Contents

I.PERSONAL JURISDICTION (power over the parties) ................................................................................................................................................1 II.SUBJECT MATTER JURISDICTION (power over the case).....................................................................................................................................1 III.VENUE (just means place).....................................................................................................................................................................................4 IV.SERVICE OF PROCESS...........................................................................................................................................................................................5 V.JOINDER OF PARTIES AND CLAIMS.....................................................................................................................................................................5 VI.TRIAL, JUDGMENT AND POST-TRIAL MOTIONS..............................................................................................................................................8 VII.PLEADINGS.............................................................................................................................................................................................................9

I.

PERSONAL JURISDICTION (power over the parties) Personal jurisdiction tells us in what states the litigation may be filed. A. Do federal courts need personal jurisdiction over defendants? Yes. B. How is it assessed? Exactly same analysis as in state court: e.g. NY long arm statute.

II. SUBJECT MATTER JURISDICTION (power over the case)

C. Now we know that P will sue D in NY. But in what court to state court or to federal court there?
Federal courts can entertain only certain types of suits. The two main types of federal court cases: diversity of citizenship (including alienage) and federal question. D. Diversity of Citizenship Cases. Two requirements: (1) amount in controversy must exceed $75,000; AND (2) the action must be between citizens of different states OR between a citizen of a state and a citizen of a foreign country (alien). 1. Who are the right kinds of litigants for a diversity (or alienage) case? a) Complete diversity rule: there is no diversity of citizenship jurisdiction if any P is a citizen of the same state as any D. (e.g.#3) Rudy (NY) sues Arnold (CA) and Torre (NY) in federal court. OK under diversity of citizenship jurisdiction? NO. B/c P and one D is co-citizens of NY. You can have same stator on one side of the suit: two NY citizens being P is ok. (e.g.#4) Ricky (Cuba) sues Lucy (NY) in federal court. OK? Yes. This is alienage jurisdiction. It is case b/w citizen of a state and a foreign citizen. (e.g.#5) Ricky (Cuba) sues Wayne (Canada) in federal court. OK? Is there alienage? No. B/c this is not between citizen of a state and an alien. Is there diversity of citizenship? No. This is not b/w citizens of different state. b) An Alien admitted to the U.S. for permanent residence is treated as a citizen of the state in which she is domiciled. c) To be a citizen of a state, you have to be domiciled in that state: domicile is established by two concurrent factors: (a) Physical presence in that state at some point; (b) with the intent to make that state your permanent home. On the intent point, no single factor is determinative b/c courts look to all relevant evidence of intent, e.g., instate tuition, voting. A natural person has only 1 domicile at a time (so a human can only be a citizen of one state at a time). (e.g.#8) Jane (U.S. citizen domiciled in France) sues Regis (NY) in federal court. OK? NO. Is there alienage? No. B/c Jane is not an alien. She is not a citizen of France. Is there diversity of citizenship? NO, b/c Jane is not a citizen of a state. Why not? B/c she is not domiciled in a state of the U.S. d) Subsequent change in a partys citizenship or what their citizenships were when the claim arose is irrelevant. We care only about their citizenship when the action is filed. (e.g.#13) P (DC) sues Hillary (NY). After filing, P moves and becomes a citizen of NY. Is that OK even though both litigants are now citizens of NY? Yes. Diversity is OK why? 1) We treat DC as a state for diversity purposes. Same as with other territories. 2) We test for diversity when the case is filed. At that moment, it has to meet the test. e) For corporations, dont talk about domicile. For corporations, citizenship equals: (1) all states where incorporated (usually theres only one); AND (2) the one state where the company has its principal place of business (PPB).
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That means a corporation (unlike a natural human) can be a citizen of more than one state at a time. But remember, no matter how big the corporation is, it only has one PPB. 1) Tests for PPB: headquarters (nerve center where decisions are made). f) (rarely tested) For unincorporated associations (e.g., partnerships, labor unions; GP, LLC, LP), anything other than corporation: look to the citizenship of all members, including general and limited partners. (e.g.#17) Pam (AZ) sues XYZ partnership, the general and limited partners of which are citizens of all 50 states. NO DIVERSITY JURISDICTION . XYZ is a citizen of all 50 states. AZ is on both sides of the line. g) (rarely tested) For decedents, minors, and incompetents, look to the citizenship of the person being represented, not the representative. (e.g.