Documentos de Académico
Documentos de Profesional
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Civ Pro Outline
Civ Pro Outline
Civil Procedure
Remedies:
Substitutory - damages
o Compensatory
Economic
Non-economic (pain and suffering)
o Punitive deterrence and retribution
Courts reviewing punitive damages must consider three
guideposts:
o (1) the degree of reprehensibility of the defendant's
misconduct;
o (2) the disparity between the actual or potential
harm suffered by the plaintiff and the punitive
damages award; and
o (3) the difference between the punitive damages
awarded by the jury and the civil penalties
authorized or imposed in comparable cases. (State
Fram) Punitive awards far exceeding a single digit
ratio between punitive and compensatory awards
will hardly ever satisfy due process.
Appellate courts must conduct de novo review of a trial
court's application of the relevant guideposts for reviewing
punitive damages to the jury's award. Exacting appellate
review (State Farm)
o Liquidated damages parties agree beforehand; rules about liquidated
damages concern with equal bargaining power
o Interest
Before judgment
After judgment
o preliminary injunction (after hearing but before trial) must establish that
he is likely to succeed on the merits,
he is likely to suffer irreparable harm in the absence of preliminary
relief,
the balance of equities tips in his favor, (preliminary injunction
wont harm defendant more than it helps plaintiff)
an injunction is in the public interest (Winter)
o Permanent injunctive relief (after trial)
(1) Balancing the hardship on plaintiff if relief is denied as
opposed to hardship to defendant if it is granted (Sigma Chemical)
(2) Finding that plaintiff is being threatened by some injury for
which he has no adequate legal remedy (Sigma Chemical)
Declaratory
Ethical Limits in Litigation Generally and Pleading in Particular:
Rule 11
o 11(a): Pleading, written motion or other paper which may be stricken if Rule
11 violated.
o 11(b): Conduct that may violate Rule 11
o (1): Improper purpose
o (2): Not warranted by existing law (counsel only)
o (3-4): Factual support
o 11(c)(1): The sanction is within the discretion of the Court against counsel (and
the firm absent extraordinary circumstances) and the party (but not (b)(2))
o 11(c)(2): Requires separate motion after 21 days (the safe harbor period)
o 11(c): Court may impose on its own but only after a show cause hearing
28 U.S.C. 1927
Inherent Power of the Court
Rules of Professional Conduct
Pleading
FRCP 7(a) and (b)
FRCP 8 (a)
1)Jurisdiction 8(a) (1)
2)Short and plain Statement of claim showing that pleader is entitled to relief 8 (a) (2)
Iqbal
Conclusory statements are not facts, and are not presumed to be true
Facts have be facial plausibility of the each element of the claim
nudge the claim across the line from conceivable to plausible
Amending Pleadings
Amending the Complaint: Usually to add or change a claim or a defendant.
Amending an Answer: Usually to add or change a response to an allegation (more facts
or different facts), to add an affirmative defense, or to add a counterclaim or a crossclaim.
Why do you have to amend? (Notice)
15(c)(1): An amendment to a pleading relates back to the date of the original pleading
when:
(B) The amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set forth - or attempted to be set forth - in the original
pleading (additional claim against the same party
(i): Received such notice of the action that it will not be prejudiced in
defending on the merits, and
(ii): Knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper partys identity
Joinder
Rule 18(a): A party asserting a claim, counterclaim, crossclaim, or third-party claim, may join,
as independent or alternative claims, as many claims as it has against an opposing party.
