FEDERAL JURISDICTION & PROCEDURE PROFESSOR JOHN C. JEFFRIES, JR. UNIVERSITY OF VIRGINIA SCHOOL OF LAW

FEDERAL JURISDICTION & PROCEDURE PROFESSOR JOHN C. JEFFRIES, JR. UNIVERSITY OF VIRGINIA SCHOOL OF LAW CHAPTER 1: SUBJECT MATTER JURISDICTION: FEDERAL QUESTION AND DIVERSITY A. Intrductin t Federal Subject Matter Jurisdictin Subject matter jurisdictin cncerns the pwer f the curt t decide. Federal curts have limited subject matter jurisdictin. In each case, the basis f federal jurisdictin must be and, if challenged, must be. The requirement f subject matter jurisdictin cannt be waived. Lack f jurisdictin can be raised: By whm? When? The subject matter jurisdictin f state curts is cmpletely different. Generally, state curts have unlimited subject matter jurisdictin, except fr cases made exclusively federal by an act f Cngress. B. Federal Questin Federal questin jurisdictin exists if the is based n federal law. Review Luisville & Nashville R. C. v. Mttley and the rule f the well-pleaded cmplaint. C. Diversity Diversity jurisdictin reaches disputes between citizens f different states, r citizens f a state and a freign cuntry, with recgnized exceptins fr and. The general diversity statute requires cmplete diversity. Cmplete diversity requires that. Special statutes allw minimal diversity in a few cases, including statutry interpleader, large class actins with mre than $5 millin at stake, and certain interstate mass trts. When must cmplete diversity exist? Cmplete diversity depends n the citizenship(s) represented by each party. Individuals:

Representative Parties: The citizenship f a representative party, such as a trustee, usually cntrls. Exceptin: Fr the legal representative f an estate (e.g., executr), the citizenship f the cntrls. Exceptin: Fr the legal representative f an infant r an incmpetent (e.g., guardian), the citizenship f the r the cntrls. Class Actins: Only the cunt when determining citizenship. Crpratins: and the state with the, if different than the incrpratin state. Unincrprated Assciatins: Actins that create r defeat diversity are permitted, if. The jurisdictinal amunt fr diversity cases is generally. The test fr determining whether the amunt is met is. When can smaller claims be heard? When ne plaintiff sues ne defendant and the aggregated claims exceed $75,000; When multiple plaintiffs enfrce a single right r title against ne defendant and the aggregated claims exceed $75,000; When ne plaintiff has a claim wrth mre than $75,000, and smaller claims f ther plaintiffs. 2 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 2: SUBJECT MATTER JURISDICTION: SUPPLEMENTAL AND REMOVAL A. Supplemental Jurisdictin Supplemental jurisdictin under 28 U.S.C. 1367 generally allws a federal curt with subject matter jurisdictin ver ne claim t hear additinal claims if all claims share a cmmn nucleus f perative fact. 1. Federal Questin The issue in federal questin cases is whether a federal curt can hear state-law claims. Example 1: Federal and state claims against Defendant A. The federal curt may hear bth claims If. Example 2: Federal claim against Defendant A and a related state claim against Defendant B. The federal curt may jin Defendant B and hear bth claims if. Supplemental jurisdictin is a questin f pwer. Whether t exercise that pwer lies within the f the district curt. 2. Diversity Jurisdictin a. Cunterclaims A federal curt sitting in diversity has supplemental jurisdictin ver a. A cmpulsry cunterclaim is ne that arises ut f the same transactin r ccurrence. The cmpulsry cunterclaim can be heard regardless f the jurisdictinal amunt. A (ne that des nt arise ut f the same transactin r ccurrence) can nly be heard if it meets the requirements f diversity. b. Crss-Claims A federal curt may hear crss-claims, which must arise ut f the as the main claim, withut regard t the amunt in cntrversy r the citizenship f the parties t the crss-claim. c. Permissive Jinder If the claim f ne diverse plaintiff satisfies the jurisdictinal amunt, a federal curt may hear the claims f ther diverse plaintiffs, regardless f amunt, s lng as all claims share a cmmn nucleus f perative fact. 3 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

