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JURISDICTION OVER PERSON SPECIFIC: a single act or continuous but limited contacts, can be sued ONLY for a claim

m that arose in the forum Long Arm Statutes: Must look at this first constitutionality First look to see if there is a long arm statute for the state Statute takes jurisdiction over you itself, cant grab more authority however than constitution allows FR 4k1d However in some cases the statute may limit jurisdictional power Argue convenience factors and minimal contacts statute that lists various things that could subject the to jurisdiction GENERAL: has continous and systematic ties with the forum, substantial ties Power is given to courts through article 3 section 2 of the constitution Personal jurisdiction can be achieved in 6 ways: 1. service within the state and fairness 2. appearance in state court FR 12g and h 3. attachment of property with in the state with relevance to litigation 4. resident of state 5. consent 6. minimum contacts: as to not offend notions of fair play and substantial justice 1st look at: personal availment AND forseeability NEXT: fairness factors

Constitutionality: POWER OVER PERSON: (In personam jurisdiction) TRADITIONAL BASES FOR PERSONAL JURISDICITON 1) served with process within state 2) service on s agents/ appearance in state court 3) resident/ domiciled in state 4) consent- implied OR express Pennoyer v Neff: PRESENCE: PJ limited to boundaries of the state, full faith and credit clause of constitution article 4 if valid jurisdiction sister states must enforce judgment of other states International Shoe v. Washington: MINIMUM CONTACTS Courts of a state may exercise personal jurisdiction over a defendant if she has such minimum contacts with the state that it would not offend notions of fair play and substantial justice; minimum contacts jurisdiction is limited to claims arising from the defendant's contacts with the forum state Burger King Corp. v. Rudzewicz: Specific Jurisdiction: SINGLE ACT PERSONAL JURISDICTION A single act because of their "quality and nature" will support "specific in personam jurisdiction" Continuous but limited activity in the forum state, such as an ongoing business relationship, will also support specific jurisdiction

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Due process protects you from a gross forum, but not one that is merely incovenenient. McGee v International Shoe and Hanson v. Denckla: PURPOSEFUL AVAILMENT The defendant must have "purposely avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws." - defendant must have made a deliberate choice to relate to the state in some meaningful way before it can be made to bear the burden of defending there (reaching in) World-Wide Volkswagen v. Woodson: FORSEEABILITY: Defendant must have sought direct benefits activities in the state sufficient to require it to submit to jurisdiction there. (Here no benefits were sought in Oklahoma so there was no personal jurisdiction) you can have all fairness factors, but if you have no personal availment then no jurisdiction Burnham v. Superior Court of California: SERVICE IN STATE (NO LAW B/C SPLIT) TRADTIONAL BASIS ENOUGH SAID 4 Jurisdiction based on in-state service only requires that the defendant be present in the state at the time that the summons and complaint are served upon her. In such cases, the defendant need not have had any contact with the state at the time of the events giving rise to the suit. (Presence is a basis alone minimum contacts not necessary) DISSENT But other justices in dissent wanted fairness also incorporated. It doesnt matter that he was served in forum minimum contacts must still be evaluated Asahi Metal Industry Co. v. Superior Court: STREAM OF COMMERCE (NO LAW B/C SPLIT) When an out-of-state component manufacturer sells manufacturer of a finished product outside of the state That manufacturer then incorporates the component into the finished product distributes the product to the forum state. MINORITY (4) Sending goods into the stream of commerce constitutes "purposeful availment" whether or not the original maker knows that the goods will be sold in a particular state or cultivates customers there. Thus even though you have personal availment if you have no fairness factors no jurisdiction SPLIT (4) Mere awareness that the stream of commerce may sweep goods into the state after they leave the defendant's hands does not suffice to satisfy "purposeful availment" - need clearer evidence that defendant seeks to serve the market in the particular state. Carnival Cruise Lines Inc. v Shute: CONSENT A defendant can consent to jurisdiction by giving express consent - by contract - appointment of agent to accept service of process - implied consent - consent by voluntary appearance - no challenge to personal jurisdiction made Consent by clause: must show two things 1. The forum state chosen is for good reason 2. the ticket contract was obtained with out fraud or over reaching (not unreasonable) CONSTITUTIONAL ANALYSIS: 1. Do any of the TRADITIONAL BASES apply? If no, move on 2. MINIMUM CONTACTS analysis: - Relevant contact with forum purposeful availment AND forseeability that would be sued in the forum state.

