BAR Exam - Civil Procedure Cheat Sheet
BAR Exam - Civil Procedure Cheat Sheet
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Date Created: 03/06/14
C IVPRO 1 Basics a Choosing a court i Which geographic location 1 Personal jurisdiction 2 Venue transfer forum non conveniens ii Federal or state 1 Diversityfederal question jurisdiction 2 Removal b Choice of law i Simple Erie forum shopping and equity 1 Procedure governed by federal substance governed by state 2 Modern version Byrd balancing test ii Modern choice of law Hanna 1 If federalstate con ict is direct federal applies c Pleading i Strategy specificity burdens on each party to pleadprove ii Rule 11 sanctions iii Rule 12 motions d Discovery i Mechanisms for discovery interrogatories depositions etc ii Strategy for discovery preparing for summary judgment e Trial i Summary judgment ii Judgment as a matter oflaw f Finality i Judgment notwithstanding the verdict ii New trial motions iii Appellate review iv Res judicata collateral estoppel g ComplexMultiparty litigation i Joinder ii Class actions II Due Process a What is Due Process i 5th Amd no deprivation of life liberty or prop wout Due Process of law ii Hamdi v Rumsfeld P must receive notice of the factual basis for his enemy combatant classi cation and a fair opportunity to rebut the government s factual assertions before a neutral decisionmaker iii The Mathews test weigh the private interest that will be affected by the official action against the government interest that will be burdened by providing greater process iv Posting notice on door cannot be considered a reliable means of serving eviction notices Greene v Lindsay 1 D must have notice reasonably calculated b Providing Notice Rule 4 i How is process served FRCP gives five ways 1 In person 4el 2 At usual place of abode to a person of suitable age and discretion 4 2 3 To D s agent 4 According to laws of the state where the court is located or where service is effected 5 By waiver of service 4el ii Objections to improper notice must be made in answer to complaint iii National Development v Khashoggi P has no usual place of abode but NY apartment had indicia of permanence iv Good faith efforts to serve are insufficient service must always comply with Rule 4 Mia39 Continent Wood Products v Harris 1 Courts may decide on a casebycase basic if a D is being intentionally evasive v A judgment procured fraudulently lacks jurisdiction and is null and void Wyman v Newhouse c Hearings amp Lawyers i Right to counsel not required in cases where personal liberty is not at stake but the trial court has discretion to assign counsel Lassiter v Department of Social Services ii Fee limitation in Veteran s Appeals cases is not a violation of Due Process Walters v National Association of Radiation Survivors l Mathews Test Gov t wants to keep the process informal which outweighs the veterans dependence on the benefits III Personal Jurisdiction must have personal subject matter jdxn for federal court a Introduction i Objections to personal jurisdiction must be made in answer to complaint ii In rem jurisdiction over claims of ownership of property iii Quasi in rem jurisdiction over a person based on that person s interest in property located within the court s territory even when property unrelated to claim iv Pennoyer v Ne must have in personam jurisdiction in order to satisfy Due Process v International Shoe minimum contacts is sufficient 1 Traditional notions of fair play and substantial justice 2 The Shoe Spectrum a No contacts no jurisdiction b Casual or isolated no jurisdiction c Single act specific jurisdiction d Continuous but limited specific jurisdiction e Substantial or pervasive general jurisdiction vi Long Arm statutes state laws that define the scope of personal jurisdiction over nonpresent defendants Erie is fed ct bound by state long arm statute l Expansive onestep state limits of personal jurisdiction are same as constitutional limits of due process a We want everyone we get under federal law CA 2 Quasi twostep lists conditions under which jurisdiction exists with constitutional review Court decisions then liberally interpret conditions to the limits of due process 3 True twostep specific statutory conditions for personal jdxn b Minimum contacts and foreseeability i World Wide Volkswagen NY Audi dealer did not purposefully avail itself of the opportunity to conduct activities in Oklahoma even though it could foresee that its buyers might take cars there 1 Even if minimum contacts standard not met personal jurisdiction can be established if D s conduct and connection w forum state are such that he should reasonably anticipate being haled into court there ii Mere awareness that a product will enter the stream of commerce is not purposeful availment Asahi 1 Rather D must