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FRCP & 28 U.S.C
Federal Rule / What it Says / Corresponding TopicsR. 4(k)(1)(A) / Territorial Limits of Effective Service. Fed. ct can apply the long-arm statute of the state in which it sits. / PJ: When a fed. ct. does this, it is subject to the 14th amendment due process clause.
R. 4(k)(1)(C) / If no state can exercise PJ over an alien D, then can exercise PJ if allowed by federal statute. / PJ. Ex: Go-Video (antitrust statute authorizes worldwide service of process)
(A tag by mail is authorized by federal statute)
R. 4(k)(2) / If no PJ in any one state, can exercise PJ if it’s an arising under claim & constitutional to do so. / PJ. It’s “constitutional” if have national minimum contacts. Ex: Pyrenee (contacts met, but D proved that Hong Kong would be more convenient on FNC grounds)
Need: min. contacts, arising under, & no 1 state for this rule to apply.
R. 3 / Commencing an action. A civil action is commenced by filing a complaint with the court. / The Complaint: Pleadings.
R. 8 / General rules of pleading. (a) a claim for relief must contain: (1) short & plain statement for grounds for jurisdiction, (2) short statement of claim, (3) relief sought.
(b) defenses. / The Complaint: Pleadings. This is the notice pleading standard.
R. 12 / Defenses & Objections. (a) D must serve an answer w/in 21 days after being served. (b) how to present defenses / The Complaint: Pleadings. A party can motion for: lack of SMJ, lack of PJ, improper venue, failure to state a claim upon which relief can be granted 12(b)(6), etc
Filing a motion to dismiss under 12(b) is an alternative to answering the complaint under 122(a).
R. 84 / Forms. Forms suffice under the rules. / The Complaint: Pleadings.
See Form 11 for example complaint. (Iqbal seemed to overrule Form 11)
R. 65 / (a)Preliminary injunction. (1) Must give notice to adverse party.
(b) TRO. May be issued w/out notice only if… / Relief Pending Litigation. (Ex: Thane-Coat; preliminary injunction sought for relief)
R. 4(c) / Service of process. / Notice & Opportunity to be Heard.
R. 26 / Discovery generally.
(a)(1)(a) Initial disclosures
(a)(3) Pretrial disclosures
(b)(1-2) Scope & limits of frequency/extent of discovery
(b)(3-4) trial preparation, materials & experts
(c) Protective orders
(f) Parties meet & confer/ plan for discovery / Discovery.
(a)(1) Automatic disclosure: parties must automatically disclose certain info to their opponents at the outset of the case, w/out a discovery request.
R. 33 / Interrogatories / Discovery.
R. 34 / Requests for production of documents / Discovery
R. 30 / Oral depositions / Discovery
R. 29, 30, 37 / Discovery
R. 56 / Summary Judgment. Either by claiming party (a) or defending party (b). (c) party may move for SJ until 30 days after discovery closes. (b) other party must file w/in 21 days / Burdens & Summary Judgment.
When there is no genuine issue of material fact, & movant entitled to judgment as a matter of law.
R. 41 / Dismissal of Actions
(a)Voluntary dismissal
(b)Involuntary dismissal
(c)Dismissing CC, 3rd party claim
(d)Costs of previously dismissed action / Voluntary dismissal. Ex: McCants (plaintiff voluntarily dismisses case to refile in another state w/ longer statute of limitations)
R. 2 / One Form of Action. There is one form of action-the civil action. / Jury Trial. Did away with the distinction b/w law & equity.
R. 38 / Right to a jury trial; demand. (a) the right of trial by jury (7th amend.) is preserved. (b) on any issue triable by right of jury, a party may demand a jury trial / Jury Trial.
R. 39 / Trial by Jury or the Court. (a) what to do when the demand is made. (b) what to do when the demand is not made. / Jury Trial. (b) Ex: Beckstrom: Courts too busy, granting jury trial will just delay/deny justice for others.
Batteast: court should keep open mind, consider 5 factors to determine if jury trial should be permitted w/out demand.