#18) Priscilla (CA), as executrix of estate of Elvis (TN), sues Goober (TN). OK? NO Priscilla is irrelevant. We look to Elvis. No diversity here. 2. Amount in controversy. There must be a good faith allegation that the claim in the complaint alone exceeds $75,000, exclusive of interest and costs. [Exactly 75K not good]. a) Whatever P claims in good faith is OK UNLESS it is clear to a legal certainty that P cannot recover more than $75,000. (e.g.#20) Curley sues Moe for $40,000 breach of contract and $70,000 punitive damages. Suppose relevant authority establishes that punitive damages cannot be recovered for breach of contract. Case dismissed. (e.g.#21) What if P claims more than $75,000 but ultimately recovers less than $75,000? Jurisdiction is OK, but he may be liable for costs (does not include attorneys fees) even though she won the case. Usually, the loser pays the winners cost. Each party pays her own attorneys fees unless there is a statute or Rule that allows recovery of attorneys fees. b) Aggregation: i. We aggregate claims if it is one P versus one D. These claims do not have to be related; can be entirely unrelated claims. (e.g.#22) Curley sues Moe for $40,000 breach of contract and $60,000 for injuries from fistfight. OK? Yes. The amount in controversy here is $100,000. (e.g.#23) P sues D1 for $70,000 and D2 for $6,000 in the same case. OK? NO! P cannot aggregate these claims. Why? B/c it is not one P versus one D. ii. However, for joint claims, use the total value of the claim. Rationale is that one D can be liable for the total claim. (e.g.#24) P sues joint tortfeasors X, Y, and Z for $75,000.01. OK. Joint liability. iii. (rarely tested) Injunction case: if either of these two tests yields over $75,000, the amount requirement is deemed satisfied. [always use both test: if either one of them is more than 75K, it is okay.] 1) (Ps viewpoint): is P damage by more than $75K? 2) (Ds viewpoint): would it cost D more than $75K to comply with the injunction? 3. Exclusions. Even if requirements for diversity of citizenship jurisdiction are met, federal courts will not issue a divorce, alimony or child custody decree; they also will not probate a decedents estate. [Other family cases can be heard in fed courts]. E. Federal Question Cases. Complaint must show a right or interest founded substantially on a federal law (e.g., federal constitution, legislation). The claim must arise under federal law; Citizenship irrelevant; no amount in controversy requirement. P is enforcing a federal right. 1. Some FQ cases have exclusive federal jurisdiction (e.g. patent infringement, bankruptcy and some federal securities and antitrust cases). They can only be brought in federal court. Most do not, though they can be brought in state or federal court. 2. Well-pleaded complaint rule. If the complaint were well-pleaded, just stating Ps claim, without extraneous material, would it be federal? Ask IS P ENFORCING A FEDERAL RIGHT? If the answer is yes, its a FQ case. If the answer is no, it is not a FQ case. (e.g.#28) MS hires J to build a house. J then fails to build, and argues that federal environmental statute prohibits building where MS wants to build. Michael sues J for specific performance, and alleges that the federal statute does not apply. So his complaint mentions a federal law and raises a federal issue. But there is no FQ. Why? B/c MS is not enforcing a federal right. MS is rather alleging that the federal law does not apply to him. IMPORTANT: To this point, we know how P can invoke either diversity of citizenship (including alienage) or FQ jurisdiction, so the case is in federal court. But additional claims may be asserted in the case, maybe by P or by another party. FOR EVERY SINGLE CLAIM JOINED IN FEDERAL COURT, WE MUST HAVE A BASIS OF SUBJECT MATTER JURISDICTION .
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So always ask whether a claim is supported by diversity or federal question jurisdiction. If so, the claim can be heard in federal court. If the claim is not supported by diversity of citizenship or alienage or FQ jurisdiction, then try: F. Supplemental Jurisdiction . This allows a federal court to entertain claims over which there is no FQ, diversity of citizenship jurisdiction! Remember, this only works after a case is already in federal court (through diversity or FQ). Here we are talking about an additional claim asserted in that case that does not meet diversity (or alienage) or FQ. We might still be able to get that additional claim into federal court through supplemental jurisdiction. 1. Test: the claim we want to get into federal court must share a common nucleus of operative fact with the claim that invoked federal subject matter jurisdiction. So, when is the test always met? a) When the claim arises from the same transaction or occurrence as the underlying case (already in federal court). 2. Limitation (very narrow): in a diversity case, P cannot use supplemental jurisdiction to overcome a lack of diversity. a) BUT, P can use supplemental jurisdiction to overcome lack of diversity for a claim in a federal question case. The limitation only applies in diversity cases. (e.g.#33) P (NY) sues D1 (NY) for (1) violation of federal antitrust laws, and joins a (2) transactionally related claim for violation of state antitrust laws. OK? Claim (1) is OK because its a FQ. But claim (2) is not a FQ (because its based upon state, not federal, law) and is also not supported by diversity of citizenship or alienage. Can it get into federal court? Yes. Claim (2) invokes supplemental jurisdiction . Joined by P; two claims arise from the same transaction . b) **And P can also use supplemental jurisdiction to overcome a lack of amount in controversy for a claim in a diversity case. c) And any party but P can use supplemental jurisdiction to overcome either a lack of complete diversity or amount in controversy in any case (diversity or FQ). 