seeks to serve the market in that particular state ie through advertising iii Continuous but limited activity in the forum state such as an ongoing business relationship is sufficient to establish specific jurisdiction Burger King v Rudzewicz l A single contract qualifies as a minimum contact McGee 2 D deliberately reached out beyond Michigan and created a substantial connection with Florida 3 Reasonable foreseeability of possible litigation iv Minimum contacts required in all jdxn cases Sha er v Heitner 1 Absent nonresident served within the forum cannot be amenable to process unless he has minimum contacts with the state v But in personam jurisdiction still valid for physically present nonresident with no minimum contacts within the forum state Burnham c Personal Jurisdiction in Cyberspace i Zippo Manufacturing v Zippo Dot Com Dot Com purposefully availed itself of Pennsylvania by processing Pennsylvania residents applications for online accounts minimum contacts met 1 Three categories of interactivity of a website a Active D seeks contacts with forum state sign up now b Passive D merely posts info For more info call c Hybrid middle D is sending and receiving information d Waiving Due Process Objections i Carnival Cruise Lines v Shute forum selection clause on ticket valid because Carnival Cruise is headquartered in Florida and thus has a legitimate interest in litigating there 1 Personal jurisdiction can be consented to ii Parties can select an agent to receive service which is a strong indicator of personal jurisdiction National Equipment Rental v Szukhent e Factors to consider for personal jurisdiction i Purposeful availment essential ii Foreseeability essential but not sufficient iii Longterm relationship e g a contract iv D reaches into forum state and seeks to serve e g advertising v Stream of commerce but mere awareness is not enough D still must seek to serve IV Subject Matter Jurisdiction must have personal subject matter jdxn for federal court a Diversity Jurisdiction cases arising between citizens of different states i Federal diversity jurisdiction statute 28 USC 1332 1 Amount in controversy must exceed 75000 a a Multiple claims of one P can be combined even if unrelated b But multiple claims of several P s cannot be aggregated 2 All plaintiffs must be diverse from all defendants al 3 An individual s citizenship is determined by examining where he resides and has the intention of remaining indefinitely at the time the action is filed a Mas v Perry mere residence is insufficient intent to remain indefinitely is key i P does not take citizenship of French husband nor does she take citizenship of LA where she is a student so her domicile remains MI her home b P bears burden to prove citizenship T anzymore 4 A corporation is a citizen both where it is incorporated and where it has its principal place of business c 5 Unincorporated associations have the citizenship of all their members ii Reasons for diversity jurisdiction 1 No home state advantage for one party 2 Different procedural rules 3 Judges are elected in different ways 4 State courts have bigger caseloads b Federal Question Jurisdiction federal courts have jurisdiction over cases arising under federal law ie Constitution laws of US treaties i 28 USC 1331 Art III Sec 2 ii Must have a substantive right as well as a cause of action 1 Substantive right 1 Amd 2 Cause of action 42 USC 1983 allows citizens to sue for constitutional violations a Express textual commitment Sec 1983 b Implied courts read in private right of action Title IX iii When does a case arise under federal law Franchise Tax Boara 1 only in those cases in which a wellpleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law iv The WellPleaded Complaint Requirement 1 The federal question must be included in the plaintiff s original claim not the defendant s response or in anticipation of defendant s response Louisville amp Nashville RR v Mottley a The source of the P s complaint was in state contract law b Holmes test source of complaint must be federal v The Private RightofAction Requirement 1 No federal jurisdiction if there is no express or implied private right of action Merrill Dow v Thompson a Mere presence of a federal question in a statelaw claim is insufficient vi Resolution of the federal issue must be necessary to prove the plaintiff 5 claim Grable V Venue Removal and Forum Non Conveniens a Venue after basis for federal jurisdiction is established which federal court should be assigned to hear your case i Objections to venue must be made in answer to complaint ii Generally P chooses the forum subject to limitations of personal jurisdiction subject matter jurisdiction and venue b iii 28 USC 1391 Venue is proper a1 where D resides if all D s reside in the same state or a2 where a substantial