Outline

Subject Matter Jurisdiction

Subject-matter jurisdiction is the power of a court to hear a specific kind of claim.

Federal courts have limited subject matter jurisdiction. They have subject matter jurisdiction if (1) the case is a federal question; or (2) there is complete diversity of citizenship between adverse parties and the amount in controversy is more than $75,000.

Federal Question

Federal courts have subject matter jurisdiction over a case if the cause of action states that there has been a violation of federal law. The alleged violation of federal law has to be the reason why the case is being brought; it cannot be an additional charge if that charge does not go to the heart of the alleged offense.

Diversity Jurisdiction

For a federal court to have diversity jurisdiction over a claim, there must be complete diversity between the adverse parties and the amount in controversy must exceed $75,000. Complete diversity of citizenship is when all the adverse parties are citizens of different states.

A person is a citizen of a state where they have their domicile. A domicile is the place where a person lives and intends to continue living in the foreseeable future. Factors that contribute to showing that a state is a person’s domicile include whether that person resides in the state, owns property in the state, is licensed in the state, participates in political processes in the state (i.e., voting), pays taxes in the state, and is involved in community activities in the states.

A corporation is a citizen of the state where they are incorporated, and the state where they have their principal place of business or “nerve center”. A corporation cannot have more than one principal place of business.

The second requirement for a federal court to have diversity jurisdiction is that the amount in controversy be more than $75,000. A court will defer to the plaintiff’s allegation of financial injury unless it appears to a legal certainty that the plaintiff’s claim does not exceed $75,000.

The court will aggregate claims if the plaintiff brings multiple claims against a single defendant. The claims can be totally unrelated; there is no same transaction or occurrence. The court will not aggregate claims against multiple defendants.

Multiple plaintiffs cannot aggregate their claims against a single defendant to meet the amount in controversy requirement unless the plaintiffs are enforcing a single title or right in which they have a common and undivided interest. This is rare and difficult.

Supplemental Jurisdiction

Where federal district courts have subject matter jurisdiction in any civil action, they also have supplemental jurisdiction over other claims so related to the original claim that they form part of the same case or controversy under Article III of the Constitution. Supplemental jurisdiction includes claims asserted by the original plaintiff against the original defendant, but also by the defendant against the plaintiff or other parties, or by plaintiffs against such parties, or by defendants against one another, and so on. See 28 U.S.C. 1367(a) (affirming that supplemental jurisdiction covers matters involving the joinder of additional parties).

The test for “same case or controversy” is if a claim for which there is no independent basis for federal jurisdiction has a common nucleus of operative fact with a claim that does have an independent basis for federal jurisdiction. For there to be a common nucleus of operative fact there must be a logical relationship between the claims. The two claims do not need to have exactly the same facts, but they should be “so logically connected that considerations of judicial economy and fairness dictate that all issues be resolved in one lawsuit.” Jones v. Ford Motor Credit Co., 358 F.3d 205, 209-211 (2d. Cir. 2004).

Watch out for sneaky plaintiffs in diversity jurisdiction trying to sneak claims which would not normally be allowed in diversity jurisdiction:

Under 28 U.S.C. 1367(b) there is a limitation on supplemental jurisdiction where the sole basis for federal subject matter jurisdiction over any part of the case is diversity jurisdiction. This is to prevent the original plaintiff from bringing a suit where there is complete diversity, but later on trying to bring in a non-diverse party by asserting a supplemental jurisdiction claim against that party, in a seeming effort to use supplemental jurisdiction to sneak past the complete diversity requirements of 28 U.S.C. 1332.

Under 28 U.S.C. 1367(c), a federal court may decline to exercise supplemental jurisdiction over a claim if (1) the claim raises a novel or complex issue of state law; (2) the claim as to which there is only supplemental jurisdiction substantially predominates over those as to which there is freestanding subject matter jurisdiction; (3) the federal court has dismissed all claims with independent subject matter jurisdiction; or (4) other compelling reasons in exceptional circumstances.

Federal Common Law

Federal common law is generally confined to (1) maritime law; (2) foreign relations; (3) commercial rights and liabilities of the federal government; and (4) property rights and liabilities of the federal government. In these cases, federal courts will apply (and, if need be, create) federal common law and ignore any state law that might otherwise apply.¹

Personal Jurisdiction

Under the Federal Rules of Civil Procedure, a federal court must have personal jurisdiction over the defendant. Personal jurisdiction can be based on (1) general jurisdiction (domicile, consent, or “at home” in the forum state); (2) transient or “in personam” jurisdiction (physical presence and service in the state); or (3) specific jurisdiction (minimum contacts).

For a federal court to have general jurisdiction over a defendant, the defendant must either (1) be domiciled in the forum state or (2) consent to the case being heard in the forum state.

A federal court can also have general jurisdiction over a defendant if the defendant’s business activity in the forum state is so substantial that the company is essentially at home in the forum state. Substantial business is a high bar to clear. The defendant must do business in the forum state to such an extent that the defendant is essentially “at home” in the forum state. The “at home in the forum state” analysis is also possible for defendants who are persons rather than corporations.

For a federal court to have transient jurisdiction (also known as “tag” jurisdiction) over a defendant, the defendant must be physically present in the forum state and be served with process while in the state.

A federal court can exercise specific jurisdiction over a defendant that has minimum contacts with forum the state, meaning that the contacts with the forum state must have been (1) purposefully undertaken by the defendant; (2) such that it is foreseeable that he could be sued there; and (3) the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice.

If the defendant is engaged in e-commerce, courts look at three factors to determine if the defendant’s product reached the forum state through e-commerce: (1) The level of interactivity on the defendant’s website; (2) The extent of “hits” on that website by users located in the forum state; and (3) The extent of commercial activity conducted by defendant in the forum state.