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3. If yes look at fairness factors FAIRNESS FACTORS: (these are used to define fair play and substantial justice) 1. Relatedness: does the s claim arise from the s contact with the forum? - no relatedness with general jurisdiction 2. Is it convenient for defendant? (Burger King: tough standard) 3. Does the forum state have an interest? (McGee) 4. Is it convenient to plaintiff? 5. Is there efficiency of litigation? 6. Interstate interest in shared substantive policies? There is a preference to let the ocurt whose law is being applied to hear the case.

POWER OVER PROPERTY: 1) attachment of property within the state In rem- the dispute itself is about who owns the property Quasi in rem- where the lawsuit has NOTHING to do with the ownership of the property, it was a suit which would have been in personam if we could have got it. Must be a statute which allows you to do this (attachment statute) would jurisdiction be constitutional Shaffer v Heitner: IN REM JURISDICTION MUST MEET THE MINIMUM CONTACTS TEST - When arguing about the ownership of land the attachment of land might meet the minimum contacts test You can attach property from another state but you must go there with your judgment to have it enforced Today the property you attach within state to get jurisdiction must be related to the case. NOTICE DUE PROCESS Right to bring a claim Amendment V and XIV no person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Due process of law requires notice and prior hearing Exceptions 1. If there is obvious need for prompt action 2. Public safety interest 3. Search warrant SERVICE OF PROCESS The delivery to a party or witness of various court orders required by the relevant rules of law to be served upon him. Basically, service of the initial notice to the of the filings of a lawsuit against him. Summons- notifies the that he has been sued and informs him that the court intends to proceed to adjudicate his rights. - specifically warns the that if he must respond to the s complaint or judgment by default will be entered against him.

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Federal Rule 4: Governs the service of process Summons (must follow service rules exactly to ensure proper service- 12b5 motion) Rule 4c1: Summons + copy of complaint (to defendant) - Form 1: 20 days to respond or default judgment - Signed by clerk and sealed Rule 4c2: personal service may be made by - any person not a party and 18 a. could be a family member of the party b. plaintiff can request officer

WAIVER OF SERVICE - Rule 4d: Waiver of Service: This authorizes the to solicit a waiver of all these technicalities by sending the the complaint, 2 copies of the notice of action and a request that the waive formal service of the summons and the complaint upon him. - defendant must agree by signing (within 30 days) and mailing it back - if defendant agrees, then giving up 12b4 & 12b5 motions to object on - if defendant does not agree or simply does nothing, plaintiff must formally serve but defendant must pay the costs of service Reward to if service is waived: the now has 60 days, not 20 days, to answer the complaint. - Plaintiff CANNOT use waiver of service when serving a US agent or infant/ incompetent person- Rule 4i - Is this rule reasonable? yes b/c if the mail fails, the defendant will never sign the agreement and then the plaintiff has to do more formal service

FR 4 e-j: Permissible methods of serving process on the : PROCESS ON THE INDIVIDUAL - Rule 4e: governs service of process on an individual , no matter where the is being served. 4(e) (1): used to serve process on s outside of the state where the action is pending. 1. You can serve individual s under the provisions governing service on individuals in the courts of the state where the federal court sits. 4 (e)(2): Has to be handed to himself leave at the s house with someone who lives there of suitable age and discretion an authorized agent who was chosen by the to accept on s behalf HOW TO SERVE IN FOREIGN COUNTRY - Rule 4f: how to serve in a Foreign Country HOW TO SERVE CORPORATIONS - Rule 4 h: how to serve corporations o 4(h) (1): If the is served anywhere in the U.S. Service may be made by delivery of a copy of the summons and complaint to an: officer, OR managing or general agent of the , OR an agent authorized to receive service of process OR by methods indicated by the law of the state for service on a corporation. o 4(h) (2): If the is served outside of the U.S.