part of the events giving rise to the claim occurred 1 If diversity claim venue can also be wherever court has personal jurisdiction over D 2 If federal question claim venue can also be wherever any D may be found if no other district is possible iv Transfer ofvenue 1404 1 D can object to venue e g bc of inconvenience or the court can raise the issue sua sponte a Court should assess efficiency and expertise when determining venue Republic of Bolivia v Philip Morris 2 Transferee court must be one where the D would have been subject to personal jurisdiction and where venue would have been proper had the action been filed there originally v Improper venue 1406 1 ie bc of lack of personal jurisdiction over D in district court where P files claim Removal from state trial court to federal district court i 28 USC 1441a only authorized if P could have initially brought the action in the removal court ii 28 USC 1446 1 D must submit request for removal with federal district court Win 30 days of receiving notice 2 Must notify all parties involved in litigation and state court 3 Arguments for removal heard in federal court 4 Defendant cannot remove if the state court is in his home state 1441b iii Why remove Judges better at federal law negate homestate bias iv Entire case may be removed even it contains nonremovable claims v Proper jurisdiction at the time of judgment will generally shield the judgment from later jurisdictional attack Caterpillar v Lewis Forum Non Conveniens if forum chosen by plaintiff is substantially inconvenient and a correct forum is in a different jurisdiction court may dismiss the action on the doctrine of Forum Non Conveniens i Dismissed not transferred no court in our system can hear this case ii P s choice of forum should rarely be disturbed Piper v Reyna iii Private interests ease of access to sources of proof ability to compel unwilling witnesses to attend other practical problems of efficiency iv Public interests administrative difficulties from court congestion local interest in resolving local problems avoiding con ictoflaw problems or foreign law v FNC may not be applied simply bc the substantive law in an alternative forum is more or less favorable to one party s case Piper 1 Unfavorable change in law can only be considered when the remedy provided by the alternative forum is clearly inadequate or unsatisfactory so that it is no remedy at all VI The Erie Problem a Historical Foundations i iii iv vi Rules Decision Act 28 USC 1652 laws of the states apply in federal diversity cases except where Constitution treaties or US statutes otherwise apply Swift v Tyson interpreted laws of the several states to mean statutes only not common law then allowed judge to apply any common law authority from federal from other states from commentators to ascertain the proper rule 1 Assumed this would lead to a consensus among judges on a fundamental natural law 2 But just created potential for manipulation and forumshopping Black amp White Taxicab v Brown amp Yellow Taxicab Erie RR v Tompkins in diversity cases federal courts must apply the law that would be applied by the courts of the state in which they sit reinterpretation of Rules Decision Act 1 Swift overruled bc a General common law never came into being b Led to discrimination in favor of the outofstater by allowing him to choose a different rule of law bc he could choose federal court c Unconstitutional fed judges not authorized to make law Guaranty Trust v York If a rule is outcome determinative then state law governs 1 The outcome should be the same in statefederal court 2 Cohen v Bene cial Industrial Loan in federal diversity cases federal law governs procedure and state covers substantive issues 3 Ragan v Merchants Transfer federal rule ignored in favor of state rule because the issue was outcomedeterminative 4 Woods v Interstate Realty Co where one is barred from recovery in state court he should likewise be barred in federal court Byrd v Blue Ridge South Carolina rule authorizing the judge rather than jury to decide employee status was not bound up with the definition of the rights and obligations of the parties but merely a form and mode of enforcing the compensation scheme 1 Thus the issue is a matter of procedure and the federal court is not constitutionally compelled to apply the state practice Hanna v Plumer service of process although theoretically outcome determinative is a procedural issue to be governed by federal law 1 Whether a federal procedure is outcomedeterminative must be viewed in light of the twin aims of Erie a Discouragement of forumshopping b Avoidance of inequitable administration of the laws 2 Essentially every procedural rule is outcome determinative but choice of federal or state rule in this case will have little effect on the twin