But cf. Rule 42(b)
Joinder of Parties
Class Action
Rule 23
All of the four has to be satisfied:
23(a)(1): Numerosity
o
Separate joinder of each member is impracticable
23(a)(2): Commonality
o
Common legal and factual issues; common contention that is capable of a class-wide
resolution of one stroke
23(a)(3): Typicality
o
All claims or defenses of the representative party are typical of each class member
23(a)(4): Representative Adequacy
o
Fairly and adequately protect the interest of each member of the class
23(b)(3): Common questions of law and fact predominate and it would be the superior
way to proceed, taking into account the need for individual control, other litigation filed,
desirability of one action and manageability
Counterclaims
A permissive counterclaim must have an independent jurisdictional basis, while a compulsory
counterclaim falls within the ancillary jurisdiction of the federal courts even if it would
ordinarily be a matter for state court consideration
Plant v. Blazer Financial Services, Inc.,598 F.2d 1357, 1358(5th Cir. Ga.1979)
Rule 13. Counterclaims
(a) Compulsory Counterclaims
(1) In General A pleading must state as a counterclaim any claim. . . if . . .
(A) It arises out of the transaction or occurrence that is the subject matter of the
opposing party's claim;
(B) and does not require adding another party over whom the court cannot acquire
jurisdiction. . . .
If theres a right to indemnity or contribution in the substantive law, impleader allows the
suit for indemnity to be combined with the suit that creates the conditions for
indemnification
if third partys liability is in some way dependent on outcome of original action. (Price)
third party liability must in some way be derivative of the original claim. (Price)
third party may be impleaded only when the original defendant is trying to pass all or
part of the liability onto that third party (Price)
Response
Timing of Response
12(a)(1)(A):
The 21 day rule
The 60 day rule upon waiver of service
12(b) motions generally must be made prior to the responsive pleading on the merits
12(b) motions stop the clock for responding on the merits until the 12(b) motion is
resolved
Pre-trail dilatory motions
1. 12(b) motion to dismiss dilatory motions
12(b) motions generally must be made prior to the responsive pleading on the merits
12(b) motions stop the clock for responding on the merits until the 12(b) motion is
resolved
A party may move for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party cannot reasonably
prepare a response. (Only if D cannot answer, e.g., unintelligible; minority views: Can
require more specificity if complaint is too vague, even if can be answered)
Rarely used
2.
3.
4.
5.
6.
Default
General denial
Respond specifically and tell another story
Respond with additional claims and tell a story about those claims
Respond and join additional parties
8(b)(1)(A) and its parallel language to 8(a)(2): A short and plain statement of defenses
8(b)(1)(B): The need to admit or deny allegations made by the opposing party
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the federal law or the const. or the treaty have to give rise to the cause of action;
Federal law provides basis for plaintiffs claim (creates the cause of action).
Exception: Must interpret/apply federal law and strong enough federal interest.
(A competing (small) line of cases.)
A s use of fed. Law as basis for defense does not create FQ jurisdiction
28 U.S.C. 1331 (Original): The district court shall have original jurisdiction of all civil
actions arising under the Constitution, laws or treaties of the United States.
Diversity
Article III: Minimal diversity and jurisdictional minimum
28 U.S.C. 1332 (and case law):
Complete diversity.
Amount in Controversy Requirement
Good faith claim
More than $75,000 at stake
The district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000 . . ., exclusive of
interest and costs, and is between
Citizens of different States
Citizens of a state and citizens or subjects of a foreign state unless the citizen of
the foreign state is a permanent resident of and domiciled in the same state
Citizens of different states (even where foreign parties)
Foreign state as plaintiff and citizens of a state
75,000 without regard to set offs and exclusive of interests and other costs
For the purposes of this section
Corporation is where incorporated and principal place of business
Rules for Diversity Jurisdiction
Whether a party is a U.S. citizen is determined by domicile (A U.S. citizen residing in
a state with the intent to remain).
A foreign subject is narrower, requiring one to be a foreign national who has
sworn allegiance.
Diversity under 1332 must be complete (Strawbridge).
If a U.S. citizen sues a foreign citizen or vice versa, diversity exists.
