BarBri Bar Review Hangout - July 2016 (UBE -NY) Forum

[WahooLaw24]

On the actual MBE, regarding common law Ks, should we be using the "modern law," i.e., modification can be made without consideration if there are unanticipated circumstances that make it fair and equitable to do so, or the "general contract law," , i.e., only valid with consideration. In the CMR, it says only to use the modern view on the MBE, but

[+] Spoiler

Contracts Set 6, Q7 seems to indicate otherwise. It seems to go back and forth because i recall in earlier MPQ sets "fair and equitable was the answer choice.

[+] Spoiler

That question involved new consideration -- additional cost for faster performance. It doesn't touch on the issue you're raising. The modern view is the way to go, as long as there is some unforeseen hardship and the modification is fair and equitable.

[nyvalley]

Evidence question 18, set 6

[+] Spoiler

That's a dirty, dirty trick

hey - any insight as to why the answer to question 14 in evidence set 6 is a and not D? The lecture handout on page 10 says victim's bad acts are permitted on cross...

[rivermaker]

I just did an adaptibar question where they allowed a change without consideration because it was fair and equitable. So Barbri is wrong.

[WheatThins]

I just did an adaptibar question where they allowed a change without consideration because it was fair and equitable. So Barbri is wrong.

I just did an adaptibar question where they allowed a change without consideration because it was fair and equitable. So Barbri is wrong.

For a good or a service?

[nachosrgood]

In general we are supposed to apply common law to any tort and crim law problem we see on the MBE unless that the prompt says otherwise, right?

[bwh8813]

Evidence question 18, set 6

[+] Spoiler

That's a dirty, dirty trick

hey - any insight as to why the answer to question 14 in evidence set 6 is a and not D? The lecture handout on page 10 says victim's bad acts are permitted on cross...

[+] Spoiler

I'm not sure what Page 10 you have, but my Evidence lecture handout at the bottom of Pg 16 on to the top of Pg 17 says "Victim's Character -- Self Defense Case" and says, "the criminal defendant may introduce evidence of victim's (bouncer's) violent character as circumstantial evidence that the victim was first aggressor." Then goes on to say the proper method is character witness testifying to reputation for violence and may give opinion. So, no specific acts.

[lawstoodent]

Edit: Figured it out!

[jokema]

Has anyone done the Mixed Subject Set 3 yet? Any thoughts? I've got 33/50, worst so far on mixed subject tests. I got all 7 property Qs wrong.

[hellojd]

Has anyone done the Mixed Subject Set 3 yet? Any thoughts? I've got 33/50, worst so far on mixed subject tests. I got all 7 property Qs wrong.

I went ahead with mixed sets 3-5. They get worse and worse in terms of quality of questions in my honest opinion (maybe that's me being bitter, but I noticed a drop in my percentage correct from 1/2 to 3-5 for sure)

[learntolift]

maybe i'll skip the mixed set and just do 2nd half of OPE-4 in emanuel's

[ballouttacontrol]

Does anyone have a little trick or anything to keep these straight:

Statute of Frauds applies to deals of $500 exactly

Diversity amount in controversy must exceed $75k

? I keep forgetting when it actually comes down to it

[SLS_AMG]

Looking at these Civ pro questions and praying it's not one of the MEE topics. BarBri has basically spent 6 question sets, 3 hours of lecture, and no telling how much other Civ pro time emphasizing PJ and SMJ and all of these essay topics are about discovery, interlocutory appeals and joinder.

Thanks, BarBri.

ETA: Forgot the importance they've placed on VENUE

[ellewoods123]

Looking at these Civ pro questions and praying it's not one of the MEE topics. BarBri has basically spent 6 question sets, 3 hours of lecture, and no telling how much other Civ pro time emphasizing PJ and SMJ and all of these essay topics are about discovery, interlocutory appeals and joinder.

Thanks, BarBri.

ETA: Forgot the importance they've placed on VENUE

Yes!! So mad about this! I basically stopped reviewing the essays because it was doing more harm than good and it's too late at this point. I honestly think Barbri dropped the ball on the essay portion..I don't feel well prepared at all

[Betharl]

Do the essays in the BarBri book start with the most recent? I know they recommend you start at the end and work backwards, is that so you end with the most recent ones?

[grixxlybear99]

Outline of Civ Pro I found online:

