ for anything generally.

Look for:
 Consent - Express or Implied due to failure to properly object
 Presence - Continuous and Systematic Contacts with the state or Present in state when served
 Domicile

o Person is domiciled in the state of her permanent home where she intends to stay indefinitely
o Corporation is domiciled in the state of incorporation and where its principal place of business is located
o Partnership/LLC is domiciled where its partners/members are citizens

Specific Jdx: Lawsuit must arise out of the specific contacts with the state
It must be both constitutional under:
 State Constitution - Long-Arm Statute
 U.S. Constitution - Due Process Clause - There must be minimum contacts with the forum state to offend traditional notions of fair play and substantial justice

Subject-Matter Jdx: this is all about the power of the federal court to hear a certain kind of case
 Federal-Question Jdx: it must arise out of federal law. The federal issue must be on the face of the well-plead complaint.
 Diversity Jdx: there must be complete diversity at the time the case is filed and the amount in controversy $75,000+
 Supplemental Jdx:
o State claims must be brough in federal court if they arise out of a common nucleus of operative fact
o Non-diverse parties may be sued in a diversity case.

o ∆ may implead a non-diverse party, but π may not sue a non-diverse party directly if the only basis for the lawsuit is diversity
Removal
 ∆ may remove a case within 30 days of being on notice that the case is removable - but not over a year in diversity cases unless π acted in bad faith
 ∆ cannot remove on diversity grounds if any ∆ is domiciled in the state in which they are sued.
 If ∆ removes a case, ∆ has only one venue option - federal court that geographically embraces the state court where the suit was filed.
Remand: if a π wishes to file amotion to remand to state court due to failure to comply with procedure requirements of the rule, it must do ss within 03 days after removal.

Venue: State has personal jdx over ∆. Where in the state does π sue?
Venue is proper
 where any ∆ resides if all ∆s reside in the same state
 where a substantial part of the events/omissions giving rise to the claim occurred

 A court may transfer a case to a different venue in certain cc:

o Transfer to Proper Venue: Case is filed in the wrong venue. The law of the transferee court applies
o Transfer to More Appropriate Forum: Federal court may transfer it in the interests of justice. The law of the transferor court applies.
o Forum Non Conveniens: Case should be litigated in a different forum a court may dismiss the case.

Service: Π is ready to start the lawsuit. How does π let ∆ know about it?
 Π must serve ∆ with a summons and copy of the complaint.
 The process server must be at least 18 years old and not a party to the case.
 π can use the following methods to serve an individual:
o State Law: follow the state law methods where the federal court is located or where service is made
o Agent: give summons and complaint to agent appointed by ∆ or law
o Individual: deliver a copy of the summons and complaint to the individual personally
o Dwelling: leave summons and complaint at individual's dwelling or usual place of abode with sb of suitable age and discretion who resides there

Serving a Corporation
 π may
o Use state law methods where district court is located
o Use state law methods where service is made
o Serve an Officer
o Serve a managing or general agent authorized
o Server any other agent appointed to receive service.
Waiver
 π may ask ∆ to waive formal service of process by sending complaint + two copies of a waiver + prepaid means for returning the form via first-class mail or
similar
  If ∆ waives formal service, it has 60 days to answer the complaint
 If ∆ does not, it must pay for formal service of process.

PRETRIAL PROCEDURES

Pretrial Procedures—this tells you what to file and how to prepare your case

Complaint and Answer

Complaint must be served within 90 days after it is filed.
Response -answer/motion- must be served within 21 days after service -60 if formal process was waived
Amend a Pleading
 Within 12 days after service party may amend pleading as of right
 If the pleading requires a responsive pleading, 12 days after service of the responsive pleading or motion

 After 12 days of service amend requires party/court consent - court will freely give leave when justice so requires

Joinder of Claims and Parties

Joinder of New Claims

 Party that has properly filed one claim can bring all claims if the court has jdx - π's claims as well as ∆'s counterclaims or cross-claims
Counterclaims

 Compulsory Counterclaim

o ∆ must bring all claims that arises out of the same T/O – Use it or Lose it
 Permissive Counterclaim
o ∆ may bring claims not arising out of the same T/O
Cross - Claims
 Cross-claims are not compulsory
 Claim asserted by one party against a coparty ∆v∆/πvπ
 Claim must arise out of the same T/O
Joinder of Parties
 π joining π
o πs may sue together if