In determining whether the exercise of personal jurisdiction is fair and reasonable courts consider (1) the burden on the defendant of having to litigate in the forum state; (2) the plaintiff’s interest in a convenient forum for obtaining relief; (3) the state’s interest in providing a forum; and (4) the interests of the interstate judicial system in efficiently resolving disputes.

Long-Arm Statute: A state long-arm statute often says that a state may exercise jurisdiction over absent defendants to the “full extent permitted by the due process clause of the United States Constitution.”

Venue

When a federal court’s jurisdiction is based on diversity, venue is proper (1) in any district where a single defendant resides if all defendants reside in the same state, or (2) in any district where a substantial part of the acts or omissions giving rise to the action occurred, or (3) in any district where any defendant is subject to personal jurisdiction, if there is no other district in which the action might be brought. If the defendants reside in multiple states, then proper venue will always be the location of the harm.

If I see the word “district” in a fact pattern, it probably involves venue.

Note: “Substantial events” giving rise to a lawsuit can happen in more than one judicial district.

Removal

A defendant can remove a case from state to federal court if the case could have originally been filed in federal court, except if (1) federal jurisdiction would be grounded only in diversity jurisdiction; and (2) the defendant is a citizen of the state where the plaintiff filed suit.

Counterclaims, cross-claims, and impleader claims are not sufficient, on their own, to permit removal.

If there are multiple defendants, a case can only be removed if all defendants agree to remove. The defendant must remove within 30 days of when grounds become apparent (usually become apparent when defendant is served). If the plaintiff amends the complaint, then the defendant has 30 days from that point. If the plaintiff sues multiple defendants and serves them with process at different times, the 30-day window for removal runs from the moment the final defendant is served. Later service on other defendants does not empower the first-served defendant to remove of its own accord; the first defendant may only join in a removal initiated by a later-served defendant.

If removal is based on diversity, the defendant must remove within one year of filing unless the plaintiff attempted to thwart removal.

Transfer of Venue

Transferring venue is moving a case from federal court to another federal court (as opposed to removal which is state to federal). A case may be transferred for (1) convenience (commonly used) if the case could have been filed there in the first place and transfer is necessary for the convenience of the parties and/or witnesses; (2) agreement if all parties join the request to transfer, the court does not need to consider personal jurisdiction or venue (if they agree they are consenting); or (3) interest of justice where if the case was filed in an improper venue, the court can transfer it where it could have been filed originally.

Forum non conveniens

If the most convenient forum is not in the U.S., the court cannot transfer the case, but can dismiss it without prejudice so the plaintiff can refile in the proper country. This may not be in the U.S.. The same factors are considered as in the transfer of venue.

In dismissing a case under forum non conveniens, the court will often condition dismissal on the defendant waiving future challenges to the statute of limitations or other similar defenses.

The Erie Doctrine

The Erie Doctrine concerns whether a federal court should apply federal substantive law or state substantive law in a civil case. Substantive law is the part of law that creates, defines and regulates the rights, duties and powers of the parties.

In Erie, the Supreme Court ruled that in any civil case where there is no governing substantive federal statutory law or constitutional law, federal courts should apply state substantive law, regardless of whether it is state statutory law or state common law.

When a federal court sits in diversity jurisdiction and there is no controlling federal law, the federal court should apply the law of the state where the federal court sits, including the state’s choice of law rules, which could lead to the application of another state’s laws. Federal courts are generally required to apply substantive state law as the state’s highest court would rule.

Procedural Law Post-Erie

In cases where there is no controlling substantive federal statutory law or constitutional law, federal courts must apply state substantive law and federal procedural law unless the federal procedural rule modifies a substantive right (this has never happened).² In federal court, even in a case where state substantive law applies, the court will use federal rules of procedure even to the displacement of any contrary state rules so long as the federal rule is consistent with the Constitution and the Rules Enabling Act (it almost always is). The Rules Enabling Act allows the Supreme Court to promulgate rules for civil practices in federal court so long as they don’t abridge, enlarge, or modify any substantive right.

Where the competing federal rule is federal common law (an uncodified judicial practice) Courts look to Erie, York, and sometimes Byrd to see whether the federal rule would hearken back to pre-Erie abuses (forum shopping and unequitable application of law). If it does, then it is “substantive,” and the state rule should apply under Erie—unless perhaps, as in Byrd, a significant federal-specific interest justifies applying the federal rule anyway.

The Erie Doctrine does not demand that a law be characterized in the first instance as substantive or procedural (I don’t believe Erie mentions procedure). If the court uses state law it is substantive, and if it uses federal law it is procedural.

Note on Substantive and Procedural

Statutes of Limitation are substantive. In a federal court sitting in diversity jurisdiction, statutes of limitation are controlled by state law in order to prevent forum shopping and unfairness. Therefore, in this narrow context, state statute of limitations are labeled “substantive”.

Choice of law rules are substantive. In a federal diversity suit, Erie requires that federal courts apply the choice of law rules of the state in which it is sitting. This is in order to prevent forum shopping and unfairness. Therefore, in this narrow context, state choice of law rules are labeled “substantive”.

General Rules of Pleading

General rules of pleading includes the complaint, amendments, statute of limitations including relating back, service, and more stuff.

The Complaint

A complaint must have (1) grounds for subject-matter jurisdiction; (2) a statement of facts sufficient to show that the plaintiff is entitled to relief; and (3) a demand for judgment and the relief sought. Rule 8.

Under the traditional rules of pleading, a pleading that states a claim for relief must only contain [Fed. R. Civ. P. 8]: (1) a short and plain statement of: (a) the grounds upon which the court’s jurisdiction rests; and (b) a statement of a claim, which, if true, would entitle the claimant to relief; and (2) a demand of relief. However, two Supreme Court cases suggest that more detailed pleadings are required [Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009)]. In these cases, the Supreme Court explained that the “short and plain statement of the claim” required under Rule 8 must include “sufficient factual matter” to state a plausible claim.

