Professional Documents
Culture Documents
Fall 2011
State statutes
- Can go as far as the Constitution allows or not.
Constitutional Limitations
General Jurisdiction
Defendant can be sued in the forum for a claim that arose anywhere in the world
Specific Jurisdiction
Defendant can only be sued for a claim that arose in the forum
PERSONAL JURISDICTION
Rule 4(k) - Federal court has jurisdiction only if the court of the state in which it sits
would have had personal jurisdiction
Statutory Analysis
Traditional bases - every state has statutes establishing these
1. Service of process within the forum (General jurisdiction)
Presence
2. Agent receives service of process within the forum
3. Domiciled within the forum
4. Consent to jurisdiction - PJ is waivable
Nonresident motorist act
Purposeful availment and consent
Long-arm Statutes
1. California-type: Statute reaches to the full extent of Constitutional due process
2. Laundry List Long Arm Statute - Specific jurisdiction statutes - nonresident
defendant can be sued in a state if they do one of the following in the forum:
Transacting business (transacts any business in the forum or transacts
substantial business there - same language is sometimes interpreted in different
ways)
Use real property
Commit a tort
Enter a contract
Insure a risk
Constitutional Analysis
Analytical Framework
- Traditional Bases
- Minimum contacts
Contact between defendant and forum
Purposeful availment
Foreseeability
Fairness
Relatedness
Inconvenience
States interest
Plaintiffs interest, efficiency, interstate interest in shared substantive policy
- Unclear:
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Stream of Commerce
Presence in the forum for general jurisdiction without minimum contacts
Pennoyer v. Nef - Power over people and things that are located within their boundaries
4 Traditional Bases
1. Service of process within the forum (General jurisdiction)
Presence
2. Agent receives service of process within the forum
3. Domiciled within the forum
4. Consent to jurisdiction - PJ is waivable
Unrelated
Jurisdiction granted
(International Shoe)
Sometimes (general
jurisdiction)
No jurisdiction
Foreseeability - the use of the product in another state was not unique, so the
company benefits from some of the laws in those states
Stream of Commerce
Burger King (jurisdiction is found)
Reinforces International Shoes 2 part test: (1) contact and (2) fairness
Fairness: burden on defendant (not in this case), forum states interest (yes),
plaintiffs interest (yes), interstate judicial interests (yes)
Burden is on the defendant to show that the forum is unconstitutionally inconvenient,
and the financial standing of the parties is irrelevant
Asahi (4-4 split) - specific jurisdiction
Stream of Commerce (two theories)
1.1. Reasonably anticipate that it will reach the state (Brennan)
1.2. Reasonable anticipation + Intent or purpose to serve the state (OConnor)
1.3. Reasonable anticipation + Quantity (Stevens, also in McIntyre)
Burnham (jurisdiction even though the claim arose in a different state)
Does presence give general jurisdiction? Yes! (but 4-4 split as to why)
1.1. Presence gives in personam and general jurisdiction with or without minimum
contacts; based on historical pedigree (Scalia)
1.2. By hanging out in a state and benefiting from being there, you do have
minimum contacts - might depend on voluntariness (Brennan)
Helicopteros
General Jurisdiction is ok when the action is continuous and systematic /
substantial
Goodyear
Subsidiary is typically a separate entity unless they pierce the corporate veil
Stream of commerce here was found insufficient because it failed systematic and
continuous
Shafer v. Heitner - ownership of property in a state constitutes continuous and
systematic contacts for general jurisdiction
Why jurisdiction matters
1.
Convenience
2.
Judicial bias (partially solved by diversity)
3.
Choice of law
IN REM AND QUASI IN REM
Expansion of in personam has lessened the impact of in rem
Ex: many long arm statutes do not cover defamation, so there can be no in personam
jurisdiction. But in rem or quasi in rem might be put to use instead
The maximum recoverable amount is the value of the property that provides
jurisdiction
In rem - the case itself is about the ownership of the property in the forum
Quasi In Rem - property is simply used as a jurisdictional basis
Quasi-in-rem Type 1: The focus of the case is who owns a certain amount of
property, only among the parties in the case.
