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Talbot - DRAFTING COMPLAINT Wednesday, April 30, 2008 11:31
PM
United States District Court ____________
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Plaintiff Name (Plaintiff) v. Defendant Name (Defendant) Docket
Number Complaint
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Parties and Jurisdiction
1. The plaintiff, _______, is a ___________, residing __________
2. The defendant, ________, is a __________, residing/incorporated
in _____________
(with its principal place of business _______________ 3. At all
relevant times, the defendant __________
If not sure about something plead "on information and belief" 4.
Explain diversity or FQ SMJ 5. SMJ or FQ is proper in this court
under ________ 6. Venue is proper under _______ 7. Therefore the
jurisdiction of this court over this claim is proper
Facts
8. Blah 9. Blah 10. Blah
First Claim for Relief Negligence
11. Plaintiff repeats and realleges paragraphs 1-X Demand for
Relief WHEREFORE, the plaintiff demands judgment in the amount of
his/her actual damages plus interest and costs, and such other
relief as the court finds just and equitable Signature Attorney
information
Talbot - SERVICE Wednesday, April 30, 2008 11:32 PM
INTRO
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In legal actions, a fundamental right of defendants is to be
notified when they are a party to a lawsuit. To not notify
defendants of pending legal action would violate their right to due
process. Service can also be made on witnesses and other key
individuals that are needed for trial. Specifically, service both
notifies the defendant that he has been sued and informs him that
the court intends to proceed to adjudicate his rights.
1. WHAT IS INCLUDED IN PROCESS 1. Summons - formal notice from
the court, tells defendant she has been sued,
how long defendant has to respond, and if she doesn't respond
she risks being put in default 4(a)
The summons is signed by the clerk and bears the seal of the
court 4(a) 2. copy of complaint 4(c)(1)
2. SERVICE CAN BE PERFECTED BY ANY NON-PARTY WHO IS AT LEAST 18
YEARS OLD -
4(c)(2)
3. PROCESS MUST BE SERVED WITHIN 120 DAYS OF THE FILING OF THE
SUIT - 4(m) Will then be dismissed without prejudice unless good
cause can be shown for
the delay
4. HOW TO SERVE INDIVIDUALS RULE 4(e)(2)
Personal service Substituted Service: ok if it is at defendants
dwelling house or usual
abode and the person served must be of suitable age and
discretion who resides therein
Dwelling House or Usual Place of Abode National Dev. Co. v.
Triad Holding Corp. (1991)
Apartment where service was made was one of 12 places around the
world def stayed at.
Service at that apartment was the best and most reasonable way
to serve process on def
3. Serve the defendant's agent RULE 4(e)(1)
4. Under the provisions governing service of process on
individuals in the courts of the state where the federal court
sits
LA 3204 allows notice by certified mail with receipt 5. Service
pursuant to the law of the state in which service is effected,
5. HOW TO SERVE A CORPORATION
RULE 4(h) 1. Delivery of a copy of the summons and complaint to
an officer,
managing or general agent of the defendant, or to an agent
authorized to receive service
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Must be hand delivered Find someone with enough responsibility
that we can expect
him to transmit important papers RULE 4(e)(1)
2. Under the provisions governing service of process on
individuals in the courts of the state where the federal court
sits
LA 3204 allows notice by certified mail with receipt 3. Service
pursuant to the law of the state in which service is effected,
If served outside of the united states apply (4)(h)(2)
6. WAIVER OF SERVICE
The plaintiff can solicit a waiver of all these technicalities
by sending (by first class mail or other reliable means) the
defendant a complaint, two copies of a notice of the action and a
written request that the defendant waive formal service of the
summons and complaint upon him. The written request must inform the
defendant of the consequences of not waiving process and set the
date on which the request was sent
Defendant has 30 days to respond Be wary of the 120 period in
4(m) is still running
Defendants have an incentive to waive formal service. 1. 4(d)(2)
creates a duty to avoid "unnecessary costs of serving the
summons" 2. 4(d)(2) court must impose the costs of service on a
defendant who
refuses to waive service without good cause 3. 4(d)(3) give
defendants 60 days rather than 30 days to respond to the
complaint if they waive formal service.
7. WHERE DO WE SERVE PROCESS RULE 4(k)(1)(A)
Federal court can serve process throughout the state in which
that court sits
Court can serve process outside of the state only if the state
court could do so
RULE 4(k)(1)(B) EXCEPTION We can serve process out of state so
long as it is when 100 miles of the
federal court house, however only applies parties joined under
RULE 14, 19 RULE 4(k)(1)(C) and (D)
Federal statutes may allow for more service of process outside
of the state
8. WAS SERVICE CONSTITUTIONAL Notice must be reasonably
calculated under all the circumstances to apprise
the defendant of the suit Mullane
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ASK: Was there a better way? CHALLENGING THE ADEQUACY OF
SERVICE
12(b)(5), a motion to dismiss for insufficiency of service of
process The fact that service was actually made does not validate
the method of
service If you had made a motion to dismiss previously, then
this defense is
waived 12(h)(1)(A) SUBSEQUENT PAPERS
5(b) subsequent papers may be served by person delivery, or
regular mail, the parties should be in contact and should watch the
docket
FEDERAL LONG ARM STATUTE 4(k)
When can a federal court assert personal jurisdiction over a
defendant served under Rule 4
1. Has the relevant legislature authorized the jurisdiction?
4(k) provides that service "is effective to establish
jurisdiction
over the defendant in 4 circumstances 1. The federal court is
authorized to assert jurisdiction of
the courts of the state in which the federal court sits could
assert jurisdiction over the defendant 4(k)(1)(A)
2. Jurisdiction over impleaded parties served within 100 miles
of the courthouse 4(k)(1)(B)
3. Jurisdiction over parties subject to interpleader
jurisdiction 4(k)(1)(C)
4. In federal question cases, over parties who have sufficient
contacts with the United States as a whole to constitutionally
support jurisdiction, but whose contacts would not suffice to
support personal jurisdiction in the courts of any state
4(k)(2)
2. Would it be constitutional for the court to exercise
jurisdiction in the circumstances of the particular case?
If served under state law look to 14th Amendment If served under
strictly RULE 4 then look to the 5th Amendment
Talbot - REMOVAL Thursday, May 01, 2008 5:00 PM
INTRO
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The federal removal statutes allow the defendant, after the
plaintiff has chosen a state court, to "second-guess" that choice
by removing some types of cases from the state court to federal
court
1. REMOVAL ONLY GOES FROM STATE COURT TO FEDERAL COURT 2. ALL
DEFENDANTS MUST AGREE TO REMOVE 3. ONLY DEFENDANTS CAN REMOVE 4.