1.) Planning a Lawsuit → Personal Jurisdiction
a. In-State Jurisdiction – Courts have jurisdiction over persons or property located within their State
i. In personam –
1. Domicile – D’s permanent home
2. Presence – D’s served in the State
3. Consent – D shows up to Court
4. Waiver – D fails to file a 12(b) motion to dismiss in his answer (21 days)
ii. Property –
1. In Rem – suit against property
2. Quasi in Rem – action in which the P seeks to use property of the D to satisfy a claim against the D → Needs to satisfy the Minimum Contacts Test
iii. Corporate Presence – A Company is a citizen of a State in which:
1. It is Incorporated, and
2. Principal Place of Business (most activities occur/headquarters)
b. Out-of-State Jurisdiction – If the person or property is not located within the State, then the Court is trying to reach out and grab a non-resident and haul him into Court in the forum State; Requires → (1) Long-Arm Statute, and (2) Within the Constitutional restraints of the Due Process Clause
i. Long-Arm Statute – The State’s Long-Arm Statute must authorize jurisdiction → The Rule for the Long-Arm Statute is the actual language of the Statute itself
ii. Minimum Contacts (Int’l Shoe) – Due Process requires that the D have established “certain minimum contacts with the forum State such that the maintenance of the suit does not offend the traditional notions of fair play and substantial justice”
1. General Jurisdiction – The D’s contacts with the State are unrelated to the dispute → The D must have “systematic and continuous contacts” with the forum State such that the D could expect to be hauled into Court there
2. Specific Jurisdiction – The D’s contacts with the State are related to the dispute → The D (1) must have Purposefully Availed himself, and (2) the jurisdiction must pass the “Reasonableness Test” (Fair Play and Substantial Justice)
a. Purposeful Availment – One Purposefully avails himself by:
i. Conducting activities within the State, or
1. D takes advantage of the ‘benefits and protections’ of the State,
2. D makes contacts by his own activity
3. D solicits business
4. D signs a waiver clause
ii. Placing goods within the Stream of Commerce such that the D’s intentional conduct should have caused him to anticipate a lawsuit in the forum State
1. (Asahi) Mere foreseeability, or awareness, is insufficient to establish minimum contacts
iii. Conducting Harmful Activities within the State
1. Actual Harm – (e.g., car crash)
2. Intentionally committing activities that the D knows will have a harmful effect on the State
b. Reasonableness Test of Fair Play and Substantial Justice (Burger King) – If the D Purposefully Avails himself, the Court must determine if the jurisdiction is reasonable by balancing the D’s contact with the State against the inconvenience for the D to defend himself in that State → Burden on the D to prove these factors weigh in his favor:
i. Interests of the forum State
ii. P’s interest in obtaining relief
iii. Most efficient resolution
iv. Shared interests of the several states
v. Burden on the D vs. Benefits obtained from the forum State
3. Remember → Passive Website – No Minimum Contacts; Interactive Website – Maybe
c. Notice – Due Process requires a D receive notice, which is satisfied by the Plaintiff complying w/ Service of Process requirements
i. Notice must be reasonably calculated to convey knowledge of the lawsuit
1. The means employed must be desirous of actually informing the D
ii. If you send notice, and notice is sent back as undelivered, then you must take additional reasonable steps to provide notice
iii. Publication of Notice is never enough → Publication + A Reasonable Means!
d. FRCP 4 – Service of Process
i. P must give notice to D
1. P must deliver to D (1) a summons (formal notice), and (2) copy of the complaint
ii. Timing – Notice must be within 120 days of filing case, or case is dismissed w/o prejudice
iii. Mechanics – Process must be served by any non-party who is at least 18 years old
1. Personal Service – Papers given directly to D personally
2. Substituted Service – Papers given to a person at the D’s usual location; person must be of suitable age and resides there
3. Service of D’s Agent – Papers may be delivered to D’s agent
4. Corporation/Association – Notice must be addressed to either an officer, managing agent, or agent appointed by law
5. Waiver by Mail – Process mailed to D by first-class mail, postage prepaid is OKAY if D returns waiver within 30 days
e. Consent to Jurisdiction / Objection to Jurisdiction
i. Consent to Jurisdiction – A forum-selection clause is enforceable if reasonable under the circumstances → Also, Showing up to Court is consent to jurisdiction
ii. Objection to Jurisdiction – D must make a FRCP 12(b) motion in his answer within 21 days of being served, or else it is waived
1. FRCP 12(b) Motions –
a. 12(b)(1) – Lack of SMJ → Can raise lack of SMJ at any time!
b. 12(b)(2) – Lack of PJ
c. 12(b)(3) – Improper Venue
d. 12(b)(4) – Insufficient Process
e. 12(b)(5) – Insufficient Service of Process
f. 12(b)(6) – Failure to State a Valid Claim upon which relief can be granted
g. 12(b)(7) – Failure to Join a Party under FRCP 19 (Compulsory Joinder)
f. Choice of Law – Refers to what Jurisdiction’s laws is to be applied to a particular case
i. Courts faced w/ Choice of Law issues choose between the law of the State where:
1. The lawsuit was brought, or → Procedural Issues
2. The cause of action arose → Substantive Issues
ii. Choice of Law often arises in K disputes → as such, K’s often use forum-selection clause
iii. Constitutional Test for Choice of Law – “Whether there is a significant contact, or significant aggregation of contacts, creating State interests, such that choice of law is neither arbitrary or fundamentally unfair”
g. Subject Matter Jurisdiction – The authority of a Court to adjudicate a type of controversy
i. Federal Question (§ 1331) – P’s claim arises under the Constitution, Fed Law, or USTreaty
1. Well-Pleaded Complaint Rule – P is master of the complaint: P’s complaint must state that D violated a Federal Law
a. D cannot assert a Federal Law defense to obtain Federal Q Jurisdiction
2. The right to relief must really depend on Federal law
ii. Federal Diversity (§ 1332) – Diversity of Citizenship + Amount in Controversy
1. Diversity – No P can be domiciled in the same State as a D, and vice versa
a. Domicile – Permanent fixed home
2. Amount in Controversy – P must plead in his complaint a good faith claim of at least $75,000 between diverse citizens
a. A single P can add his claims, even if unrelated, to a single D to reach 75k
b. P must meet the 75k amount for each D
c. If a single P meets the amount in controversy against a D, another P can also file suit against that D in Federal Court due to Supplemental Jurisdiction
iii. Supplemental Jurisdiction (§ 1367)
1. 28 USC § 1367(a) – (State law) Courts have supplemental jurisdiction over all other (State+Fed) claims that arise out of the same common nucleus of operative facts
2. 28 USC § 1367(b) – (Diversity)
a. “Courts do not have Supplemental Jurisdiction over claims by Plaintiffs against persons made parties under:
i. FRCP 14 (3rd Party),
ii. FRCP 19 (Compulsory Joinder),
iii. FRCP 20 (Permissive Joinder), → P needs independent jur. for “co-defendants”
iv. FRCP 24 (Intervention) → sup. jur. bars persons seeking to intervene as plaintiffs
1. When exercising Supplemental Jurisdiction over such claims would be inconsistent with Diversity requirements
b. Only 1 P needs to meet the amount in controversy (75k) against each D
i. A single P can add his claims, even if unrelated, to a single D to reach 75k
3. Mini-Analysis
a. Does the cause of action arise out of the same facts?
i. If not, analysis done → No Supplemental Jurisdiction
1. The cause of action must independently satisfy Fed Q or Diversity
b. If so, is it based on Diversity?
i. If Fed Q, analysis done → Supplemental Jurisdiction applies
c. If so, is it by a P against a person made a party under FRCP 13(g), 14, 19, 20, or 24?
d. If so, then the Diversity Requirements are necessary (Diversity + 75k) for Independent Jur
4. § 1367(c) – Courts may decline Supplemental Jurisdiction if:
a. The claim is a novel/complex issue of State law,
b. The State claim predominates over the Federal claim,
c. If the FQ is dismissed early in the proceedings
h. Removal § 1441 – D can remove a lawsuit filed in a State Court to Federal Court if the case could have originally been brought by the P in Federal Court (must be within 30 days of initial pleadings)
i. Federal Question – Any Fed Q may be removed w/o regard to the residence of the parties
ii. Diversity – If any D resides in the forum State where the action is brought, a D may NOT remove to Federal Court because there would be no diversity
iii. If there are more than 1 D, ALL D’s must remove together
i. Venue –
i. § 1391 – Venue is proper and may be brought:
1. Where any D resides, if all D’s reside in the same State, or
2. In the District Court where substantial events or property is located, or
3. If no other District is available, then wherever any one of the D’s may be found → still needs PJ + SMJ
ii. § 1404 – Change of Venue (Transferror Court has Proper Venue)
1. A case may be transferred to any proper jurisdiction for:
a. Convenience of Parties and Witnesses, or
b. Interests of justice → Undue Hardship/Prejudice on the D
2. If Venue was proper, the Transferee Court must use the law of the Transferror Ct
iii. § 1406 – Waiving Venue (Transferror Court does NOT have Proper Venue)
1. § 1406 – If venue is wrong, the Court may:
a. Transfer the case to the appropriate Court, or
b. Dismiss the case