Amendments

A party can amend a pleading once as a matter of right. A complaint can be amended within 21 days of serving the original complaint or within 21 days of being served an answer or a motion to dismiss. A party can amend an answer within 21 days of serving the original answer.

A party can amend a pleading with permission of the opposing party or permission of the court, which will consider the reason for delay and prejudice (usually granted).

Statute of Limitations including Relating Back

When adding new claims, the date of filing of an amendment will relate back to the original filing date if the new claim arises from the same transaction or occurrence as the existing claim (relation back rule).

When adding new parties, the date of filing will relate back to the original filing date if (1) the new claim arises from the same transaction and occurrence as the existing claim; (2) the new party knew of the suit soon enough not to be prejudiced (generally during the time permitted for service of the original complaint); and (3) the new party should have expected to be named, but-for a mistake in identity. ^{3 2}

Service of Process

When bringing a civil suit in federal court, a plaintiff must serve both the complaint and the summons within 90 days of filing the complaint. If the plaintiff fails to serve the defendant within 90 days, the court must dismiss the suit without prejudice. However, if the plaintiff can show good cause, the court must provide the plaintiff additional time for service.

To serve process, a person must be at least 18 years old and not a party to the suit. Process can be served (1) in the manner prescribed by the state court in (a) the state where the federal suit was filed; or (b) the state where the defendant is currently located, even if it is not where the defendant resides or where the lawsuit is filed.

Process can be served (2) according to Rule 4 of the Federal Rules of Civil Procedure, which provides that (a) if the defendant is a natural person, process can be (i) delivered to the defendant through a third party; (ii) left at the defendant’s usual abode with a person of suitable age and discretion residing there; (iii) delivered to the defendant’s registered agent; or (iv) mailed with a letter requesting the defendant waive in-person service (if the defendant declines to waive, they become responsible for the cost of personal service).

If the defendant is a corporation, partnership, or association, process can be (i) delivered to an officer; (ii) delivered to to a managing agent or general agent; or (iii) delivered to any other agent authorized by appointment or by law to receive service. If law requires service by mail, it must be by hand and mail. Serving process to the home of the president of the corporation is not proper service if the defendant is the corporation!

If a court has the power to assert personal jurisdiction over a party, that power becomes active at the moment the defendant is served with process or a waiver is filed with the court, if service is accomplished by request for waiver.

Where a plaintiff relies on transient jurisdiction (aka tag) to subject the defendant to personal jurisdiction, the court’s personal jurisdiction is created and activated when the plaintiff is served.

Service and Due Process

The defendant is entitled to notice of the claims against them and an opportunity to respond to those claims. When a person is served, they have notice. To satisfy due process, service must be reasonably calculated to inform the defendant of the action against them.

Notice without service may be a constitutional issue.

To satisfy due process requirement for notice, the plaintiff must take steps that are reasonably calculated to inform the defendant of the action against them.

Responding to a Complaint

Answer

A defendant’s answer to a complaint is where the defendant admits or denies the plaintiff’s allegations and lists defenses. The defendant should specifically admit or deny each allegation. If an allegation is not denied, it is admitted. There is no limit to how many defenses a defendant can list. Common defenses are statute of limitations, statute of frauds, and assumption of risk. If a defense is not included in the answer, generally it is forfeited. However, there are some exceptions. Even if a defendant does not list them, the defendant does not forfeit defenses of (1) failure to state a claim upon which relief should be granted; (2) failure to join a necessary party; and (3) lack of subject matter jurisdiction.

Motion for more definite statement: Instead of filing an answer, a defendant can file a motion for more definite statement. The court will order a pleading to be clarified if it is so vague that the responding party cannot reasonably prepare a response.

Motion to strike: The court can (on its own or on motion) order material stricken if the complaint or answer contains redundant, immaterial, or scandalous material.

Motion to dismiss: Seeks dismissal, can be filed by any defending party.

Timing of Responses

Initial response (answer or pre-answer motion):

If the defendant was actually served with process - 21 days to respond. If service of process was waived - 60 days to respond. If the defendant responds and motion for more definite statement, motion to strike, or motion to dismiss is denied, the defendant must file an answer within 14 days of denial.

Ethical Obligations

The submission of a document to the court must be based on good faith, good facts, and good law.

Safe harbor for 21 days after service to amend complaint.

Rule 11 does not apply to discovery. Discovery has its own rules.

Provisional Relief

The plaintiff files suit seeking injunctive relief, but can’t litigate the suit fast enough to get that relief before the defendant commits some irreversible harm.

Preliminary Injunction

There must be notice to the adverse party and the plaintiff must show (1) likelihood of success on the merits; (2) irreparable harm to the plaintiff if preliminary injunction is not granted; (3) the harm to the plaintiff would be greater were the preliminary injunction denied than the harm to the defendant if it were granted; (4) the injunction would not be injurious to the public interest; and (5) payment of security where the plaintiff deposits enough money with the court to pay damages if the suit is unsuccessful.

Temporary Restraining Order

Same test as preliminary injunction, but temporary restraining order expires 14 days after issuance. It can be extended for 14 days upon good cause shown.

A temporary restraining order can be ex parte (issued without notice) if (1) specific facts clearly show that immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition; and (2) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Joinder of Claims

A party asserting a claim, counterclaim, crossclaim, or third-party claim may join as many claims as it has against an opposing party, regardless of whether the claims are related. Rule 18.

A defendant may bring a permissive counterclaim which does not arise out of the same transaction or occurrence underlying the plaintiff’s claims against the defendant. Rule 13.

A defendant may bring a compulsory counterclaim against the plaintiff if it arises from the same transaction or occurrence underlying one of the plaintiff’s claims. If the defendant does not bring a compulsory counterclaim, they forfeit the right to bring the claim in future litigation. Rule 13.