3. Discretionary factors: Court has discretion NOT to hear the supplemental claim: (1) if the federal question is dismissed early in the proceedings; or (2) if the state law claim is complex or (3) state law issues would predominate. (2), (3) was never on the BAR. G. Removal. Allows D (only) to have case filed in state court removed (transferred) to the federal court embracing the state court in which originally filed. 1. General test: removable allowed if case could have been filed in federal court, i.e., if there is federal subject matter jurisdiction (diversity, alienage, or FQ). 2. (rarely tested) Timing: must remove within 30 days of service [not filing] of the first removable pleading. Usually, this means 30 days after the initial service of process. But a case might become removable for the first time later. (See #45) 3. Rules: a) All Ds must agree to remove. b) P can never remove even if sued by a counterclaim. c) **No removal in diversity cases if any D is a citizen of the forum. d) In a diversity case, no removal more than 1 yr after the case was filed in state court. 4. (never tested yet) Procedure: a) Removal by D: D files notice of removal in federal court, setting forth grounds of removal; signed under Rule 11; attach all documents served on D in state action; copy to all adverse parties. Then D files a copy of the notice of removal in state court. [no need for permission] b) Remand: If removal is improper, P moves to remand to state court; must do so within 30 days of removal if based on defect other than SMJ. But, if there is no federal subject matter jurisdiction, P can move to remain anytime. c) D who files a permissive counterclaim in state court probably waives the right to remove. D who files a compulsory counterclaim in state court probably does not waive the right to remove. (e.g.#41) P sues Whitebread and Chemerinsky in state court. Whitebread wants to remove, Chemerinsky does not. Removable? No. All D must agree. (e.g.#42) P (GA) sues D (NY) in a GA state court, for breach of contract damages of $80,000. Can D remove the case to federal court? Yes. It meets the general test, b/c it invokes diversity. (e.g.$44) P (GA) sues alleged joint tortfeasors D1 (NY) and D2 (TX) in TX state court for $500,000. Can D1
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and D2 remove? Seems yes, b/c this case could have been filed in federal court under diversity of citizenship jurisdiction. But, the answer is NO it cannot be removed. Why? Special rule for diversity cases only: No removal if any D is a citizen of the forum. D2 is the citizen of TX and sued in TX court. This rule (instate defendant) applies only in diversity cases. (e.g.#45) What if P dismisses the claim against D2 (TX)? The case then becomes removable because there is no D who is a citizen of the forum. So D1 (the remaining D) has 30 days from service of the dismissal of D2 in which to remove. But, in a diversity of citizenship case, no removal more than 1 yr after the case was filed in state court. So, if the dismissal happens after 1 year, the remaining Ds can never have it removed. (e.g.#46) P (NY) sues D (NY) in a NY state court for violation of federal truth in lending statutes. Can D remove? Yes. It meets the general test, b/c it invokes FQ. In-state defendant rule only applies in diversity, not in FQ cases. H. Erie Doctrine. Erie concerns the choice of law between federal and state law when does a federal court apply federal law and when does it apply state law? Generally, only in diversity cases. 1. In diversity cases (or supplemental jurisdiction claims), federal court must apply state substantive law. 2. Three steps: a) First, is there a federal law on point that directly conflict with state law? If so, apply the federal law, as long as it is valid. This is based on the Supremacy clause. A FRCP is valid if it is arguably procedural. None has ever n been held invalid. b) Second, if no federal law is on point, ask: is this issue one of the easy one? These are the easy ones: **Statutes of limitations, Rules for tolling statutes of limitations; Choice of law rules, Elements of a claim or defense. Why are these easy? B/c these are substantive; so, must apply state law. c) (never tested) Third, if there is no federal on point, and its not an easy one, but federal judge wants to ignore the state law. If the issue is one of substantive law, though, she must follows state law. Analyze the facts per these three tests, and come to a reasonable conclusion: i. Outcome determinative: would applying or ignoring the state rule affect the outcome of the case? If so, it is probably substantive. ii. Balance of interests: does either federal or state system have strong interest in having its rule applied? E.g., strong federal interest in having jury decide fact questions; contrary state law wont be followed unless very strong state interest. iii. Avoid forum shopping: if the federal judge does not follow state law on this point, will it cause litigants to flock to federal court? If so, should probably apply state law. Dont want to give this incentive to forum shop. 3. E.g. NY tort reform law provides that an appellate court can order a new trial if a jury award of damages deviates materially from what would be reasonable compensation. The federal court standard for new trial is tougher, and basically requires a jury finding that shocks the conscience. In addition, in federal court, the trial court itself, not the appellate court, would order a new trial. In a diversity of citizenship case involving this NY law, what must the federal judge do? a) As to the deviates materially standard? This is substantive; so, must apply state law. b) As to allowing the appellate court to apply the standard without deference to the trial court? This is not substantive; so, federal courts do not have to follow this. III. VENUE (just means place)