2. If venue was improper, use the law of the Transferee Court, not the Transferor Ct
iv. Forum Non Conveniens – Common Law Concept: Courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties
1. The Court or the D can raise a motion for Forum Non Conveniens
2. Public vs. Private Factors –
a. Public – What law applies; what community should be burdened with jury service
b. Private – Convenience; where the witnesses and evidence are located
3. Dismissing for Forum Non Conveniens –
a. Foreign Country – Yes, Dismiss
b. Another Jurisdiction in the U.S. – Transfer, not Dismiss
j. Erie Doctrine
i. Intro – (If Fed Q, apply Fed law)
1. If there is a State Law claim in a Federal Court on Diversity jurisdiction, then the Erie Doctrine comes into play
2. Substantive Law = Law of the State
3. Procedural Law = FRCP (Fed Law)
ii. Analysis
1. State and Federal Law in Conflict
2. Is there any FRCP at issue?
a. If Yes:
i. Is it procedural?
1. (It cannot enlarge, lessen or modify substantive rights)
ii. Is it applicable?
iii. Capable of being classified as Procedural? (SOL is NOT Procedural)
1. If YES to all, apply FRCP (analysis done)
b. If No:
i. Is it Substantive or Procedural?
1. If Substantive → Lean towards State
2. If Procedural → Lean towards Federal
ii. Outcome Determinative – If you apply Fed Law, is it outcome determinative? (Judge v. Jury trial is NOT outcome determinative)
1. If Yes → Lean towards State
2. If No → Lean towards Federal
iii. Twin Aims:
1. Prevent Inequitable Administration of Laws, and
2. Prevent Forum-Shopping
iv. Countervailing Federal Interest – Are there countervailing Federal interests that outweigh State interests?
1. If Yes → Apply Federal Law
2. If No → Apply State law
k. Full Faith and Credit – Courts must recognize the decisions of Courts in other jurisdictions
i. Exception → If there was no proper jurisdiction to begin with (Lack of PJ, SMJ, or Venue)
2.) Pleadings
a. Sufficiency of the Complaint
i. FRCP 7 –
1. 7(a) – Allowable Pleadings:
a. The Complaint
b. The Answer
c. An Answer/Reply to a Counterclaim
d. An Answer to a Cross-claim
e. 3rd Party Complaint
f. 3rd Party Answer
g. Reply to an Answer or 3rd Party Answer
2. 7(b) – Motions and Other Papers
a. Must be made in writing unless made during a hearing or trial
b. State grounds for motions with “particularity”
c. State the relief sought
ii. FRCP 8 – General Rules of Pleading
1. 8(a) – Claims for Relief → Must contain:
a. Short plain statement of jurisdiction
b. Short plain statement showing that the Pleader is entitled to relief
c. Demand for Relief sought
2. 8(b) – Defenses; Form of Denials
a. For responses:
i. The Pleader must state defenses to each claim asserted, &
ii. Admit or Deny the allegations
b. Types of Denials:
i. Specific Denial – applying to only parts of the complaint
ii. General Denial – applying to the entire complaint
c. If party lacks knowledge or information sufficient to form a belief about the truth of an allegation, the party may say “IDK” → Operates as a Denial
d. Effect of Failure to Deny:
i. Any denials omitted are deemed to be admitted
3. 8(c) – Affirmative Defenses
a. In response to a pleading, a party must affirmatively state defense, including:
i. Assumption of risk, contributory negligence, duress, estoppel, fraud, illegality, laches, res judicata, SOF, SOL, waiver
4. 8(d) – Consistency of Pleadings – Concise and Direct
a. A party may plead in the alternative
iii. FRCP 9 – Pleading Special Matters
1. Special matters require more detailed pleadings
a. Special Matters: Civil Rights cases, Fraud, Intent/Malice
2. 2-Step Method (Twombley + Iqbal = “Plausibility Standard”):
a. Twombley: Examine the complaint to identify pure “legal conclusions” resting on other factual allegations → after removing those legal conclusions, the Court should weigh the remaining facts and determine if they are sufficient to render the P’s claim plausible
b. Iqbal: “Legal conclusions” = “formulaic recitations of the elements” → Courts must discard those allegations and determine if P’s claim is still good
i. Moral of the Story → Plead with specificity & don’t give the bare minimum or else your case may lose on a motion issue!
iv. FRCP 11 – Sanctions for Improper Pleadings
1. Intro –
a. P’s attorney has a duty to investigate the legitimacy of a claim before filing/signing a pleading
b. Sanctions are designed to deter future violators rather than compensate a party and may be imposed on an attorney for an error in pre-complaint factual or legal investigations
c. Safe Harbor Rule – A litigant can escape sanctions by withdrawing an offending pleading or representation within 21 days of being served w/ a motion by an opposing party – FRCP 11 (c)(2)
2. 11(a) – Signature
a. The lawyer must sign every pleading; if the signature is missing, the Court may strike the pleadings unless it is signed promptly after such omission is brought to the pleader’s attention
3. 11(b) – Representation to the Court
a. A signature implies that, to the best of the signer’s knowledge, with reasonable inquiry, the pleading is:
i. Made with a proper purpose → not to harass or cause unnecessary cost or delay, and
ii. Warranted by existing law → (not a frivolous argument to change existing law), and
iii. Well-grounded in fact → reasonably supported by facts
iv. Based on evidence → denials of facts are based on evidence or based on reasonable lack of belief/info (good faith required in denials)
4. 11(c) – Sanctions: If FRCP 11(b) is violated, the Court may impose ‘em:
a. In General – If, after notice and reasonable opportunity to respond, FRCP 11(b) has been violated, the Court may impose an appropriate sanction on any attorney, law firm or party that violated the rule or is responsible for the violation → absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by it’s partner, associate, or employee!
b. Motions for Sanctions:
i. Motion for Sanctions must be made separately from other motions
ii. The motion must state violation of FRCP 11(b)
iii. Motion may be filed only if the pleading is not corrected within 21 days of service
iv. The Court may impose sanctions on it’s own accord
v. Law firms will be held jointly responsible
5. 11(d) – Inapplicability to Discovery
a. FRCP 11 does not apply to Discovery
b. Burden of Proof – “He who pleads must prove!”
i. Burden of Pleading → The duty of a party to plead a matter to be heard in a lawsuit → if you plead, you have burden of production and persuasion too
ii. Burden of Production → The responsibility of the party that is presenting an issue or fact to produce evidence sufficient to support a favorable finding on that issue or fact
iii. Burden of Persuasion → The duty upon a party in a legal proceeding to persuade the fact-finder to decide for that party on an assertion of fact
1. 3 Types:
a. Preponderance of the Evidence – Substantially more likely than not that it is in fact true (50% mark atleast)
i. Exception – Fraud (Need clear and convincing evidence)
b. Clear and Convincing Evidence – Higher standard, evidence presented by a party must be substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its mind
c. Beyond a Reasonable Doubt – The highest standard; proof has been met if there is no plausible reason to belief otherwise
iv. Gomez v. Toledo → Qualified Immunity is a defense, so the burden of pleading rests on the D → Only the D knows his subjective intent, so the D has the burden of pleading
c. Ethics
i. If you have a verified complaint, you need a verified answer
ii. A District Court may choose not to impose sanctions – FRCP 11(c)
d. Responses to Complaint and Amended Pleadings
i. FRCP 12 – Motions and Defenses
1. 12(a) – Time Frame for Parties to Respond
a. Answer and Complaint: Unless a Federal Statute supersedes, the Answer must be served:
i. If summons served → the answer must be served within 21 days after service (extended if out of state)
ii. If service waived under FRCP 4(d) → the answer must be served within 60 days after request for waiver is sent (90 days if outside U.S)
b. Answer to a Cross-claim: If the answer is in response to a Cross-claim, P has 21 days from the date the Cross-claim was served
c. Response to a Counterclaim: The P shall reply to a Counterclaim:
i. Within 21 days after service of D’s answer
2. 12(b) – How to Present Defenses
a. Parties may assert the following defenses by motion or pleading
i. Lack of Subject Matter Jurisdiction → Lack of SMJ can be made any time
ii. Lack of Personal Jurisdiction
iii. Improper Venue
iv. Insufficiency of Process
v. Insufficiency of Service of Process
vi. Failure to state a valid claim upon which relief can be granted
vii. Motion for failure to join a party under FRCP 19 (Compulsory Joinder)
b. FRCP 12(b) (2-5) must be made at the beginning or waived!
3. 12(c) – Motion for Judgment on the Pleadings
a. May be made after the pleadings if it does not delay trial
4. 12(d) – Implied Motion for Summary Judgment
a. 12(b)(6) → Motion to Dismiss for Failure to State a Claim
i. Courts must accept all factual allegations in the Complaint as true, if no cause of action is presented from the facts, then Courts dismiss
5. 12(e) – Motion for a More Definite Statement
a. This motion will be made if P’s pleadings are too vague/ambiguous so that D cannot reasonably respond
b. The motion must point out the defects in P’s pleadings
c. If granted, P must re-plead within 14 days of notice of the motion → otherwise, the Court may strike pleadings or make any other order
6. 12(f) – Motion to Strike (from a Pleading)
a. The Court may strike insufficient defenses, redundancies or scandalous matters
b. This may be done by:
i. The Court’s own motion, or
ii. On motion made by a party before responding to the pleading, or if no response allowed, within 21 days after being served with the pleading
