Federal Civil Procedure

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Federal Civil Procedure by Mind Map: Federal Civil Procedure

1. Personal Jurisdiction

1.1. Satisfy a state statute

1.1.1. Just mention you need a state statute and move to the constitutional analysis

1.2. Satisfy the Constitution (Due Process)

1.2.1. Contact

1.2.1.1. Purposeful Availment: D reaches out to the forum

1.2.1.2. Foreseeable that D could yet sue in the forum

1.2.2. Relatedness

1.2.2.1. Specific PJ

1.2.2.1.1. The contact includes the "very thing" that harm the forum

1.2.2.2. General PJ: At home

1.2.2.2.1. Human

1.2.2.2.2. Corporation

1.2.3. Fairness

1.2.3.1. Only in specfic PJ

1.2.3.2. Burden on D and witnesses (HARD to meet)

1.2.3.2.1. show "a severe disadvantage in the litigation"

1.2.3.3. State's interest

1.2.3.3.1. if P is a citizen of the forum

1.2.3.4. P's interest

1.2.3.4.1. injured

2. Preclusion

2.1. If case 1 and case 2 are in different judicial systems, the court in case 2 applies the preclusion law of the judicial system that decided case 1

2.2. Claim Preclusion: Only get to sue on a claim once

2.2.1. Case 1 and case 2 were brought by the same P against the same D

2.2.2. Case 1 ended in a valid final judgment on the merit

2.2.2.1. Not on the merit if based on jurisdiction, venue or indispensable parties

2.2.3. Same claim

2.2.3.1. Majority: T/O

2.2.3.2. Important minority view: property damage and personal injuries are separate b/c those are different primary rights.

2.3. Issue preclusion: only get to litigate an issue once

2.3.1. Case 1 ended in a valid, final judgment

2.3.2. The same issue was actually litigated and determined in Case 1

2.3.3. The issue was essential to the judgment in Case 1

2.3.4. Against the party or those in privity with a party in case 1

2.3.5. By whom?

2.3.5.1. Who was a party to case 1

2.3.5.2. Nonmutual defensive issue preclusion: By who's D in Case 2 but not a party in Case 1

2.3.5.2.1. Ok so long as P had fully chance to litigate in case 1

2.3.5.3. Nonmutual offensive issue preclusion: By who's P in Case 2 but not a party in case 1

2.3.5.3.1. Ok if fair

3. Appellate

3.1. Final judgment - Does the trial judge have any thing left to do on the merit of the case?

3.1.1. remand order cannot be appealed

3.2. File in the district court within 30 days after the final judgment

3.3. Interlocutory review

3.3.1. Order reviewable as of right.

3.3.2. Interlocutory appeals act

3.3.2.1. Reviewable order: 1) Preliminary injunction. NO TRO 2) Non-final order that Involves controlling issue of LAW, substantial ground for difference of opinion, and the court of appeals agrees to hear it.

3.3.2.1.1. controlling issues of LAW (Can't be fact!)

3.3.3. Collateral order doctrine

3.3.3.1. Is distinct from the merits of the case

3.3.3.2. Involves an important legal question

3.3.3.3. Essentially unreviewable if parties await a final judgment.

3.4. Standard of review

3.4.1. Affirm question of fact unless - findings are clearly irrelevant in non-jury; - reasonable people couldn't have made that finding in jury.

3.4.2. Affirm discretionary matters, unless the district judge abused her discretion

3.4.3. De novo reveal the content of jury instruction in questions of law.

3.4.4. NO reversal required if the error is harmless

4. Conference ~ Post trial

4.1. Rule 26(f) Conference

4.1.1. Present a detailed discovery plan <=14 days after the conference

4.2. Jury Trial

4.2.1. 17th Amendment apply in Federal Civil cases only

4.2.2. Demand the jury in writing <=14 days after service of the LAST PLEADING addressing a jury triable issue (usually the answer).

4.2.2.1. if you don't, you waive.

4.3. Motion for judgment as a matter of law

4.3.1. If granted, the case won't go to the jury.

4.3.2. If move for JMOL, not granted, then can move fore RJMOL within 28 days after entry of judgment.

4.3.2.1. if didn't move for JMOL, RJMOL waived. But can still move for new trail on the grounds that the verdict is against the weight of the evidence.