A party can only file a crossclaim (party against co-party) if it arises from the same transaction or occurrence underlying one of the plaintiff’s claims. After a first related crossclaim is filed, the party can join unrelated crossclaims under rule 18. A codefendant may counterclaim the crossclaim. Rule 13.

A defendant may bring an impleader claim against a person who is not already a party. To do this, the defendant must allege that the third party is responsible for some or all of the liability. The defendant has a right to bring the impleader claim within 14 days of serving an answer. If they bring it later, they need permission from the court. After being impleaded, the impleaded third person party may bring their own claims against others and implead others. The original plaintiff can also file a claim against the impleaded defendant if the claim relates to one of the plaintiff’s original claims. Rule 14.

Examples of impleader claims are contribution (claim against joint tortfeasor), and indemnity (claim against insurer).

Joinder of Parties

Permissive joinder is when multiple parties are permitted to join one suit, or multiple defendants are permitted to be sued in one suit. Parties may be joined to a suit if (1) the joining parties claim relief or face liability that arises out of the same transaction or occurrence; and (2) there are questions of law or fact common to the joining parties.

Mandatory joinder is when a party is mandated or forced to add a party to the suit. There are two or three steps for determining if a missing party must be added. The first step is determining whether the missing party is necessary. A missing party is necessary when (1) the missing party has an interest that might be impaired if the missing party is left out; (2) complete relief cannot be issued in the missing party’s absence; or (3) if current parties would be subject to inconsistent or duplicative liability were the missing party not added. The second step is to determine whether the court has jurisdiction over the missing party. A missing party cannot be joined in federal court if (1) the court lacks personal jurisdiction over the missing party, or (2) adding the party would destroy subject matter jurisdiction by destroying diversity. If the missing party cannot be joined, the third step is determining whether the party is indispensable. The court will consider (a) the extent of prejudice to the missing party; (b) whether the prejudice can be lessened by shaping the relief in a certain way; and (c) if the case is dismissed, whether the plaintiff can find relief in another forum. If the court finds that the missing party that cannot be joined is indispensable, the court must dismiss the suit. If the court finds that the missing party is not indispensable, the court can adjudicate the case in the missing party’s absence.

Class Actions

Rule 23 is the most common class action on the bar exam.

Under Rule 23, one person (the representative) can litigate on behalf of a group (the class) if (1) a class can be formed, and (2) the action brought is proper for resolution via class action.

To form a class, there must be (1) numerosity, meaning that there are so many claimants that a joinder would be impractical; (2) commonality, which is when there are questions of law or fact common to the class; (3) typicality, meaning that the representative’s claims are typical of class members (this is to ensure that the representative will have an incentive to litigate in ways to protect the class); and (4) representativeness, where both the class representative and the attorney have the capacity to fairly and adequately protect the interests of the class.⁴

An action is proper for resolution via class action if (1) separate actions would create a risk of inconsistent judgments or judgments would impair nonparties from protecting their interests; (2) the opposing party acted in ways generally applicable to the class (not likely to work if the class is seeking money damages)⁵; the court finds that common questions of law or fact predominate over individualized questions, and a class action is superior to other methods for a fair and efficient result. ⁶

Additional Considerations for Class Action

The federal court must have personal jurisdiction over every defendant and the named plaintiff.

Judgment binds all class members unless they opt out.

In common-question class actions, class members must be given notice of the pendency of the suit, usually through mail or publication.

When alleging a state law violation, the class can appear in federal court only if the defendants and representative plaintiffs (not all members) are completely diverse.

Under the Class Action Fairness Act, if the class has 100 members and seeks damages over $5M, diversity is satisfied if any single member is diverse from any defendant.

Jurisdiction can be established through an initial filing in federal court or through removal. Moreover, unlike ordinary removal rules, if the class has 100 members and seeks damages over $5M, removal can be made by a home state defendant and can be made without the agreement of all other defendants.

Interpleader Claims

An interpleader claim is when a party sues a co-party, and used when a party fears it will face multiple or inconsistent liabilities.⁷

Statutory Interpleader (28 U.S.C. § 2361): Interpleader is a legal procedure that allows a party holding property or money (the stakeholder) that is claimed by two or more other parties (the claimants) to initiate a lawsuit. The purpose is to compel the claimants to litigate their entitlement to the property or money among themselves, thereby relieving the stakeholder from multiple liabilities.

Nationwide Service of Process: Under 28 U.S.C. § 2361, federal courts handling statutory interpleader cases have the authority to issue process (legal documents such as summonses) and have them served anywhere in the United States, regardless of where the claimants are located. This means that in a statutory interpleader case, a federal court can reach defendants nationwide.

Service and Personal Jurisdiction: Federal Rule of Civil Procedure 4(k)(1)(C) states that serving a summons and complaint in accordance with a federal statute establishes personal jurisdiction over a defendant. In other words, if a federal statute authorizes service of process, complying with that statute’s requirements is sufficient to grant the court personal jurisdiction over the defendant, no matter where the defendant is located within the United States.

Therefore, in a statutory interpleader case, because 28 U.S.C. § 2361 authorizes nationwide service of process, serving the defendants in any district within the United States is permissible. Under Federal Rule of Civil Procedure 4(k)(1)(C), the act of serving the summons and complaint as authorized by the statute (28 U.S.C. § 2361) is enough to establish personal jurisdiction over the defendants. This means the federal court can exercise authority over the defendants regardless of where they are found in the country.

Example: Imagine a bank holds a fund that two people, one in California and one in New York, are claiming. The bank can file a statutory interpleader action in a federal court and serve process to both claimants, even though they are in different states. Thanks to 28 U.S.C. § 2361 and Rule 4(k)(1)(C), serving these documents as authorized by the statute establishes the court’s personal jurisdiction over both claimants, allowing the court to adjudicate the dispute.

Intervention

An intervention is allowed when a non-party is interested but has not been joined.