Quasi-in-rem Type 2: The property has nothing to do with the underlying dispute
Statutory Analyses
Attachment Statutes - put a lien on the property, notice on property itself
Constitutional Analyses
Property must be attached at the outset of the case - because jurisdiction must be
determined first thing
Shafer v. Heitner - For quasi in rem jurisdiction, the Constitution requires that the
defendant have minimum contacts within the forum
FULL FAITH AND CREDIT
For in personam - The judgment is good everywhere, and the plaintiff can go to other
states and have the judgment enforced. There is a personal obligation
For quasi in rem - Judgments do not create a personal obligation, so the judgment is
only good to the value of the attached judgment
Defendants can waive service by mail if the defendant sends them the process and
a prepaid way to respond
If the defendant does not, he must pay for the cost of formal service
Defendant does not waive any defenses
If service is waived, the defendant gets 60 days to respond (or 90 days if the
defendant is out of the country).
7. What is the geographic limitation? - Rule 4(k)(1)(A)
Process can be served throughout the state in which the federal court sits
Exceptions:
Rule 4(k)(1)(B) - Process can be served outside the state in which the federal
court sits within 100 miles of the federal court house - the bulge rule
Does not work for serving proess on the original defendant. Only for people
being joined under Rules 14 or 19.
Rule 4(k)(1)(C) - Process can be served outside the state if a federal statute
allows
Statutory interpleader - allows nationwide service of process
Immunity to service
Witnesses, litigants, or lawyers who come into a state to participate in one suit
may be immune from process there concerning other suits.
Immunity may be granted to people induced to enter the state through fraud or
deceit.
Whoever serves process must certify with the court that he has done so. Sewer
service is when a server dishonestly claims to have effected service.
The Constitutional Standard for Notice
Notice must be reasonably calculated under all the circumstances to apprise the
Jones v. Flowers - If the government knows there was no actual notice, Due
cognizable claim
This does not mean that SMJ is never a problem in state court, but you can always
find some state trial court that can hear the case
Exception: A few federal question cases where federal question jurisdiction is
exclusive (antitrust, securities, patent infringement, Federal Tort Claims Act)
State courts can split up subject matter however they wish (traffic, juvenile,
probate, small claims, etc.)
Federal courts have special requirements:
Subject matter jurisdiction is not waivable, so parties cannot stipulate into federal
court
The burden is on the plaintiff to prove SMJ, and it must state citizenship of each
party in the complaint (Randazzo)
If dismissal for SMJ comes after statute of limitations, there may not be remedy
Fulfillment of these requirements does NOT mean the case must go to state court
1. Diversity of Citizenship
2. Federal Question
Federal courts have general jurisdiction for a few federal questions: admiralty,
Well-pleaded complaint rule - look only at the plaintiffs actual claim for the
federal question
- Is the plaintiff enforcing a federal right?
- Mottley railroad passes - their complaint mentioned federal law, but did not
attempt to protect a federal right (they were only assuming the railroad would use
the statute for their protection)
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Once it does, claims joined by any party may be able to be heard in federal court
under supplemental jurisdiction (jurisdiction-invoking claim)
If the second claim is part of the same overall case as the original federal
jurisdiction-invoking claim, it can be brought along under supplemental jurisdiction
Common nucleus of operative fact with the jurisdiction-invoking claim or same
transaction or occurrence - Constitutional standard (Gibbs)