4.4. Motion for a new trial

4.4.1. Within 28 days after entry of judgment

4.4.2. Based on evidence presented at trial.

4.4.3. 1) Erroneous jury instruction 2) New evidence that could not have been gotten before with due diligence 3) Misconduct by juror or party or lawyer 4) judgment is against weight of the evidence 5) Inadequate or excessive damages

4.4.3.1. To avoid a new trial, could also go for remittitur (play hard ball with P); Additur (play hard ball with D)

5. Adjudication without trial

5.1. Temporary Restraining Order (TRO)

5.1.1. Before getting a preliminary injunction

5.1.2. Without giving notice to the other party, maybe "ex parte"

5.1.3. Under oath, file a paper show that he will suffer immediate and irreparable harm if wait until the other side is heard

5.1.4. <= 14 days + 14 days

5.1.4.1. If more than that, treated as a preliminary injunction

5.2. Preliminary injunction

5.2.1. A court order that D either do/refrain from doing before trial

5.3. Voluntary dismissal

5.3.1. "Without prejudice" - can refile the case "With prejudice" - cannot refile the case

5.4. Default judgement

5.4.1. Default cuts off D's right to respond due to D's failure of timely response

5.4.1.1. Never granted ex parte. Show 1) irreparable harm 2) likely to win 3) balance of hardship favors him 4) public interest

5.4.2. Relief: Can't exceed or different from what you ask for.

5.4.2.1. The clerk of court can enter judgment

5.4.2.2. In trial, P can recover more than (different kind of relief) she put in her complaint

5.4.3. P could apply to the court for default judgment

5.5. Motion to dismiss for failure to state a claim FRCP 12(B)(6)

5.5.1. Look at P's fact, ask "Assuming these facts are true, do they state a plausible claim?" (ignore legal conclusions)

5.6. Motion to set aside, with good cause and a viable defense

5.7. Motion for summary judgment FRCP 56

5.7.1. Can be partial

5.7.2. Can look at evidence, most favorable to the non-moving party

5.7.2.1. Pleading is not evidence, unless D failed to deny.

5.7.2.2. Evidence must be first-hand

5.7.3. Party move for summary judgment must show: 1) no genuine dispute on the material fact 2) entitled to judgment as a matter of law

5.7.4. Move for summary judgment <=30 days after close of discovery

6. Joinder

6.1. P may join any additional claim

6.2. Multiple P&D

6.2.1. Arise from the same transaction and occurance

6.2.2. Raise at least one common question

6.2.3. * assess SMJ!

6.3. Necessary and indispensable parties

6.3.1. Are you necessary?

6.3.1.1. A's interest may be harmed if not joined (practical harm)

6.3.1.2. Cannot accord complete relief among existing parties without A (worries multiple suits)

6.3.1.3. A claims an interest that subjects a party to a risk of multiple obligations

6.3.2. Can you be joined?

6.3.2.1. PJ + Won't goof up diversity

6.3.3. If you can't be joined, the court may proceed or dismiss the entire case.

6.4. Counterclaim

6.4.1. A->B: B->A

6.4.2. Compulsory claim if same T/O. MUST assert it in this case unless you have already filed in another case. if you don't, you LOSE it.

6.5. Crossclaim

6.5.1. A->B&C: B->C

6.5.2. Must arise from the same T/O

6.5.3. Not compulsory

6.6. Impleader (TPD)

6.6.1. A->B: B->C

6.6.2. To shift the liability to third party

6.6.2.1. Indemnity(full), contribution(pro-rata)

6.6.3. Implead <=14 days of serving answer

6.6.4. A TPD may be joined by the original D only when the original D claims that TPD is liable for all or part of the P's original claim.

6.6.4.1. TPD can assert a claim against P, vise versa

6.6.5. * assess SMJ

6.6.5.1. If diversity, should look at D &TPD (the opposing parties), P is irrelevant!

6.7. Intervention

6.7.1. A nonparty brings herself into the case

6.7.2. Intervention of right. A's interest may be harmed if not joined and is not adequately represented now.

6.7.3. Permissive intervention. A's claim and the pending case have at least one common question

6.8. Class Action

6.8.1. 4 requirements: Numerosity, commonality, typicality, representative adequate.

6.8.2. 3 types

6.8.2.1. Prejudice: Necessary to avoid harm to class members or non-class party (Limited fund)

6.8.2.2. Seeks injunction or declaratory judgment b/c D treated the class members alike

6.8.2.2.1. Can't seek damage

6.8.2.3. Common questions predominate + Class action is the superior method to handle the dispute (Mass tort)

6.8.2.3.1. Notice - They can opt out or else be bound, can enter a separate appearance through counsel (Type 3 ONLY)

6.8.3. SMJ

6.8.3.1. Diversity: Rep's citizenship only + Rep's claim >$75,000

6.8.3.2. CAFA

6.8.3.2.1. >=100 members

6.8.3.2.2. Diverse citizenship between: Any class member and any D

6.8.3.2.3. Aggregate claims >=$5,000,000

7. Discovery

7.1. Initial required disclose

7.1.1. Each party must give even no one asks

7.1.2. <=14 days of Rule 26(f) conference

7.1.3. Scope

7.1.3.1. Identities of the person who have discoverable info you use to support your claim

7.1.3.2. Documents and things you use to support your claim

7.1.3.3. Computation of relef

7.1.3.4. Insurance coverage

7.2. Expert Witness

7.2.1. 1) Identity and 2) the written report by the EW must be disclosed

7.2.2. Expert that doesn't testify at trial is Consulting Expert. Facts known and opinion held by consulting experts are generally NOT discoverable