A party can bring an intervention of right where the court must allow them to intervene upon timely application when (1) the party claims an interest relating to the subject matter of the action, and (2) without intervention, there is a risk that they might not be able to protect that interest.

A party can have a permissive intervention where upon timely application and at the court’s discretion, a party may intervene with a claim or defense that shares with the main action a common question of law or fact.

Relationship between Joinder Jurisdiction and Venue

Subject matter jurisdiction is necessary for every claim, whether counterclaim, cross-claim, impleader claim, or any other claim in a lawsuit.

Personal jurisdiction is necessary for every party (remember, in class actions, class members are not “parties” for the purposes of personal jurisdiction; only the lead plaintiffs are parties). Thus, if a plaintiff sues multiple defendants, or a defendant impleads a third party, the court must ascertain whether each and every party before it is subject to the power of the court.

Under the Bulge Rule, an impleaded defendant is subject to the personal jurisdiction of a federal court if, in addition to any other ground for personal jurisdiction, the impleaded defendant is served with process within 100 miles of the courthouse where the suit is pending.

The rules for venue need only be satisfied when the lawsuit is filed. If claims are joined after the initial filing, those claims generally may not be challenged for being brought in an improper venue. (One exception is Rule 19 where if the joined party objects to venue and adding the party makes venue improper, the court must dismiss the joined party.)

Discovery

Discovery can be divided into four topics. These are mandatory disclosures, scope, methods and enforcement.

Pretrial Conferences

Rule 26(f) requires parties to meet and discuss the likely content of discovery in the case and draft a discovery plan. The plan must be submitted within 14 days of the conference. The conference must be held at least 21 days before a Rule 16(b) conference is held or scheduling order is issued.

After a Rule 26(f) conference has been held, the court may order the parties to confer again to discuss the litigation and, in particular, the most efficient way for it to proceed and possibilities for settlement. This is the Rule 16(b) conference. Rule 16(b) requires the court to issue a scheduling order. The scheduling order will dictate the schedule upon which the litigation will progress (e.g., motions, adding parties) and specify particular rules pertaining to discovery (e.g., scope).

Mandatory Disclosures

Initial disclosures must be made within 14 days after a Rule 26(f) conference and must provide witnesses; copies or description of documents including electronically stored information (ESI), and tangible objects; damages meaning computation of damages sought and supporting documents; and copies of insurance agreements that may require the insurer to pay.

Expert disclosure must be made at least 90 days before trial. A party must disclose the name and contact information of the expert witness and their final report, which must include the qualifications, opinion, and information relied on by the expert. (Whatever information a party shows their expert must also be provide to the other party).

Pretrial disclosures must be made at least 30 days before trial A party must provide to all other parties a list of witnesses expected to call at trial; a list of witnesses that may be called if the need arises; a list of witnesses whose testimony will be given through deposition or transcript; and a list of documents or physical evidence they expect to present.

Scope of Discovery

Relevance: A party is allowed discovery into any non-privileged matter that is relevant to any claim or defense. A matter is relevant if likely to make any fact in dispute more or less likely to be true, regardless of whether the information would be admissible at trial.

Discovery is much more relaxed than trial!!! It will be admitted at discovery if there’s a possiblity that it might be admitted at trial.

Work product: Relevant information may be protected work product. For purposes of discovery, protected work product is a document or tangible object created by a party or their attorney in anticipation of litigation (for example, post-incident description of events or records of communications with witnesses). However, work product is discoverable is (1) a statement the other (requesting) party made; (2) the other party has a substantial need and can’t get the document or object without undue hardship. If the court orders disclosure, it must make every effort to keep secret the author’s litigation strategy or mental process.

Privilege: Privileged matter is not discoverable. The attorney-client privilege covers confidential communications between an attorney and client for the purpose of obtaining or rendering legal advice.

Proportionality: Relevant and otherwise discoverable information may be undiscoverable if the request is not proportional to the needs of the case. In determining proportionality, courts look at (1) the importance of the issues at stake; (2) the amount in controversy; (3) parties’ relative access to relevant information; (4) parties’ resources; (5) the importance of the discovery in resolving the issues; and (5) whether the burden or expense of the proposed discovery outweighs its likely benefit. The court must limit the discovery if it is (a) not proportional to the needs of the case; (b) unreasonably cumulative or can be obtained in a less burdensome way; or (c) the party seeking the discovery has already had ample opportunity to obtain the information. Usually proportionality turns on money – for example if discovery is going to be nearly as expensive as damages sought

Experts: Documents pertaining to a non-testifying expert are undiscoverable unless the requesting party has an extraordinary need and no other way to obtain such information (this is rare). Documents pertaining to a testifying expert are discoverable to a limited extent. Opinions may be discoverable, as may be communications concerning compensation for the expert’s study or testimony; data provided by an attorney to the expert; or any assumption the attorney asked the expert to make in developing the expert opinion.

Methods of Discovery

Interrogatories: Each party gets up to 25 questions (one interrogatory is one question) as a matter of right. Interrogatories can seek facts or contentions. The interrogated party has 30 days to respond. The response must be in writing and objections must be specific.

Requests for Admission of truth or fact. The other party has 30 days to respond, and may admit, deny, or state they have made a reasonable attempt to ascertain the truth but lack information to admit or deny. The responding party can object to questions as outside the scope of discovery, but cannot simply claim that the matter is properly resolved by a jury.

Requests for production of documents, tangible items, or access to evidence. The non-seeking party has 30 days to respond and may object as outside the scope of discovery. Documents must be provided as they are maintained in the usual course of busines and label them. Electronically stored information (ESI) must be provided in the form it is normally maintained or in a reasonably usable form.

Requests for mental or physical examination are available only upon court order. When ordered, the party must submit to an examination. The examiner must prepare a report detailing the exam and it is available to any requesting party.

