Generally, when are multiple plaintiffs or multiple defendants allowed in a federal lawsuit?

When the common questions of law or fact arise out of the same transaction or occurrence.

When may two or more plaintiffs join their claims in a single action against a defendant? I.e., when is joinder permitted?

Plaintiffs may join their claims when the claims arise out of the same transaction or occurrence and a common question of law or fact exists between all parties involved in the suit.

Is a joint tortfeasor that is subject to joint and several liability a necessary party?

No. According to SCOTUS, a joint tortfeasor that is subject to joint and several liability is not a person that is necessary for complete and final adjudication.

Does a permissive counter claim need to have independent subject matter jurisdiction?

A plaintiff or defendant can both add claims that do not arise out of the same transaction or occurrence. However, if the claims do not arise out of the same transaction or occurrence, then supplemental jurisdiction does not apply.

I.e., if the claims do not arise out of the same transaction or occurrence, each claim must independently have subject matter jurisdiction.

How does a defendant avoid waiving the right motion to dismiss for lack of personal jurisdiction.

To avoid waiving the right to motion to dismiss based on lack of personal jurisdiction, the defendant must make the motion (1) when he files any motion OR (2) when he files an answer, whichever occurs first.

If not asserted by motion, or in the answer, whichever occurs first, the defendant waives the right to motion for dismissal because of a lack of personal jurisdiction.

In a diversity case, may a court ignore diversity when utilizing supplemental jurisdiction?

No. In a diversity case, the court may not use supplemental jurisdiction when doing so would defeat the complete diversity of the parties.

What is the most important limitation to supplemental jurisdiction?

Restrictions on the use of supplemental jurisdiction applies only to plaintiffs.

Key Takeaway: only a defendant can use supplemental jurisdiction that destroys diversity of citizenship.

May a state judge issue a writ of habeas corpus when affecting a detainee is in federal custody?

No. The supremacy clause prevents state judges from acting in this manner.

What constitutional amendment established sovereign immunity in federal courts?

The 11th amendment prevents an action "against any one of the states by citizens of another state, or by citizens or subjects of any foreign state."

What is sovereign immunity under the 11th amendment?

Federal courts do not have jurisdiction to hear claims of a private citizen or claims of a foreign government against a U.S. State.

Who may not sue a state in Federal Court?

Private citizens, foreign governments, or foreign citizens may not sue a U.S. State in federal court.

What is an exception to the general rule baring citizens from suing states in federal court?

Citizens may seek, in federal court, injunctions against government officials enjoining them from applying an allegedly unconstitutional law.

What are mandatory initial disclosures?

Parties must disclose without a discovery request:

(1) Name and contact information of those likely to have discoverable information (2) A copy or description of all documents (electronic or otherwise) or tangible things that can used to support a claim or defense (3) Calculation of damages (4) Any insurance agreements that may pay part of a possible judgment

What is the time to make mandatory initial disclosures?

Within 14 days from the Rule 26 pretrial conference unless the court states otherwise.

What is the maximum number of interrogatories?

Parties are limited to 25 interrogatories. The parties, however may stipulate to more.

During discovery a party should reasonably know a piece of information but fails to inquire about or provide the information to the opposing party. What motion should the opposing party utilize?

Motion to compel a discovery response.

What is the proper motion when a party fails to make a mandatory disclosure?

Motion to compel disclosure.

What is summary judgment (JMOL)?

JMOL is a request via motion given to the court asking for a judgment as a matter of law. A JMOL is made before submission to the jury and asserts that no reasonable jury could find in favor of the opposing party.

The proponent of JMOL asserts that the existing evidence could not support a ruling in the opposing party's favor.

What is the difference between JMOL and judgement on the pleadings?

Judgment on the pleadings occurs after the pleadings are complete but before trial. JMOL happens during trial. Judgment on the pleadings based only on the pleadings and generally without additional evidence being considered.

Is a denial of summary judgment appealable?

No. A denial of summary judgment is not appealable until after the final judgment in the case.

What is the standard for JMOL?

Once a party (X) has been fully heard, a court may find for the opposing party (Y) on a motion for JMOL if a reasonable jury would not have any legally sufficient evidentiary basis to find for the fully heard party (X).

What is the most effective way to argue against a motion for summary judgment if you do not have enough specific facts currently available?

(1) Argue via affidavit or declaration that you do not have certain facts the reasons why those facts are not currently available.