7.2.3. EW and client are work product

7.3. Pretrial disclosure

7.3.1. <=30 days before trial, give detailed info about trial evidence

7.4. Discovery tool

7.4.1. Request after Rule 26(f) conference

7.4.1.1. Except: Can serve request to produce >=21 days after service of process

7.4.2. Depositions

7.4.2.1. Live testimony

7.4.2.2. Notice of deposition a PARTY; Subpoena a NON-party.

7.4.2.2.1. Duces tecum: requires the deponent to bring requrest materal with her

7.4.2.2.2. <=100 miles from where she resides

7.4.3. Interrogatories

7.4.3.1. Sent only to PARTY, never to nonparties

7.4.3.2. Respond <=30 days from service. +3 days if mailed.

7.4.3.3. Respond must be based upon info reasonably availably available to you.

7.4.3.4. Contention interrogatories are OK

7.4.4. Request to produce

7.4.4.1. To party only, Non-party use subpoena.

7.4.5. Medical exam

7.4.5.1. Must get a court order

7.4.5.2. Show 1) the person's health is in actual controversy 2) good cause

7.4.5.3. You can request a medical report of your own. If you do, you must produce all medical reports by your own dr about that medical condition. You also waives any dr/patient privilege

7.4.6. Request for admission

7.4.6.1. Sent only to party, never to non-parties.

7.4.6.2. Within 30days of service

7.5. Scope of discovery

7.5.1. Anything relevant to a claim or defense, and proportional to the need of the case

7.5.2. Privilege

7.5.2.1. Evidentiary privilege

7.5.2.1.1. prepared in anticipation of litigation

7.5.2.2. Work product

7.5.2.2.1. Discoverable if substantial need and not otherwise available

7.6. Enforcement

7.6.1. Protective order

7.6.1.1. If request subject to annoyance, embarrassment, undue burden or expense,

7.6.1.2. The court can deny, limit or permit it on specified terms

7.6.2. Sanctions

7.6.2.1. Less than full response: 1) Move for an order compelling 2) Merit sanction

7.6.2.2. No response: Merit sanctions

8. Pleadings

8.1. Complaint

8.1.1. SMJ

8.1.2. Claim

8.1.2.1. Plead facts supporting a plausible claim

8.1.2.2. Fraud, mistake and special damages requires particularity and specificity

8.1.3. Relief

8.2. Respond(Rule 12d)

8.2.1. Motion

8.2.2. Answer

8.2.3. <=21 days after service with process

8.2.3.1. if waive service, 60 days from mailing waiver form

8.3. Defense RULE 12(b)

8.3.1. Lack of SMJ

8.3.1.1. No time limit of raising, the court must dismiss

8.3.2. (2) Lack of PJ; (3) Improper venue; (4) Improper process; (5) Improper service of business

8.3.2.1. WAIVABLE

8.3.2.2. Must put in the first motion/answer or else waived.

8.3.3. Failure to state a claim

8.3.3.1. Raise anytime through trial

8.3.4. Failure to join indispensable party

8.4. Answer

8.4.1. If not deny/state lack sufficient information, then assumed admit.

8.5. Amend

8.5.1. P amend complaint

8.5.1.1. <=21 days after D serve response

8.5.2. D amend answer

8.5.2.1. <=21 days after serving answer

8.5.3. Relates back

8.5.3.1. Join a claim: if same conduct, transaction or occurrence

8.5.3.1.1. Avoid statute of limiations

8.5.3.2. Change a D: 1) Same conduct, TX or occurrence 2) New D knew of this case within 90 days of filing 3) D should know that she'd have been named originally

8.6. Supplemental complain

8.6.1. for things happen after filing the pleading

8.7. Rule 11: The party and lawyer certifies 1) paper not improper purpose; 2) Legal contentions warranted by law; 3) Factual contentions and denial have evidentiary support

8.7.1. if violates

8.7.1.1. You serve the motion --> 21days safe harbor --> File the motion

8.7.1.2. Court issues "order to show cause"(No safe harbor) -> give a chance to be heard

9. Venue

9.1. In any district where

9.1.1. All D resides

9.1.1.1. If D doesn't reside in the US, venue is okay in any district

9.1.1.2. Human resides in where he domiciles

9.1.1.3. Business resides in where they subject to PJ

9.1.2. A substantial part of the claim

9.1.2.1. Where the defective product was manufactured, where P was injured

9.1.3. NOT applies if case removed! Venue is in federal district embracing the state court

9.2. Transfer

9.2.1. Transferee must be proper and have PJ

9.2.1.1. can't waive

9.2.2. Original district is proper

9.2.2.1. - Convenience of parties and witnesses; - In the interest of justice

9.2.2.1.1. Public and Private factor showing the transferee is the center of gravity.

9.2.2.2. Choice of law: Transferor

9.2.2.2.1. UNLESS transfer is to enforce an forum selection clause (a provision in which the parties agree that a dispute will be litigated in a particular place)