aims of Erie so federal court need not apply the state rule 3 Rules Enabling Act 28 USC 2072 Sup Ct has the power to prescribe general rules of practice and procedure such rules shall not abridge enlarge or modify any substantive right a FRCP rules are inherently procedural 4 Harlan proper approach in determining whether to apply state or federal law is to inquire whether the choice of rule would substantially affect primary decisions respecting human conduct a If so state rule should prevail vii The Hanna Test two part inquiry 1 Is there a federal directive on point a If so we go with the federal rule i US Constitution federal statute FRCP are always on point bc of Supremacy Clause ii Example if demurrer denied in state court according to state law SJ may still be granted in federal court bc of FRCP Rule 56 is on point 2 If not onpoint then apply Erie a Refer to Byrd balancing approach b But consider outcome determinative with attention to twin aims of Erie viii Procedural rule designed to make the process of dispute resolution a fair and efficient mechanism ie rules on how to file a complaint ix Substantive rule reasonably affects people s conduct at the stage of primary activity outside the context of litigation ie rules of liability x Choiceoflaw provisions 1 Horizontal choosing among several state lawsstandards 2 Vertical federal vs state law within one particular state xi Constitution federal statutes and Federal Rules always trump state law 1 Federal judicial practice v state law apply state rule if the difference could prove outcome determinative b Lingering Questions i PostErie tests 1 Twins aims of Erie doctrine a Prevent forum shopping b State sovereignty 2 York outcome determinative doctrine a Does the federal rule define who winsloses i If so defer to state law 3 Byrd balancing doctrine a Is the rule bound up with a state substantive right b If not is formmode rule outcome determinative c If so are there policies justifying the federal rule 4 Harlan s ConductDeterminative test a Apply state law if state rule affects primary conduct VII Pleading a Structure i Structure of Complaints complaint must meet requirements of Rule 8 and be able to survive a motion to dismiss under Rule 12b6 1 Rule 8 three basic elements a Statement of jurisdiction b Statement of the claim c Demand for judgment 2 Notice pleading all the plaintiff must do is provide notice to the defendant Conley v Gibson a Worry about details during discovery b Short and plain statement is sufficient 3 Two ways in which a complaint may fail to state a claim a Insufficiently detailed to allege a violation of existing law 4 b No law exists to support the claim Claim should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts to support his claim American Nurses v Illinois ii Special and Alternative Pleading l 2 3 Court may not impose a heightened pleading standard Leatherman v T arrant County P may be required to address the defense of qualified immunity in his complaint Schultea v Wood Rule 9 all averments of fraud or mistake must be stated w particularity competing interests in deterring fraud and deterring litigation as a means of extracting undeserved settlements Pleading in the Alternative Rule 8 a Plaintiff can plead inconsistent counts if he is genuinely in doubt as to what the facts are and what the evidence will show McCormick v Kopmann b Responsive Pleadings i The Answer 1 Options available to the defendant a Deny the factual allegations i Rule 8b substance of the denial must match the substance of the complaint b Affirmative defense 8c facts are true but other facts or law give D a legal out i Affirmative defenses must be raised or else they re waived ii Qualified immunity is not an affirmative defense under 8c Gomez v Toledo c Counterclaim d Motions under Rule l2b must be made before answer i Motion to dismiss for failure to state a claim ii Improper jurisdiction or venue iii Defects in the complaint ie improper notice 2 Objections to personal jurisdiction venue or service of process must 3 be made immediately upon receiving the complaint The function of pleadings is to limit the issues and narrow the proofs if an issue is removed during pleadings it is error to bring it up in trial Fuentes v Tucker ii Defenses and Amending 1 To attack a complaint D may a Move to dismiss b Move for a more definite statement c Move to strike a portion of the pleadings d Move for a judgment on the pleadings l2c i Different from l2b bc l2c motion is made after pleadings are closed 2 To protect a complaint P may a Amend if D has not yet answered b Refile complaint if dismissed wout prejudice 3 Rule 15 party may amend a pleading once a Amendment must relate back to same transactionoccurrence b If statute of limitations has run amendment allowed if it arose out of same