3. Exceptins t Supplemental Jurisdictin Supplemental jurisdictin des nt extend t: Claims by plaintiffs against under Rule 14 Claims by plaintiffs against jined as necessary parties under Rule 19 Claims by under Rule 24 Claims by plaintiffs jined invluntarily under Rule 19 Fr all f these claims, cmplete diversity must be maintained, and the jurisdictinal amunt must be met. 4. Summary Supplemental jurisdictin wrks fr federal questin cases acrss the bard and in diversity cases fr ; fr ; and fr vluntary jinder f plaintiffs where there is cmplete diversity with all named plaintiffs, where ne f them has a claim exceeding $75,000, and where all claims share a cmmn nucleus f perative fact. Supplemental jurisdictin establishes the curt s pwer t hear claims; whether the curt exercises that pwer is up t its sund discretin. B. Remval 1. Intrductin t Terminlgy Remval mves case frm t curt. Transfer mves case frm t curt. There is n mechanism fr remval r transfer f a case frm t curt. 2. General Rule Remval is prper nly if the case. It fllws that nly may remve. 3. Federal Questin Remval based n federal questin jurisdictin is prper nly if. 4. Diversity Remval based n diversity jurisdictin is prper nly if: There is diversity; The amunt in cntrversy exceeds ; and The case is brught in a state f which n is a citizen. Generally, there is a ne-year limit n remval. 4 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

5. Remval Prcedures A ntice f remval is filed in the curt, cpy t the curt. When ntice is filed, the case is remved, and the authrity f the curt ceases. If there is a questin abut the prpriety f remval, it is reslved n a petitin fr. 5 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 3: PERSONAL JURISDICTION; IN PERSONAM JURISDICTION A. Persnal Jurisdictin Persnal jurisdictin cncerns the pwer f the curt t adjudicate the rights and liabilities f this defendant. Because the plaintiff has vlunteered t cme t this curt, persnal jurisdictin always cncerns. Persnal jurisdictin is generally the same in federal and state curt. That is because federal curts use the lng-arm statutes f the states. 1. Overview Every persnal jurisdictin issue invlves tw questins: Is this assertin f persnal jurisdictin authrized? Is this assertin f persnal jurisdictin permitted? Whenever persnal jurisdictin is in issue, bth questins must be addressed. 2. Types f Persnal Jurisdictin : Actin against the persn : Actin against a thing : Srt f against the thing 3. Cnstitutinal Aspect Due prcess requires that there be between the defendant and the frum state, such that it is cnsistent with traditinal ntins f and t sue the defendant here. Basically, is it? In assessing minimum cntacts, lk fr f the prtectin f the frum s laws by the. Cntacts between the frum and the d nt suffice. 4. Waiver Unlike subject matter jurisdictin, persnal jurisdictin can be waived. A defect in persnal jurisdictin (including a defect in service f prcess) must be raised, which will be a mtin t, if the defendant chses t file ne, r the, whichever cmes first. 5. Federal Exceptins Federal curts can assert brader persnal jurisdictin than state curts in these cases: 6 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

When a federal statute, such as the Federal Interpleader Act, authrizes natinwide service f prcess; r Under the Bulge Prvisin f the Federal Rules, which allws service n an impleaded third-party defendant under Rule 14 r a under Rule 19 anywhere within miles f the federal curthuse, even if the bulge extends int anther state. B. General In Persnam Jurisdictin Generally, federal curts fllw the persnal jurisdictin law f the states in which they sit. There is sme variatin state t state, but nt much. The fllwing typically supprt general in persnam jurisdictin, which means that the defendant can be sued n any claim whatsever, even if it is unrelated t the defendant s cntacts with the frum state., unless the defendant was in the state nly t answer a summns r was brught there by frce r fraud., which can be given by cntract r by appinting an in-state agent fr receiving service f prcess. Fr a crpratin, the state f. Fr any kind f business (including sle prprietrship), the. Fr freign crpratins, in the state. This requires mre than a single transactin. It requires substantial activity in the state. Maintaining an infrmatinal website is nt sufficient; maintaining a website t cnduct business transactins is. 7 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 4: SPECIFIC IN PERSONAM JURISDICTION, IN REM, AND SERVICE OF PROCESS A. Specific In Persnam Jurisdictin Specific in persnam jurisdictin is based n state lng-arm statutes. Typically, thse statutes reach very far indeed, but nly fr claims arising ut f the defendant s cntacts with the frum. Almst everything cmes within the typical state lng-arm statute, s lng as the claim arises. B. In Rem Jurisdictin Applies against any kind f prperty, real r intangible, s lng as the prperty is. Quasi In Rem Jurisdictin: Tries t use in-state prperty as a basis fr frcing an ut-f-state defendant t litigate an unrelated claim. Tday, quasi in rem is subject t the same test as in persnam jurisdictin. Therefre, it is much less imprtant. C. Ntice and Service f Prcess Persnal service is preferred. It cnsists f persnal delivery, leaving the summns at the defendant s, delivery t an, r delivery by, return receipt requested. All wrk. There is n required preference amng them. Special Rules fr Service f Prcess: Fr an infant, serve the infant and a r. Fr an incmpetent, serve the and her. Fr a partnership, serve a partner, an attrney in fact, r an authrized fr receiving service f prcess. Fr a crpratin, serve an fficer, directr, r managing agent, r leave at his ffice. Fr nn-resident mtrists, states generally allw service n sme state fficial, such as the Cmmissiner f Mtr Vehicles, wh is required t frward a cpy t the ut-f-state driver. Fr in rem and quasi in rem actins, t make persnal service is required. Ntice by publicatin is nt sufficient if the names and addresses f claimants can be discvered with reasnable effrt. 8 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 5: VENUE AND CHOICE OF LAW Intrductin and Waiver: Federal venue and state venue are cmpletely different, but under bth, imprper venue can be waived. Under federal law, lack f venue, like lack f persnal jurisdictin, must be raised, which is either a pre-answer mtin t, if the defendant chses t file ne, r the. A. Venue Federal venue cncerns the prper district fr a case t be heard. 1. General Rule Federal venue is prper: Where any defendant resides, if all defendants reside ; Where the claim arse i.e., where a substantial part f the events r missins n which the claim is based ccurred r where a substantial part f the prperty that is the subject f the actin is lcated; r If neither f the abve, in any district where any defendant. Unlike mst state venue rules, the plaintiff s residence des nt cunt. 2. Residence Where des the defendant reside? Fr individuals, residence means. Fr business entities as defendants, a business entity resides in every district where can be asserted ver it. 3. Special Prvisins In suits begun in state curt and remved t federal curt, venue is autmatically prper in the district where the curt sits, even if that wuld therwise nt be s. 4. Transfer A suit brught in a district with prper venue may be transferred fr cnvenience t a district with prper venue. Transfer t a district withut prper venue may ccur when all parties cnsent. A suit brught in district withut prper venue may be transferred t a district with prper venue r dismissed. If the riginal curt had prper venue, the law f the cntrls. If the riginal curt lacked prper venue, the law f the cntrls. 9 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