c. The Court may order something stricken from the pleadings if it contains:
i. Insufficient defenses
ii. Redundancies
iii. Immaterialities
iv. Scandalous matter
7. 12(g) – Joining Motions (Consolidating Defenses)
a. A party can join motions under this rule with any other motions available to the D
b. If this motion is made, any available FRCP 12(b) defenses that are omitted will be deemed to be waived (unless allowed by FRCP 12(h)(2) or (3))
8. 12(h) – Waiving and Preservation of Defenses
a. Objection to:
i. Lack of Personal Jurisdiction (FRCP 12(b)(2)), or
ii. Improper Venue (FRCP 12(b)(3)), or
iii. Insufficiency of Process (FRCP 12(b)(4)), or
iv. Insufficiency of Service (FRCP 12(b)(5)), or
1. Will be waived if:
a. Omitted from Consolidated Motions (FRCP 12(g)) (i.e., if you make one, you must make them all); or
b. Omitted from:
i. FRCP 12 motion, or
ii. Responsive Pleading, or
iii. FRCP 15(a) amendment
b. When to Raise Others:
i. 12(b)(6) and 12(b)(7), or failure to state a legal defense to a claim, may be raised:
1. In any pleading allowed or ordered under FRCP 7(a)
2. By a motion under FRCP 12(c), or
3. At trial
c. Lack of Subject Matter Jurisdiction – If the Court determines at any time that it lacks SMJ, the Court must dismiss the action
ii. FRCP 15 – Amended and Supplemental Pleadings
1. 15(a) – Amendments
a. Parties have a right to 1 amendment without the Court’s permission within 21 days after serving that pleading
b. Otherwise, the party seeking to amend must receive permission of the Court, or obtain written consent from the adverse party
c. Answering Amended Pleadings → Amended pleadings must be answered within 14 days after service of the amendment, or the time remaining within the original 21 day response period from the initial pleading (whichever is longer)
2. 15(b) – Amendments During or After Trial
a. Objections to issues during trial:
i. If a party objects to new evidence/issues not explicitly included in pleadings, the Court may still grant that evidence if it will promote justice (and the objecting party would not be prejudiced)
b. Issues tried by consent:
i. Issues expressly or impliedly consented to by parties are considered to have been raised in pleadings
ii. Parties may make a Motion to Amend the Pleadings (conform to the evidence) at any time, even after judgment
3. 15(c) – Relation Back of Amendments
a. Amendments will be considered to “relate back” to the date of the original pleading if:
i. Permitted by law providing for the Statute of Limitations in the case, or
ii. They are related to the original claims (arising out of the same conduct/transaction/occurrence), or
iii. There were misidentified parties in the original claim. Such amendments will relate back to date of pleading only upon reasonable notice if:
1. A party has received notice of the action and will not be prejudiced in maintaining a defense on the merits, and
2. The party knew, or should have known, that the action would have been taken against her, but for the fact that there was a mistake as to her actual identity
b. 15(c) – provides that “Relation Back” for Misidentified Parties is permitted if notice is provided to the true defendant, within the period covered by FRCP 4(m) (120 days) for serving the summons and complaint
i. Requirements:
1. Notice must be given to all potential D’s
2. D may not be prejudiced (he should have known about the complaint/problem)
3. The burden rests on the party opposing the “relation back” to show prejudice
ii. Misidentified party can only be based on “Mistake”, not “Ignorance”
1. Ignorance = Fictitiously named defendants (john doe)
4. 15(d) – Supplemental Pleadings
a. Upon motion, pleadings may be amended for events occurring after service of the original pleadings if:
i. Reasonable notice is given, and
ii. The terms are just
b. Supplemental pleadings must set forth the transactions or events that have happened since the date the original pleading was drafted
3.) Joinder & Class Actions
a. Remember → If using rules of Joinder, make sure PJ, SMJ, and Venue are still good!
b. Joinder of Claims
i. FRCP 18 – Joinder of Claims
1. 18(a) – Once a party has made a claim against another party, he may then make any other claim he wishes against that party
ii. FRCP 13 – Counterclaims/Cross-claims
1. 13(a) – Compulsory Counterclaims
a. 2 Elements of a Compulsory Counterclaim:
i. Must be against an opposing party
ii. Must arise from the “same transaction or occurrence”, so the defending party must assert it in the original action (use it or lose it)
b. Automatic Supp. Jur. bc D asserts and it rises out of the “same set of facts”
2. 13(b) – Permissive Counterclaims
a. Permissive Counterclaims do not arise out of the same set of facts
b. No Supplemental Jurisdiction
3. 13(g) – Cross-claims Against Co-Party → Always Permissive (NO use it or lose it)
a. Cross-claims against co-parties must arise from the “same transaction or occurrence” of the original action
i. Co-party may file a cross-claim against another co-party; if she does not, she may still file suit against her later on
ii. Supp. Jur if made by D, but not P, bc it must arise out of same facts
iii. Diversity is not affected by subsequent actions of the case if the original claim was properly there
4. 13(h) – Joining Additional Parties
a. Defendant is authorized to bring in additional parties on a counterclaim, so long as his claims against the added party and the original plaintiff meet the requirements:
i. Same transaction or occurrence, and
ii. Common question of fact or law
b. Ex. M v. R; R counterclaims against M and also brings in C → Authorized by FRCP 19 & 20
iii. FRCP 42 – Consolidation & Severance
1. 42(a) – Consolidation of Cases – If cases involve a common question of fact or law, a Court may:
a. Order a joint hearing or trial of any issue in the action, or
b. Order a complete consolidation of the cases
2. 42(b) – Separate Trials – A Court may split any claims for the following reasons:
a. For convenience, or
b. To avoid prejudice, or
c. To expedite and economize
3. Notes –
a. Consolidation occurs when separate cases involving important issues in common are pending in the same District Court
b. Severance occurs because joinder sometimes results in cases that are too large to handle in a single proceeding
c. Joinder of Parties
i. FRCP 19 – Compulsory Joinder of Parties → Look at 19(a) to determine if the party is indispensable, and then look at 19(b) to determine if the case should be dismissed
1. 19(a) – Necessary and Indispensable Parties:
a. Joined Parties (must be Feasible):
i. Must be subject to PJ
ii. Must not destroy SMJ (Diversity)
iii. Must be proper Venue
b. 3rd Party Must Be Joined if:
i. Without the absentee the Court cannot complete relief, or
ii. Absentee’s interest may be harmed if he is not joined, or
iii. Absentee claims an interest which subjects a party (usually D) to double liability or multiple obligations
2. FRCP 19(b) – When Joinder is Not Feasible
a. The Court may determine that a 3rd Party is needed (“Indispensable Party”) and dismiss the case if he cannot be joined due to lack of PJ, SMJ, or Venue
b. Factors → to determine if 3rd Party is needed:
i. Extent of prejudice that will ensue to the existing parties or absentee if absentee cannot be joined
ii. Whether there will be an adequate judgment without the absentee
iii. Whether P will have an adequate remedy without the absentee
c. Remember: Very few situations call for dismissal of an action under FRCP 19(b), so do not automatically assume that the action will be dismissed in the absence of a 3rd Party
ii. FRCP 20 – Permissive Joinder of Parties
1. FRCP 20(a) – P’s may sue together, and D’s may be sued together, if:
a. The claim arises out of the transaction or occurrence, and
b. Any question of law or fact is common to all co-parties
2. D’s cannot use FRCP 20 to bring in other D’s (FRCP 20 is for P use only)
3. FRCP Does NOT allow unlimited # of joined parties
iii. FRCP 14 – Impleader (3rd Party) → Bringing someone into a suit that is already in progress
1. Impleader – Original D may bring in a person not yet a party to the suit who may be liable to her, the Original D, for all or part of any recovery the P obtains on the main claim
a. The D may implead a 3rd Party only if it arises under the “same transaction or occurrence” → D becomes 3rd Party P
i. Once you implead a party into the suit, you can use FRCP 18 to assert whatever claims you have against him
ii. The D cannot contend another person is liable directly to the P, but not to her (the D)! → P is master of the Complaint!
iii. D is not forced to implead a 3rd Party (NO use it or lose it)
b. Original D and 3rd Party can be citizens of the same State without destroying SMJ
i. D does not destroy Diversity Jx by impleading a 3rd party of the same State as D
c. P can assert a claim against the 3rd Party D if:
i. The claim arises out of the same transaction or occurrence as the underlying case, &
ii. There is PJ and SMJ (Fed Q, or Diversity + 75k)
1. NO Supplemental Jurisdiction
d. 3rd Party D may assert a claim against the P if:
i. Same transaction or occurrence
ii. 3rd Party D gets Supp. Jur
e. 3rd Party D may bring in a 4th Party D who may also be liable to the Original D or 3rd Party D
i. Same transaction or occurrence, and
ii. There is PJ and SMJ → 3rd Party D gets Supp. Jur.
f. P may bring a 3rd Party when a counter-claim is made against the P
i. Same transaction or occurrence, and
ii. There is PJ and SMJ
iii. No Supp. Jur
g. Original D must serve the 3rd Party D within 14 days after serving it’s original answer w/o needing permission from the Court