9.2.3. Original district is improper

9.2.3.1. Transfer in the interest of justice or dismiss

9.2.3.2. Choice of law: Of the state where it sits

9.3. Forum non conveniens

9.3.1. Can't transfer between a different judicial system

9.3.2. Dismiss or stay

10. Subject Matter Jurisdiction

10.1. Federal Question

10.1.1. Well pleaded: P's claim itself arise under federal law

10.1.1.1. "Is p enforcing a federal right?"

10.2. Diversity of citizenship

10.2.1. Between citizens of different states

10.2.1.1. No good if any P is co-citizen as any D

10.2.2. A citizen of US state & citizen of a foreign country

10.2.2.1. Green card holder is not an US citizen

10.2.3. >$75,000

10.2.3.1. Aggregate claims of 1 P against 1 D

10.2.3.1.1. Not necessarily fact related

10.2.3.2. Joint claim: use the total value of the claim

10.2.3.2.1. number of the parties is irrelevant

10.2.3.3. Equitable relief

10.2.3.3.1. 1) Decrease the value of property >75k; 2) Cost D >75k to comply with the injunction

10.2.4. Interpleader

10.2.4.1. Any 2 claimants are citizens of different states

10.2.4.1.1. Complete diversity not required

10.2.4.2. The amount in controversy >=$500

10.3. Cases MUST be brought in federal court

10.3.1. Patent infringement, bankruptcy, some federal securities and antitrust claim

10.4. Cases CAN'T be heard in federal court

10.4.1. Divorce, alimony, child custody, probate

10.5. Citizenship

10.5.1. Citizenship of human

10.5.1.1. Only 1 domicile

10.5.1.2. New domicile: Present in a new place, intent to make that your home in a foreseeable future.

10.5.1.3. Domicile when the case is filed

10.5.2. Citizenship of a corporation

10.5.2.1. Where incorporated

10.5.2.2. Principal place of business - where managers direct control of business activities

10.5.3. Partnership, LLC

10.5.3.1. The citizenship of all members

10.6. Removal

10.6.1. When? <=30 days after service

10.6.1.1. Starts at service on the last D

10.6.2. Who? All Ds

10.6.2.1. File notice of removal. Jointly or separately

10.6.2.2. P can NEVER remove

10.6.3. Where? To federal district embracing the original state court

10.6.4. NO removal in diversity case if

10.6.4.1. any D if a citizen of the forum

10.6.4.2. >1 year after the case was filed

10.6.5. Remand

10.6.5.1. 30 days after notice of removal is filed

10.6.5.2. Lack of SMJ: Anytime

10.7. Supplemental jurisdiction

10.7.1. T/O: Arise from the same transaction or occurrence as the underlying case

10.7.2. Exception: Claim asserted by a P in a diversity of citizenship case CAN'T

10.7.2.1. UNLESS multiple P, claim by one of them doesn't meet the amount, then OK.

10.8. Law applied in federal court

10.8.1. Erie Doctrine

10.8.1.1. Federal law on point that directly conflicts with state law?

10.8.1.1.1. Federal law

10.8.1.2. If no federal law on point, apply State Law if the issue is substantive

10.8.1.2.1. Clearly "Substantive"

10.8.1.3. Weigh "Substantive"

10.8.1.3.1. Outcome determinative

10.8.1.3.2. Balance of interests (federal/state)

10.8.1.3.3. Avoid forum shopping

11. Service of process

11.1. Notice

11.1.1. Summons

11.1.2. A copy of the complaint

11.2. Serve human

11.2.1. Give to D personally

11.2.1.1. NONPARTY who is >=18 year old can serve process

11.2.1.2. <=90 days after file the complain

11.2.2. 1) Serve someone of in suitable age and discretion who RESIDES there 2) at D's usual abode

11.2.3. Serve D's agent

11.2.4. State law method

11.2.4.1. of the state where the federal court sits or where service is made

11.3. Service on a business/org

11.3.1. officer, managing or general agent

11.3.2. state law method

11.4. Serve a minor

11.4.1. State law method

11.4.1.1. Of the state where service is to be made

11.5. Service in a foreign country

11.5.1. International agreement

11.5.2. if no

11.5.2.1. Directed by American court

11.5.2.2. Mail sent by the clerk the American court requiring signed receipt

11.6. Service of other documents

11.6.1. Mailing. sent email if the party agrees