B. Chice f Law The Erie Dctrine Erie Simply Stated: Fr the bar exam, Erie means simply that in diversity cases, federal curts apply state law. State Substantive Law: Fr purpses f Erie, state substantive law includes: The substantive rules that determine wh wins and wh lses; that set time limits n state causes f actin; Rules allcating the burdens n state claims; and State rules n f law. Federal Prcedures: Federal prcedures apply in federal curt fr adjudicatin f state-law claims. Federal prcedures include anything cvered by the Federal Rules f Civil Prcedure. 10 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 6: PLEADINGS AND DEFENSE MOTIONS A. Intrductin Federal civil actin is begun by filing a cmplaint. Fr diversity actins, state law cntrls when an actin is begun. There are nly three pleadings: 1), which is used t state a claim fr relief. Either the plaintiff r the defendant may file a against a c-party. If the defendant impleads a third-party defendant, that s called a. 2) The ppsing party filed an, which is used t respnd t a cmplaint. It may cntain,, and in sme cases, a. 3), which is used t answer a cunterclaim (the plaintiff s answer). B. Claim fr Relief Recvery is nt limited by the claim fr relief, except fr default judgments. Histrically, pleading was difficult because each kind f claim had its wn special rules f pleading. The pleading had t match the prf. Cnsequently, litigatin was ften reslved n the pleadings. One f the chief aims f the Federal Rules f Civil Prcedure was the refrm f pleading, first-t standardize pleading. Anther gal was t simplify pleading. The chief innvatin designed t accmplish these gals was called ntice pleading. C. Ntice Pleading In federal practice, pleadings need nt spell ut the evidence; they need nly give f the pleader s cntentin. All that is required is a statement f the claim. Mst things can be alleged generally. D. Special Pleading Stated with particularity. Sme things must be alleged with. Fraud r mistake Special damages, i.e., damages that d nt lgically and rdinarily flw frm the wrng alleged. Example 3: Yu are hit by an autmbile and yu claim medical expenses, persnal injury, pain and suffering, and lst wages all thse things may be alleged generally. But let s say yu allege in yur cmplaint that yu missed yur clsing sessin, yu culdn t sign yur clsing dcuments, and yu have 11 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