(2) Argue that further discovery is necessary to obtain the information that will show that there is a material fact at issue.

May summary judgment be granted during discovery?

Yes, but only if the court determines that the non-movant has had adequate time for discovery. The court has significant discretion.

When may a state case be removed to federal court?

The defendant may remove a case to federal court as long as either diversity of citizenship OR federal question jurisdiction is satisfied.

To what court may a state case be removed?

To the court embracing the state court in which the action was filed.

What is the in-state defendant rule?

A case filed in state court cannot be removed to federal court based on diversity jurisdiction when the defendant is a citizen of the state where the claim was filed.

So, when plaintiff (citizen of state X) sues defendant (citizen of state Y) in state Y court, the defendant CANNOT remove to federal court based on diversity of citizen ship.

This exception does not apply to cases removed based on a federal question.

What is the time limit for removal?

One year from when the state action was filed.

What are the 3 main categories of causes of actions that are generally not removable to federal court.

1. Actions arising under state worker compensation law
2. Some actions against railroads
3. Actions arising out of the violence against women act of 1994

Where is venue proper?

Venue is proper in . . .

(1) in any district in which any defendant is domiciled, as long as all the defendants reside in the same state

OR

(2) any district where a substantial portion of the transaction or occurrence resulting in the claim arose

OR

(3) any district where the court has personal jurisdiction over the defendant.

What factors are considered in determining whether a motion to transfer venue is proper? What effect does a forum selection clause have?

The court weighs all available factors that effect venue, even if a forum selection clause is in issue.

The court will balance the factors related to convenience against the importance of the forum selection clause.

What are the methods of service of process accepted by the federal rules of civil procedure?

(1) Personal service

(2) Abode service (left at the residence with a person of a reasonable age who is a resident of the premises)

(3) Authorized agent service

(4) Service in accordance with the law of the state embraced by the federal court

(5) Service in accordance with the state law in which the service is to be given.

A couple (both defendants) are separated but not divorced; how will proper service of process be effectuated?

All defendants identified in the complaint must be served individually. A plaintiff may not serve one of the defendants and assume that they will inform the others.

What is the burden of persuasion?

The burden to convince a jury to decide in their favor.

If all evidence is heard, and both the plaintiff and defendant's cases are equally supported, the party with the burden of persuasion cannot win.

What is the burden of going forward with the evidence?

The burden of producing sufficient evidence to place a fact in issue.

If a plaintiff establishes a prima facie case, they have met the burden of going forward with the evidence. The burden then shifts to the opposing party.

When may a judge properly instruct a jury on a presumption?

If one party lays a proper foundation for a presumption and the opposing party does not show any contrary evidence, the judge may instruct the jury on the presumption.

If, however, the opposing party makes any evidentiary showing in opposition to the presumption, the judge may not instruct the jury on the presumption.

When does one have standing to bring an action in a U.S. Federal Court?

Standing exists when:

(1) The plaintiff suffers an injury in fact

(2) An act or omission caused the injury

(3) The injury is redressable

What is claim preclusion (Res Judicata)?

The doctrine of claim preclusion prevents relitigating claims once a court has made a final judgment on that issue.

When is claim preclusion available?

Claim preclusion is available when

(1) the same plaintiff is asserting a claim against the same defendant

(2) there was a final decision on the merits in the original case

AND

(3) the claim in both instances is the same.

Are default judgments on the merits for the purposes of claim preclusion?

Generally, yes.

What is issue preclusion (Collateral Estoppel)?

Under issue preclusion, a plaintiff or defendant or one in privity with them, is bound by a final judgement of a court with respect to an issue that has been settled.

When is issue preclusion available?

Issue preclusion is available when

(1) the original case concluded with a valid and final judgement on the merits,

(2) the issue in question was actually litigated,

(3) the issue was essential to the case

AND

(4) the issue was actually litigated.

What is defensive non-mutual issue preclusion? Is it generally allowed?

Defensive not mutual issue preclusion is generally allowed.

It occurs when

(1) a defendant that was not a party to the original action

(2) attempts to preclude a plaintiff from relitigating

(3) an issue that has already be decided against the plaintiff in prior litigation.

What is offensive non-mutual issue preclusion? Is it generally allowed?

Offensive non-mutual issue preclusion occurs when a plaintiff who was not a party in the original case attempts to use a final decision in a previous litigation against the defendant.

Offensive non-mutual is generally not allowed, but can be if the court determines that using it would be fair.