R. 51 / Instructions to Jury. / Jury Trial. Have to tell jury what the relevant law is. Counsel drafts them.
R. 52(a) / Findings & Conclusions by the Court / Judge/Jury. Purpose: 1) Force judge to write this down = increased quality of decision-making. 2) need to know what judge is thinking so appellate court can know what to review. 3) res judicata—need to know what has been tried already.
Roberts v. Ross: judge had D’s counsel write this w/out reviewing itnot ok.
R. 52(c) / Judgment on Partial Findings. If the court finds on an issue, can render a judgment on any claims/defenses depending on the issue before the end of the trial. Can also wait to enter all judgments till end of trial. / Judge/Jury.
R. 50 / Judgment as a Matter of Law. (a)(1)When court finds that reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue, the court may (a) resolve the issue against the party; and (b) grant a JAMOL
(a)(2)A motion for a JAMOL can be made at any time before the case is submitted to the jury. / Post Trial Practice.
Make no credibility determinations & construe evidence in most favor of the party making the motion. Could a rational party find for the non-moving party? If yes, deny). Same standard as SJ (R. 56)
R. 50(b) / Renewing the JAMOL Motion after Trial / Post Trial. Unitherm: can’t get a new trial on appeal, if don’t move for JAMOL both before going to jury and after trial. Must renew the motion under R. 50(b).
Safest thing to do: at close of evidence, move for JAMOL, then after lose, renew the motion.
R. 59 / New Trial. / Post Trial. 2 Reasons why:
- judge made a mistake (not harmless error)
- verdict is against great weight of the evidence
If don’t file a new trial below, can’t seek one on appeal.
Aetna: granting of new trial is w/in discretion of trial judge & is not reviewable.
R. 6(b): Court can’t extend time to act under R. 59(b)/50(b) –time limits can’t be extended.
R. 50(c) / Conditional Ruling on Motion for New Trial. (1) If ct grants a renewed JAMOL, it must also conditionally rule on any motion for new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed.
(2) Conditionally granting the motion for a new trial does not affect the judgment’s finality. / Post Trial.
Ex: Additur/remittur: Judge can say “either accept higher/lower damages or I will order a new trial”
R. 60 / Relief from a Judgment or Order. (a) Ct correct for clerical mistakes. (b) On motion & just terms, ct may relieve a party from final judgment for: mistake, newly discovered evidence, fraud, void judgments, satisfied judgments, any other reason. (c) A motion under (b) must be made w/in reasonable time. / Post Trial. Ex:
Briones: Case remanded to determine if plaintiff’s negligence (failed to respond to motion to dismiss) was excusable. Ct listed 4 factors for deciding if it was excusable.
Patrick: NO new trial for newly discovered evidence.
Title: judgment not void, been satisfied.
Hazel: Verdict set aside after found first was found with fraud.
R. 6(b)(2) / Exceptions to Extending Time. Ct can’t extend time to act under JAMOL (50(b), 52(b), New Trial (59(b,d), or (e)), or 60(b) (Relief from final judgment). / Post Trial.
Finality interest. Ex: Hulson.
R. 54(b) / Judgment on Multiple Claims or Involving Multiple Parties. Ct. may direct entry of final judgment if there is more than one claim for relief to one or more, but fewer than al, if there is no just reason for delay. / Appellate Litigation. Creates an appeal as of right.
Judge must explicitly say the claims are separable. Liberty Mutual.
DC has discretion over whether to enter a 54(b) judgment
R. 23(f)
(1998) / Class Action Appeals. Ct of App. may permit appeal from an order granting/denying class action certification if a petition to appeal is filed w/in 14 days. / Appellate Litigation.
Coopers: P’s can’t appeal denial of class certification. This predated 23(f).
R. 13(a) / Compulsory Counterclaim. / Expanding the Lawsuit.
If D’s CC arises from same transaction or occurrence as claim against him, must assert it in original action.