YOU REMOVE TO THE DISTRICT THAT EMBRACES THE STATE COURT 1441(A) 5.
WE REMOVE WITHIN 30 DAYS OF THAT CASE BECOMING REMOVABLE
No removal of a diversity case if any defendant is a citizen of
the forum You cannot remove a diversity case more than 1 year after
it was filed
in state court 1446(b)
1446(a) notice of removal must be filed in the federal district
court and division within which the action is pending
1446(d) a copy of the notice must be filed in state court
1446(a) copies of all pleadings, process, and orders served on
defendants must be
filed with notice 1446(a) all parties must be notified promptly
after filing notice 1446(b) notice must be filed within 30 days
after service
81(c) if the answer if filed before removal, the answer stands
as the answer in federal
court 81(c) answer within 20 days of complaint or within 5 days
after notice for removal is
filed (whichever is longer 6(b) move for extension of time
6(b)(1) before expiration = cause shown 6(b)(2) excusable
neglect
Courts have held that all defendants must agree to the removal
(no rule) 1441 defendants can remove from state to federal court
within the same state 1441(b) Def cannot remove on basis of
jurisdiction if sued within own state
Exception: federal question 1441(a) for removal, the case must
have been able to be filed in fed ct initially
Talbot - VENUE Thursday, May 01, 2008 5:00 PM
INTRO Venue rules (coupled with personal jurisdiction and SMJ)
are meant to further restrict the places where the plaintiff may
choose to bring a suit, to assure that suits are tried
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in a place that bears some sensible relationship to the claims
asserted or to the parties to the action.
IPJ
Tradition Basis of Personal Jurisdiction (still valid Burnham)
i. Physical presence
ii. Appearance iii. Domicile/Citizenship iv. Consent
Specific Personal Jurisdiction Claim arises out of the
defendant's contact with the forum state and
the long arm statute permits personal jurisdiction (LA 3201 or
Rule 4(k) - look under service for analysis)
General Personal Jurisdiction The cause of action is unrelated
to the defendant's activities within the
forum, but defendant's continuous and systematic contacts with
the state allow any action against defendant to be filed in the
forum state
SMJ
Article III Section II of the United States Constitution sets
the outer boundaries for Federal Subject Matter Jurisdiction. It
permits jurisdiction in Federal Courts for cases arising under
Constitution, Federal Statutes and Treaties. It also allows for
suits between parties of diverse citizenship. Because Article III
Section II allows for broad interpretation, Congress enacted 1331
and 1332 to narrow the parameters. The applicable rule for venue
depends on the type of subject matter jurisdiction available.
Federal Diversity SMJ Basis under 1332 go to 1391(a) Federal
Question SMJ: Basis under 1331 go to 1391(b)
1. BASIC VENUE RULES
No constitutional aspect to venue In removal cases venue is in
the district embracing the state court Local actions must be
brought in the district where the land lies
Courts treat certain actions relating to interests in land as
"local actions," which must be prosecuted in the county or district
in which the land is located. (ownership, possession, or injury to
land)
3. Transitory Case (not local) RULES THAT FOLLOW
2. FEDERAL VENUE STATUTE 1391 1391(a) - governs venue in
diversity cases, authorizes venue in"
1. A judicial district where any defendant resides, if all
defendants reside in the same state
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2. A judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is situated,
or
3. A judicial district in which any defendant is subject to
personal jurisdiction at the time the action is commenced, if there
is no district in which the action may be brought otherwise. (ONLY
USED IF THERE IS NO DISTRICT IN THE US THAT FALLS UNDER 1 OR 2)
1391(b) - governs venue in cases not based solely on diversity
of citizenship, authorizes venue in: 1. A judicial district where
any defendant resides, if all defendants reside
in the same state 2. A judicial district in which a substantial
part of the events or omissions
giving rise to the claim occurred, or a substantial part of the
property that is the subject of the action is situated, or
3. A judicial district in which any defendant may be found, if
there is no district in which the action may be brought otherwise.
(ONLY USED IF THERE IS NO DISTRICT IN THE US THAT FALLS UNDER 1 OR
2)
What does "found" mean? Service of process? Subject to personal
jurisdiction?
3. VENUE INVOLVING COPRORATIONS 1391(c) - defines corporate
"Residence" for purposes of applying 1391(a)(1)
and (b)(1) applies only to corporate defendants (NOT CORPORATE
PLAINTIFFS) Corporate residence is any district in which the
corporation is subject to
personal jurisdiction. For purposes of selecting a district,
consider each district its own state.
4. WAIVER OF VENUE
Venue is a personal privilege that may be waived. The defendant
waives her objection to venue by failing to raise it when she
responds to the plaintiff's complaint. 12(h)(1) Forum selection
clauses in contracts are valid
5. CHALLENGING VENUE
12(b)(3) is a motion to challenge improper venue
6. TRANSFER OF VENUE The transferee court must be a proper venue
and it must have personal
jurisdiction over the defendant without waiver 1404 Transfer
The transferor court is a proper venue but we transfer to
another venue for:
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Convenience of the parties Convenience of the witnesses Interest
of justice
Ferens v. John Deere Company (1990) Where the plaintiff requests
that 1404 transfer, the transferee
court should apply the law that the transferor court would have
applied.
1406 Transfer The transferor court is an improper venue The
court may transfer or dismiss the case
7. FORUM NON CONVENIENS
Forum Non Conveniens doctrine is based on premise similar to
1404(a) that sometimes cases are properly filed with respect to
SMJ, IPJ, and venue, but still logically belong somewhere else.
Case should be brought in another sovereign the court may
dismiss a case where the interest of justice indicate that it
should be litigated elsewhere. 1. Interest and convenience of
the parties access to proof 2. Public interest at stake 3.