I. BASIC IDEA. After deciding to sue in federal court in a particular state, say NY, next issue is where in which
federal district (ND, WD, ED, SD)? SMJ TELLS US WE CAN GO TO FEDERAL COURT. VENUE TELLS US WHICH FEDERAL COURT(S ). Weve already seen that a case removed from state court goes only to the federal district embracing that state court. The rules here are for cases filed originally in federal court. Rules 1. Local actions: cases regarding ownership, possession, or injury to land (including trespass) must be filed in district where land lies (land cases). All cases that are not local action are called transitory cases. 2. **In any case (FQ or diversity), P may lay venue in any district where either: a) all Ds reside; or b) a substantial part of the claim arose.
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J.

3. If no district in the U.S. meets either of these choices (no district where all defendants reside and the claim
arose overseas), then: a) diversity cases: any district where any D is subject to personal jurisdiction. b) FQ cases: any district where any D is found. 4. **Special Rule: if Ds reside in different districts of the same state, venue is proper in the district where any one D resides. (e.g.) Chipper (ND GA) sues Mike (ED NY) and Bernie (SD NY). In addition to the district where a substantial part of the claim arose, P can lay venue against Ds in either ED NY or SD NY. K. Determining Residence [for venue purposes] 1. Individuals: residence usually equals domicile. So it is usually the same as ones citizenship for diversity jurisdiction. 2. Corporation: resides in all districts where the corporation subject to PJ when case commenced. Dont confuse with corporations citizenship for diversity jurisdiction. Ford Motor Company is a citizen of DE (inc.) and of MI (PPB). But it is a resident of every district where subject to personal jurisdiction: all 50 states where it does biz. L. Transfer of Venue. 1. Sending a case from one federal district court to another; can only transfer to one where case could have been filed, i.e., one that is a proper venue and where there is personal jurisdiction over D. 2. If venue in original forum is proper, it may transfer to another federal district court based on (i) convenience of parties; (ii) convenience of witnesses; (iii) interests in justice. The court considers two sets of factors: Public factor (what law applies or which place should be burdened with jury service). Private factor (all about evidence. Where are the evidences and where are the witnesses). 3. The court to which a case is transferred applies the choice of law rules of the original court. 4. If venue in original forum is improper, court may transfer in the interests of justice or dismiss. IV. SERVICE OF PROCESS