Two steps
1. Does 1367(a) grant supplemental jurisdiction for this claim? Yes, if the claim
meets Gibbss common nucleus of operative fact
2. Does 1367(b) restrict supplemental jurisdiction?
Applies ONLY in diversity cases and only against claims asserted by plaintiffs
Claims asserted against parties joined under Rules 14, 19, 20, 24
Claims by Rule 19 plaintiffs
Claims asserted by people seeking to intervene as a plaintiff under Rule 24
1367(c) Exceptions:
If the federal claim is dismissed before trial
If the state claim is substantially predominant
If there is risk of jury confusion
If the judge would have to try a tricky issue of state law
1367(d) tolls the statute of limitations while claims are pending in federal court
Removal to Federal Court - 1441, 1446, 1447
1. Requires no approval. If removal was improper, the federal court will simply remand
it to state court
2. All defendants must agree to remove
Exception: If there is a separate and independent federal question against one
defendant, she can remove individually
3. Only defendants can remove even if the defendant counterclaims
4. Remove to the federal district embracing the state court where the case was filed
5. Defendant must remove within 30 days of the case becoming removable
Usually at the outset, but occasionally later
Exceptions (only apply in diversity cases)
If youre a plaintiff and you want to prevent removal, you can bring suit that isnt
on a federal question and either attach a defendant from your home state or file in the
home state of the defendant
IV. Venue
In which federal district will the case be heard? Mostly a matter of convenience
Basic Provisions
Three Rules
1. In removal cases, venue is in the district embracing the state court
2. Local actions (ownership, possession, or injury to land) must be brought in the
district where the land lies
- Three major categories of disputes:
1. In rem/quasi in rem cases where real property is the basis of the jurisdiction
2. Cases in which the plaintiff seeks a remedy in or to realty (claim to a quiet
title, ejectment, foreclosure, enforcement/removal of a lien, etc.)
3. Claims for damages for injury to land, such as trespass
3. For transitory cases (non-local actions)
- 1391(a) for diversity and 1391(b) for federal question
- Plaintiff has two basic choices of where to lay venue:
1. Any district where ALL defendants reside (domicile) - 1391(a)(1) and 1391(b)(1)
1391(c) - a corporation resides in all districts where it is subject to personal
jurisdiction when the case is commenced
Same with an LLC
A human being resides in the same place where she is a citizen for diversity
issues
Exception: if all defendants reside in different districts of the same state, you
may lay venue where any one of them resides
2. Any district where a substantial part (probably 10% or less) of the claim arose
or where the defendant carries on regular business - 1391(a)(2) or 1391(b)(2)
Transfer of Venue - From one trail court in a judicial system to another trial court in the
same judicial system (Intrasystem).
Allowed if the defendant is unlikely to get a fair trial where the case is originally
filed.
Either two courts within the state or two federal courts across state lines
Both transfer statutes require that the transferee court be a proper venue and
have personal jurisdiction W/O waiver.
Goldlawr Transfers - A court can issue a transfer even if that court lacked
personal jurisdiction to hear the case
Forum Selection Clauses are not absolutely binding on federal courts, but they
usually apply state law concerning enforceability.
Multi-district Litigation - 1407 - Allows for the transfer of mass torts cases for
determining shared questions in pretrial procedings, after which they will be
remanded back to their original courts.
Forum Non Conveniens
The court dismisses the case because some other forum would be more
convenient
However, the plaintiffs choice is rarely disturbed
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Some states say that if the defendant raises any other issues, he DOES submit
himself
Federal rules:
- Threshold defenses that a defendant can use all together
Rule 12 - Choice of defensive response - within 20 days of service, the
defendant must:
Submit an answer (a pleading)
OR make a motion
Rule 12(b) - 7 particular defenses that can be raised either in answer or
motion to dismiss
1. 12(b)(1) - Lack of SMJ
2. 12(b)(2) - Lack of PJ
3. 12(b)(3) - Improper Venue
4. 12(b)(4) - Insufficient Process
5. 12(b)(5) - Insufficient Service of Process
6. 12(b)(6) - Failure to state a claim (demurrer in state court)
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IF there is a FRCP on point, that applies. In this case, it isnt an Erie question at
all.
- Authority comes from Rules Enabling Act, as long as the Rule is valid under both
REA and the Constitution (if it is arguably procedural)
If there is NOT a FRCP, the court must apply state substantive law and can do
whatever on procedural rules
Factors:
1. Outcome determination (York)
Problem: nearly everything is potentially outcome determinative.
2. Balancing of Interests (Byrd)
(1) State interests, (2) federal interests, (3) outcome determination
If a state rule is not clearly substantive, the federal court can defer to state law
unless the federal court system has some interest in doing it differently.
3. Twin Aims of Erie (Dictum from Hanna)
1. Avoidance of forum shopping
If the federal court ignored state law, would it cause litigants to flock to
federal court? If so, we apply state law.
This forum shopping is unfair because it would not be available to instate citizens, who cannot go to federal court for diversity.
2. Avoidance of the inequitable administration of law
Choice of Law
It is unconstitutional for a state with no connection to the transaction or parties to
apply its law even if it has personal jurisdiction. It can adjudicate, but it must apply the
law of a state with the required connection.