Efficiency and expense
Piper Aircraft v. Reyno (1981) i. The possibility of an
unfavorable change in law should not, by itself, bar
dismissal. ii. A plaintiff's choice is given great deference,
unless the defendant is
foreign
Talbot - MOTIONS Wednesday, April 30, 2008 11:31 PM
INTRO The defendant may answer a complaint with a pre-answer
motion as an alternative to answering the complaint and the
defendant need not answer the complaint until the motion is decided
BASICS
7(b) must be in writing, state grounds for and relief sought and
signed via Rule 11 43(a) affidavit testimony can be presented with
a motion RULE 12(a)(4)(A) if a court denies a motion or postpones
its disposition, the responsive
pleading shall be served within 10 days of the courts action
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RULE 12(a)(4)(B) if the court grants a motion for a more
definite statement RULE 12(e) the responsive pleading shall be
served within 10 days
RULE 12(g) only one motion to dismiss is allowed RULE 12(g) and
(h) if not raised before the answer or in the answer the
following
defenses are waived: i. Personal jurisdiction
ii. Venue iii. The form of the process iv. The method of service
of process
THE MOTIONS (12(B)(2-5) MUST BE PUT IN THE FIRST RULE 12
RESPONSE(ANSWER, MOTION, ETC)!!!)
RULE 12(b)(1) motion to dismiss for lack of SMJ Raised at
anytime, cannot be waived
RULE 12(b)(2) motion to dismiss for lack of personal
jurisdiction over the defendant RULE 12(b)(3) motion to dismiss
because the court is not a proper venue RULE 12(b)(4) motion to
dismiss for insufficiency of process (something wrong with the
process itself not the method) RULE 12(b)(5) defense of
insufficiency of service of process
Attacks the manner in which the complaint was served Court will
order proper service of the complaint
RULE 12(b)(7) defense of failure to join an indispensable party
Asserts a defect in the scope of the suit as to the plaintiff has
framed it Can be brought until trial
RULE 12(b)(6) motion to dismiss for failure to state a claim on
which relief can be granted
1. It tests the legal sufficiency of the plaintiff's claim,
questioning whether the law accords a remedy on the facts
alleged.
2. It tests the factual, or formal, sufficiency of the
complaint, questioning whether the plaintiff has set forth her
claim in appropriate detail.
Can be brought until trial Rule 12(c): Motion for judgment on
the pleadings after all pleadings are filed treated
as a motion for summary judgment (Rule 56). RULE 12(e) seeks a
more definitive statement
Used if the complaint is vague or ambiguous If motion is
granted, opposing party has 10 days to comply, or the court may
strike the pleading RULE 12(f) move to strike
The court may order stricken from any pleading any insufficient
defense or any redundant, immaterial, impertinent, or scandalous
matter
Motion can be made before responding to the pleading, or if
response is not allowed, within 20 days
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Talbot - PLEADINGS Wednesday, April 30, 2008 11:36 PM
INTRO Pleadings are the papers filed by parties at the beginning
of an action, in which they set forth their positions as to the
facts at issue. Pleadings are not evidence; they are not even sworn
testimony by the parties or their attorneys
1. RULE 11 1. Certification
RULE 11(a) requires an attorney to sign each pleading and state
his address
RULE 11(b) an attorney's signature certifies to the court that
the attorney believes, after reasonable inquiry, that the factual
allegations in the complaint "have evidentiary support" or "are
likely to have evidentiary support after a reasonable opportunity
for further investigation or discovery.
RULE 11(b)(1) a signing attorney certifies that the pleading or
motion is not filed for an improper purpose.
RULE 11(b)(2) attorney's signature certifies that the legal
positions taken in the pleading are warranted by existing law or by
a nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of a new law.
2. The certification is effected every time that document is
presented to the courta continuing certification
3. Sanction are discretionary 4. A motion for violation is
served but is not filed
Rule 11(c) Motion for sanctions: Counsel has a 21-day safe
harbor from the date of the motion
for rule 11 sanctions to correct the deficient pleading. The
judge must give an order to show cause to justify rule 11
sanctions
GENERAL RULES GOVERNING ALL PLEADINGS Basic Requirements
i. RULE 10(a) requires every pleading to have a caption that
includes the name of court, the docket number of the action, the
names of the parties, and a designation of the pleading
ii. RULE 10(b) requires all allegations to be set forth in
numbered paragraphs and that all allegations in each paragraph
"shall be limited as far as practicable to a statement of a single
set of circumstances"
Other Rules i. RULE 8(e)(2) allows pleading in the
alternative
ii. RULE 10(c) allows parties to attach exhibits to their
pleadings.
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iii. RULE 10(c) allows a pleader to incorporate prior
allegations by reference in later parts of the pleading
iv. RULE 38(b) provides that a demand for jury trial "may be
indorsed upon a pleading. The right to jury trial is waived if not
demanded within ten days of the close of pleadings
COMPLAINT In General
i. RULE 3: a civil action is commenced by the filing a complaint
with the court
ii. the complaint sets forth the plaintiff's claim iii. look to
see if the rules allow joinder of all the desired parties iv. look
to see that the claim is legally sufficient:
the substantive law governing the claims and ascertain whether
there is good ground to file suit.
If not defendant will file a motion to dismiss RULE 12(b)(6) a.
Courts only look to the face of the complaint b. The issue is not
whether a plaintiff will ultimately prevail
but whether he is entitled to offer evidence to support the
claims. Requirements
i. A "short and plain statement of the grounds upon which the
court's jurisdiction depends"
RULE 8(a)(1) requires the plaintiff to allege the basis for SMJ
over the action
ii. A "short and plain statement of the claim showing that the
pleader is entitled to relief"
RULE 8(a)(2) requires a "short and plain statement of the
claim," and that very brief, general allegations will suffice to
avoid dismissal. However since RULE 8(b) requires the defendant to
respond paragraph by paragraph, a more detailed complaint will
elicit more specific denials or admissions in the defendant's
answer
RULE 8(a)(2) requires the complaint to include a "short and
plain statement of the claim showing that the pleader is entitled
to relief.
EXCEPTIONS TO RULE 8(a)(2) RULE 9(b) averments of fraud or
mistake shall be
stated with particularity RULE 9(g) special damages shall be
specifically
stated iii. A "demand for judgment for the relief the pleader
seeks"
RULE 8(a)(3) requires a demand for relief RULE 54(c) the demand
does not limit the plaintiff's recovery
Dismissal i. Voluntary Dismissal
RULE 41(a) permits the plaintiff to dismiss:
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By filing a notice of dismissal at any time before service by
the adverse party of an answer or of a motion for summary judgment,
whichever occurs first, or
By filing a stipulation of dismissal signed by all parties who
have appeared in the action.
ii. Involuntary Dismissal a. RULE 41(b) allows the court to
dismiss the plaintiff's case
Rule appears to preclude the court from ordering involuntary
dismissal on its own motion, since it provides that "a defendant
may move for dismissal" under the following reasons
Lack of jurisdiction Improper venue Failure to join a party
under RULE 19
ANSWER The answer is the defendants response that states his
position as to each of the allegations in the complaint and asserts
any other defenses he may have to the plaintiff's claim
Responses to the Plaintiff's Allegations a. RULE 7(a) requires
that the defendant respond with the complaint b. RULE 12(a)(1)(A)
defendant must serve an answer to the complaint
within 20 days of receiving the summons and complaint (60 days
if process waived)
c. RULE 8(b) requires the defendant to respond to each
allegation in the complaint by:
admitting or denying the allegations stating the parts that are
true and denying the remainder stating that the defendant does not
have enough information to
assess the truth of the allegation Such an allegation has the
effect of a denial.
d. RULE 8(b) also requires the defendant to respond clearly and
forthrightly to the allegations of the complaint
e. RULE 10(b) provides that "each defense other than denials
shall be stated in a separate count or defense whenever a
separation facilitates the clear presentation of the matters set
forth"
f. RULE 8(e)(2) a defendant may plead inconsistently.