What body of law governs claim preclusion when a federal court enters an order that may affect an ongoing action in state court?

Federal common law determines the claim preclusive effects of a federal court decision.

What rule is used to determine the preclusive effect of a litigated issue?

When determining the preclusive effect of a previous decision, courts apply the preclusion law from the forum in which the original judgment was made.

What is a default judgment?

A default judgment is a binding court decision in favor of a party as a result of inaction by the opposing party. Typically a default judgment is rendered against a defendant that failed to respond of prosecute.

What are the requirements for entry of a default judgment?

For entry of a default judgment . . .

(1) the amount to be awarded must be certain

(2) the default judgment was entered after the defendant failed to appear

(3) the defendant is competent

(4) the defendant is not an infant

AND

(5) damages requested do not exceed damages demanded in the complaint.

When may a court clerk enter a default judgment?

A court clerk may enter a default judgment when

(1) the claim is for a certain amount,

(2) the defendant has not responded or appeared,

(3) the plaintiff attests to the amount owed, and

(4) the defendant is neither incompetent nor an infant.

What amendment guarantees a trial by jury for civil cases in federal courts?

The 7th amendment.

How does one properly demand a jury trial in a federal civil case?

The demand for a jury trial must be (1) written, (2) served on all parties, (3) served within 14 days of the last pleading.

When is there a right to a jury trial under the 7th amendment?

A jury trial is guaranteed when legal relief (as opposed to equitable relief) is being sought.

What are examples of legal and equitable relief?

Money damages are generally legal relief. An injunction is equitable relief.

If an action asserts both legal and equitable issues, which are tried first?

The legal issues are tried first by the jury. Equitable issues are then considered by the court. I.e., the jury trial happens first, and then a non-jury trial for any remaining equitable issues.

May a plaintiff demand a jury trial when seeking an injunction as the relief?

No. An injunction is equitable relief. Jury trials are not guaranteed for equitable remedies.

May a party demand a jury trial in a case where civil damages are sought?

Yes. Jury trials are guaranteed for legal issues such as damages.

May one party exclude witnesses from the court room so other witnesses cannot conform to the initial testimony?

A judge SHALL order a witness out of the courtroom at the request of either party?

What is the exception to the requiring a judge to exclude a witness so they may not conform?

Courts may not exclude a witness if

(1) the witness is a party to the present action

(2) the witness's presence has been shown to be essential

What is interpleader?

Interpleader is an action that allows a plaintiff or defendant to initiate an action to compel other parties to litigate. Interpleader often occurs when there is a claim against an assert of one party and that part seeks to have the court determine who has rights, if any, to that asset.

Interpleader is method for an owner of an asset to initiate an action among 2+ parties that determines who has rights to that asset.

What are the requirements to interplead?

Requirements

(1) the party seeking interpleader has a legitimate concern about facing multiple lawsuits concerning the same asset,

(2) federal question OR diversity jurisdiction exists over the claim,

(3) the federal court has personal jurisdiction over the parties, and

(4) the court is a proper venue.

What is the special interpleader subject matter jurisdiction rule?

A party seeking interpleader may do so if ANY two claimants have diversity of citizenship AND the amount in controversy exceeds $500.00.

What is RJMOL?

Renewed judgment as a matter of law.

What is the former name of RJMOL?

RJMOL used to be called a judgment not withstanding the verdict.

What is the time limit on RJMOL?

28 days after entry of the judgment.

What is the procedural limit on RJMOL?

The proponent of RJMOL must have moved for RJMOL during the trial.

Further, the grounds for RJMOL after entry of the verdict cannot exceed the grounds brought up at trial.

What is an ex parte temporary restraining order?

A temporary restraining order that is issued without notice or a hearing.

When is an ex parte temporary restraining order appropriate?

Requitements:

(1) proponent of the "TRO" makes a showing of immediate and irreparable harm,

(2) the plaintiff certifies that they have attempted reasonably to provide notice to the party that will be affected by the TRO, AND

(3) plaintiff posts bond for any damages that might occur if TRO is wrongful.

When a preliminary injunction is granted, who does it apply to besides the party named in the action?

(1) Officers of the party

(2) "servants" of the party

(3) Agents of the party

(4) Attorney of the party

(5) Employees of the party

What is the standard for a court to give a new trial?

The general rule is that a new trial is appropriate when there has been a serious error in the proceedings.