R. 13(b) / Permissive Counterclaims / Expanding the Lawsuit.
D may assert CC unrelated to original claim
R. 20(a)(2) / Joinder of Defendants / Expanding the Lawsuit.
Plaintiff may sue multiple D’s if arises out of same T or O & claims involves common questions of law/fact
R. 13(g) / Cross-Claims / Expanding the Lawsuit.
Party may assert a cross-claim if it arises out of same T or O as main claim
R. 18(a) / Joinder of Claims / Expanding the Lawsuit.
Party may join additional claims to original claim against opposing party
R. 14 / Third-Party Practice / Expanding the Lawsuit.
D may impleade new parties.
R. 19 / Required Joinder / Expanding the Lawsuit.
Have to have SMJ for each one of these claims.
R. 42 / Consolidation; Separate Trials. If have common question of law/fact, ct may join all matters for hearing/trial, consolidate, etc. / Expanding the Lawsuit.
R. 24 / Intervention. (a) as of right. (b) permissive. (c) by gov’t officer, agency / Expanding the Lawsuit.
Smuck.
R. 41 / Dismissal of Actions / Finality. (b) A dismissal under this subdivision (involuntary)—except for dismissal for lack of jurisdiction, venue, failure to join a party-operates as an adjudication on the merits.
R. 23 / Class Actions
(a)Prereqs
(b)Types
(c)Certification; notice to class members; subclasses
(e) Settlement
(f)Appeals / Class Actions.
28 U.SC.
Statute / What it Says / Corresponding Topics§ 1331 (1875) / Federal Question. The DC shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the US / SMJ: Have to have a grant of power under the Constitution & a statute for federal court jurisdiction. (Art. III is the Constitutional grant)
The statute is narrower than the Constitution. (Ex: Mottley)
§ 2201 / Allows for declaratory judgment, but only as a remedy (not a cause of action). Declaratory judgment: declares rights, duties, obligations of parties. / SMJ: Can only bring in federal court if underlying suit could have been brought there. (Ex: First Federal)
§1332 / Diversity of citizenship. DC have jurisdiction over actions w/diverse citizens & AIC above $75,000 / SMJ: P & D have to be domiciled in different states. (Ex: Mas). Must have complete diversity (Ex: Strawbridge)
§1367 / Supplemental Jurisdiction. (a) In any action in which the DC have original jurisdiction, the DC has supplemental jurisdiction over claims that form part of the same case or controversy.
(b) If the DC has jurisdiction only b/c of diversity, they can’t have jurisdiction over claims by plaintiffs against persons made parties or over claims by persons proposed to be plaintiffs if these claims would break diversity. / SMJ:
(a)-must have anchoring arising under claim
--go to the limits of Art. III (same case or controversy)
(b)-plaintiff can’t bring claim against someone being made a party if that would kill diversity
(c)- discretionary factors court can consider to choose not to exercise SJ (Ex: Executive Software)
§1359 / Parties collusively joined or made. DC doesn’t have jurisdiction over actions in which any party has been collusively made/joined just to get jurisdiction. / SMJ: (Ex: Kramer—Panamanian corp. created diversity by assigning interest to a TX lawyer; SC said this was collusion)
§1441 / Removal. (a) Any action brought in state court that has original jurisdiction in federal court can be removed to fed court by D.
(b) If has arising under jurisdiction, can be removed no matter if citizens are diverse / SMJ. Removal is automatic/immediate. Only D can remove.
(b)-D can’t remove from state he is domiciled unless there’s arising under SMJ. (Ex: Shamrock-Only D can remove; P can’t remove even if D files a CC)
All D’s must agree.
§1446 / Procedure for removal. (b) notice of removal shall be filed w/in 30 days after the receipt of initial pleading by the defendant / SMJ: Parties should know where they’ll litigate in the beginning. Court wants to know quickly where litigation will occur.
§1447 / Procedure after removal. (c): a motion to remand must be made w/in 30 days of removal. / If at any time the court finds there’s no SMJ, will remand (c)
§1345 / US as plaintiff. DC have jurisdiction over actions commenced by the US / SMJ. (Ex: Colorado River)
§1391 / Venue Generally. (a) where can lay venue in diversity suits. (b) where you can lay venue in arising under suits. (c) where corps. can lay venue. (d)aliens can be sued in any district. / Venue. Governs only federal courts.