i. After those 14 days, Original D needs permission from the Court
h. The 3rd Party D must:
i. Assert all defenses and Compulsory Counterclaims
i. The 3rd Party D may:
i. Assert all defenses against the P, Permissive Counterclaims against D
iv. FRCP 24 – Intervention → Outsider wants to join the lawsuit
1. FRCP 24(a) – Intervention of Right:
a. The Court must permit anyone to convene (upon timely motion) if:
i. A Federal Statute (unconditionally) allows it, or
ii. 3 Requirements:
1. You claim an interest in the property that is the subject of the same transaction or occurrence as the original claim, and
2. The pending action must harm your ability to protect that interest, and
3. “No friend” in the suit to protect your interest
b. Note – A Party may NOT intervene if Complete Diversity will be lost
c. 24(a) is immediately appealable, even before the suit is completed
2. FRCP 24(b) – Permissive Intervention:
a. The Court may permit anyone to convene (upon timely motion) if:
i. A Federal Statute (unconditionally) allows, or
ii. The wanna-be intervener’s claim is related to the main action by question of fact or law
b. Note – A Party may NOT intervene if Complete Diversity will be lost
c. 24(b) is not appealable until there is a final judgment
v. Interpleader (Stakeholders and Claimants)
1. Intro – (Common in Insurance Company issues)
a. An interpleader action originates when the P holds property on behalf of another, but does not know to whom the property should be transferred
2. FRCP 22 – Interpleader → Requires Complete Diversity
a. Grounds:
i. Plaintiff – Interpleader is appropriate if a P might be exposed to double liability
ii. Defendant – D may interplead (by Cross-claim or Counterclaim) if he might be exposed to double liability
3. § 1335 – Interpleader → Requires Minimal Diversity
a. The Court has original jurisdiction over a civil action of interpleader if:
i. Subject Matter Jurisdiction exists:
1. The controversy is at least $500
2. Minimal Diversity: at least 2 parties need Diversity of citizenship → (e.g., 2 P’s & 1 D; 1 P from FL, 1 P from GA & 1 D from FL = Min. diversity)
ii. And, Stakeholder deposits the bond ($500+) with the Court
4. FRCP 22 vs. § 1335 Interpleader –
a. FRCP 22 → State Long Arm Statute (FRCP 4) + $75k + Complete Diversity between all claimants and stakeholder + No bond required
i. Advantage: No Bond required, so Stakeholder need not deposit $ w/ Court at the outset of the proceeding
b. § 1335 → $500 in controversy + bond required + venue where any claimant lives + Minimal Diversity
d. Class Actions
i. FRCP 23 – Class Actions
1. 2-Step Analysis → Step 1: Satisfy all 4 requirements of 23(a), then satisfy one of the conditions of 23(b)
a. 23(a) – Prerequisites to a Class Action (Must have all 4):
i. Numerosity – the class is so large that the joinder of all members is impracticable, and
ii. Commonality – common question of fact or law involved, and
iii. Typicality – claims or defenses of the representative parties are typical of the rest of the class, and
iv. Adequacy – the representative parties will adequately and fairly protect the class’ interests
b. 23(b) – Types of Class Actions (Need only 1):
i. Separate actions by individual members would create a risk of:
1. Inconsistent adjudications of class members, or
2. Other class members would be impaired from filing suit
ii. The opposing party has acted similarly adverse to the entire class, or
iii. Predominate and Superiority
1. Predominate – Common Question of Fact or Law predominates over the class members, and
a. Mass Toxic (asbestos) exposure does not meet the “predominate” requirement
2. Superiority – the Class Action is superior to other available methods for fair and efficient adjudication of the controversy
a. Factors of Predominate & Superiority:
i. Interest of Members to individually control their own cases
ii. Extent and Nature of Litigation involved
iii. Desirability of Concentrating the Litigation in a particular forum
iv. Difficulties Likely to Be Encountered in Managing the Class Action (e.g., expenses)
2. FRCP 23(c) – Order Determining Whether Class Action Should Be Certified
3. FRCP 23(c)(2) → Notice
a. The P must give individual notice to all identified and easily ascertainable class members and must bear the cost of such notice for a 23(b)(3) “Predominate & Superiority” type of class action
i. Notice cannot be waived; if they are identifiable, they need notice
b. For 23(b)(1) or (2) classes → The Court may direct appropriate notice to the class
c. For 23(b)(3) classes → The Court must direct the best notice under the circumstances, including individual notice to all members who can be identified through reasonable effort → P must notify + pay for notice
i. Notice Must Advise Each Member:
1. The nature of the case
2. The class definition
3. The class claims, issues, or defenses
4. That a member may appear through a lawyer
5. The Court will exclude members from the class upon request (before the specified date)
6. How to request exclusion
7. The binding effect of a judgment on the class
4. FRCP 23(c)(3) → Judgment
a. Judgment in Class Actions under (b)(1) and (b)(2) – Apply to all people whom the Court finds to be members of the class
b. Judgment in Class Actions under (b)(3) – Apply to all people whom the Court finds to be members of the class if:
i. The members received appropriate notice of the action, &
ii. The members did not request exclusion from the class
c. Think → Which parties incur a “res judicata” effect?
5. FRCP 23(c)(5) → Subclasses
a. A class may be subdivided into subclasses → lowers the cost for the P to provide notice
6. “Settlement” Classes
a. Settlement class is judicially crafted, so it’s not in FRCP 23
b. Notice must be given to Settlement Classes
c. Settlement Classes must be approved by the Court
7. Jurisdiction for Class Actions –
a. PJ – No need for minimum contacts as long as there is adequate representation, notice, and an opportunity to opt out
b. SMJ (Diversity) – Class Reps: Must have diversity + 75k, not the class members
4.) Discovery
a. The Scope and Mechanics of Discovery
i. FRCP 26(a) – Initial Disclosure
1. Parties are required to make initial disclosures without formal request:
a. Names, addresses, telephone numbers likely to have discoverable info (witnesses)
b. A copy or description of documents that the disclosing party may use to support its claims or defenses
c. Experts that will present evidence at trial
d. Computation of damages
e. Any insurance information that may be relevant to the suit
ii. FRCP 26(f) – Time for Initial Disclosures
1. The parties must submit a written report outlining the discovery plan to the Court within 14 days of the meeting of the parties
iii. FRCP 30 – Depositions (Formal Questioning Under Oath)
1. Anyone may be deposed who possesses relevant information
2. A party may depose expert witnesses that will present evidence at trial
a. However, a party may not depose an expert not expected to present evidence at trial, absent exceptional circumstances
3. Depositions can only last up to 7 hours and each side gets 10 depositions each (these can be increased by agreement or Court order)
iv. FRCP 33 – Interrogatories (written questions that must be answered under oath)
1. Interrogatories can only be sent to the parties (25 interrogatories max)
2. If you read an interrogatory and you don’t want to answer it, you must object with specificity (say why you have an issue with it) because if you do not answer at all, then you waive it
3. Interrogatories are always admissible at trial against the party who made it
v. FRCP 34 – Document Requests
1. A party may request another party to produce documents or other tangible things for inspection, copying or testing; or to permit entry onto land or other physical property for inspection
a. Permission from the Court is not required and there is no presumptive upper limit on the number of documents or physical things that may be requested
2. A non-party may be compelled by subpoena to produce documents and things, or to permit entry
3. If a P requests a D turn over millions of documents and the cost is high, the cost could be shifted to the P
vi. FRCP 35 – Physical and Mental Examinations → (Independent Medical Examination)
1. Compulsory physical examinations are only available against parties and only when the physical or mental state of a party is at issue → (e.g., I.I.E.D)
2. Court order based on good cause + Court approval is required!
3. The party seeking discovery chooses the examiner (the other party)
vii. FRCP 36 – Requests for Admission
1. A party may request that an opponent admit, for purposes of this case alone, that certain facts are true or that certain documents are genuine
2. If a party does not answer or object to a request for admission within 30 days, the matter is deemed as admitted
3. If the requested party objects or declines to admit, that party must state reasons for objecting or declining
b. Privileges and Trial Preparation Immunities
i. FRCP 26(b)(5) – Attorney-Client Privilege
1. Attorney-Client privilege protects communications made in connection with legal advice of any kind, whether or not related to litigation
2. The Attorney-Client Privilege is available to an individual, an organization, corporation, partnership, or a governmental organization
3. The privilege can be waived by the client, either by voluntarily disclosing the communication or by failing to claim the privilege expressly
4. Helpful Tips:
a. When you die, the privilege does not die with you (your lawyer can’t talk after you die)
b. If you consult with 5 lawyers, all 5 lawyers are bound by the privilege
c. You do not have to pay someone to obtain them as an attorney
ii. FRCP 26(b)(3) – Work Product Immunity