VII. Pleadings
Primarily intended to give notice (historically, they also fulfilled the duties now
fulfilled by discovery, pretrial motions, etc.)
Form of pleadings
- The caption must contain the name of the court, title of the case, and identity of
the document itself
- It also lists the file number (case/docket number) which is assigned to the case
when it is filed
- Civil cases are usually preceded by CV, followed by the year, the number
assigned to the case, and the initial of the judge. (CV-11-0001-S)
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Service of pleadings and other court documents - Rule 5 - NOT the same as service
of process
- Delivery to the partys attorney or regular mail
- Rule 5(b)(2)(C) - Service is deemed complete upon mailing
- Rule 5(b)(2)(E) - With consent, you can serve by email
- Rule 6(d) - if served by mail/email, the receiving party has an extra three days in
which to respond
Rule 11 - Aimed at avoiding frivolous documents and baseless claims
Motion for sanctions under Rule 11 is served on the other parties, but is not filed
- 11(c)(2) - the violating party must be given a 21 day safe harbor in which to fix
the problem before it is filed
The Complaint - Rule 3 - Commences the case
2. Rule 8(a)(2) - Short and plain statement of the claim showing that the plaintiff is
entitled to relief
Federal complaints are called Notice Pleadings and dont require much
detail. We want cases decided on the merits, not technicalities.
This is in contrast to Code Pleadings at the state level, which must
include the facts; but this caused a lot of problems, and led to many cases
being dismissed on technicalities.
But the courts still require that you address each element (Twombly)
The plaintif must allege enough facts to state a plausible claim
Overruled the old rule that the complaint is sufficient unless there is no set
of facts that, if proven by the plaintiff, would support its claim
Rule 9(b) and 9(g) expressly require more detail
Rule 9(b) - When you allege fraud or mistake, you must allege the
circumstances with particularity
Rule 9(g) - If you are going to allege special damages, they must be
alleged with specificity
- Special damages: damages that do not usually flow from an event of
that kind
Unless there is a rule or federal statute requiring extra detail, the court cannot
impose that requirement
3. Rule 8(a)(3) - Demand for the relief sought (does not have to include a dollar
amount, but it must say damages, injunction, etc.)
The Answer - Rule 8(b)
Two requirements:
1. Respond to the allegations of the complaint with either an admission or
denial, under Rule 8(b)(1)(B), or claim that the defendant lacks sufficient
information to admit or deny under Rule 8(b)(5)
Cannot use Rule 8(b)(5) if the knowledge that the defendant lacks is (a) a
matter of public knowledge or (b) is in the defendants control
Any assertion that is not denied is deemed admitted
Allegations that are denied are joined - they are in dispute and will be part of
the litigation
Defendant can issue a general denial of all facts, or a specific denial with
some admissions
Qualified general denials are also acceptable (deny everything except one
or two admitted facts)
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presenting the merits of the case, and the opposing party must NOT be able
to show that the new pleading will prejudice them.
Rule 15(c) - Where a party is trying to amend after the statute of limitations has run
- Rule 15(c)(1)(B) - Adding a new claim after the statute of limitations has run
We get relation back when the amendment adds a new claim if that new
claim arises from the same conduct, transaction, or occurrence as the
original.
If it does, the amended claim is treated as though it was filed at the same time
as the original claim.
- Rule 15(c)(1)(C) - Adding a new party after the statute of limitations has run
We get relation back if the plaintiff can show:
1. That the amendment concerns the same conduct transaction, or
occurrence as the original pleading.
2. That the new party knew about the case within 120 days of the original
filing of the case
3. That the new party knew or should have known that the original suit
should have been against him.
Only fact pattern that fulfills this: The plaintiff has sued the wrong defendant
first, and then wants to amend to add the correct one.
Usually comes up when we have misnamed the original defendant.