§1404 / Change of Venue. A DC may transfer a civil action to any other district where it might have been brought. / Venue. If laid venue properly the first time, can transfer for convenience reasons to another district If in a diversity suit, transferor law follows to the new district. (Ex:Van Dusen)
§1406 / Cure or waiver defects. If laid venue incorrectly the first time, DC can either dismiss or transfer to a district where it might have been brought. / Venue. If in a diversity suit, the law of the transferee court applies. Court can still dismiss a case if it wants to.
§1631 / Transfer to cure want of jurisdiction. Can transfer for lack of jurisdiction to a district that does have jurisdiction / Venue. If in a diversity suit, the law of the transferee court applies, as if it were started there. (Ex: Goldlawr)
§1407 / Multidistrict litigation. If actions involving common questions of fact are pending in different districts, they can be transferred to any district for coordinated/consolidated pretrial proceedings. / Venue. Transfer for reasons of judicial economy. Can transfer to consolidate pre-trial proceedings, then remand back to original courts (Ex: Lexecon).
§1652 / State laws as rules of decision. The laws of the several states will be the rules of decision in civil actions in fed ct cases where they apply, except where the Const. or US laws otherwise require/provide. / Vertical choice of law. Rules of Decision Act. Art. III did not establish lower federal courts. The Judiciary Act of 1789 established the lower fed. ct system
§2071 / Rule-making power generally. Fed. cts can prescribe rules for conduct of their business. / Vertical choice of law.
§2072 / Rules enabling act. (a) SC has power to prescribe general rules of practice/procedure…(b) rules shall not abridge, enlarge, or modify any substantive right. / Vertical choice of law. Hanna: if there’s a valid & applicable federal rule, apply it. (Valid= with the Const. & with the Rules Enabling Act)
§1291 / Final decisions of district courts. The cts of appeals shall have jurisdiction of appeals from all final decisions of the DC of US / Appellate Litigation.
Final Order Doctrine: can’t appeal in the fed system unless you have a final order resolving the whole case.
-Final order is always an appeal as of right.
§1292(a)(1) / Interlocutory decisions. (a)(1) Cts of Appeals have jurisdiction over interlocutory orders from DC granting/refusing/etc injunctions. / Appellate Litigation.
Decision to grant/deny injunction is immediately appealable. (exception to final order doctrine)
Permits D to obtain immediate relief from injunction that might affect interests. Saves parties expense of further litigation. Smith v. Vulcan.
§1292(b) / Interlocutory decisions.
(b) When district judge thinks that the order involves a controlling question of law to which there is substantial ground for difference of opinion & that an immediate appeal may advance the termination of the litigation, Ct of App may use its discretion to permit its appeal. / Appellate Litigation.
Double discretion. (exception to final order doctrine).
Trial judge has to make findings on the record (in writing), then party has 10 days to file for appeal.
-Ct of App. decision to review under 1292(b) is highly discretionary.Atlantic City.
§1651 / Writs. (a) SC & all Cts established by Congress may issue writs necessary or appropriate / Appellate Litigation.
La Buy: app. ct has power in proper circumstance to issue writs of mandamus.
Cheney: 2 part test for issuance of writ of mandamus
In re Cement: 5 factors to determine if should issue writ of mandamus
§1367(b) / Supplemental Jurisdiction / Expanding the Lawsuit.
Cross-claims b/w D’s--§1367(b) does NOT apply.
Cross-claims b/w P’s--§1367(b) DOES apply (careful for diversity!!)
§2402 / Intervention by US or a State; constitutional question / Expanding the Lawsuit.
US can intervene in actions challenging the constitutionality of an Act of Congress.
§1738 / State/Territorial statutes/proceedings; full faith & credit. / Finality.
Acts, records, etc shall have full faith & credit in every ct within the US…
Fed gov’t must give full faith & credit to state ct judgments.