M. BASIC IDEA. Deliver to D, (i) a summons (formal court notice of a suit and time for response) and (2) a copy of
the complaint (together, called process). In a federal court civil case, must serve process within 120 days of filing the complaint or else case will be dismissed without prejudice unless P shows good cause. N. THE MECHANICS. 1. Process may be served by any non-party who is at least 18 years old. 2. The federal district court may use any method of service permitted by (i) the FRCP (below) or (ii) the law of the state in which it sits or (iii) the law of the state in which service is effected. 3. Personal service. Papers are given to D personally. Where? Anywhere in the forum state and maybe outof-state (bottom). 4. Substituted service. Process is left with Ds butler at Ds summer home. OK if (i) it is Ds usual abode [where D usually is at that time]; and (ii) serve person of suitable age and discretion who resides there. Butler will work, b/c he resides there. 5. Agent service. Process can be delivered to Ds agent authorized to receive service. For example, when serving a corporation , can serve registered agent or a managing agent or an officer. 6. Waiver by mail. Process is mailed to D by first class mail, postage prepaid. OK if D returns waiver form within 30 days. By doing so, she waives service but nothing else (e.g. not PJ or venue). If D fails to return the waiver form, P then has D served either personally or by substituted service. D pays the cost of service unless she has good cause for not returning the waiver. 7. Geographic limitation. Federal court in a state may allow service of process outside of state is only if state law allows (for example, with a long-arm statute). Two exceptions (where federal court can serve outside the state even if state court could not) V. JOINDER OF PARTIES AND CLAIMS