transaction in pleading or if wrong party named in complaint Zielinski i Relates back to date of original pleading l5c c If alteration is so significant that original complaint did not give defendant adequate notice then the amendment won t relate back Barcume v City of F lint i New legal theory is okay c Policing the Pleadings i Rule 11 Attorney certi es that pleading or motion was formed after an inquiry reasonable under the circumstances and that it is a Not for an improper purpose b Warranted by existing law c Supported by evidence 2 An inquiry reasonable under the circumstances a Business Guides P attorney sanctioned for failing to research seeds in directory prior to requesting temp rest Order i Signature is not meaningless it denotes merit b Kraemer v Grant County sanctions inappropriate bc lawyer s hiring of private investigator was reasonable inquiry and discovery was needed to uncover all the facts anyway i Standard of review abuse of discretion 3 Presented for any improper purpose a Saltany v Reagan filing a complaint w an admitted no hope for success warrants sanctions 4 Warranted by existing law a F rantz v US Powerlifting original suit was frivolous based on decision from year before 5 Denials reasonably based on a lack of information or belief a Committe v Dennis Reimer Co D sanctioned for failing to raise defense of lack of personal jurisdiction in the initial motion pursuant to Rule 12 then improperly moving for summary judgment VIII Information Gathering a Discovery Rule 26 i Mandatory disclosures 26a 1 Names of witnesses copies or locations of documents that will be used to support claims or defenses computation of damages insurance information a Chalick v Cooper Hospital D sanctioned under 37cl for failing to provide information about D doctor 2 Also must disclose identities of expert witnesses and their reports 26a2 at least 90 days prior to trial 3 Without substantial justification evidence not disclosed is not admissible 3 7C1 ii Scope of discovery any nonprivileged information relevant to a claim or defense that appears reasonably calculated to lead to the discovery of admissible evidence 26b2 1 Blank v Sullivan amp Cromwell information about partners not relevant to sex suit discoverable bc info may lead to discovery of evidence of discrimination iii iv Vl vii viii ix Interrogatories Twentyfive questions directed to a party 33 l Rozier v Ford motion for new trial granted after undisclosed document discovered after trial nondisclosure prevented P from fully and fairly presenting her case Depositions Ten per party seven hours max 30 Requests for Production 34 Requests for Admission 36 l 3 7c2 if you fail to admit truth of any matter and that matter is proved at trial you may have to pay costs of proving Pretrial Conference parties must to meet to discuss settlement 26f Mental and Physical Exams ordered based on good cause only for parties or persons under a party s control 3 5 How to Handle Discovery Problems 1 What type of information does requesting party seek 2 Is the request properly made a Is it a mandatory exchange under 26a b Is it a request using another discovery tool c Is it requested in the appropriate timemanner 3 Is the requested information discoverable a 26b relevant to a claimdefense b Are there privilegesprotections that apply 4 If discoverable might the court limit discovery b Work ProductAttorneyClient Privilege i ii Work Product partial shield from discovery 1 Covers material prepared for litigation purposes a Production should be ordered only where relevant facts are hidden in an attorney s file and where witnesses are no longer available or can be reached only with difficulty Hickman v Taylor 2 Opinion Work Product 26b3 not entitled to absolute protection H olmgren v State Farm AttorneyClient privilege absolute shield from discovery 1 Covers information from a client to counsel given in private for the purpose of litigation a Communication w lowlevel employees covered by privilege when Upjohn v US i Relevant to litigation ii Employee can get the corporation in legal trouble iii Employee knows he s being questioned in regard to litigation iv Employee is questioned about things win the scope of his duties c Experts Rule 26b4 1 Party may discover a nontestifying expert s opinion or knowledge only if he conducted an examination of witnessparty 3 5b or under special circumstances only expert in the world 1 Coates v ACampS no more tissue sample existed to test Can be disqualified eg for changing sides Cordy 10 IX Summary Judgment Rule 56 a a claimant can le for SJ any time after 20 days after commencement of action defending party can file at any time c only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law i Different from a motion to dismiss bc it substitutes for an adverse jury verdict