A serious error generally occurs when

(1) there is an excessive or inadequate verdict,

Or

(2) there has been a serious / material mistake

Or

(3) when the verdict is against the weight of the evidence.

What is the appropriate response from a court when representation of one of the parties uses repetitive and derogatory language against the opposing part?

A new trial is appropriate if the language will probably bias the jury against the opposing party.

What is the work product doctrine?

The work product doctrine is a qualified discovery immunity for materials created in preparation for litigation. I.e., materials created in preparation for litigation are not discoverable under the world product doctrine unless the opposing party can make a showing that they . . .

(1) have a substantial need for the materials, and

(2) alternative methods of obtaining the materials would be unduly difficult.

What is transactional immunity?

Transactional immunity bars a witness from being prosecuted to offenses they committed, and, which are referenced in the testimony.

What are the general requirements for a class action lawsuit?

For a valid class action lawsuit:

(1) There must be a common issue among the class

(2) There are too many potential claimants for standard joinder to be viable

(3) The class representative's claims are typical of the class in general, AND

(4) The class representative can fairly and adequately represent the class.

May the certification of a class action be appealed immediately?

Yes, if appealed within 14 days of the certification.

In what type of class action does an identified party always have a 2nd opportunity to opt out?

In "common question" class actions, judges may deny a settlement unless a second chance to opt out is given to all members of the class.

What are the required elements to properly assert insufficient assistance of counsel?

(1) Defense counsel's assistance was not adequate, AND

(2) The deficiency of assistance was prejudicial to the outcome of the case.

What is the time limit for amending an answer as a matter of course?

21 days after service of the answer.

What is the relation back doctrine?

An amendment to a complaint can be amended after the stature of limitations has run if the amendment properly relates back to the original filing.

What are the requirements of the relation back doctrine?

Relation back is appropriate when

(1) the amendment arises our of the same transaction or occurrence implicated in the first filing

AND

(2) the defendant has sufficient notice such that they will not be prejudiced.

With respect to the relation back doctrine, what is the time limit for notice?

Notice must be given or known within 90 days from the original filing.

What is the standard of review for a court's decision on the admissibility of evidence?

Discretionary issues such as admissibility of evidence are subject to an abuse of discretion standard on appeal.

What is the standard of review for a court's legal rulings?

De Novo. No deference is given.

What is the standard of review for findings of fact?

The clearly erroneous standard is used. Deference is given to the trial court's findings of fact since they were in a better position to evaluate, in comparison to the appellate court.

When may a party appeal an erroneous jury instruction? What standard is applied during review?

The party wishing to appeal a jury instruction must have objected before or when the jury instruction was given or promptly after learning that a proposed jury instruction was denied.

The standard of review on appeal is plain error.

What are the instances when an interlocutory appeal is appropriate?

The court certifies that the interlocutory order

(1) involves a controlling question of unsettled law,

(2) there is a substantial grounds for difference in opinion on that law, and

(3) immediate appeal will materially advance the ultimate determination of the litigation.

Note: Even if these 3 factors are found, the court of appeals still must accept the appeal, which is subject to the appeal court's discretion.

May a temporary restraining order (TRO) be appealed?

By its very nature a TRO is temporary. As such, it is not final and cannot be appealed.

However, be careful. If a TRO is extended beyond 30 days, it is considered an injunction, which can be appealed.

May a preliminary injunction be appealed?

Yes. Orders that grant, dissolve, deny, or continue a preliminary injunction are immediately appealable.

When is relief from judgment appropriate?

Relief from judgement is appropriate when (any of the following)

(1) There was a serious mistake at trial

Or

(2) The verdict was the result of misrepresentation or fraud

Or

(3) The verdict is void

Or

(4) New evidence is discovered that could not have previously been obtained with reasonable diligence

Or

(5) any other grounds reasonably justifying relief.

What are the general time limits for relief from judgement?

(1) For clerical error, there is no time limit. (2) For newly discovered evidence, fraud, misrepresentation, mistake, neglect, the time limit is a "reasonable time" which under no circumstances may exceed one year.

May a judge require a jury to answer interrogatories about specific findings of fact?

Yes. 100% fine. The judge can ask a jury about their specific findings of fact.

What action can a court take if the findings of fact are not consistent with the verdict.

There are numerous options. The court can:

(1) Enter a judgement consistent with the findings of fact. However, this option does not work if the answers to the interrogatories are inconsistent with one another.

(2) Direct the jury to continue deliberations;

(3) Order a new trial.