Affirmative Defenses (raised via 8(c))
i. Accord and satisfaction ii. Arbitration and award
iii. Assumption of risk iv. Contributory negligence v. Discharge
in bankruptcy
vi. Duress
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vii. Estoppel viii. Failure of consideration
ix. Fraud x. Illegality
Claims by the defendant i. Counterclaim
ii. Cross-claim iii. Force joinder of parties
Failure to Respond: Default and Default Judgment i. If a
defendant fails to plead or otherwise respond in time they are
held
in default. This is just a notation on the court's docket sheet.
ii. The party must seek a default judgment
iii. RULE 55(b)(1) when the judgment is for a sum certain or a
determinable amount the clerk can enter judgment
iv. RULE 55(b)(2) in all other cases you must ask the judge v.
RULE 54(c) a judgment by default shall be the same as the
amount
prayed for in the demand for judgment. REPLY
7(a) requires a reply to a counterclaim if denominated as such
12(a)(2) reply must be served within 20 days of answer
SUPPLEMENTAL PLEADINGS
15(d). Facts that arise after the filing of the pleading. This
motion is made to submit a supplemental pleading setting forth
events that arise after the filing of the original pleading.
Must be with courts permission. Freely Granted unless undue delay,
bad faith, prejudice.
Quick Terms
Upon information and belief Lack information sufficient to form
belief Insufficient information to form a belief Admit specific,
deny the rest (general)
Admit that Smith was driving truck, deny rest Admit accident
involved Acme employee, deny the rest
Talbot - AMENDMENTS Wednesday, April 30, 2008 11:32 PM
INTRO
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Rule 15 establishes fairly lenient rules regarding amendment of
pleadings. AMENDING BEFORE TRIAL
15(a) - before the responsive pleading is filed no permission is
requirement for the FIRST amendment
15(a) - after the responsive pleading is filed, permission to
amend shall be freely given where justice so requires by the court
OR with the consent of the other parties.
Granted unless opponent shows a compelling reason not too Undue
delay, bad faith, gross negligence, prejudice to other party
AMENDING TO CONFORM TO EVIDENCE
15(b) used when evidence at trial is different than the
pleadings 15(b) allows two ways to amend a pleading to conform to
evidence
1. Consent of the parties Express Implied through a failure to
object
2. Permission of the judge with good reason and no prejudice
RESPONSE TO AMENDED PLEADING A party shall plead response to
amended pleading within the time of the original
pleading or within 10 days whichever is greater.
Talbot - RELATION BACK Thursday, May 01, 2008 4:45 PM
INTRO Rule 15(c) provides the framework for determining whether
to allow a party to amend their complaint after the limitations
period for the complaint has run. IN GENERAL
RULE 15(c) provides that the amendment to a pleading will
"relate back to the date of the original pleading" if it arises
from the conduct, transaction, or occurrence set forth in the
original pleading
ADD A NEW CLAIM
RULE 15(c)(2) provides that, once you have sued the defendant
for particular conduct, or a certain transaction or occurrence, any
amendment to add new claims based on the same conduct, transaction
or occurrence will be treated, for statute of limitation purposes,
as though it had been in the original complaint.
Marsh v. Coleman Company (1992)
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P claimed his termination violated a federal age discrimination
act. He later amended his complaint to allege fraud against his
employer
1. Since he limited his factual allegations to his termination,
"a reasonably prudent person would not have expected from reading
the plaintiff's original complaint that promises made to the
plaintiff before termination might be called into question through
subsequent pleadings.
2. Court found that the amended pleading alleging fraud did not
relate back to the original complaint
ADD A NEW PARTY
RULE 15(c)(3) amendments to add a party will only relate back if
three requirements are met:
1. The claim against the new party to be added by amendment
arises from the same conduct, transaction or occurrence as the
original claim (RULE 15(c)(2) satisfied)
2. The new party had notice, within the period for delivery of
the original complaint, that the action against the original
defendant had been filed (120 days from filing 4(m))
3. The new party knew or should have known that, but for a
mistake as to the identity of the proper party, the original action
would have been against him.
Talbot - JOINDER Thursday, May 01, 2008 4:46 PM
IF THE CLAIM IS AGAINST A THIRD PARTY/ADDITIONAL PARTY THEN ADD
UNDER RULE 19, 20 THEN RETURN
1. CLAIM JOINDER BY PLAINTIFFS RULE 18(a) allows the claimant to
assert every claim she has against the
opposing party. (permissive rule) i. Original claim
ii. Counterclaim iii. Cross-claim iv. Third-party claim
RULE 18(a) allows claims to be asserted are not transactionally
related
2. CLAIM JOINDER BY DEFENDANTS
COUNTERCLAIMS RULE 13(a) Compulsory Counterclaims (only
compulsory claim)
1. "Same transaction or occurrence"
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2. IT IS A LOGICAL RELATIONSHIP. whether essential facts of
various claims are so logically connected that considerations of
juridical economy and fairness dictate that all the issues resolved
in one lawsuit. (Hart)
3. SMJ : 1331, 1332, or 1367 4. IPJ does counterclaim waive
objection to IPJ? Argue 13(a)
requires assertion of counterclaims RULE 13(b) Permissive
Counterclaims
1. Defending parties may also assert counterclaims that are
completely unrelated to the original claim. The court could sever
the claim under Rule 42(b) b/c efficiency is not an issue.
2. SMJ: (Same Transaction or Occurrence not present-Case or
Controversy not present, 1367 IS NOT AVAILABLE! NOTE IT ON
EXAM!)