O. PARTIES 1. Proper Ds and Ps (who may be joined). a) P is putting the case together, determining who Ps and Ds should be. b) (e.g.#62) A, B and C are injured when the taxi in which they are riding crashes. May they sue together?
Yes, because their claims:
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c) May they (or any one of them) sue the taxi driver and the cab company as co-defendants? Yes, since the
claims against the two (i) arise from the same T/O and (ii) raise to at least one common question. d) Then, with these parties, what do we assess? Subject matter jurisdiction. 2. Necessary or required Ds and Ps (who must be joined). a) Some absentees (persons not originally in the suit) must be joined because they are necessary. b) First, is the absentee necessary? Yes if: i. Without absentee, cannot accord complete relief among those already joined (worried about multiple suits); ii. *Absentees interest will be harmed if he isnt joined (practical harm); or iii. Absentee claims an interest which subjects a party (usually defendant) to possibility of multiple obligations. If the absentee falls into any of these three categories, the court can order joinder. Are joint tortfeasors necessary? No. c) Second, assess whether the necessary party can be jointed. This means: i. Is there personal jurisdiction over the necessary party? ii. Can the necessary party be joined w/o messing up diversity? If he can be joined, join him. d) Third, if the necessary party cannot be joined, the court has only two choices: i. proceed without the necessary party; or ii. dismiss the case. e) In deciding whether to proceed or dismiss, court balances: i. Is there an alternative forum available where everybody can be joined (maybe state court)? ii. What is the real likelihood of harm to anybody if we proceed without absentee? iii. Can the court do something to shape the order in the pending case to avoid such harm? If the court decides to dismiss instead of proceed, such party is indispensable. P. **CLAIMS BY D 1. Counterclaim. This is a claim against an opposing party. The best example is a claim by D against P. The counterclaim is filed with the Ds answer. Two types of counterclaims: a) Compulsory: one that arises from the same T/O as the Ps claim. IT MUST BE FILED WITH THE ANSWER IN THE PENDING CASE (UNLESS IT HAS ALREADY BEEN ASSERTED ) OR ELSE ITS WAIVED . D cannot sue on the claim in a separate case. b) Permissive: one that does not arise from the same T/O as plaintiffs claim. Does not have to be asserted in the pending case. D may assert this in the pending case or in a separate case. (e.g.#70) A and B collide. A sues B. B defends the suit and then institutes his own action against A to recover for his personal injuries. Bs case is dismissed. It was a compulsory counterclaim, so he should have asserted in the first claim. (e.g.#71) Suppose in the first case, B made a motion to dismiss that was granted. So B never had to serve or file an answer. Now B sues A regarding the same wreck. Is this case dismissed? No. He never had to file an answer, and did not have to assert the compulsory counterclaim. Counterclaim goes with the answer. c) Subject matter jurisdiction: i. For every claim asserted in federal court, there must be federal subject matter jurisdiction. So the counterclaim should be supported by FQ jurisdiction or diversity jurisdiction. If none of it words, try supplemental jurisdiction . 1) P (NY) sues D (NJ) on a state-law claim for 80K. D files a compulsory counterclaim against P for 45K. The compulsory counterclaim does not invoke diversity because it does not exceed 75K. Can the counterclaim invoke supplemental jurisdiction. a. Yes: i) It meets the T/O test AND limitation does not apply b/c this is not a claim from P. ii. 2nd Circuit have even upheld supplemental jurisdiction over a permissive counterclaim if it has a loose factual connection with Ps claim. 2. Cross-claim. This is an offensive claim against a co-party. This must arise from the same T/O as the underlying action. Do not need to file in the pending case: it is never compulsory. **(e.g.#74) A (NC) sues B (SC) and C (SC) for personal injuries of $300,000 arising from a car collision with
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i. arise from the same T/O ; AND ii. raise at least one common question.

B. B was driving Cs car (diversity case). C does not know who is at fault, but knows her car is totaled. C wants to recover for the property damage of $80,000. i. C must file a compulsory counterclaim against A (against P, same T/O ). There is SMJ b/c diversity case (SC v. NC/ $80,000). ii. C may file a cross-claim against B (against co-party, same T/O ). But, no SMJ here (no FQ, no diversity SC v. SC). However, supplemental jurisdiction is possible because it arises from the (1) same T/O as the underlying case and (2) this is not a claim by P, so the limitation does not apply. Hint about joinder: C claims (counterclaim, cross-claim) are b/w existing parties. I claims (impleader, intervention) are some one new joining the case. 3. Impleader (third party practice) a) D joins a third-party defendant (TPD). TPD may be liable to D for the claim against D. Usually, D claims for indemnity or contribution. b) Timing: D has a right to implead within 14 days after serving her answer; after that, she needs court permission. (e.g.#75) P sues D to recover for personal injuries from a car wreck. D has a right to indemnity from Insco. 1) D files third-party complaint naming Insco as TPD; and 2) Serve process on the TPD (so the court needs personal jurisdiction). c) After TPD is joined, TPD may assert a claim against P if it arises from the same T/O . d) After TPD is joined, P may assert a claim against TPD if it arises from the same T/O . e) After determining what claims are asserted, remember that each one has to be assessed for SMJ. If SMJ does not work, try supplemental jurisdiction. 4. Intervention. Absentee wants to join a pending suit. He chooses whether to intervene as a P or as a D. The court can realign if she came in the wrong side. Application to intervene must be timely. a) **Intervention of right. Absentees interest may be harmed if she is not joined and her interest is not adequately represented now. Same test with the test (2) of the necessary party. b) Permissive intervention. Absentees claim or defense and the pending case have at least one common question. Allowing intervention here is discretionary with the court. c) Now, again, assess whether the claim by the intervenor-plaintiff (or against to intervenor-defendant) invokes SMJ. If not, try supplemental jurisdiction. Q. SPECIAL MULTIPARTY JOINDER SITUATIONS . 1. Interpleader rarely tested a) One holding money or property (stakeholder) wants to force all potential claimants (claimants) into a single lawsuit to avoid multiple litigations and inconsistent results. b) Two types of interpleader: rule and statutory. In each, the stakeholder is not sure who owns the property (maybe he thinks its his), and wants to avoid being sued several different times about it. In each type, the court may issue an injunction stopping parties from litigating the ownership question in another court. c) The two types have different standards for jurisdiction, venue, and service of process.