and thus the plaintiff can t resubmit the claim 1 SJ relies on evidence not allegations 2 SJ is a final decision on the merits of a claim 3 SJ is open to both parties b Movant bears the burden of showing the absence of any genuine issue of fact i Adickes v SH Kress dispute over whether there was policeman in the store is material to the issue of conspiracy ii Movant must produce evidence to negate an essential element of nonmoving party s claim c Celotex movant need not support its motion with evidence but simply point out a lack of evidence on the nonmoving party s side sufficient to satisfy 56c i P filed suit for the death of her husband alleging exposure to asbestos manufactured by D D s motion for SJ affirmed d Matsushita P accuses D electronics manufacturers of conspiring predatory pricing to drive American firms from the American consumer electronics market D s motion for SJ affirmed e Anderson court must consider which party bears the burden of proof at trial as well as the standard of proof each party must meet X The Trial Who Decides a The Jury i Rule 47 jury selection 1 Voir dire preliminary examination of prospective jurors a Motion to strike for cause juror cannot give a fair verdict prior knowledge eg b Preemptory strike strike juror without explanation i Three per party can t be biased ii Rule 48 six to twelve jurors required must have unanimity iii Rule 49 special verdicts iv Rule 51 jury instructions objections preserving a claim of error v Rule 52 findings by the court judgment on partial findings 1 Court cannot improperly invade the jury s function Gallick vi Advantages of trial by judge I judge knows the law 2 as a single decision maker judge can more easily indicate when he is confused 3 no hung jury 4 judge has experience with evidence 5 more consistent vii Advantages of jury 1 more open minded no prior experience 2 input from several different people 3 only hears admissible evidence whereas judge hears inadmissible evidence as well 4 no contact with lawyers so no hostility favoritism biases or prejudices cancel each other out 6 at least some of the jurors are peers of the litigant Squot 11 7 more in touch with community standards viii 7quot Amd right to jury trial is preserved in suits at common law 1 Interpreted by asking what would the Founding Fathers have done in 1791 2 No right to jury in state cases only federal 3 Right to jury trial in causes of action created by statute as well as common law cases Curtis v Loether 3 Statutory case is like an action in tort which would have a jury in 1791 ix Twopart test to see if right to jury trial exists 1 Historical analog to 1791 if right exists then then it exists now 3 Even if right to jury existed in 1791 jury not required if it would not preserve the substance of the common law as it existed in 179 1 i Markmcm v Westview Inst judges are better suited than juries to give interpretations of highly technicalcomplex patent claims only applied in extreme circumstances 2 Common law jury or equity judge case a b If both common law money damages trumps equity No jury in injunction cases bc there was no jury right in equity in 1791 Beacon Theatres v Westover P les for injunction against D D counterclaims for money damages i Issues can be settled in one suit so Beacon entitled to jury trial money damages an action at law trump equity b Judgment as a Matter of Law Directed verdict i Rule 50 no legally sufficient basis for a reasonable jury to find for that party on that issue 1 Motion for JMOL may be made at any time before submission of the case to the jury 2 If not granted it may be renewed after trial Judg Notwith Verd 3 ii JMOL V SJ If verdict was returned court can a allow the verdict to stand b order a new trial or c direct entry of judgment as a matter of law If no verdict was returned court can a order a new trial or b direct entry of judgment as a matter of law Judge cannot reweigh the evidence or judge the credibility of witnesses i Evidence must be viewed in the light most favorable to the party securing the verdict 1 Similarities a b Both turn on whether there is a real dispute as to a crucial factual issue i genuine dispute SJ v no legally sufficient evidentiary basis JMOL Both motions take a case from the jury 2 Differences a JML comes after all evidence for a party is presented 12 iii Galloway v US Eight year gap in P s record cannot support a verdict directed verdict granted for D iv Reeves v Sanderson Plumbing there was sufficient evidence for jury to nd that D intentionally age discriminated because P 1 Established a prima facie case of discrimination enough to defeat motion to dismiss 2 Introduced sufficient evidence to reject D s explanation 3 Produced additional evidence of agebased animus c Motion for New Trial Rule 59 for all or any parties on