Rule 18 Permissive Joinder of Claims Analysis if the asserting
party has already asserted a claim
CROSS-CLAIMS RULE 13(g) allows a party to assert an offensive
claim against a co-party
if it arises from the same transaction or occurrence as the
underlying action Analysis if it arises out of the same transaction
or occurrence
that is the subject matter of the original litigation. i. Same
event (same occurrence)
ii. Some overlap of witnesses and evidence What are the
witnesses talking about and is there
overlap (explain how they overlap) Same evidence (specifically
explain what
evidence) iii. May be made against any co-party (not opposing
party) if
they arise out of Same Transaction of Occurrence of original
claim, counter-claim, or relate to the res in an in rem action. Can
be for indemnification. 1367 available.
iv. SMJ: 1331 or, 1332, 1367. Rule 18 Permissive Joinder of
claims IF the asserting party has already
asserted a claim 1. Power, Can we join the claims?
i. any claim or alternative claim against another party may be
joined without restriction
ii. Contingent claims are allowed (a claim not yet ripe unless
another claim succeeds)
2. Discretion, should we join the claims? i. Efficency: factual/
logical/ legal similarity of the claims
ii. Confusion/ prejudice
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3. If not, then the court can order separate trials under 42 (B)
Severance.
4. SMJ
3. PROPER PARTIES RULE 20(a) who may be joined as co-plaintiffs
in a case? 2 part test:
i. Same transaction or occurrence ii. Our claims raise some
common question SMJ IPJ
RULE 21 misjoinder of parties is not grounds for dismissal.
Parties may be dropped by the court.
4. NECESSARY AND INDISPENSIBLE PARTIES RULE 19 who must be
joined in a case
"Just Adjudication" basically Is the absentee necessary? 19(a)
Yes if meets any of the following:
1. 19(a)(1) can the court accord complete relief among those
already joined? If no then meet
2. 19(a)(2)(i) the absentee's interest may be harmed if she is
not joined
3. 19(a)(2)(ii) does the absentee's interest potentially subject
the defendant to multiple or inconsistent obligations?
Exception: joint-tortfeasors are not necessary Is Joinder of the
absentee feasible?
Will joinder deprive the court of complete diversity? Cant the
court get personal jurisdiction over the absentee?
If answer to 1 and 2 differ, should the court proceed without
the absentee or dismiss the case? 19(b)
Courts will almost never dismiss unless there is an alternative
forum
To what extent a judgment rendered in the person's absence might
be prejudicial to the person or those already parties
The extent to which, by protective provisions in the judgment,
by the shaping of relief, or other measures, the prejudice can be
lessoned, or avoided
Whether a judgment rendered in the persons absence will be
adequate
Whether the plaintiff will have adequate remedy if the action is
dismissed for nonjoinder
IF FAIL TRY TO GET UNDER PROPER PARTIES 12(b)(7) allows
dismissal of a case for failure to join necessary parties under
RULE 19
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Cases Haas v. Jefferson National Bank (1971) Haas(OH) sues a
bank (FL). The bank moves to dismiss under 12(b)(7),
and court responds with a Rule 19 order on Haas to join
Glueck(OH). a. Court holds that being an important witness is not
enough for
compulsory joinder RULE 19(a)(1) b. Court holds that Glueck has
a an interest that would be impeded
if he is not joined RULE 19(a)(2)(i) c. Since complete diversity
is not gone, the court dismisses for two
reasons 1. Without Glueck, the judgment will be prejudicial to
the
bank 2. There is an adequate remedy available, state court
Temple v. Synthes Corp. (1990) Temple (MS) sued Synthes (PA) in
federal court. Temple sued
LaRocca(LA) and Hospital(LA) in LA state court Temple and
LaRocca cannot make a motion to remove to federal
court because of 1441(b) 1441 a is rule of removal, b is
exception will only remove
by defendants sued in their own state under federal question
Synthes makes a RULE 12(b)(7) motion because Synthes and
LaRocca are necessary parties LaRocca and the Hospital or not
RULE 19(a)(1) parties
Not RULE 19(a)(2)(i) or RULE 19(a)(2)(ii) RULE 12(b)(7) motion
denied
5. IMPLEADER (third party practice) RULE 14(a) allows a
defendant to assert any claim against a third-party
defendant arising out of the transaction or occurrence that is
the subject matter of the plaintiff's claim against the third-party
plaintiff
LOOK TO INDEMNIFICATION
6. INDEMNIFICATION Indemnification is the addition of a third
party who may also be liable for some or all of the existing
claim.
IF PLAINTIFF IS ASSERTING - RULE 14(b) When a counterclaim is
asserted against a plaintiff, the plaintiff may
cause a third party to be brought in under the circumstance
which under this rule would entitle a defendant to do so.
Sen. 7: can assert any claim against the 3rdparty arising out of
the same transaction or occurrence that is the subject matter of
the 's claim against the 3rdparty .
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Sen. 8: Any party may move to strike 3rd party claim, or for its
severance or separate trial.
IF DEFENDANT IS ASSERTING - RULE 14(a)
Sen. 1: may bring in 3rd party who is liable to for all or part
of s claim against . Sen. 2: need not obtain leave to make service
if files 3rd party complaint not later than 10 days after original
answer Sen. 3: Otherwise must obtain leave on motion upon notice to
all parties to the action (discretionary with the court) Sen. 8:
Any party may move to strike 3rd party claim, or for its severance
or separate trial.
3. IF THIRD PARTY DEFENDANT IS ASSERTING - RULE 14(a) Sen. 4:
3rd party shall make any defenses to s claim as provided in R. 12
and any counterclaims against or cross claims against other 3rd
Party s as provided under R. 13 Sen. 5: 3rd Party may assert
against any defenses which has to s claim Sen. 6: 3rd Party may
assert any claim against arising out of the transaction or
occurrence that is the subject matter of s claim against . Sen. 8:
Any party may move to strike 3rd party claim, or for its severance
or separate trial. Sen. 9: 3rd party may bring in 4th party - 3rd
party may proceed under this rule against any person not a party to
the action who is or may be liable to the 3rd party for all or part
of the claim made in the action against the 3rd party .
IPJ Do complete analysis for new party
SMJ 1331, 1332, 1367
7. INTERVENTION Parties not joined under rule 19 or 20 can
nevertheless intervene into the action through RULE 24
Motion to intervene must be made "upon timely application" rule
24 We look to how close we are to trial and when the intervener
became
aware of the litigation
INTERVENTION OF RIGHT 24(a)(1) - when a statute confers an
unconditional right to intervene
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24(a)(2) - the intervener has an interest in the subject of the
action, disposition of the action as a practical matter impairs or
impedes the applicant's ability to protect that interest, unless
the intervener's interest is adequately represented by existing
parties
1. Show interest will be harmed if not joined and 2. Nobody is
representing her right now Just like 19(a)(2)
1367(a) generally allows supplemental jurisdiction over 19(a)
interventions
PERMISSIVE INTERVENTION (discretion of the court)
i. 24(b)(1) - when a statute confers a conditional right ii.