Rule interpleader is just treated as a regular diversity case.

Diversity Rule Interpleader stakeholder must be diverse from every claimants. must exceed $75,000 regular service of process rules regular venue rules Statutory Interpleader one claimant must be diverse from one other claimant. Dont even look at the stakeholders citizenship. $500 or more nationwide service of process [never have a PJ problem] lay venue in a district where any claimant resides

Dispute Amount Service of process Venue

(e.g.#81) Insco (inc. DE/ PPB NY) holds a fund of $100,000 under an automobile policy. After an accident, potential claimants to the fund are B (NJ), G (MN) and N (NY). Insco wants to avoid being sued on the policy in three different actions. Insco can interplead. Insco cannot use rule interpleader b/c there is no diversity (stakeholder is not
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2.

diverse from all claimants N: NY). Statutory interpleader is OK; we have claimants with different citizenship. Class Action. Representative sues on behalf of a group. a) Initial requirements: all four be met. i. too numerous for practicable joinder [no magic number]; ii. some questions of law or fact in common to the class; iii. representatives claims/defenses typical of those of the class; AND iv. representative will fairly and adequately represent class. b) Next step: Must fit the case within one of three types of class actions: i. (never on BAR) Prejudice: class treatment is necessary to avoid harm either to class members or to the party opposing the class. E.g. numerous claimants to a fund; individual suits would deplete the fund, leaving some without a remedy. ii. Injunction or declaratory judgment (not damages) sought because the class members were treated alike by the other party. E.g. employment discrimination. One group was not promoted as the other group. iii. **Damages: (a) common questions predominate over individual questions and (b) class action is the superior method for resolving the dispute. E.g. mass tort. c) 1The court must determine at an early practicable time whether to certify the case to proceed as a class action. If the court certifies the class, it must define the class and appoint a class counsel. Class counsel must fairly and adequately represent the interests of the class. d) Notice to the class of the pendency of the class action: in the damages class, the court must notify (often by mail) all reasonably identifiable members, telling them various things, including: (a) they can opt out; (b) the binding effect of a class judgment on class members; and (c) they can enter a separate appearance through counsel. [No notice is required in Type 1 or Type 2 classes] Representative has the burden of paying for this notice. e) Whos bound by the judgment? All class members except those who opted out of Type 3 class action. [No opt out for Type 1 or 2] f) In all three types of class action, there can be no settlement or dismissal of class claims in a certified class without court approval. Court gives notice to class members to get their feedback on whether the case should be settled or dismissed. If its a Type 3 class, may give members a second chance to opt out. g) Subject matter jurisdiction . i. Obviously, a class might invoke federal question jurisdiction by asserting a claim arising under federal law. There, we dont care citizenship or amount. ii. **If the class seeks to invoke diversity jurisdiction, only the citizenship of representative is relevant on the class side. All we need is that the representative be diverse from all Ds. iii. Amount in controversy: OK if the representatives claim exceeds $75,000.