VIII. Joinder
Determine the scope of litigation: how many parties, how many claims
Remember: There are two questions included in a joinder issue
1. Is there a FRCP allowing joinder of the party or the claim?
2. If so, is the claim supported by SMJ or supplemental jurisdiction?
The plaintiff can assert any and all claims he has against the defendant
Rule 42 - The court can always order a separate trial based on claims
Crossclaim - A claim against a co-party - Rule 13(g)
Must arise from the same transaction or occurrence
NOT compulsory
The court can sever cases as long as it doesnt prejudice the plaintiff (Schwartz
v. Swan)
Improper parties are not grounds for dismissal; the court will add or drop claims,
or sever parties
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The court must determine which (between the existing plaintiff and defendant)
interests the absentees are more aligned with. If the absentee would be a
defendant, and she is not diverse from the plaintiff, joinder is NOT feasible
3. What if joinder of the absentee is not feasible? - Rule 19(b)
- The court has two choices
1. The court may proceed with the pending case
2. The court may dismiss the pending case
This choice is in the discretion of the court. Overarching theme: Equity and
good conscience
Four factors - Weighed according to the facts of the case
1. Rule 19(b)(4) - Whether the plaintiff would have an adequate remedy if
the case were dismissed. That is, whether another forum (state court)
would allow all the parties (P, D, absentee) to be joined in one case. If
not, the court will almost never dismiss.
2. Rule 19(b)(1), (2), (3) - Similar to Rule 19(a), but with the question of
whether the concerns are actually going to be problematic. Will the
plaintiff win against the defendant, causing the trouble the court wants
to solve?
- If the court decides to dismiss, the absentee is called absentee indispensible
- This is a basis for dismissal under Rule 12(b)(7)
Impleader / Third Party Practice - Rule 14
Once third party plaintiff is added, she can add claims or have claims added
against her (upsloping / downsloping 14(a) claims)
Rule 14(a)(1) - Plaintif may join a third party defendant only if that party is or
may be liable to the defendant for all or part of the claim asserted against the joining
party
- Almost always concerns indemnity or contribution
Rule 14(a)(2)(D) - Third party defendant may assert a claim against the
plaintif, but the claim must arise from the same transaction or occurrence.
Rule 14(a)(3) - The plaintif may assert a claim against the third party
defendant, but it must arise from the same transaction or occurrence as the
underlying case.
Diversity doesnt matter except between the original defending party and the third
party defendant. Dont forget to walk through supplemental jurisdiction
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Intervention
Interpleader
IX. Discovery
Purpose:
1.
Permit the preservation of evidence that might otherwise be lost prior to trial
2.
Provide mechanisms for narrowing the issues in dispute
3.
Permit the parties to acquire greater information about each sides case
We want to avoid trial by ambush
Encourages settlement
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Give info about the expert and a written report from the expert
Rule 26(g) requires counsel to certify that the requests and responses are not
frivolous
1. Deposition - Rule 30 (oral questions) and Rule 31 (written questions)
Sworn oral statements in response to questions that are asked
CAN be taken against a nonparty, but without a subpoena the nonparty does not
have to show up.
Entire organizations can be deposed if the party does not know who specifically
has the information. The organization is then expected to identify the appropriate
witness.
Subpoena duces tecum - requires that the witness bring documents to deposition
Cannot depose more than 10 people without court order or stipulation
Presumed to be 1 day of 7 hours maximum without a court order or stipulation
Rule 31 permits a variation to the traditional oral deposition by allowing a party to
serve on the other parties a set of questions that will be asked a witness, which are
then administered by a court official. The disadvantages are that the witness will
know the questions in advance and there is no opportunity for follow-up questions
Expensive and time consuming
2. Interrogatories - Rule 33
Cannot be taken against nonparties
Answered in writing, by the opposing partys attorney, under oath, and within 30
days
No more than 25 interrogatories without court order or stipulation
Less expensive and more effective at acquiring specific information than deposition
Parties are required to provide facts that are reasonably available to them even if
they must review files of documents They do not, however, have to provide
information they do not already have.
Parties may object to questions.
3. Request to Produce - Rule 34
Can be had against a nonparty (Rule 34c, Subpoena under Rule 45)
Request for documents
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Nondiscoverable Material
1. Privileges (communications must have been in the course of the duty of the
relationship)
Attorney-Client
Priest-Penitent
Doctor-Patient
Spouses
These are a policy judgment that some interests are more important than factfinding and truth seeking.
Privilege must be claimed expressly, not simply withheld. Failure to properly claim
a privilege may be deemed a waiver.
