Claims/Discovery
A Def.'s Answer must state as a ______ any claim that, at the time of service, the Def. has against the P if the claim arises out of the transaction or occurrence that is the subject of P's claim.
Compulsory Counterclaim
Rule 13(a)(1)(A)
Rule 4
Service of process: complaint and summons, signed by clerk and sealed
Serve within 90 days
By Whom: Any person who is at least 18 (not the P)
-can follow state law where court is or in the state where served
-personal delivery
-leaving copy at the home with someone who resides there of discretionary age
-delivering a copy to authorized agent
Waiver-60 domestic, 90 foreign
Intervention as of right
Permissive Intervention
How many peremptory challenges do you get when picking the jury?
Three, anything after that you need good cause.
What is the Rule governing Removal?
1441, 1446, 1447
How many Interrogatories do you get?
When are they due?
25
30 days
1367(a)
Supplemental-coming in on same case or controversy
Impleader. Third Party Def. Must be added within 14 days of serving original answer.
Added by the original Defendant in the case.
Usually added to distribute liability under contribution or indemnification. Which are established in substantive law.
Downsloping---OK
Upsloping--NOPE
How long do you have to file an appeal?
With 30 days of judgment
What is the in state defendant rule for Removal?
An in state Defendant cannot remove the case to Federal court because he is the one getting the "home cooking".
How can you respond to an allegation?
Admit, deny, without knowledge
Rule 9(b)-Pleading Special Matters
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge and other conditions of a person's mind may be alleged generally.
What three elements will restrict 1367(a) from allowing the joining of a claim.
Hint these have to do with 1367(b)
1. Claim made by the Plaintiff
2. Claim based on Div.
3. More than 1 Def.
What is the difference between a Rule 50(a)/(b) motion?
What is a Rule 59 motion?
50(a)-Judgment as a Matter of Law, filed after opposing party has completed their evidence but before goes to trial. 50(b) is filed with 28 days of judgment of entry. Must be the same arguments. You can appeal these rulings but not MSJ or discovery motions. Appellate review is de novo, but give deference to trial court on some issues.
Rule 59 is for a new trial. The appellate court can look at the credibility of witnesses here, but no where else. Within 28 days of entry of judgment.
Elements of claim preclusion
1. same claim (look at evidence test "narrow" or transactional approach)
2. same parties
3. final judgment
4. on the merits
How long do you have to amend your Complaint?
Your Answer?
What rule governs this?
21 days as a matter of course when it is a responsive pleading
21 days as a matter of course
Rule 15
Rule 12(b)
Which are waivable?
1. lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join under Rule 19
2 through 5 are waivable. 1-anytime, 6-anytime (up to trial)
Rule 20 (a) and (b)
Permissive Joinder
(a): Plaintiff. Person may join as a plaintiff if they assert right to relief with respect to claim arising out of the same transaction, occurrence or series of occurrences AND any question of law or fact common to all Plaintiffs will arise in the action
(b): Defendants. Person may join as a plaintiff if they assert right to relief with respect to claim arising out of the same transaction, occurrence or series of occurrences AND any question of law or fact common to all Defendats will arise in the action
Is Remittur allowed in Federal Courts?
Is Additur allowed in Federal Courts?
Yes, allows court to tell winning party that they can consent to lower amount or go to new trial.
No, Additur not used in federal courts because it violates right to jury.
Elements of issue preclusion
1. actually litigated and determined by
2. a valid and final judgment
3. the determination of which is essential to the judgment
4. is conclusive in a subsequent action, whether on the same or a different claim, provided that the party burdened with the issue preclusion was a party to the earlier proceeding and had an adequate opportunity and incentive to litigate the issue in that forum
Does an expert fact witness need to provide a written summary of his testimony?
Yes, but just a summary of facts and opinions he will provide.
Expert witness hired to provide expert testimony must provide more detailed report. Provide report at least 90 days prior to trial. Able to depose too.
Rule 8
What issue will you have with this one?
General rule of pleadings
1) short, plain statement of grounds for SMJ
2) a short, plain statement of entitlement to relief
3) a demand for the relief sought
Issue will be Twombly/Iqbal-plausible not just possible. No legal conclusions or recitations of elements.
Who is included in Rule 19?
Necessary/Indispenible Parties
A party who is subject to PJ and whose joinder would not defeat SMJ or venue, and without the party being joined,
1) plaintiff cannot obtain complete relief
2) the outcome of the case would impair or impede the non-joined party’s interests; or
3) the defendant would be subject to double (pay twice) or inconsistent obligations
Can an interlocutory decision be immediately appealed?
Generally no, because it is not a final judgment.
An order deciding a question of law can sometimes be appealable before final judgment.
The trial court must certify in the order, and in writing, that:
Within 10 days after the order is entered, a party who seeks to appeal the order may ask the appellate court to hear the appeal.
The court of appeals then has the discretion to accept or reject the appeal.
What is the Erie doctine?
Explain the two steps to this test.
The first step is Hanna. The second is an Erie analysis.