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If diversity between U.S. citizens exists, the presence of foreign citizens on either or
both sides of the equation will not destroy it. 1332(a)(3). A(GE) + B(NY) v. C(FR) +
D(CA)(diversity under 1332(a)(3))
However, foreign citizens on both sides of the equation and no U.S. diversity
destroys diversity jurisdiction.
E.g. A(GE) v. B(FR) + C(CA) (no diversity)
A foreign citizens domicile in the U.S. as a permanent resident alien will not create
diversity, but it may destroy it. 1332(a)(2)
Rules for Amount of Controversy
One plaintiff, multiple unrelated claims Yes
single can aggregate all claims against several s only if claims arise
out of common nucleus or operative fact
Supplemental Jurisdiction
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What do you have to prove for the federal claim and what facts for the
state claim?
Can you resolve the state claim without affecting the federal claim?
Removal moves the case to the federal district court in which the state court is located.
1441(a).
Basis for removal. 1441(b).
FQJ: If P could have brought in federal court or
Diversity: If P could have brought in federal court, but no removal if any D is a
citizen of the forum state
1441 (b) (2) A civil action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be removed if any
of the parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.
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PERSONAL JURISDICTION
Attack Plan
1. Does the states long arm statute permit the exercise of personal jurisdiction? (Gibbons
held no)
2. If yes, is that assertion of jurisdiction consistent with the due process clause?
(International Shoe Analysis)
3. Is venue proper?
4. Convenience factors? Forum non-convenience
Personal Jurisdiction:
Does the state or federal court have power to enter a binding
judgment on defendant(s) that is entitled to full faith and credit in all jurisdictions?
Source of law:
Due Process Clause
Rule 12 (b) (2), may be waived
Power
"Real consent"
Carnival Cruise, etc.
Over Persons
Over
Mullane
Property
(and corporations)
Shoe,
Shaffer
Shaffer
Shoe
& Burnham
International
Shoe
minimum
contacts
standard
minimum contacts between the defendant and the forum such that
maintenance of the suit does not offend traditional notions of fair play and
substantial justice.
Con
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property is a contact that may give rise to specific jurisdiction over related
claims
choice of law is evidence for contact
action performed elsewhere, but effect significantly felt and directed towards
the forum state (the libelous statement in the newspaper here lived)
passive internet site not purposeful availment , no targeting for commerce
reasonably anticipate being haled into court there
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287 (U.S. 1980)
Factors to consider
the burden on the defendant to defend the suit in the chosen forum;
the extent of conflict with the sovereignty of the defendant's state;
the forum state's interest in the dispute;
the most efficient forum for judicial resolution of the dispute;
the importance of the chosen forum to the plaintiff's interest in
convenient and effective relief;
Give NOTICE
Notice is also due - Due Process Clause
Mullane test
An elementary and fundamental requirement
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apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections. The notice must be of such nature as reasonably to convey
the required information, and it must afford a reasonable time for those interested to
make their appearance. But if with due regard for the practicalities and peculiarities of the
case these conditions are reasonably met, the constitutional requirements are satisfied.
Rule 4
What happens if a defendant ignores a request for a waiver of service of process?
(costs and fee and must answer within 21 days)
What advantage (besides cost savings) does defendant get by waiving service of
process? (No sanctions and longer time to respond 60 days)
How does plaintiff notify defendant if she fails to waive service? (By personal
service in compliance with Rule 4)
Suppose defendant claims lack of personal jurisdiction. Waiver of the objection if
waive service of process? (Waiver of service does not waive person jurisdiction
objections)
Long-Arm Statutes
CA CCP 410.10: A court of this state may exercise jurisdiction on any basis not
inconsistent with the Constitution of this state or of the United States. (Equal in scope to
the 14th Amendment)
FLA 48.193(2): Engaged in susbstantial and not isolated activity within the State
whether or not the claim arises from that activity (Lesser in scope than the 14 th
Amendment)
Forum Non-Convenience
If motion granted, has to agree to waive statute of limitation defence
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b. Rebuttable presumption of controlwhile there is a
strong presumption that should be in control of lawsuit,
FNC protects . Presumption against disturbing choice of
forum is rebuttable is on balance of interests can show that
there is a better forum. In Piper, presumption of control is
diluted in this case b/c is a foreigner for purposes of the
suit.