enrmus ecnmic damages. That is nt the type t rdinarily flw frm the accident, s thse damages must be specially pleaded. Recent Decisins: The allegatins in the cmplaints must state a case fr recvery. Bell Atlantic v. Twmbly (2007) Ashcrft v. Iqbal (2009) These cases curtail ntice pleading. These cases allw district judges t dismiss, befre discvery, cmplaints that they think are bviusly unfunded. They have mre freedm than they used t. 12 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 7: PLEADINGS AND DEFENSE MOTIONS (CONT D.) A. Defense Mtins Against the Cmplaint A mtin is a request fr a curt rder. 1. Mtin t Dismiss May be used t raise: Lack f jurisdictin Lack f jurisdictin Imprper Failure t state a claim Failure t jin a Frum nn cnveniens A claim f n persnal jurisdictin r a claim f imprper venue must be made at the (the answer r a pre-answer mtin t dismiss). Lack f subject matter jurisdictin cannt be waived. It can be raised by any party at any time, including fr the first time n appeal r by the curt itself. Mst claims can be waived if nt raised timely, that includes a lack f persnal jurisdictin and als imprper venue. These claims will be waived unless the defendant raises them befre substantial participatin n the merits. 2. Mtin fr Judgment n the Pleadings Rarely encuntered If there is any factual dispute, summary judgment will reslve the dispute. Judgment n the pleadings nly wrks when the cmplaint and the answer agree abut all the relevant facts. 3. Mtin fr a Mre Definite Statement Asks that a pleading be made mre specific. Judges usually disfavr this. 4. Mtin t strike Can be used t delete frm pleadings matters that are r and nt relevant t the case at hand. It is als used by the plaintiff t strike a legally invalid defense. B. Answer Used t respnd t any frm f the cmplaint The answer cntains. It may als cntain and in sme cases it may cntain a. Failure t respnd is an admissin. 13 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

In additin t respnses, answers may, and usually d, cntain. These are the defenses which require ntice. Included are assumptin f risk, cntributry negligence,, fraud, release,, and statute f limitatins. Basically, any defense that has a name is likely t be an affirmative defense and must be pleaded in the defendant s answer. Answers must rdinarily be filed within 21 days f the pleading. In respnding t allegatins f the cmplaint, yu have t say smething. The failure t respnd is an admissin. The answer may cntain a cunterclaim. The plaintiff s answer is called the. C. Amendments t Pleadings 1. As f Right 2. By Leave f Curt Editr's Nte 1: Prfessr Jeffries misspke. Pleadings may be amended within 21 days after serving the pleading, r, if a respnsive pleading is required, 21 days after service f the respnsive pleading r after service f a mtin under Rule 12, whichever is earlier. Thereafter, leave t amend may be sught by the curt and amendment by leave f curt shuld be. 3. Statute f Limitatins and Relatin Back In sme circumstances, an amendment is deemed t t the date f the riginal pleading. If the statute f limitatins has nt yet run, it des nt matter. But, if the statute f limitatins has run, then relatin back determines whether the amended pleading is timely. An amendment relates back t the date f the riginal if it cncerns the as the riginal pleading. The key is. 4. Amendment t Add a Party An amendment t change r add a defendant must cncern the as the riginal pleading, and the party t be added must have r had that the actin shuld have been brught against the new party. Example 4: Parent and subsidiary. Suppse suit is filed against a crprate subsidiary, and the cmplaint is amended t name the parent cmpany. Meanwhile, the statute f limitatins runs. The actin is nt barred, the amendment cncerned the same transactin and the suit riginally filed gave the parent ntice. Example 5: Changing capacity f plaintiff. Suppse suit is filed by the head f a small business wh realizes he cannt d that withut bard apprval. The 14 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

bard des ratify, but by then the statute f limitatins has run. The actin is nt barred. Example 6: Crrecting mistake as t identity f defendant. Suppse a plaintiff slips and falls n a sidewalk in a shpping area but mistakenly sues the wrng stre. Time passes and the plaintiff realizes he sued the wrng defendant. Nw he wants t amend his cmplaint t sue the crrect defendant. Meanwhile, the statute f limitatins has run. The actin is barred; the new defendant had n reasn t knw, n ntice, f the riginal actin. The amended pleading is time-barred. Verificatin: Mst pleadings are nt verified, nr need they be. Certificatin: Pleadings and all ther dcuments including mtins f all srts and discvery requests must be. The signature certifies that: There is The legal cntentins are warranted by r by a argument fr a change in the law The factual allegatins have, r (in the case f denials) are reasnably based n lack f infrmatin r belief The attrney s signature certifies that the filing was made after reasnable and in. The attrney can be made t bear the cst f baseless r imprper filing. 15 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 8: MULTI-PARTY LITIGATION Real Party in Interest: A cmplaint shuld nt be dismissed fr lack f a real party in interest until reasnable time has been made fr the substitutin f the crrect plaintiff. Capacity Minrs and incmpetents can sue r be sued nly thrugh a. Partnerships can sue r be sued as an entity if federal jurisdictin is based n federal questin. If jurisdictin is based n diversity, then each and every partner must be a made a party. A. Permissive Jinder f Parties Any number f plaintiffs may jin if they assert claims and there is a f law r fact. N party can be jined whse presence wuld destry. If cmplete diversity is maintained, and if plaintiff claims mre than $75,000, ther plaintiffs with smaller claims can cme in thrugh supplemental jurisdictin. B. Cmpulsry Jinder f Parties (by Defendants) A party whse presence is must be jined if feasible. N party can be jined whse presence wuld destry. N party can be jined withut persnal jurisdictin, but in additin t all ther grunds f persnal jurisdictin, a necessary party may be served within miles f the curthuse. If a necessary party cannt be jined, the curt decides whether t cntinue r dismiss the suit. C. Interventin (primarily by plaintiffs) Interventin as f right may be had when the utsider claims an interest in the lawsuit that, as a practical matter, will be by the dispsitin f the pending actin. Permissive interventin may be allwed whenever there is a f r between the main claim and the intervenr s claim. N supplemental jurisdictin fr either kind f interventin. N ne can intervene whse presence wuld destry r wh des nt claim $75,000+. D. Interpleader A device t avid multiple liability n cmpeting claims t the same prperty. The party pssessing such prperty is the, wh can interplead the and reslve all claims in a single actin. Interpleader can be used either 16 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