1. Work Product Immunity only protects materials prepared in anticipation of litigation
a. Attorney’s “thought processes” (e.g., notes) in anticipation of litigation
2. A party may obtain the work product of an adversary only if he can prove (w/ facts):
a. That such information is:
i. No longer available, or
ii. Unduly burdensome, AND
iii. There is a “Substantial Need” for the information
3. Rule – Material obtained by counsel in preparation of litigation is the work product of the lawyer, and while such material is not protected by the Attorney-Client Privilege, it is not discoverable on mere demand without a showing of necessity or justification
a. How to Overcome the Presumption of Necessity → Only 1 person knows the facts and then that person dies, and only the lawyer now has the facts
4. Remember: As an attorney, if you can’t claim Attorney-Client Privilege, then claim Work Product Immunity → You do not want to share w/ the world
c. Confidentiality, Privacy, and Prevention of Harassment
i. FRCP 26(c) – Protective Order
1. Protective Orders – Where a party believes that proposed discovery extends too broadly, threatens info that is exempt from discovery or is confidential, or is too expensive or harassing, the abused party may obtain a protective order
a. Protective Order may bar the discovery, limit it, specify conditions to protect against improper circulation or disclosure of confidential information or undue expense, or allocate costs as between the parties
i. Protective orders are granted to protect trade secrets, or confidential research, or commercial development info
ii. FRCP 37 – Compel Compliance – Alternatively, when a party makes an objection to requested discovery, the party seeking discovery may make a motion to compel compliance
1. The Court must award reasonable expenses incurred, including attorney’s fees, against the party who loses the motion for a protective order, or a motion to compel, unless the Court finds that the losing party’s position was ‘substantially justified’
iii. FRCP 26(g) – Sanctions for Discovery Abuse
1. Lawyers who have been asked for information within the scope of discovery may not withhold information → attorney’s may not disobey a Court’s order or abuse discovery process
a. If you find a very important (and damaging) piece of information during discovery, try to claim it as Work Product or Attorney-Client Privilege → Do not try to hide it!! You’ll be sanctioned
2. Lawyers signing a discovery response must certify that the disclosure is complete and correct, and is consistent with good faith and existing law
a. If an attorney violates the certification requirement, he will be sanctioned
i. The Court may impose sanctions on its own, or
ii. Motion by the Opposing Party
3. Sanctions purpose is to deter people from discovery abuse
5.) Disposition Without Trial
a. FRCP 12(b)(6) – Motion to Dismiss for Failure to state a claim (Only D can make this)
i. All P’s allegations are assumed as true and tests whether the facts alleged state a claim
ii. Does not consider evidence, looks only to the face of the complaint
b. FRCP 12(c) – Judgment on the Pleadings (Both P and D can make this)
i. Same Standard as 12(b)(6) → Occurs after Pleading, but before Discovery
c. FRCP 41 – Dismissal → (Could have a res judicata effect!)
i. 41(a) – Voluntary Dismissal → A P may voluntarily dismiss her suit as of right simply by filing a notice of dismissal, so long as she does so before D has answered or moved for summary judgment → First time = w/o prejudice; Second time = w/ prejudice
ii. 41(b) – Involuntary Dismissal → If P fails to prosecute, or comply with FRCP or Court order, then a Court may dismiss a complaint with prejudice (on the merits)
d. FRCP 55 – Default and Default Judgment
i. FRCP 55(a) → Default = Entry of Default against a D is a simple entry indicating that a D has failed to plead or otherwise defend (e.g., D fails to answer, or fails to respond to a motion for summary judgment) → No res judicata/collateral estoppel consequences
1. “Default” does not terminate the case
ii. FRCP 55(b) → Default Judgment = If the D fails to acknowledge the notice, fails to appear, or fails to defend. Actual entry of a judgment granting relief against a D. Such a judgment is on the merits and has res judicata consequences
e. FRCP 56(c) – Summary Judgment – There is no genuine issue as to any material fact and the movant party is entitled to judgment as a matter of law → Occurs after Discovery, but before Trial
i. Summary judgment should be granted only if there is no question of fact to be determined, and only a question of law remains to be decided
1. Look at dispute → Is it just opinion, or a factually supported dispute?
ii. Either party may request Summary Judgment to prevent a case from going to trial
iii. The Court looks at the facts in the light most favorable to the non-moving party → Could a jury reasonably find in favor of the non-movant
iv. The party moving for Summary Judgment bears the burden of proof that there are no facts, and only law, to be decided
v. The non-moving party has the burden of showing there remains a genuine issue of material fact that would have to be decided by a fact finder at trial
vi. If opposing parties tell different stories, one which is blatantly contradicted by the record so that no reasonable jury could believe it, the Court should not adopt that version of the facts for purposes of ruling on a Motion for Summary Judgment
vii. A party may file a Motion for Summary Judgment at any time until 30 days after the close of all discovery
f. Settlement & Pre-Trial Conference
i. Settlement –
1. Settlement Decision-Making has 2 elements:
a. Evaluating (look at law, figure out facts, determine usual $ awarded),
b. Bargaining (give a little, take a little)
2. Judges may encourage settlement, but may not coerce or force a party to settle
a. A Court may not sanction a party for refusing to settle
ii. FRCP 16 – Pre-Trial Conference
1. “If appropriate, the Court may require that a party or its representative be present or reasonably available by other means to consider possible settlement” – 16(c)(1)
a. Courts have the power to force the parties to go to a settlement conference, but still cannot force them to actually settle
6.) Trial
a. Right to Jury Trial
i. FRCP 38 – Right to a Jury Trial
1. Party may request a jury trial by filing it in a written demand to the Court no later than 14 days after the last pleading directed to the issue
2. 7th Amendment of the U.S. Constitution → Right to a Jury Trial only applies to lawsuits brought in Federal Court
3. Legal or Equitable?
a. A party has a right to a jury trial in cases in Law that is protected by the 7th Amendment of the U.S. Constitution
b. A party does not have a right to a jury trial in cases in Equity
c. When Law and Equity combine in one action, the Court must decide whether or not each issue should go to a jury
i. Any issue that is “Legal” goes to the jury
ii. Any issue that is “Equitable” goes to the judge
d. Legal Claims – (Jury Trial) → (1) Breach of K; (2) Money Damages, (3) Violation of a Statute; (4) Fraud* (both Legal and Equitable)
e. Equitable Claims – (No Jury Trial) → (1) Fiduciary Duty; (2) Estoppel; (3) Specific Performance; (4) Injunction; (5) Restitution; (6) Quiet Title; (7) Rescission; (8) Fraud*
f. If a P files a claim in law, and as a defense or counterclaim the D raises an equitable claim, the legal claim must be tried first so as to preserve the right to a jury trial
g. If P files claim in equity, and D counterclaims in law, D may request a jury trial
ii. FRCP 48 – Number of Jurors
1. A jury shall be no fewer than 6, and no more than 12
2. *FRCP 48 requires unanimous verdicts in civil cases, unless the parties stipulate otherwise
iii. Notes –
1. Administrative Courts (Social Security Administration) → No Right to Jury Trial
2. Suits against the Federal Government → No Right to Jury Trial
b. Selection of Trier of Fact
i. FRCP 47 – Selection of Jurors
1. Each party is allowed 3 peremptory challenges to excuse a juror (cannot be racist)
2. Can dismiss a juror for good cause (unlimited) (e.g., juror doesn’t speak English)
ii. Judge → Must be Neutral and Impartial
1. If a judge has a stake in the outcome of the case he is presiding over, then the judge should disqualify himself → if he fails to do so, the judgment should be vacated
2. Judges should not even have the appearance of impropriety
c. The Province of the Jury
i. FRCP 50 – Judgment as a Matter of Law / Renewing the Motion → Judge takes case away from Jury and decides on his own → Judge cannot consider the credibility of the witnesses
1. 50(a) – Judgment as a Matter of Law
a. The party has been fully heard on an issue during a jury trial, but yet “there is no legally sufficient evidentiary basis for a reasonable jury to find for that party with respect to that issue”, so the Court may enter Judgment as a Matter of Law against that Party
b. Motion for Judgment as a Matter of Law must be made before the case is submitted to the jury!
c. Remember →
i. Judgment as a Matter of Law occurs during trial;
ii. Summary Judgment occurs after discovery and before trial;
iii. Judgment on the Pleadings occurs after pleading and before discovery
2. 50(b) – Renewing the Motion After Trial
a. The party must have made a Motion for Judgment as a Matter of Law 50(a) before the case was submitted to the jury in order to invoke 50(b) Renewing the Motion After Trial
b. Court considers evidence in the light most favorable to the movant party
c. The Motion may be “renewed” after the verdict by filing and serving a Motion within 28 days after judgment is entered → The Court may either:
i. Reverse the judgment, or
ii. Order a new trial
ii. FRCP 51 – Jury Instructions
1. Jury Instructions – Instructions to the jury state the rules of substantive law that the jury must apply
2. Even if the parties request no instructions, the judge has an obligation to instruct with respect to the basic rules of substantive law as applied to the case
a. The judge has a duty to ensure that the jury understands the law
3. “A party who objects to an instruction or the failure to give an instruction must do so in the record, stating distinctly the matter objected to and the grounds for objection”
d. Motions After Trial
i. FRCP 58 – Entry of Judgment
1. After the verdict in a case tried by a jury, or after the decision by the judge in a non-jury case, judgment should be entered immediately
ii. FRCP 59 – Motion for a New Trial → Judge can consider the credibility of the witnesses
1. D’s Post-Trial Motion → D usually brings a FRCP 50(b) + 59 Motion
a. When a P is entitled to a new trial, he has the option of accepting a “remittitur” (a reduction in $) instead → “we gn remand ur case or u can accept this reduction in $”
2. Court considers the evidence in the light most favorable to the movant party
3. FRCP 59 – Party must file a Motion for New Trial within 21 days of Entry of Judgment
a. Errors in Trial Processes –
i. A New Trial can be appropriate because the evidence is weak or because procedural errors contaminated the proceeding (e.g., improperly admitted evidence, improper conduct during trial, or error in instructions)
b. A New Trial may be awarded “for ANY reason for which a new trial has been granted before in an action at law in Fed Court”
c. Wrong Result –
i. New Trial = if a verdict goes against “the great weight of the evidence” → If based on the evidence a reasonable jury can only come to 1 conclusion, but the jury comes to the opposite conclusion, then a judge will set aside the verdict
1. Uncommon → If clear cut, parties usually settle
d. A New Trial may be granted on the ground of “newly discovered” evidence, so long as the party used due diligence before and during trial to discover this evidence but was unable
e. Think → If you do things you weren’t supposed to, then grounds for new trial
iii. FRCP 60 – Relief from a Judgment or Order
1. The Court may relieve a party or its attorney from a final judgment, order or proceeding if:
a. There was a mistake, inadvertence, surprise, or excusable neglect
b. Newly discovered evidence was found, which by due diligence could not have been discovered in time to move for a new trial
c. There was fraud, misrepresentation, or misconduct of an adverse party
d. The judgment is void (inappropriate jurisdiction)
e. Judge-Tried Cases
i. FRCP 52 – Findings and Conclusions by a Judge
1. FRCP 52 applies to judgments in favor of either P’s or D’s
2. An Appellate Court must defer to a Trial Judge’s factual determinations when they are not clearly erroneous
a. “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing Court must give due regard”
3. How to decide if the Court made factual findings that are clearly erroneous?
a. If there are 2 permissible views of evidence, and the fact-finder’s choice is 1 of those 2 permissible views, then it is NOT clearly erroneous
b. If a reviewing court is left with a “definite and firm conviction that a mistake has been committed by the lower Court”, then it is clearly erroneous
7.) Preclusive Effect of Prior Adjudication
a. Res Judicata and Collateral Estoppel
i. Intro –
1. Res Judicata – Claim Preclusion: refers to the finality attached to a final judgment granting or denying P’s claims
2. Collateral Estoppel – Issue Preclusion: refers to the finality attached to a final decision on an issue of fact or law
ii. Res Judicata – (Claim Preclusion)
1. Defendant, or the Court on it’s own, may bring a motion for res judicata
a. If D brings motion for res judicata, must be made in the initial pleadings; if he does not, the case may go forward
2. Res Judicata Test → If all apply, Res Judicata applies
a. The subsequent claim arises out of the same transaction or occurrence as a prior claim (Use it or Lose it!)
b. The prior claim had a final judgment on the merits
i. Not all judgments are on the merits (e.g., cases dismissed on PJ, SMJ, or Venue grounds)
c. The claims must be the same in both suits
d. Both Parties must be the same in both suits (or have been represented by a party to the prior action, or privity)
e. A Court of competent judgment decided the previous case
3. Claims need not be actually litigated to be barred in a later action; they need only have been available to the P in the 1st suit → If the jurisdiction is competent to hear both State and Federal claims arising out of the same transaction or occurrence, the P must assert them, or lose them later to res judicata
4. Notes –56(c) Summary Judgment + 50 JMOL + 55(b) Default Judgment = Res Judicata Effect
iii. Collateral Estoppel – (Issue Preclusion)
1. Collateral estoppel precludes certain issues (narrower than res judicata)
2. 3 Factors that Must be met in order to preclude an issue under Collateral Estoppel:
a. The issues in the 1st and 2nd cases are the same, and
i. Does NOT have to be the same parties
b. The issue was actually litigated and decided in the 1st case, and
c. The issue in the 1st case was necessary to the Court’s judgment
3. If an issue could have been raised in the 1st case but was not explicitly raised and decided, collateral estoppel will not bar the P from litigating that issue in a subsequent action against the D
4. Example – Bob sues Carl for trespassing. Carl defends on the ground he has an easement to cut timber on Bob’s property. Court concludes Carl’s easement is valid. If Bob later sues Carl for cutting timber on his property, Bob is collaterally estopped
5. May only be asserted against one who was a party to the first case
6. May only be asserted by one who is a party to the first case
7. One is not bound by judgments of a suit if they are not made a party to the suit
a. Categories of Cases in which one need not have been a party to the prior litigation in order to be bound by an adverse ruling or result:
i. Consent → A party may consent to be bound by the result of litigation
ii. Pre-existing formal relationships → (beneficiaries, executor, administrator, guardian)
iii. Control → If a non-party substantially controls the litigation behavior of a party, the non-party may be bound by that litigation
iv. Class Action → Unnamed parties to the class action are bound to the result in a properly certified class action
1. A party that does not participate, but does not opt out, is bound by the judgment, even if that party did not have minimum contacts w/ the State where the class action was pending
8. State Administrative Proceedings, or Non-Judicial Proceedings (arbitration), will have preclusive effect in a later Federal Court suit between the same parties as long as the proceeding has procedural safeguards → e.g., formal testimony, cross-examine witnesses, examine evidence, real judicial review
9. The U.S. and other Gov’t are usually subject to the usual rules of Res Judicata (claim preclusion) and Collateral Estoppel (issue preclusion) → but only where the party seeking to invoke collateral estoppel was a party to the prior litigation
10. If a party had issues of fact adjudicated in an equitable action, it may be collaterally estopped from re-litigating the same issues before a jury in a subsequent legal action
b. Federal – State Recognition of Judgments
i. State Judgments in State Court → A judgment of one State must be recognized by other States under the Full Faith and Credit Clause (of the Constitution)
1. Exception → If judgment was not proper to begin with (Lack of PJ, SMJ, or Venue)
2. Judgments based on procedural faults rather than on substantive law need not be given preclusive effect (e.g., venue, parties, pleading, SOL)
ii. State Judgments in Federal Court → (1st Suit in State Ct, and 2nd in Fed Ct)
1. State-Federal recognition is governed by the Full Faith and Credit Act
a. Exception – Fed Ct. may consider whether State Ct. had PJ or SMJ, even if the jurisdiction issue was not litigated or waived
2. Federal Courts must give State Court’s judgment the same preclusive effect as would be given under the law of the State in which the judgment was rendered
iii. Federal Judgments in State Courts → (1st suit is in Fed Ct, and 2nd in State Ct)
1. State Courts generally accept the rule they must give Full Faith and Credit to the proceedings of Federal Courts
2. Federal Question judgments have effect under res judicata or collateral estoppel
3. Preclusive effect of Federal Diversity judgments must be determined by the preclusion law of the State where the Federal Court rendering the judgment sat
iv. International Recognition – Judgment of Foreign Countries are NOT within the mandates of Full Faith and Credit
8.) Claim Preclusion (Res judicata) – Final judgment forecloses successive litigation on the very same claim, whether or not the re-litigation would raise new issues
a. Same Claim + Same Parties + there was Final Judgment on the Merits
i. Non-Parties cannot be bound by Res judicata
b. Res Judicata – Merger or Bar
9.) Issue Preclusion (Collateral estoppel) – Bars successive litigation of an issue of fact or law actually litigation and finally determined in a valid Ct determination essential to the prior judgment, even if the issue recurs in the context of different claims but where the same parties
a. Same Party + Same Issue + was Actually Litigated and Finally Determined + in a Ct determination essential to the prior judgment (i.e., not dicta)
i. Non-Parties can be bound by Collateral estoppel