all or any issues no later than ten days after entry of judgment i Can t be filed until final judgment is rendered jury verdict SJ etc ii Standard of review abuse of discretion iii Court may consider issues of credibility unlike for JML JNV SJ iv Sana ers El v Wencewicz D attorney drops rap sheet printout 1 New trial bc of prejudicial conduct of attorney v Weisgram v Marley new trial ordered bc expert testimony was speculative and should not have been admitted XI Appeals and Finality a Direct Attacks i Rule 60 motion to set asiderelieve a verdict 1 Clerical mistakes 2 Mistakes inadvertence excusable neglect newly discovered evidence which by due diligence could not have been discovered in time for new trial motion fraud 3 Must be made win reasonable time for mistake new evidence and fraud no more than one year after judgment 4 Rule 61 no relief for harmless error ii Direct attacks on judgments of courts lacking jurisdiction 1 Judgment is entitled full faith and credit when the second court s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment Durfee v Duke iii Direct attacks on judgments obtained by fraud or mistake I Kupferman v Consolidate Research undiscovered release wasn t concealed through fraud but rather basic adversarial gain 2 Rule 60b motion to vacate judgment is denied iv Judgments contrary to law 1 Rule 60b6 court may grant relief for any other reason not listed as is appropriate to accomplish justice 2 Pierce v Cook 60b motion granted bc of divergent results in statefederal courts extraordinary circumstances b Posttrial Motions and Appellate Standards of Review i 28 USC 1292b Interlocutory appeal an appeal that occurs before the trial judge s final ruling l Collateral order doctrine holding off on a final ruling until a preliminary issue is decided by another court ii When will a decision be appealed 1 Plain error jurisdictional issues change in law since decision iii Appellate standards of review 1 Unreviewable some agency decisions military 13 2 Reasonableness no reversal if a jury could have reached the verdict on the evidence 3 Abuse of discretion mistakes okay but not big ones 4 Clear error judicial ndings of fact not set aside unless manifest evidence in the record of error 5 De novo appellate judges take a fresh look at the decision at trial c ClaimIssue Preclusion i Claim preclusion res judicata 1 Bars filing a claim that was decided in an earlier suit 2 Requires immediate dismissal of the entire claim 3 Covers claims not raised in earlier suit but should have been 4 Requirements a Cases 1 and 2 must have same P against same D b Case 1 must have ended in a valid final judgment on the merits i Successful motion to dismiss counts as on the merits unless based on lack of jurisdiction c Cases 1 and 2 must both be based upon the same claim i Arising from the same transaction or occurrence ii Different legal theories or theories of recovery are barred by res judicata iii Claim not barred bc of different defendants 1 Although issue preclusion may take effect ii Issue preclusion collateral estoppel 1 Bars rearguing issues that have been previously litigated and adjudged on the merits 2 Does NOT always require dismissal of claim Can operate in cases unrelated to previous lawsuit 4 Requirements a Issue in case 2 identical to the one in case 1 b Issue was actually litigated and determined in case 1 c Case 1 produced a valid nal judgment on the merits d Issue was essential to the judgment of case 1 5 Nonparties in case 1 may still be precluded in case 2 a Parkland v Shore mutuality of parties no longer a requirement D estopped from litigating issues that D had previously lost against another P b Offensive collateral estoppel allowed but only when D already had a chance to argue his case fully 6 Defensive collateral estoppel P estopped from asserting a claim that the P had previously lost against another D 7 Offensive collateral estoppel D estopped from relitigating issues which D had previously lost against another P 8 Commissioner of Internal Revenue v Sunnen collateral estoppel does not apply each year represents a different tax claim 9 Allen v McCurry collateral estoppel prevents P from filing 1983 action for 4th Amd violations bc trial judge in criminal trial found no violation of 4th Amd U XII Joinder a Terms i Claim 14 ii Counterclaim D seeks relief against P iii Crossclaim Dl seeks relief against D2 iv Impleader D joins an absentee party V Interpleader Party asks court to resolve con icting claims over item of value vi Intervention Unaligned party w distinct interests gets involved in litigation b Joinder of Claims i Rule 18 party may join as many claims as the party has against the opposing party 1 No common transactionoccurrence necessary ii Rule 13 counterclaims arising out of same transactionoccurrence