ffensively by a stakehlder-plaintiff r defensively by a stakehlder-defendant wh has been sued by a claimant. Rule interpleader (under Rule 22) is fr a case therwise within the curt s jurisdictin. Statutry interpleader (under the Federal Interpleader Act) has special features t make interpleader available: Special jurisdictinal amunt f nly $ Service f prcess establishes persnal jurisdictin Venue in any district where Jurisdictin may be based n diversity. 17 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 9: MULTI-CLAIM LITIGATION, IMPLEADER, CLASS ACTIONS A. Jinder f Claims As between the same plaintiff and the same defendant, there is n limitatin n jinder f claims. All claims between the same parties may be t exceed $75,000. B. Cunterclaims Claims by ppsing parties against claimants. 1. Cmpulsry cunterclaims Must be pleaded nw r will be lst frever. A cunterclaim is cmpulsry if it arises as the main claim. N independent jurisdictinal base is required, and the statute f limitatins is nt a prblem. 2. Permissive cunterclaims Thse that d nt. Independent jurisdictin is required. A permissive cunterclaim must be based n r there must be with $75,000+ in issue. A permissive cunterclaim is barred if nt. C. Crss-claims Claims against c-parties. Crss-claims must arise as the main claim, but crss-claims are never. D. Impleader (Third-Party Practice) Allws a defendant t implead smene wh is r may be liable t the fr all r part f the s claim against him. The impleaded party is called the, and the riginal defendant is the. Example 7: Cntributin amng jint trtfeasrs. Tw trtfeasrs injure a plaintiff. The plaintiff sues ne but nt the ther. The sued defendant can implead the ther trtfeasr, nt because the ther trtfeasr may be liable t the plaintiff, but, given the right f cntributin, because she is r may be liable t the defendant fr part f plaintiff s claim against him. Example 8: Cntract f indemnificatin. A general cntractr makes cntracts with subcntractrs. Each cntract requires the subcntractr t 18 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

reimburse the general cntractr fr any defect in that subcntractr s wrk. If the wner sues the general cntractr, the general cntractr can implead the subcntractr, wh may be liable t the general cntractr fr all r part f the wner s claim against him. Supplemental jurisdictin cvers the s claim against the impleaded thirdparty defendant but NOT any claim by the against the third-party defendant. Any claim by the plaintiff against the third-party defendant must be based n law r must maintain and be wrth $75,000+. N party can be impleaded withut persnal jurisdictin, but in additin t all ther grunds f persnal jurisdictin, a third-party defendant may be served within miles f the curthuse. E. Class Actins Prerequisites fr a class actin are: f parties f law r fact f claims by the class representative by the representative s lawyer Dismissal r cmprmise f a class actin requires. Diversity jurisdictin exists if the are cmpletely diverse frm ppsing parties and if at least has a claim wrth $75,000+. Class Actin Fairness Act f 1995 allws very large class actins, invlving r mre members with $ r mre at stake t be based n diversity. 19 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 10: SCOPE OF DISCOVERY A. Mandatry Disclsures The Federal Rules nw require mandatry disclsures in three stages. 1) Initial disclsure f f persns with discverable infrmatin. Cpies r descriptins f and Cmputatin f and agreement 2) Expert witnesses must be disclsed with their qualificatins, publicatins, infrmatin n which they based their pinins, and cmpensatin. 3) List f all witnesses and exhibits t be used at trial. Failure t made mandatry disclsure bars the party frm using that infrmatin at trial. This prcedure has nt been fllwed in the states, r even in many U.S. districts. B. Scpe f Discvery The key is relevance. Yu can discver anything that might be at trial r that might lead t smething that might be at trial. Discvery is nt limited t admissible evidence. Exceptin #1 Evidentiary Privilege Anything cvered by a true evidentiary privilege, e.g., attrney-client privilege, is nt discverable. Nte 1: is nt a true evidentiary privilege. Secnd-hand testimny can be discvered, nt because it is itself admissible, but because it might lead t admissible evidence. Exceptin #2 Wrk Prduct Rule The attrney wrk prduct rule prtects: and (nt infrmatin), Prepared (nt pre-existing materials); By r fr r her. This is a qualified privilege: A party may be entitled t wrk prduct upn a shwing f and that it cannt be btained elsewhere. is NOT a prper grund fr requesting wrk prduct. Ntwithstanding the abve, yu can always get a cpy f yur wn, whether yu a party r a mere witness, but yu can never discver the f an attrney. 20 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