24(b)(2) - when the intervener's claim or defense and the main
action
have some question of law or fact in common Talk about common
issues of fact Talk about common issues of law Talk about the
seriousness of the intervener's interest Ask if it will unduly
delay or prejudice the adjudication of the
rights of the original party. CONCLUSION: how great of a gain in
efficiency will there be by
combining claims
SMJ i. 1367(a) generally allows supplemental jurisdiction over
19(a)
interventions ii. Do analysis for 19(b) interventions
IPJ
The intervener voluntarily submits to the courts
jurisdiction
Rule 42 can be used to separate the trials
8. INTERPLEADER When the stakeholder wants all parties with an
interest in the thing present so
one judgment is binding on them all. Prevents issues of multiple
liability RULE INTERPLEADER RULE 22
Complete diversity Over 75K amount in controversy Proper
venue
STATUTORY INTERPLEADER 1335 1. Minimal diversity 1335(a)(1)
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2. Amount in controversy 1335(a)(1) i. Amount must exceed
$500
ii. Deposited in the court 3. 1397 venue where any plaintiff
resides 4. 2361 Nationwide service of process IPJ
Pan American Fire & Casualty Co. v. Revere (1960) School bus
accident, multiple deaths
Insurance company brings interpleader because it doesn't want to
pay out over its policy limit
Court allows the joining of multiple state court claims to allow
one ruling
State Farm Fire & Casualty Co. v. Tashire (1967) Bus-truck
accident in CA
The insurer brought an interpleader action for the $10K policy
This was a proper case for interpleader Not a proper case for
injunction, because this one little policy is not
important enough to shape the wholke claim Counterclaim for
interpleader RULE 13(a) Join additional defendants on counterclaim
RULE 13(g)
Talbot - CLASS ACTIONS Wednesday, April 30, 2008 11:30 PM
INTRO Class action status is a legal device that allows disputes
involving large numbers of plaintiffs to be settled in one trial or
settlement. One or more class representatives are formally joined
as parties in the case. The remaining members of the class action
are not joined, but are bound to the outcome. If the plaintiffs can
meet the requirements set forth in Rule 23(a) and (b) they can make
a motion for class action certification
1. Who is in the class?
1. INITIAL REQUIREMENTS The class must meet all of the factors
in 23(a) Numerosity: So many members that joinder of all members is
impractical. 40
usually enough, but no magic number. Some common question of
fact or law that unite all the claims by all the
members. Talk about issues of fact, then issues of law
3. Typicality: Shared claims or defenses between the
representative and the non-party members. If there are unique
subsets of the members, then sub-class groups are created with
sub-representatives in order to satisfy due process.
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The class can be broken down into subclasses each with their own
class status 23(c)(4)
4. Fair and Adequate Representatives: Nature of the adequacy of
the class representation (must be capable of exercising judgment
for the class) and the representatives attorney (experience and
resources).
Look at the representative (age) and the law firm
2. WHAT KIND OF CLASS ACTION? One of these factors must be met
23(b)
23(b)(1)(A) Separate prosecution will create inconsistent
adjudications which would establish incompatible standards of
conduct OR
23(b)(1)(B) adjudications with respect to individual members of
the class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications or
substantially impair or impede their ability to protect their
interests
Usually the class actions have some pre-existing relationship,
and the adjudication would effect everyone in that group so class
action status is needed to protect all the witnesses.
23(b)(2): The opposing party has acted towards the class such
that declarative and injunctive relief is appropriate for a class.
Focus is not monetary relief OR
Ex. Civil right action gender discrimination 23(b)(3) : The
court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for the fair and efficient adjudication of
the controversy.
DISCUSS: i. Interest of members of the class in individually
controlling the prosecution or defense of separate actions ii.
The extent and nature of any litigation concerning the
controversy already commenced by or against members of the
class
iii. The desirability or undesirability of concentrating the
litigation of the claims in the particular forum
iv. The difficulties likely to be encountered in the management
of a class action.
COMMON ISSUES PREDOMINATE: i. Common issues all go to liability
(Independent issues -
Individual would be particular harms, injuries) ii. Predominate
Issues where the real battles are going to
be fought. This is where most of the litigation time will be
spent. (Court will primarily have to spend time deciding)
CLASS ACTION IS THE SUPERIOR METHOD FOR ADJUDICATION i. Better
than having all individual s sue on their own
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ii. Efficiency iii. Interest in Individual in bringing their own
claim
(variations in amount of damages sought), and more $$ by going
to trial
iv. Maximum pot first to court gets all the money. (Small
company will be insolvent) more equitable to be class action.
v. Only way case will be brought, because individual monetary
claim is not much ($25).
3. NOTICE Not requires for (b)(1) or (b)(2) For 23(b)(3) class
actions, the court must send notice (that they can opt out see
below) to all members who can be identified through a reasonable
effort. Tells them:
They can opt out They are bound if they do not opt out They can
enter a separate appearance through counsel
4. WHO IS BOUND
Everyone except those who opt out of a (b)(3) (b)(1) and (b)(2)
cannot opt out.
5. SMJ
To bring the class action into court, the class must allege the
basis for proper SMJ over which the court may hear this claim.
FQSMJ 1331 FQSMJ (civil rights, security fraud, etc)
DIVERSITY SMJ Special rules govern diversity in class actions.
Specifically the Strawbridge
complete diversity rule is abandoned. 1332(d) governs diversity
SMJ over class actions The amount in controversy must exceed five
million dollars 1332(d)(2)
and any member of the class must be diverse from any defendant
1332(d)(2)(A)
Even then the court may decline to exercise jurisdiction "in the
interest of justice and looking at the totality of the
circumstances" 1332(d)(3)
1332(d)(5)(B) If the number of members of the class is less than
100 1332(d)(2) does not apply.