Depositions are used to ask questions of witnesses. A party may depose up to 10 witnesses as a matter of right, but can get a court order for more. Depositions cannot be conducted until after the 26(f) conference. In rare cases, a party may wish to depose a witness before a lawsuit is even filed. These are known as “depositions to perpetuate testimony” and are available only if all expected opposing parties are provided an opportunity to be present at the deposition and ask questions. The deposition of a party or party’s designee can be used for any purpose. The deposition of a non-party can be used (1) to impeach the deponent, or (2) if the deponent is unavailable, for any purpose.

Subpoena duces tecum is a demand for documents from a non-party. Subpoena ad testificatum is a demand for testimony. The person served may object as outside the scope of discovery or if it requires the person to travel more than 100 miles from home or work.

Enforcement of Discovery

If they sort of comply, the requesting party can make a motion to compel which can be made after the movant has in good faith attempted to confer with the resistor. If granted, the movant gets fees or expenses for the motion unless the non-disclosure was substantially justified. If denied, the non-movant may get fees, but only if the motion was not substantially justified.

If after a motion to compel, the non-movant still doesn’t comply, the court may issue sanctions. Specifically, the court may issue a court order declaring facts sought are established in favor of the requesting party; a court order prohibiting the disobedient party from presenting certain claims or defenses; a stay or dismissal of the entire action; or an order of contempt. If a party doesn’t comply at all with a deposition request, the party can immediately seek all sanctions above, except an order of contempt.

Pretrial Adjudication

There are a number of ways to adjudicate a claim before it goes to trial.

Voluntary Dismissal

A case can be dimissed before trial in a number of ways. There can be:

Unilateral dismissal by filing notice any time before the defendant has filed an answer or motion for summary judgment.

Stipulation of dismissal (settlement) signed by all parties.

Permission of the court. Generally a court will grant permission to dismiss, but if the defendant filed a counterclaim, the court will only dismiss if that claim can remain pending for independent adjudication.

Involuntary Dismissal

If the plaintiff fails to prosecute their case or refuses to comply with a court order or a federal rule of procedure, the defendant can move to dismiss.

An involuntary dismissal operates as an adjudication on the merits (with prejudice) unless the order states otherwise or the dismissal is for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.

Re-Litigation

The plaintiff’s ability to re-litigate will depend on whether the claim was dismissed with prejudice or without prejudice. If a claim is dismissed without prejudice, the claimant can re-file the claim. If a claim is dismissed with prejudice, the claimant cannot re-file the claim.

If the notice, stipulation, or court order specifies with or without prejudice, the plaintiff is bound by that. If the notice or stipulation is silent, the first dismissal is presumed to be without prejudice; however, subsequent dismissals are presumed to be with prejudice.

Default Judgments

If the plaintiff properly serves the defendant, but the defendant never responds, there are two steps.

First, the clerk must enter a default. Second, there is a default judgment.The default judgment is issued **only after a default has been entered.

If the claim is for a “sum certain” (or by computation) (a sum certain is a sum that can be ascertained) and the plaintiff requests the default judgment, the clerk must enter and assess damages and costs against the defendant. Clerks may not enter default judgments against minors or incompetent persons.

If the clerk cannot enter a default judgment (because no sum certain or because minor or incompetent), the default judgment must be entered by the court, and the plaintiff must make that application to the court. If the defendant is a minor or incompetent person, the court will only issue a judgment if the defendant is represented by a guardian or other competent person. If the defendant initially appeared but later refused to defend the action, the court can issue default judgment only if the defendant was served with written notice of application for default 7 days before the hearing. The judge may hold hearings to calculate money damages or other matters.

If a clerk enters a default, the court may set it aside for good cause. If the clerk or court enters a default judgment, the court may set it aside in accordance with Rule 60(b)—a post-trial motion.

Motion to Dismiss

A motion to dismiss is a motion filed by the defendant seeking dismissal of a claim. It must be filed before an answer is filed within 21 days (where process was served) or 60 days (where service of process was waived).

Grounds for a Motion to Dismiss

A motion to dismiss on the grounds of lack of subject matter jurisdiction may be raised any time, even on appeal. The right to challenge subject matter jurisdiction cannot be waived.

The right to file a motion to dismiss on the grounds of lack of personal jurisdiction is waived if not raised in the first motion.

The right to file a motion to dismiss on the grounds of improper venue is waived if not raised in the first motion.

The right to file a motion to dismiss on the grounds of insufficient process is waived if not raised in the first motion. (for example, defendant was served only the summons and not the complaint; and/or the summons listed the wrong court and named the wrong parties)

The right to file a motion to dismiss on the grounds of insufficient service of process is waived if not raised in the first motion. (for example, process server left process at defendant’s home with a friend who did not live there)

The right to file a motion to dismiss on the grounds of failure to state a claim is waived if not raised before trial ends. The court assumes facts are true (facts can be merely plausible; they don’t have to be probable).

The right to file a motion to dismiss on the grounds of failure to join an indispensable party is waived if not raised before trial ends.

Waiver of Defenses

A defendant waives an affirmative defense if he does not raise it in his first responsive pleading (motion to dismiss or answer). Contributory negligence is an affirmative defense.

A defendant waives the following defenses if he does not raise it in his first responsive pleading:

• lack of personal jurisdiction;
• improper venue;
• insufficient process; and/or
• insufficient service of process.

The defendant must raise the following defenses any time before trial ends, or they are waived:

• failure to state a claim upon which relief can be granted; and/or
• failure to join a necessary party.

The defense of lack of subject matter jurisdiction is never waived. It may be raised at any time, even on appeal.

Motion for Summary Judgment

Either party can move for summary judgment. If there is no genuine dispute of material fact, the movant is entitled to summary judgment as a matter of law.

A party can show that there is no dispute of material fact by (1) pointing out, with citations to the record, holes in the opposing party’s claims or defenses; or (2) bringing new evidence to demonstrate that the claim or defense cannot be proven.