The party must describe in sufficient detail the things not produced so that other
parties may assess the claim. The requirements:
- A brief description or summary of the contents of the document
- The date the document was prepared
- The person(s) who prepared the document
- To whom it was directed
- The purpose of the document
- The privileges asserted as to the document
- How each element of privilege is met
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out
To ask for sanctions, attorneys must certify in good faith that they tried in good
expense
Partial Failure to Comply - relatively light sanction
1. Failure to answer a question at a deposition
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out
To ask for sanctions, attorneys must certify in good faith that they tried in good
Same as sanctions for failure to abide by motion to compel with the exception of
contempt (because there is no violation of a court order)
Rule 37(e) - outside of exceptional circumstances, a court should not sanction
parties that fail to provide electronically stored materials that were lost as a result of a
routine good faith operation
X. Pretrial Adjudication
Voluntary Dismissal - Rule 41(a)
1. Stipulation of the parties
2. Court Order
3. Unilateral - Written notice of dismissal
Plaintiff may dismiss without prejudice once by serving a notice of dismissal
BEFORE the defendant serves her answer or a motion for summary judgment
The second time a notice of dismissal is filed is with prejudice, and the case is
permanently over
Involuntary Dismissal - Rule 41(b)
Court can raise these sua sponte
plaintiff may request the entry of a default from the clerk of the court
Default Judgment - Rule 55(b) - How the plaintiff actually recovers following a default
55(b)(1) Liberal, mechanical rule - can be given by the clerk without ever seeing
a judge
Question the court asks itself: If the plaintiff proved everything alleged in the
A complaint cannot simply state conclusions without even a hint as to how those
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Otherwise, pleadings are not sworn to and are not evidence except for
purposes of admissions
- The court cannot look at hearsay - Rule 56(c)(2)
The facts are viewed in the light most favorable to the nonmoving party.
Courts favor the nonmoving party so as not to usurp the jury function
- Discretionary motion - the moving party does not have a right to summary
judgment
- If multiple inferences from the facts are equally plausible, deny summary
judgment
But if one is more likely than another, summary judgment is ok
- Rarely granted for the party with the burden of proof (plaintiff)
- Harder to get summary judgment in torts cases, especially negligence cases and
cases dealing with credibility
Defendant can win summary judgment by raising the point that the plaintiff has
no evidence to support an element, the statute of limitations has run, or the claim is
barred by claim or issue preclusion
The judge cannot weigh affidavits or rule on matters of fact
Partial Summary Judgment - Summary judgment can knock out one of several
actions in a case
The standard - Rule 56(c)
Moving party must show:
1. There is no genuine issue of material fact
2. She is entitled to judgment as a matter of law
Note: Summary judgment, JMOL, and renewed JMOL are all the same motion,
just done at different times
Other Motions
Judges may entertain motions at any time, even though the defendant should file
them before responding to a pleading
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writing
If neither party requests a jury, we have a bench trial
Preserves a right to jury trial in actions at law and not in suits at equity
Depends on whether there would have been a right to a jury trial under common
law of England in 1791
- Law and equity delivered different remedies
Law: Money damages
Equity: Specific performance, injunctions, reformation/rescission of contracts
etc.
Arose because the money was not always adequate to make the plaintiff
whole
- What if the issue deals with both?
Old rule: Center of gravity
Now:
1. We determine the right to a jury trial issue by issue
2. If an issue of fact underlies a remedy at law and equity, there must be a
jury
3. Generally the jury issues will be tried first
- What if the issue arose out of equitable procedural posture?
Once the judge determines whether the action is proper, the underlying claims
themselves are tested in the same way as any other claim.
- 2 tests to apply 1791 rule:
Was there a 1791 common law analogy to this claim?
Fairly loose standard
Look to the purpose of the remedy.
If compensate in money: legal claim with jury - not enforceable by the
court. Its the plaintiffs responsibility to execute the judgment
Injunction: equitable claim with no jury
Selection of the Jury
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Venire - The large group of jurors spread around the court rooms
The selected jury is called the panel
Rule 48 - 6 to 12 jurors, each must participate in the verdict unless one is
excused for good cause
No alternate jurors in federal court
No verdict can be taken from fewer than six jurors
Verdict must be unanimous unless the parties stipulate otherwise
Voir Dire - Jury selection
Unlimited number of strikes/challenges for cause
No justification required
Number is set by statute 1870 - 3 peremptory challenges
Race- and gender-based discrimination is not acceptable even for peremptory
challenges
Admissibility of Evidence
Jury verdict answers specific factual questions, which are then applied by the
judge
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50(a)(1) - Motion is made at trial, only after the other party has been fully heard
The court may consider all of the evidence favorable to the position of the party
opposing the motion as well as any unfavorable evidence that the jury would be
required to believe.