Old Fashioned Diversity 1332(a) Complete diversity
Strawbridge
Citizenship of the class reps (including subclasses) Amount in
controversy
Every plaintiff must have more than 75K individually - Zahn
Supplemental Jurisdiction 1367
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1367 can be used to bring un absent class members according to
Abbot which argues that 1367 overruled Zahn 5th circuit
6. IPJ In general IPJ rules are meant to protect defendants who
have the most to lose,
therefore the court needs IPJ over all members of the defendant
class. Specific IPJ Continuous and systematic contacts (general
IPJ)
Class representatives can consent to IPJ. Philips - not really
worried about IPJ over plaintiffs since there interest
are not being impeded 7. PROCEDURE
In the complaint it must be specified that the suit is a class
action 23(c)(1)(A) A class representative must make a motion to
certify the class action 23(c)(1)
and the class must be notified under 23(c)(2) The class can be
broken down into subclasses each with their own class status
23(c)(4) The court must appoint counsel under 23(g) The court
has an extra interest in supervising the class action to protect
the
interest off all the class members that are not there to watch
out for themselves. The court must approve any settlement,
dismissal, or compromise 23(e)
8. OTHER Disputes between members:
A divergence of goals/interest between the representative and
the members violates due process
A disagreement about case tactics/methods does not violate
Hansberry but can be unfair
Class Action Fairness Act of 2005: The Act gives federal courts
jurisdiction to certain class actions in which the amount in
controversy exceeds $5 million, and in which any of the members of
a class of plaintiffs is a citizen of a state different from any
defendant
Talbot - DISCOVERY Wednesday, April 30, 2008 11:38 PM
Whole idea is to decide the trial on the merits
1. REQUIRED DISCLOSURES 26(a) Parties must produce information
at 3 different times in the litigation
even if nobody request it 1. 26(a)(1) Initial disclosures
i. Must be done within 14 days of 26(f) conference
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ii. Must identify people and documents with discoverable
information that you may use to support your claims or defenses
(not information for impeachment)
iii. Plaintiff must give a computation of damages iv. Defendant
must disclose insurance they have for all or some
part of the claim 2. 26(a)(2) experts
i. RULE 26(a)(2) requires that at least 90 days before trial,
each party identify all experts who may testify at trial.
ii. RULE 26(a)(2)(B) requires the disclosure be accompanied with
a written report prepared and signed by the expert
This report must include "the data or other information
considered by the witness in forming the opinions"
iii. RULE 26(b)(4)(A) once the report has been turned over, the
expert may be deposed.
26(a)(3) trial evidence 1. parties are required prior to trial
to disclose the names of witnesses
expected to be called at trial or whose depositions will be used
at trial, and a list of documents and exhibits expected to be
offered into evidence
2. these disclosures must be made at least 30 days prior to the
trial, the other side then has 14 days to raise objections.
2. DISCOVERY TOOLS
DEPOSITIONS
RULE 30(a)(2)(A) imposes a presumptive limit of 10 depositions
per side RULE 30(d)(2) limits each deposition to one day of seven
hours RULE 30(b)(2) permits depositions to be recorded
electronically RULE 30(b) if the deponent is a party, counsel
initiates the deposition by
sending a notice of deposition to all parties in the action,
stating the time and place of the deposition
RULE 45 if the deponent is not a party, he must be "subpoenaed"
for the deposition
RULE 30(c) the witness is sworn, subjecting the testimony to the
penalties of perjury
RULE 30(c) unlike in trial, if a question is objected to, the
witness must still answer
RULE 30(d)(1) objections based on privilege allows counsel to
instruct the witness not to answer
RULE 32(c) a transcript is required if the deposition is later
offered into evidence.
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INTERROGATORIES RULE 33 allows any party to send to any other
party written questions
that require a written response under oath. RULE 33(a) imposes a
presumptive limit of 25 interrogatories per party RULE 33(b)(1)
requires the responding party to answer each
interrogatory under oath
3. REQUEST TO PRODUCE DOCUMENTS OR EVIDENCE RULE 34(c) available
from a non-party with a subpoenaed. RULE 34 permits a party to
require another party to produce for
inspection, copying or testing all relevant documents or other
tangible things.
4. PHYSICAL OR MENTAL EXAMINATION RULE 35 requires a court order
to require a party to submit to a physical
or mental examination by a "suitable licensed or certified
examiner" RULE 35 can only be used when the movant shows "good
cause" and
the mental or physical condition is "in controversy"
5. REQUEST FOR ADMISSION RULE 36 Asks the party to admit or
deny
Failure to deny can be an admission
RULE 26(g) Counsel must certify that request and responses are
not frivolous
3. SCOPE OF DISCOVERY
Standard 26(b)(1) We can discover anything relevant to a claim
or defense of any party
Things Protected From Discovery Privileged Material
RULE 26(b)(1) permits discovery only of material that is "not
privileged"
RULE 26(b)(5) requires a party to claim the privilege
"expressly" and to describe in sufficient detail the documents,
communications, or things not produced so as to enable "other
parties to assess the applicability of the privilege or
protection."
Work Product RULE 26(b)(3) bars the production of certain
materials
developed in anticipation of litigation in three categories
Hickman Case a. Documents prepared in anticipation of litigation
that
contain information that can reasonably be obtained through
other means, cannot be discovered
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b. Opposing counsel's thought process in preparing a case, such
as legal theories or litigation strategy, cannot be discovered.
c. If the requesting party demonstrates that (1) she has a
substantial need for materials developed in anticipation of
litigation, and that (2) similar information cannot be obtained
through other means without substantial hardship, the court may
order production
4. DISCOVERY SANCTIONS RULE 37(c)(1) failure to make a required
disclosure 26(a) or to amend or
supplement its responses 26(e) RULE 37(c)(2) failure to admit
something that should have been admitted under
36 RULE 26(c) protective order
The request is over burdensome PARTIAL FAILURE TO COMPLY (minor
sanction)
Party answered some interrogatories, but not all Party answered
some question at deposition, but not all Party responded to request
for production, but has failed to say he will
allow production TOTAL FAILURE TO COMPLY
Party failed completely to show at deposition Party failed to
answer any interrogatories Party failed to respond to request for
production PROCEDURE: must show that he attempted to confer with
other party
in good faith to prevent judicial intervention RULE 37(a)(2)
motion to compel RULE 37(b) authorizes the court, if the party does
not respond to
the motion to compel, to impose sanctions a. Striking claims b.
Taking disputed facts or claims as established c. Excluding
evidence d. Dismissing the action e. Ordering payment of the fees
and expenses caused by
the refusal to comply RULE 37(a)(4) the court can order the
noncomplying party to pay
the moving party's expenses and fees for the motion to compel
RULE 37(a)(4)(C) the court may enter protective orders defining
the scope of required discovery and barring unwarranted or
harassing doscovery
o Discovery of Material in Electronic Form
RULE 34 provides for discovery of "data compilations" and has
consistently been interpreted as extending to material in
electronic form
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RULE 26(b)(2) allows the court to limit discovery when "the
burden or expense of the proposed discovery outweighs its likely
benefit."