The court assumes that witnesses tell the truth.)

NOTE: If both sides have evidence, no summary judgment. If one side has evidence and the other doesn’t, there can be summary judgment.

In their response, the non-movant must bring evidence sufficient for a reasonable jury to find in their favor on a claim or defense. The court will look only at the non-movant’s evidence (won’t weight it against the moving party’s) and assume the witnesses are truth tellers – no credibility issues. If the non-movant does not produce evidence, but just talks pleadings, they’ll lose, but if the pleadings are under oath, they will count as being evidentiary.

Plaintiff and defendant can both move for summary judgment. They can present, and the court to refer to on its own, the pleadings, discovery documents, materials produced in mandatory disclosure, and affidavits. Information offered to the court needs to be admissible at trial, even if it is not presently in a form that would be admissible.

A motion for summary judgment may be made any time before 30 days after the close of discovery.

Trial by Jury

The 7th Amendment guarantees the right to a trial by jury in suits at common law, where the value in controversy exceeds $20. (about money as opposed to injunctive relief – if injunctive relief is sought, judge can rule no jury needed)

If both forms of relief are sought, the right to a jury exists for any issue of fact underlying a damages claim – even if the resolution of that issue may also support injunctive relief.

Courts will look at whether a claim can be analogized to a $20 1791 common law claim. However, the nature of the remedy tends to be the primary inquiry.

Any party has a right to trial by jury. To exercise this right, a party must demand a trial by jury (if you don’t ask for a jury you just get a judge all the way through in civil court). Any party can exercise the right. If there are ten parties, just one has to want it. The demand must be filed no later than 14 days after the last pleading directed to the jury-eligible issue is filed.

If a party has expressly demanded a jury trial in accordance with state law prior to the case being removed to federal court, the demand need not be renewed after removal. The party will still be entitled to a jury trial.

The party exercising the right must file and serve on other parties a written demand for a jury trial.

If the demand is not timely filed and served, the right to a trial by jury is forfeited.

Jury Composition

The size of a jury is 6-12 members.

During jury selection (voir dire), parties have an unlimited number of challenges for cause, but must say why they believe juror is unfit.

A party can use a A peremptory challenge to strike a juror for no reason at all unless the strike gives rise to potential gender or race discrimination. Parties have 3 peremptory challenges where juror is automatically dismissed, no justification needed unless the strikes give rise to gender/race discrimination. If a strike gives rise to gender/race discrimination, the striking party must provide a nondiscriminatory explanation for the strike or else rescind its strike.

Jury Instructions

Before deliberating, the judge instructs the jury on the law applicable to the claims alleged. Any party may (1) propose particular instructions no later than the close of all evidence; (2) object to any instruction before the jury begins deliberations. If the parties are informed of what the instructions will be before they are read to the jury, objections must be made before closing arguments.

• Jury Verdicts: Unless the parties stipulate otherwise, jury verdicts must be unanimous.
• General Verdict A statement that the plaintiff wins or the defendant wins.
• Special Verdict The court may direct the jury to answer specific questions of fact.
• General Verdict with Specific Questions: The court may order the jury to return a general verdict (“is D liable to P?”) but also to answer specific questions (“was D impaired while driving?”). If the verdict and answers to the questions are inconsistent, the judge can (1) order a new trial; (2) order the jury to re-deliberate; or (3) enter the verdict appropriate to the specific answers.

Bench Trial

The court must state its finding with regard to facts in dispute and conclusions of law separately.

Partial Judgments

During trial, if a party has been fully heard on an issue, and the court determines that the party lacks sufficient evidence to prevail on a particular claim, the court can enter judgment on that claim without entering judgment on other claims.

Motion for Judgment as a Matter of Law

Same as summary judgement but timing different.

During a jury trial only, the court may enter judgment as a matter of law (on its own or upon motion) if (1) the party against whom judgment is entered has been fully heard on the issue, and (2) the party lacks sufficient evidence to prevail on an issue necessary to a claim or defense.

Same as summary judgment standard – the court assumes the non-movant’s witnesses are truth tellers and does not weigh the evidence.

Post-Trial Motions

A party can bring a number of post-trial motions.

Renewed Motion for Judgment as a Matter of Law

A party can bring a renewed motion for judgment as a matter of law if a party filed a losing motion for judgment as a matter of law during trial, and then loses at trial. The renewed motion must be filed within 28 days of entry of judgment (or discharge of the jury if the motion addresses a jury issue not decided by the verdict).

In ruling on a renewed motion for judgment as a matter of law, the court may (1) allow the verdict to stand; (2) enter the opposite verdict; or (3) order a new trial (even if a motion for a new trial was not made).

Motion for New Trial

A party can make a motion for new trial within 28 days of entry of judgment. The grounds for a motion for a new trial can be (1) against the great weight of the evidence (the court can take into account the comparative volume and credibility of the evidence); or (2) excessive damages where the jury returns a verdict that is “grossly excessive” or “shocks the conscience.” The court can also just choose an appropriate amount and let the plaintiff choose between accepting that amount and doing a new trial.

Other possible grounds for a motion for new trial are procedural error or misconduct but only if (a) error or misconduct likely affected the result of trial, and (b) the party objected to the error when it had the opportunity to do so.

Examples of errors/misconduct: Wrongful exclusion of evidence, incorrect jury instructions, communication between witnesses, ex parte communication with the judge, and juror misconduct.

Other possible grounds for a motion for new trial are newly discovered evidence. If a party discovers evidence after the verdict that could not, with reasonable diligence, have been found before the verdict, a new trial is warranted as long as the evidence is not solely for the purpose of impeachment and would likely change the result.⁸

Motion for Relief from Judgment

A motion for relief from judgment must be made within a reasonable time (promptly after learning of the grounds). A motion for relief from judgement on the grounds of mistake, new evidence, or fraud must be made not later than 1 year from final judgment.