must be filed in responsive pleading c Joinder of Parties i Rule 19 compulsive joinder 1 Is the party necessary If so is the party indispensable 2 a Criteria for determining necessary parties a Complete relief cannot be accorded in party s absence or b Person has an interest in the action and the person s absence may i impede ability to protect that interest or ii expose existing parties to inconsistent obligations 3 b Indispensable parties if necessary parties cannot be joined 4 Impossible joinder If case can t proceed without absent party party is indispensable and absent party does not fall within jurisdiction then claim cannot go forward ie joining him destroys diversity jdxn 5 Temple v Synthes Corp not necessary to label joint tortfeasors as indispensable parties a Each D has different defense 6 Helzberg v Valley West unjoined D not indispensable bc it would not be prejudiced by the action ii Rule 20 permissive joinder l a P may join other Ps or Ds if they assert any right a Arising out of the same transaction or occurrence and b There is a common question of fact or law 2 b Separate trials may be order to prevent delay or prejudice 3 Mosley v General Motors various unrelated discrimination claims against D joined bc they are logically related a Same general companywide policy of discrimination b Broad interpretation of Rule 20 necessary in civil rights cases XIII Class Actions a Introduction i Rule 23 allows litigation to proceed by or against a group where a representative represents the group ii Rule 23c 1 Certification of class action 2 Heightened notice and optout requirements for 23b3 class 3 Judgment must specify members of class for preclusion purposes iii Rule 23d considerable discretion to dist ct judge to effectively manage the class action iv Rule 23e dismissalsettlement requires court approval and notice to all members v Rule 231 interlocutory appeal of certification decision subject to discretion of Court of Appeals 15 1 Blair v Equzfax when de ning the broad discretion of the appeals court take into consideration whether a Denial of class status sounds the death knell of litigation b Grant of class status puts pressure on the D to settle c Decision will contribute to the development of the law so the district courts have more guidance vi Different from joinder joinder is several named parties may each have their own attorneys class actions name only one party acting on behalf of the class b Certi cation i Rule 23a Prerequisites for establishing a class all must be satisfied 1 Numerosity joinder is impracticable because there are so many parties 2 Commonality common question of law and fact 3 Typicality claims or defenses of the representative class must be typical of the claims or defenses of the class 4 Adequacy representative parties will fairly and adequately protect the interests of the class ii Rule 23b Categorize the class any one category must be satisfied 1 Prejudice separate actions would create risks of judgments establishing incompatible standards of conduct OR impair the nonparties ability to protect their interests a Ex different results in individual cases or D can t afford judgments in several individual cases 2 Equitable relief injunctive or declaratory 3 Everything else consider a Predominance Does the common question of lawfact predominate over questions affecting individual members b Superiority Is the class action better than legislative or other judicial options e g joinder c Manageability are the different applicable laws too difficult to manage ie standard for negligence different in various states d Other factors 4 Angelastro v Prudential motion to certify under 23b2 denied bc equitable relief not appropriate remedy 23b3 denied bc individual issues of liability predominate over common issues c Who is Bound i A member of a class is not bound if his interests are not adequately represented l Hcmsberry v Lee Individual in neighborhood not bound by the decision in a case where his neighborhood formed a class in favor of restrictive covenants bc the class didn t adequately represent his interests ii If the class action does adequately represent the interests of a class then the approval of the class is consistent with due process and the class members are bound by the judgment 1 Martin v Wilks white firefighters not bound by consent decree bc they were not joined by original plaintiffs in class action d Providing Notice i Civil Rights Act of 1991 prohibits collateral challenges if challenger had actual notice and his interests were adequately represented ii Rule 23c2 for classes certified under 23b3 1 Best notice practicable under the circumstances including individual notice to all members who can be identified through reasonable effort 16
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