RULE 26(c) allows a court to enter a protective order to prevent
"undue burden or stress"
5. TIMING RULE 16(b) the scheduling order can be issued at any
time, but must be issued
no later than 90 days after the appearance of the defendant and
120 days after service of the complaint.
RULE 26(f) requires that all parties or their counsel confer "as
soon as practicable and in any event at least 21 days before the
scheduled conference is held or a scheduling order is due under
RULE 16(b)
RULE 26(d) the purpose of the conference is to discuss "the
nature and basis of their claims and defenses and the possibilities
for a prompt settlement or resolution of the case, to make or
arrange for the disclosures required by RULE 26(a)(1), and to
develop a proposed discovery plan."
RULE 26(d) no discovery can occur until the after the conference
has occurred. RULE 26(a)(1) the initial disclosures required by
RULE 26(a)(1) must be
produced within 14 days after the RULE 26(f) conference RULE
26(f) within 14 days after the RULE 26(f) conference, the parties
must
submit a written report of this conference.
6. PRETRIAL CONFERENCES AND ORDERS
RULE 16(a)(5) the express objective of conferences has been
"facilitating the settlement of the case"
RULE 16(b) federal judges can refer RULE 16 matters to a
magistrate judge RULE 16(b) requires a scheduling order in all
cases except those falling into
categories exempt by court rule. RULE 16(b) permits, but does
not require, the court to hold a scheduling
conference with the parties or their lawyers to assist in her
preparation of the scheduling order.
RULE 16(b)(1-3) The scheduling order must establish time limits
for joinder of additional claims or parties, amendment of
pleadings, motions, and discovery
RULE 16(c) through ongoing monitoring, the court may be able to
narrow the number and scope of issues still needing resolution at
trial.
RULE 16(d) "as close to the time as reasonable under the
circumstances," the court may hold the final pretrial conference,
to "formulate a plan for trial, including a program for
facilitating the admission of evidence."
RULE 16(e) the judge enters an order "reciting the action taken"
at the
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Talbot - SUMMARY JUDGMENT Thursday, May 01, 2008 5:11 PM
INTRO The motion for summary judgment is designed to allow early
resolution of cases in which the plaintiff meets the minimal burden
to plead the elements of a compensable claim, but cannot prove one
or more of those elements.
MOTION TO DISMISS 12(b)(6) Granted if the face of Pleadings dont
assert a claim
MOTION FOR SUMMARY JUDGMENT
RULE 56 Decided on law based on undisputed facts. Can be beyond
pleadings (discovery, affidavits, etc.).
What will the judge decide on? a. Whether there is a genuine
issue of law or fact
1. Genuine Issue Enough evidence that reasonable jury would find
in your favor (Anderson)
2. Material Fact: Fact that will affect the outcome of the
dispute 3. Cite Celotex needed burden of proof requires more than a
little bit
to get to jury If fraud .. then must be stated with
particularity. b. Whether moving party is entitled to judgment as a
matter of law (Typically not a
problem)
If get an Affirmative Defense Question (Failure to state it). 1.
Preclusion 8(c) 2. Is this an Affirmative Defense 3. R. 15 (b) -
Permission of the judge with good reason and no prejudice
(Judge
can admit conditionally with a continuance.) a. Then Apply
it
4. Rule 16(e) Pretrial order shall be modified only to prevent
manifest injustice
Can we assert collateral estoppel (issue preclusion) or res
judicata (claim
preclusion)? If you were not a party to the original claim, then
res judicata does not
apply. (class action situation). THESE ARE BOTH AFFIRMATIVE
OFFENSES UNDER RULE 8c!!! Defensive mutual collateral estoppel is
acceptable Offensive is only ok sometimes.
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Talbot - SUPPLEMENTAL JURISDICTION Thursday, May 01, 2008 4:08
PM
INTRO The rules frequently authorize joinder of claims over
which there is no independent basis of SMJ. This dilemma was
somewhat solved by the creation of supplemental jurisdiction
through 1367. If the plaintiff brings a proper federal claim or
diversity claim, so the court has "original jurisdiction," the
court may hear all claims that are part of the same "case or
controversy under Article III." FIRST, DOES THIS CLAIM MEET 1367(a)
statute of Gibbs
Other claims that are part of the same "case or controversy"
Case or controversy was defined in Gibbs (albeit before 1367 was
drafter) as the
"common nucleus of operative fact" as the federal claim.
EXAMPLES
A first sues a non-diverse party on a claim of federal question.
A state law claim is joined under 18(a). No independent basis for
jurisdiction Supplemental rescues.
A first sues a non-diverse party on a claim of federal question.
The brings a compulsory counterclaim 13(a) based on state law. No
independent basis for jurisdiction Supplemental rescues.
A (LA) sues (CA) on a claim of federal question. The impleads a
3P (CA) under 14(a) for a state law claim. No independent basis for
jurisdiction Supplemental rescues.
SECOND, IT CANNOT MEET 1367(b) statute of Owens
Limits on supplemental jurisdiction: will not extend to certain
claims by PLAINTIFFS in DIVERSITY cases
1. Claims against persons made parties under rule 14, 19, 20, or
24 2. Claims by persons proposed to be joined as plaintiffs under
rule 19 3. Claims by persons seeking to intervene as plaintiffs
under Rule 24 If allowing these claims violated 1332
EXAMPLES
A 3P (LA) is joined by the (CA) under 14(a). (LA) cannot assert
a state law claim against the 3P.
2 (CA) is joined under 19 or 20 with 1 (LA) (CA) cannot assert a
state law against 2.
2 (LA) intervenes under 24 into a suit between (LA) and (CA).
cannot assert a 13(g) cross claim against 2.
(LA), in a suit against (CA), makes a Rule 19 motion to join X
(CA) as 2. Motion denied.
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X (CA) seeks to intervene as 2 under Rule 24 in a suit between
(LA) and (CA). Motion denied
FINALLY, 1367(c) ALLOWS COURT DISCRETION Gives the court
discretion to decline to exercise supp jur for the following
1. Claim raises a novel or complex issue of state law 2. The
claim substantially predominates over the claim or claims over
which the
court has original jurisdiction 3. The court has dismissed the
original claims 4. In exceptional circumstances, there are other
compelling reasons for declining
jurisdiction