a. Private factors to consider:
(1)
convenience
(2)
convenience here OK, b/c foreign citizen
under 1332
(2)
access to proof
(a)
accident in Scotland
(b)
witnesses in Scotland
d. Public factors to consider:
(1)
Is there foreign law available to govern the dispute?
(a)
opposes transfer to Scottish forum b/c
result will be unfavorable under Scottish law
limits who can bring wrongful death actions,
limits basis for liability, limits scope of damages,
and does not permit litigation on a contingency
fee basis.
(b)
As long as there is a procedural remedy in
place, its relative inefficiency to US law does not
matter. Bright line test = if there is a foreign
remedy, US will allow it. Courts do not want to
get into the business of evaluating the efficiency
of foreign law and trying to understand and
implement it in US.
(2)
Docket controlconsideration of whether federal
courts are overloaded at the time.
(1)
Jury concerns (i.e., evidentiary concerns, jury may
need to see the accident site).
(2)
Fact specific questionsdoes the action involve
local issues and local sentiment?
Venue
Intended to localize the action in the most convenient district court with the State. E.g.
in CA, Central, Northern or Eastern District
A separate concern from subject matter jurisdiction (12(b)(1) and personal jurisdiction
(12(b)(2)). Venue is 12(b)(3). And, by the way, a motion to dismiss for improper
service is 12(b)(5)
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(b)(1): A judicial district in which any defendant resides, if all defendants are
residents of the State in which the District is located
Individual: (c)(1) - The district where domiciled (Permanent resident aliens are treated as
citizens not true for diversity)
Corporation: (c)(2)
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Each party requests further information from other as to other matters relevant to
claims and defenses
Third stageby leave of court for good cause shown
The work product doctrine is not intended to a shield for hiding underlying facts
necessary to resolve the litigation. Rather, the doctrine is intended to protect the
thoughts, strategy and ideas of those involved in a partys prosecution or defense of a
lawsuit. In essence then the inquiry is two-fold:
o Is the document prepared in anticipation of litigation and even if it is
o does it involve more than the underlying facts of the litigation.
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(i) and (ii): Names and documents may use to support its claims or defenses,
unless the use would be solely for impeachment
(iii): Computations
(iv): Insurance
Stage 2: Discovery
Interrogatories
Rule 33 Interrogatories to Parties (a) Availability: Without leave of court or written stipulation,
any party may serve upon any other party written interrogatories, not exceeding 25 in number . . .
Depositions
Stage 3: Discovery
Rule 37(a)(2)
(1) A party that without substantial justification fails to disclose information required by
Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as
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by the failure, these sanctions may include informing the jury of the failure to make
the disclosure.
SUMMARY JUDGEMENT
FRCP %^
A party may move for summary judgment, identifying each claim or defenseor part of each
claim or defenseon which summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to summary judgment as a matter of law
56: Motion for Summary Judgment
Are material facts disputed or is there no genuine issue of material fact?; and
Do undisputed facts state a claim and if not is the moving party entitled to judgment as
a matter of law?
The movant bears the initial burden to show there is no triable issue of fact. If, however, the
non-movant bears the burden of proof at trial on the issue around which the movant seeks
summary judgment, the burden of proof on the motion shifts to the non-movant to demonstrate
that there is a triable issue of fact. To meet its burden, the non-movant must present sufficient,
specific evidence that a triable issue of fact exists. The sufficiency of the non-movants
response may be dependent on the strength of the evidence presented by the movant
Attack Plan
Joinder and Jurisdiction: The Whole Picture and Two Critical Questions
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forum non-convenience
venue