 Claims arise out of the same T/O

 Claims involve a common question of law/fact

 πs assert a right to relief jointly, severally, or in the alternative

 ∆ adds ∆

o ∆ may implead a new claim against a new party if that party may be liable to ∆ for part or all of the recovery
o This must be filed within 41 days of serving the answer, otherwise leave of court is required.
 Intervention

o A movant may intervene as a matter of right if:

(1) it has an interest related to the property or transaction that is the subject of the action
(2) disposition w/o the movant may impair or impede movants ability to protect its interest, and
(3) its interest is not adequately represented by the existing parties.
o The motion must be timely made
o A court may grant permissive intervention if the party has a claim or defense that shares a common question of law or fact with the main action.
 Interpleader
o Holder of a property subject to conflicting claims may file a lawsuit as a π and join all claimants to avoid the possibility of double liability
o Under statutory interpleader $500 is enough and minimal diversity -diversity between any two claimants- enough to get into federal court
Class Actions
 Requirements
o Commonality
o Adequacy
o Numerosity
o Typicality
o (with common question suits) πs need to show superiority and that common questions predominate.
  Federal court has jdx if there are 10 or more πs seeking $5+ million and they have minimal diversity

Preliminary Measures
 Preliminary Injunction requires notice to the adverse party – equitable relief with the object of preserving the status quo
 Temporary Restraining Order does not required notice to the other party -should not last longer than 41 days unless god cause is shown

Discovery

 Parties may discover anything that is relevant and not privileged

 Parties can use
o Interrogatories (25 per side)
o Depositions
o Requests to admit

Tip: depositions and subpoenas are the only methods that may be used on a nonparty

 Work Product -prepared in anticipation of litigation- is not discoverable unless there is a substantial need and undue hardship
o Atty’s mental impressions are never discoverable

Conferences & Disclosure

 26(f ) Conference - DISS
o Initial disclosures of damages calculation, insurance agrmts, identity of supporting witnesses, supporting documents are made and discovery plan is outlined
Tip: unfavorable witnesses or documents do not need to be disclosed

 16(b) Conference
o The court enters a scheduling order and deadlines for motions
Pretrial Disclosures
 3 days before trial parties must disclose
o Identity of Witnesses
o Identity/Reports of Experts
o Documents and Depositions parties plan to offer at trial.
Rule 11 Sanctions
 Made if an improper paper is presented to the court
 However, if a motion is made by a party to impose Rule 11 sanctions, that party must give the other 12 days to withdraw the offending paper prior to filing the
motion
LAW APPLIED BY FEDERAL COURTS

State Law in Federal Court

Federal court siting in diversity, generally applies federal law to procedural issues & state law to substantive issues:
 Federal Rules of Evidence
 Civil Procedure
 Right to a Jury Trial
 When to Bring a Class Action
 Which Party has the Burden of Proof
 Which Statute of Limitations Applies
 Caps on Damages
 Elements of Claims
 Choice of Law Rules
Federal Common Law
 Applied
o where Congress has given the courts the power to develop law - bankruptcy law, admiralty, civil rights
o where a federal rule is necessary and state law would frustrate federal objectives -comes up when a case would directly affect the US. government
Klaxon Doctrine - Important

Federal court sitting in diversity must apply the choice of law approach prevailing in the state where it sits

JURY TRIALS

Jury Trial-Seventh Amendment

 Jury Pool must be taken from a cross section of the community - jury itself does not need to be diverse.
 Jury Trial Request

o Any party can request a jury

o Issue must be triable by jury
o Serve the other parties a written demand -which can be in a pleading- no later than 14 days after the last pleading directed to the issue is served
o A proper request may be withdrawn with all parties' consent
Number

 Minimum 6 members
 Maximum 12 members
 Verdict must be unanimous unless parties otherwise agree

Instructions
 At the Close of the Evidence
o Any party may file and furnish to every other party written requests for the jury instructions.
 Objecting to Jury Instructions

o Party must do so timely, on the record, stating the mater objected to and the grounds
 Plain Error
o Appellate court may consider plain error in the instructions, even if it has not been properly preserved or objected to if the error affects substantial rights
 MOTIONS MADE DURING AND AFTER TRIAL