Experts: Whether thrugh mandatry disclsure r thrugh respnses t discvery requests, expert witnesses, their final reprts, and varius infrmatin abut them can be discvered if they are expected t be called. Otherwise nt. Prtective rders: Fr gd cause shwn, a curt can d whatever is necessary t prevent discvery frm being excessively burdensme r expensive. 21 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 11: DISCOVERY DEVICES A. Oral Depsitin Questins asked and answered and under befre a ntary public r anyne authrized t administer aths, almst always the persn wh recrds the answers. Limited t depsitins f day s duratin, unless the curt allws mre. Any kind f ntice suffices fr a, but a mere witness requires a. A subpena duces tecum requires the depnent t bring dcuments r things. B. Written Depsitin Questins given in writing t a hearing fficer wh asks them rally. Rarely used. C. Interrgatries Questins asked and answered. May be used nly against a (nt a mere witness) and is limited t interrgatries, unless the curt allws mre. D. Discvery and Inspectin f Dcuments and Land This is called a request t prduce and permit inspectin. It applies nly t dcuments and land under the cntrl f a (nt a mere witness), and the items t be prduced must be described. E. Physical and Mental Examinatin Physical r mental examinatin can be required nly f a, (nt a mere witness), nly when the party s physical r mental cnditin has been put and nly fr. F. Admissins A request fr admissins is useful nt fr discvering new infrmatin but fr streamlining trial. Failure t respnd is an. Certificatin: Respnses t requests fr admissins (and all ther dcuments) must be signed by the. The signature certifies that there is a fr the psitin taken and that it is taken in. Admissins have n effect. They cannt be used in any future prceeding. 22 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

G. Use f Depsitins Discvery des nt equal admissibility. Generally, admissibility is gverned by rules f evidence. Depsitin f an adverse party is admissible as an against interest. Depsitin f a mere witness can be used as a prir incnsistent statement t incnsistent testimny at trial. Depsitin f a witness wh des nt testify can be used if the witness is dead r beynd the curt s subpena pwer r therwise unavailable. It als can be used if the witness is mre than miles frm the place f trial. H. Enfrcement Sanctins The curt can immediately impse sanctins in three instances f cmplete default. 1) Failure t attend ne s wn 2) Failure t respnd t 3) Failure t respnd t a request Otherwise, the curt shuld issue an befre impsing sanctins. 23 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 12: PRE-TRIAL AND TRIAL PROCEDURE A. Pre-Trial Cnference Must be attended by attrneys wh will cnduct trial. They must file a detailing claims and defense, itemizatin f damages, requests fr stipulatins and admissins, list f all witnesses and exhibits, etc. Failure t cmply usually means that the attrney pays the csts ccasined by the default. B. Terminatin Withut Trial Judgment, which is apprpriate nly where the pleadings reveal n factual dispute and is rarely used; judgment, where there is n need fr trial; dismissal (dismissal withut prejudice); dismissal (dismissal with prejudice); and judgment. The first tw devices require n further cmment. 1. Vluntary Dismissal r Dismissal withut Prejudice The plaintiff has a t a vluntary dismissal, nce, at any time prir t the defendant s serving an r a mtin fr. The defendant s mtin t dismiss fr lack f jurisdictin r imprper venue des nt cut ff right t vluntary dismissal. 2. Invluntary Dismissal r Dismissal with Prejudice Invluntary dismissal is withut prejudice when impsed fr lack f, imprper, r failure t. Otherwise, invluntary dismissal is with prejudice. Dismissal with prejudice is an n the merits and has full effect. It may be the remedy fr plaintiff s failure t prsecute r fr failure t cmply with any curt rder. 3. Summary Judgment Distinguish a mtin t dismiss fr failure t state a claim, which can test nly the f the plaintiff s claim. Summary judgment can als test the factual supprt. The standard fr summary judgment is that there is f material fact and that the mving party is entitled t judgment. This may be sught by either side and fr any claim r defense r any part theref. The standard is always the same. 24 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