There are six grounds.

1. Mistake, inadvertence, or excusable neglect. For example, defendant in coma was unable to respond so default judgment but defendant asked the court for relief from judgment because he has been in a coma for the past two months. The court will very likely grant the motion and allow defendant to defend himself in the action.
2. Newly discovered evidence. Same analysis as motion for new trial: if a party discovers evidence after the verdict that could not, with reasonable diligence, have been found before the verdict, relief from judgment is warranted as long as the evidence is not solely for the purpose of impeachment and would likely change the result.
3. Fraud, misrepresentation, or misconduct by a party. If a party withholds key evidence during discovery, bribes a witness, or makes false statements to the court or other parties, judgment is void.
4. Court lacked subject matter jurisdiction or personal jurisdiction.
5. Judgment has been satisfied. If a party has satisfied the judgment entered against it, the party may seek to have the judgment discharged so that it is no longer under the supervision of the court. This type of relief is most often sought in suits involving injunctive relief.
6. Any other reason that justifies relief (catch-all). Can’t be used when any of above apply.

Appeals

In most instances, a party wishing to appeal a district court order must appeal to the Court of Appeals for the circuit in which the district court sits. If a party wants to appeal a Court of Appeals order or judgment, the only avenue for appeal is to the United States Supreme Court. The Supreme Court is not obliged to hear any appeals; it hears appeals at its discretion.

Appellate Jurisdiction

Federal circuit court jurisdiction is limited. Federal circuit courts can hear only appeals seeking review of

Final Judgment. (note: the court has discretion to enter a “partial final judgment” - a final judgment on one claim but not others. If the court does this, a party may appeal the claim on which that judgment was entered.)

Order pertaining to preliminary injunctive relief. A party can immediately appeal a district court order granting or denying a preliminary injunction.

Order pertaining to certification of a class. Any party may immediately appeal a district court decision granting or denying a motion to certify a class in a putative class action suit. The appellate court has discretion to decide whether to allow that appeal.

Order that has been certified by the district and appellate courts for appeal. A party may immediately appeal an order that has been “certified” if (1) the order involves a controlling question of law; (2) the issue of law is one on which there is substantial difference of opinion; and (3) immediate appeal will materially advance the ultimate resolution of the action.

Collateral order (this is the one they test the most!!!) Extremely narrow grounds for appeal. A party can seek review of a collateral order in appeal if (1) the order pertains to a matter unrelated to the merits (hence collateral); (2) the order conclusively decides a particular issue; and (3) delaying appeal until a final judgment would effectively deny appellate review of the issue.

Appellate Review

There are different standards for different kinds of appellate review.

Standard of Review

For questions of Law, when an appellant claims that a lower court made an error in its assessment of the law, the law is reviewed de novo with no deference to the lower court, and addresses the legal issue as if it has never been addressed.

For questions of fact, when an appellant claims that the lower court (judge or jury) made a mistake on a factual matter, the appellate court will affirm the lower court’s ruling unless clearly erroneous. This is a high standard – appellate courts rarely overturn lower court findings of fact.

For inherently discretionary questions, the abuse of discretion standard applies.

Under the harmless error rule, the higher court may affirm if there was error but it did not affect the result.

Waiver of Relief on Appeal

A party cannot seek relief on appeal if it failed to challenge the decision at the time the lower court made it. This comes up on the bar too!!!

Appellate Procedure

Appellant must file notice of appeal within 30 days of the judgment (or within 30 days of the order that is the subject of the appeal), except where the appeal is on class certification, the party has only 14 days.

If a post-trial motion (renewed motion for judgment as a matter of law, new trial, relief from judgment) is denied, a party has 30 days from the date of the denial to appeal. If a motion for new trial or relief from judgment is granted, the judgment is no longer final and no appeal is permissible unless the order can be certified or characterized as a collateral order.

Claim Preclusion aka Res Judicata

Res judicata or claim preclusion bars claimants from re-litigating a case they already lost.

For a claim to be precluded, the claim must be between the same parties and arise from the same transaction or occurrence underlying the prior suit; and there must be a valid final judgment on the merits. A judgment is not on the merits if it’s a dismissal for lack of personal jurisdiction, lack of subject matter jurisdiction, or improper venue. A dismissal with prejudice is on the merits.

If the defendant fails to bring a compulsory counterclaim in the first suit, they are precluded from filing it as a plaintiff in a later suit.

Issue Preclusion aka Collateral Estoppel

Issue preclusion or collateral estoppel bars re-litigation of issues even with different parties. Essentially someone saying that issue was already decided in lawsuit number one.

For an issue to be precluded, the issue must have been litigated and determined in the prior suit; the issue must have been essential to the judgment (essential is if decided the opposite way it would it have changed the result of the case); the prior suit must have ended in a judgment on the merits; and the party against whom preclusion is asserted must have had a full and fair opportunity, as well as incentive, to litigate the issue in the first suit. (we can get tripped up on this – essentially we don’t need to have the same parties for issue preclusion as we need in claim preclusion. This is mutuality. However, one of the parties has to be the same. In issue preclusion, the party who has to be the same is the party who the issue preclusion motion is being brought against.)

Special verdicts are very helpful to parties asserting issue preclusion because they explicitly define the issue, how it was decided, and (often) its essentiality to the judgment. Issue preclusion can be used without special verdicts, but it is often easier to make the argument when the first case relied on them.⁹

Note: Courts are a bit more skeptical of this kind of issue preclusion than the other version; they look particularly closely at the defendant’s incentive to litigate the issues in the first suit. If the defendant could not have reasonably known that other plaintiffs would be waiting in the wings to piggy back on the first plaintiff’s successful verdict, the court will find that the defendant did not have an incentive to vigorously defend itself, and thus will refuse to apply the rules of issue preclusion.

Footnotes