DIRECTED VERDICT RENEWED JMOL NEW TRIAL RELIEF FROM APPEAL

(JUDGMENT AS A MATTER OF JUDGMENT
LAW—JMOL)

DV Party renews a DV motion Errors in trial affect Jury Mistake Appeal:

Fraud
No substantial ev to support a verdict Jury decides against ev New Evidence Final Judgment
Order Granting DV
Court Asks Verdict is Excessive Order Granting a NT

Standard Has π met its burden of production? Verdict is Inadequate Not Appeal:

Preliminary Injunction
Interlocutory Orders
Collateral Matters

Timing ∆/π after π/∆ rests its case 28 days entry verdict 28 days entry verdict 1 year of judgment 30 days entry judgment
exceptions
Court may order a new
trial on its own.

COMPLAINT ANSWER/MOTION TRIAL APPEAL

Pre-Answer Motions Answer/Motion Anytime During Trial Anytime at All

 Motion to strike  Lack of PJ  Failure to join a necessary party  Lack of SMJ

 More Definite Statement  Insufficient process/service  Judgment on the pleadings
 Venue  Failure to state a valid claim/defense
 Affirmative Defenses

DISPOSITIVE MOTIONS VEREDICTS AND JUDGMENTS

Motion for Summary Judgment - SJ Default is entered by a clerk if there is no timely answer.

The question is whether there is a genuine issue of material fact. Default itself does not give any rights to collect must seek a Default Judgment

Movant must show there is no genuine issue of material fact. Default Judgments

Burden then shifts to the nonmovant which must show there is such issue  Made by clerk for a sum certain - and can be without notice

Court looks at MJS in the light most favorable to the nonmovant  Made by judge - which requires seven-days' notice if ∆ has appeared

Tip: court will deny the motion, if the case involves something subjective like No Progress Dismissals - usually are with prejudice [lawsuit cannot be refiled]
motive, intent, or credibility.
Involuntary Dismissals - usually are with prejudice
Failure to State a Claim Upon Which Relief can be Granted
Voluntary Dismissals by π - generally are w/o prejudice
 ∆ brings this motion
 Exception - Two Dismissal Rule
 Even if everything π says is true… there’s no violation of legal rights
 The second time π voluntarily dismisses a case is with prejudice
 RES JUDICATA (CLAIM PRECLUSION)

SAME CLAIM SAME PARTIES FINAL JUDGMENT ON THE MERITS

T/O Test Parties must be the same or in This means is not modifiable This includes:
privity
If it was/could have been asserted bc it  Full Trial
was part of the same t/o, it is the same  Dismissal with Prejudice
claim.  Claims decided on summary judgment
 Claims decided on JMOL
Tip: compulsory counterclaims are barred  Claims decided on Default
 Consent Judgments

Tip: a judgment may not look like it is on the

merits but it still may be considered to be for
these purposes (e.g., a dismissal with prejudice
for failing to comply with a discovery order is
"on the merits").

Effect of Preclusion

Full Faith and Credit Clause

 Judgments from state courts must be given the same effect in any other court that they would be given in the state in which they were handed down

 When determining the preclusive effect of a prior judgment, look to the law of the court that decided it.

 If a judgment would be held to have a non-preclusive effect in the estate it was handed down in, then it cannot have a preclusive effect in any other court.

COLLATERAL ESTOPPEL (ISSUE PRECLUSION)

SAME ISSUE ACTUALLY LITIGATED ACTUALLY DECIDED "NECESSARY"

Issues must be exactly the same Issues need to be raised and litigated Issues need to be decided in trial Decision must be necessary to the court's judgment

Nonmutual Collateral Estoppel

 Allows a party to invoke issue preclusion against a party who litigated and lost on an issue in a prior action.

 Defensive Nonmutual Collateral Estoppel

 Issue preclusion may be raised as a shield by a new ∆

 Offensive Nonmutual Collateral Estoppel

 Issue preclusion is used as a sword by a new π

 Good in Federal Law allows

 Good in some states & Not Good in others