This must be supprted r ppsed by, such as:, which are ral questins answered under ath, which are written questins answered under ath, which must be swrn befre a ntary public Nte 2: Mst pleadings are nt verified and cannt be used t supprt r ppse summary judgment. Swrn statements must be based n. Example 9: Fred and Ethel. Ethel sues Fred fr autmbile injuries, files an affidavit saying he ran ver her, and mves fr summary judgment. He cannt avid summary judgment by relying n the denials in his answer nr by saying that he will call witnesses wh will say thus and s. He must file a swrn statement based n persnal knwledge that creates a genuine dispute as t an issue f material fact. C. Trial by Jury The 7th Amendment guarantees trial by jury in civil cases accrding t the divisin between law (juries) and equity (n juries) in 1791. Admiralty and equity d nt require a jury trial. Equity includes and requests fr f a cntract. When legal issues and equity issues verlap in the same case, try the issues first. Otherwise, the right t jury trial n the legal issue (e.g., claim fr damages) wuld effectively be freclsed by the prir reslutin f the equity issue (e.g., specific perfrmance). A demand fr trial by jury must be made nt later than days after service f the answer r ther pleading directed t the issue n which jury trial is sught. Selectin f the jury allws peremptry challenges by each side, but they cannt be exercised t purge prspective jurrs n the basis f r. In a bench trial the judge is required bth t make f fact and t state f law. Instructins: Any bjectin t the instructins given by the trial judge must be made. Only timely bjectin preserves the pint fr appeal. 1. Mtin fr Judgment as a Matter f Law (frmerly Directed Verdict) Essentially the same as a mtin fr summary judgment but made at the clse f the plaintiff s case and again at the clse f all the evidence. The mtin is granted if the evidence, viewed in the light mst favrable t the ppsing party and under the burden f prf impsed by the substantive law, culd nt supprt a cntrary verdict and the mving party is therefre entitled t judgment as a matter f law. 25 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

2. Renewed Mtin fr Judgment as a Matter f Law (frmerly J.N.O.V.) A mtin fr judgment as a matter f law made at the clse f all the evidence may be if the jury reaches a cntrary verdict. The standard is the same that the evidence cannt supprt and the mving party is therefre. A mtin at the clse f all the evidence is a fr renewing the mtin pst-verdict. If yu fail t ask riginally, yu cannt renew. 26 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 13: APPEALS A. Appealability Mtin fr judgment as a matter f law at the clse f the plaintiff s case, mtin t dismiss fr failure t state a claim, mtin fr judgment n the pleadings, r mtin fr summary judgment are if, after lsing, the mvant prceeds t trial. Preliminary mtins are n lnger relevant nce there has been a full trial. B. New Trial Often made with a renewed mtin fr judgment as a matter f law, but very different. Grunds fr new trial include: Errr that made judgment evidence miscnduct by lawyer, party, r jurr verdict and the winning party refused t accept The curt must specify reasns fr granting a new trial. Purely legal rulings will be reviewed n appeal, but mst grunds fr new trial are within the f the trial curt and will be reviewed n appeal nly fr. C. Final Judgment Rule Ordinarily, appeals lie nly frm final judgments. A final judgment reslves f all n the. Partial final judgment: A curt may chse t enter a partial final judgment reslving nly sme f the claims, but it must the rder as final with respect t thse claims. It then becmes immediately appealable. A judgment becmes final when. Appeal is taken by filing a in the. An appeal must be filed within days f entry f judgment, but the time limit is tlled by a timely mtin fr r. D. Interlcutry Orders Sme interlcutry (nn-final) judgments are immediately appealable. Interlcutry appeal as f right may be had fr and fr rders changing r affecting. Interlcutry appeal may be had n leave f curt if bth trial and appellate curts agree. The trial curt must issue a certificate fr interlcutry appeal stating that the rder invlves a 27 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

f law and that immediate appeal may terminatin f the litigatin. The appellate curt must agree. Cllateral rder dctrine authrizes immediate appeal f rders separable frm and cllateral t the merits and t imprtant t deny immediate review. Cmmn examples are rders denying qualified immunity in cnstitutinal trt cases and rders denying dismissal fr frum nn cnveniens. Mandamus prvides fr immediately appellate crrectin f an f authrity. Class actins: Appellate curts have discretin t hear interlcutry appeals frm rders r refusing t a class actin. E. Standards f Review Fr matters f law, appellate review is. Fr findings f fact, appellate review is mre limited. Jury verdicts must be affirmed if supprted by. Judge findings must be affirmed unless. Fr matters f discretin, the standard f appellate review is. F. Full Faith and Credit Curts in the United States, whether state r federal, must give full faith and credit t judgments rendered by ther curts, prvided that the rendering curt had. 28 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