Where evidence is conflicting, the courts should not make judgments (this is the
jurys job)
Renewed Motion for Judgment as a Matter of Law - Rule 50(b)
Formerly JNOV
Exactly the same motion as JMOL, but its made after the jury verdict has been
entered. The losing party can make the RJMOL no later than 28 days after entry of the
judgment
Standard: the same as JMOL - Reasonable people could not disagree on the
result
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Basically the jury reached a conclusion that reasonable people could not have
reached
Parties cannot bring motion under 50(b) unless it brought the 50(a) motion at an
appropriate time
No longer requires that the motion for JMOL be entered at the close of all the
evidence.
Motion for New Trial - Rule 59(a)
Judgment has been entered, but there have been errors at trial that require a new
trial
Sua sponte - can be entered by the judge without a motion
Classic grounds:
The judge made some substantial error - wrong burden, wrong jury instructions,
bad evidentiary ruling
New evidence is discovered after trial that could not have been discovered in time
for trial - must be filed within 28 days after judgment, but relief may be granted
under Rule 60(b)(2) for up to a year.
Prejudicial misconduct of party, attorney, or juror
Timing: same as a judgment as a matter of law (28 days after the entry of the
judgment)
Order of new trial can be partial (ex: only for damages, etc.)
Judge may also grant a new trial if it believes the jury found in error
- Standard: Great weight of the evidence for appellate court (Dadurian), clear
weight for trial court
The judge is permitted to weigh the evidence, but should not substitute its
judgment for that of the jury.
Motion to Set Aside the Judgment - Rule 60(b)
Jury Misconduct
Narrowly construed:
- Stability of verdicts
- Protect jurors from fraud and harassment
- Prevent prolonged litigation
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Prevent verdicts from being set aside because of subsequent changes of attitude
by jurors
Sanctity of the jury room
Judgment
Standard: Preponderance of the evidence (the party with the burden of proof
must show 51% likelihood that she is right)
Claim preclusion prevents you from doing something you didnt do before
Issue preclusion prevents you from re-doing something you did to before
whether the judgment from Case 1 stops us from litigating an issue in Case 2
General rule: The court in Case 2 will apply the preclusion rules of the jurisdiction
1. Case 1 and Case 2 were brought by the same claimant against the same defendant
(same parties AND same configuration)
Or if the parties in the second case were in privity with those in the first case
Nonparty was represented
Substantive legal relationship
Ex: successive property owners, assignor-assignee, decedent-estate, parentchild
Virtual Representation Rule - A party may be bound by a ruling on a claim
involving another party so closely related that it is the virtual representative
2. Case 1 must have ended in a valid final judgment on the merits
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Valid - Jurisdiction
On the merits - Rule 41(b) - Any judgment in favor of the claimant is seen as on
the merits for res judicata purposes (including default judgments, etc.). All involuntary
dismissals are adjudications on the merits unless they were based on jurisdiction,
venue, or indispensable parties. The court can always say it was not on the merits
(without prejudice)
SEMTEK - Case 1: fed. ct. CA., involuntary dismissal because the case was barred
by statute of limitations. Same claim filed in MD state court. Supreme Court took
this to mean that the case cannot be refiled in the same court, subject to the law of
the case that dismissed the first case
3. Case 1 and Case 2 must involve the same claim
Different jurisdictions define claims differently
1. Majority view - Single Wrongful Act Test
2. Some jurisdictions - Rights Invaded - Primary Rights Theory - Different
claim for each right invaded
3. Sameness of the evidence test - if the same evidence would prove both
claims, they are the same claim (comes out the same as single wrongful act)
4. Transaction or connected transaction rule - broadest, resulting in the
fewest cases, used in federal court
Merger - when the claimant won Case 1, the other claims are merged
Bar - when the claimant lost Case 1, the other claims are barred
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5. Mutuality Requirements - can only be used by someone who was a party in case 1 NOT required by Due Process, so this is only the majority view
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