[apricot]

I believe specific instances can be introduced in the following cases
- If D raises V's character, prosecution can rebut with specific acts
- If D raises V's character, prosecution can raise same character in D with specific acts

Evidence question 18, set 6

[+] Spoiler

That's a dirty, dirty trick

hey - any insight as to why the answer to question 14 in evidence set 6 is a and not D? The lecture handout on page 10 says victim's bad acts are permitted on cross...

[+] Spoiler

I'm not sure what Page 10 you have, but my Evidence lecture handout at the bottom of Pg 16 on to the top of Pg 17 says "Victim's Character -- Self Defense Case" and says, "the criminal defendant may introduce evidence of victim's (bouncer's) violent character as circumstantial evidence that the victim was first aggressor." Then goes on to say the proper method is character witness testifying to reputation for violence and may give opinion. So, no specific acts.

[generaltoast]

Confused about whether fault is taken into account in deciding alimony. My notes from the lecture say it is, but I just did an essay that says it generally isnt. Anyone know which is correct?

[mvp99]

Confused about whether fault is taken into account in deciding alimony. My notes from the lecture say it is, but I just did an essay that says it generally isnt. Anyone know which is correct?

Some states do some don't

[KRose04]

Confused about whether fault is taken into account in deciding alimony. My notes from the lecture say it is, but I just did an essay that says it generally isnt. Anyone know which is correct?

They used to but it's quickly fading because now states have no fault divorce. I would just say the growing trend is to no longer consider it because of that, or if anything now states just consider it as one of the many factors in determining alimony, rather than THE factor

[KRose04]

Looking at these Civ pro questions and praying it's not one of the MEE topics. BarBri has basically spent 6 question sets, 3 hours of lecture, and no telling how much other Civ pro time emphasizing PJ and SMJ and all of these essay topics are about discovery, interlocutory appeals and joinder.

Thanks, BarBri.

ETA: Forgot the importance they've placed on VENUE

Yes!! So mad about this! I basically stopped reviewing the essays because it was doing more harm than good and it's too late at this point. I honestly think Barbri dropped the ball on the essay portion..I don't feel well prepared at all

Agreed with both of you. I'm more than prepared for the MBE. But for the MEE? *crickets*

[mrscooter1]

I know SMJ is determined at the time of filing, but at when is personal jurisdiction determined? The time of the injury/breach or the time of filing? I thought it was the former but one of the essays suggests otherwise...

[ballouttacontrol]

I know SMJ is determined at the time of filing, but at when is personal jurisdiction determined? The time of the injury/breach or the time of filing? I thought it was the former but one of the essays suggests otherwise...

at filing

[mvp99]

Empire State Plaza Concourse Level, where is it? Where's the entrance?

[yodamiked]

Just landed in Buffalo. This is getting real, real quick.

[NyuIwantu]

Hey, ExamSoft question. Are we suppose to have just the Tuesday AM/PM exams downloaded or also the Wednesday ones?