CHAPTER 14: THE EFFECT OF FORMER ADJUDICATION A. Intrductin The effect f frmer adjudicatin is determined by tw dctrines, nt ne. Ask first whether the subsequent litigatin suit is barred by preclusin, therwise knwn as. If nt, ask whether the subsequent litigatin is barred by preclusin, therwise knwn as. Nte 3: Always ask these questins separately and in rder. B. Claim Preclusin Claim preclusin has three requirements: 1) There must have been a n the in the first suit 2) The secnd suit must be between the r their 3) The secnd suit must invlve the Final judgment n the merits des nt necessarily require trial. It includes a judgment, judgment, and dismissal. Re-litigatin between the same parties r their successrs in interest. parties must have been parties t the prir lawsuit. Example 10: Child supprt. Father is criminally prsecuted fr failing t prvide child supprt and is acquitted. Mther then brings a civil actin fr child supprt against the same defendant. Is the secnd suit barred by claim preclusin? Answer:. The first actin was brught by the gvernment, and the secnd by the mther. N re-litigatin between the same parties. Example 11: Defective vehicle. A persn injured by a defective vehicle sues the dealer and lses. Subsequently, the injured persn sues the vehicle manufacturer fr the same defect. Is the secnd suit barred by claim preclusin? Answer:. The first suit was against the dealer, and the secnd was against the manufacturer. N re-litigatin between the same parties. The nly exceptin is when re-litigatin ccurs between thse in privity with the riginal parties, in ther wrds, their. 29 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

Examples f successrs in interest include: The assignr and assignee f a claim; A decedent and the executr f the estate; and The executr f an estate and persns wh claim under the will. Re-litigatin must invlve the. All legal theries t recver frm ne defendant fr harm arising ut f a single transactin r ccurrence are ne claim. There is a separate claim against each defendant, but there is nt a separate claim fr each thery. Example 12: Installment sales. In installment cntracts, the creditr must sue fr all that is due at the time f the suit. All accrued debt r bligatin is ne claim. Future debts r bligatins are future claims, unless the cntract prvides that the entire debt becmes due upn default f any payment. C. Issue Preclusin Issue preclusin als has three requirements. 1) The same must arise in tw suits 2) That issue must have been in the first suit 3) The party must have been a party t the first suit. Same issue f fact must arise in tw suits. It desn t matter if the tw suits invlve entirely different claims, s lng as they have a factual issue in cmmn. Example 13: Defective vehicle. Assume that the persn injured by a defective mtr vehicle sues the dealer and lses. The jury fund that the vehicle was nt defective. Then the injured persn sues the manufacturer fr the same defect. Is there claim preclusin? Answer:. The secnd suit invlved a different defendant and therefre a different claim. Is there issue preclusin? Answer:. The same issue was presented in bth suits. The issue must have been actually and necessarily decided in the first suit. A default judgment has full preclusive effect as a final adjudicatin n the merits, but has n preclusive effect, given that n factual questins were actually litigated and decided. The party t be precluded must have been a party t the first suit. That is nt necessary fr the party invking preclusin, as there is n lnger a requirement f mutuality f estppel. At least that s true fr the defensive use f issue preclusin. Whether a successin f plaintiffs culd invke issue preclusin ffensively is nt entirely clear. 30 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure

Example 14: Fred and Ethel # 1. Fred and Ethel are invlved in an aut accident with Mrt and Myrtle. Fred sues Mrt, the driver f the ther car, and lses. The jury fund that Mrt s vehicle was nt perated negligently. Fred then sues Myrtle, the passenger in Mrt s car, claiming that she distracted the driver and caused him t drive negligently. Can Myrtle preclude re-litigatin f the negligence issue in the secnd suit? Answer:. N preclusin because suit against a different defendant is a different claim. But there is preclusin. Fred was a party t the first suit and had his day in curt. Issue preclusin can be invked against him. Example 15: Fred and Ethel # 2. Fred and Ethel are invlved in an aut accident with Mrt and Myrtle. Fred sues Mrt, the driver f the ther car, and lses. The jury fund that Mrt s vehicle was nt perated negligently. Ethel, the passenger in Fred s car, then sues Mrt, claiming that he perated his vehicle negligently. Can Mrt, wh has already litigated and wn this issue, preclude Ethel frm re-litigating it in the secnd suit? Answer:. N preclusin because suit by a different plaintiff is a different claim. And n preclusin, because Ethel was nt a party t the prir actin. She has nt had her day in curt. Issue preclusin cannt be invked against her. D. Summary Remember that claim preclusin and issue preclusin are separate dctrines and must be addressed separately. Ask first whether claim preclusin bars the secnd suit. If s, the questin is at an end. If nt, ask whether issue preclusin bars the secnd suit. Always ask these questins separately and in rder. E. Cnclusin Remember t cncentrate yur attentin n the areas mst ften tested: Jurisdictin, which is far and away and mst imprtant; Pleadings, especially amendments theret; Discvery, especially the wrk prduct rule; Mtins practice, especially summary judgment and the tw stages f mtin fr judgment as a matter f law; and The effect f frmer adjudicatin, namely claim and issue preclusin. [END OF HANDOUT] 31 2013 Themis Bar Review, LLC Federal Jurisdictin & Prcedure