VI. TRIAL, JUDGMENT AND POST-TRIAL MOTIONS

R. JURY TRIAL 1. Juries resolves disputes of fact. The court instructs the jury on the law. 2. **Right to jury trial in federal court. a) 7th Amendment preserves it in actions at law, but not in suits at equity. b) If a case involves both law and equity, we get a jury to determine factual issues underlying the law
claims, but not the equity claims. (e.g.#89) If a case involves a claim for damages (legal relief) and a claim for an injunction (equitable relief), you get a jury to determine the facts underlying the damages claim, but not the equity claim. c) Generally, try the jury issues first. d) 7th Amendment does not apply in state courts. Only applies to a federal civil case. Selecting the jury (the voir dire process) a) Each side has unlimited strikes of potential jurors for cause (e.g., bias, related to a litigant). b) Each side also has 3 peremptory strikes. Peremptory strikes must be used in race neutral and gender neutral way. Motion for judgment as a matter of law [JMOL](directed verdict). a) This is an exceptional order, the effect of which is to take the case away from the jury.
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3.

4.

b) When brought? i. Can be brought when the other side has been heard. D can move at the close of Ps evidence and again at the close of all evidence. P can move at the close of all evidence. c) Standard for granting the motion: reasonable people could not disagree on the result. d) In ruling on the motion, the court generally will view the evidence in the light most favorable to the nonmoving party. S. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW (JUDGMENT NOTWITHSTANDING THE VERDICT [JNOV]): same as directed verdict, but just comes later. 1. Situation: the judge did not grant JMOL, and thus let the jury decide the facts. Jury returns verdict for one party, and the court enters judgment on the basis of that verdict. Now, losing party files renewed motion for judgment as a matter of law; if granted, it results in entry of judgment for him. Must move not later than 28 days after entry of the judgment. 2. Standard: same as JMOV; reasonable person could not disagree on the result. So, if granted, THE JURY REACHED A CONCLUSION REASONABLE PEOPLE COULD NOT HAVE REACHED . Generally, the court will view the evidence in the light most favorable to the non-moving party. 3. Prerequisite: you must have moved for JMOV at trial, or less you waive RJMOV. T. MOTION FOR NEW TRIAL 1. Situation: jury reaches a verdict, and the court enters a judgment, but the judge concludes that errors at trial require a new trial. Must move not later than 28 days after entry of the judgment. 2. Examples of grounds: a) Prejudicial error (not harmless) at trial makes judgment unfair (e.g., wrong jury instruction, erroneous evidentiary ruling); b) New evidence that could not have been discovered in time for trial; c) Prejudicial misconduct of party or juror (e.g., juror made independent investigation of accident scene); d) Judgment is against the weight of the evidence, showing serious error of judgment by the jury. 3. New trial v. RJMOV Granting new trial is less radical than RJMOL it results in starting over; not giving judgment to the other side. VII. PLEADINGS

U. Defensive Responses. Under FRCP, a defending party may respond by motion or answer no later than 21
days after service of process. 1. Answer is a pleading . (1) Responds to allegations of the complaint (admitting, denying or when appropriate, saying that D lacks sufficient information to admit or deny) and (2) raises affirmative defenses. 2. Motions are not pleadings. They ask the court to order something, such as to require P to make a more definite statement or ordering that a pleading or a portion thereof be stricken, or that the case be dismissed for any of a variety of reasons. 3. Seven defenses can be raised either in the answer or by motion: (1) lack of SMJ; (2) lack of PJ; (3) improper venue; (4) insufficient process (a problem with the documents); (5) insufficient service of process; (6) failure to state a claim on which relief can be granted; (7) failure to join an indispensable party. a) *2, 3, 4, and 5: must be included in the first response or they are waived. b) 6 and 7: anytime through trial. You dont have to put them in your first response. c) 1: anytime in the case. Never waived. V. Notice Pleading 1. Complaint must contain: (1) statement of SMJ; (2) short and plain statement of the claim, showing entitled to relief; and (3) demand for judgment. The demand for judgment does not limit what can be recovered except in default cases. 2. Statement of claim need not be stated with great specificity or particularity. The Federal Rules use what is often called notice pleading , under which the pleading is sufficient if it puts the other side on notice. 3. SC says P must plead facts supporting a plausible claim. 4. Exceptions: three topics requiring the party to plead with specificity or particularity (more than just facts supporting a plausible claim). a) Circumstances establishing fraud b) Mistake c) Special damages (those that do not normally flow from an event; so must give detail).
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