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WHERE CAN PROCESS BE SERVED? - Rule 4 k (1) (a): o Specifies when a federal court may assert personal jurisdiction over a o Compared to a long arm statute by which state legislatures specifies the circumstances in which personal jurisdiction mat be exercised by its courts. o EXCEPTIONS FR 4K (1)(B) (6): Bulge rule: you can serve outside of the forum state, even w/o a long arm statute that applies, 100 miles from the federal court house. This does not apply to original s, ONLY TO JOINED PARTIES CONSTITUTIONAL STANDARD Mulland v. Central Hanover Bank: - Notice must be reasonably calculated under all of the circumstance to apprise the of the suit Notice by publication is okay when: o The identity and wherabouts of the s cannot be ascertained Service of process is effective to establish jurisdiction over the in four circumstances: 1. the fed. court is authorized to assert jurisdiction if the courts of the state in which the fed. court sits could assert jurisdiction over the . 2. impleaded parties served within 100 miles of the courthouse 3. parties subject to interpleader jurisdiction 4. in federal question cases, over parties who have sufficient contacts with the US as a whole to constitutionally support jurisdiction, but whose contacts would not suffice to support personal jurisdiction in any state.\ - Now you must determine whether it is constitutional to exercise this jurisdiction.

Rule 4 m: service of the summons and complaint must be made within 120 days of filing the complaint, or the action may be dismissed. o Court may dismiss the action if fails to show good cause for failure to make service w/in the 120 day period.

FR 5: Authorizes service of papers subsequent to the complaint by mailing them to a partys attorney. To raise a defense to notice use 12b4 or b5 OPPURTUNITY FOR TO BE HEARD - Seizing the s property before there is a judgment. - Example: a buyer purchases a product, and is paying for it thru an installment plan. If one of these payments is missed then the seller can seize the property. - Used to be: Seller sheriff seizes the property - The buyer id not have a right to be heard UNTIL NOW: SAFEGUARDS FOR : 1. The gives an affidavit showing SPECIFICALLY why he should be able to repossess. 2. The order of repossession should come from a judge NOT a sheriff 3. can post a bond to cover the s expenses 4. Have a hearing SUBJECT MATTER JURISDICTION WHICH COURT DO YOU WANT TO GO TO? State courts:

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HAVE GENERAL SUBJECT MATTER JURISDICTION: will be able to hear most claims but statutes vary as to which court within the state can hear those claims. 1. All states have a trial court of general subject matter jurisdiction that can hear common types of suits. (Superior Court, Circuit Court, or the District Court) 2. There are also specialized courts which can hear certain types of cases like municipal courts, housing courts, etc. Federal Courts: hear extremely limited cases. The SMJ of fed. Courts is defined in Article III, s. 2 of the Constitution. Federal court are authorized to hear cases: 1. between states 2. between citizens of different states 3. between citizens and aliens 4. cases involving foreign ministers and consuls 5. admiralty and maritime cases 6. FEDERAL QUESTION: cases arising under the federal Constitution and federal law 3. This is an attempt to reduce the risk of prejudice against the outsider.

DIVERISITY JURISDICTION CITIZENS OF DIFFERENT STATES + MORE THAN $75,000 IN CONTROVERSY 1332 - As long as P sues a diverse citizen D and the claim is for more than $75,000 the federal court will have subject matter jurisdiction on the basis of diversity COMPLETE DIVERSITY RULE: 4. All s in a suit MUST BE from a different state than all s at the time suit is brought. 5. Can have parties from the same state as long as they are on the same side. 6. Aliens that reside in a state are NOT citizens of that state. 7. If plaintiff later amends to add additional defendants that are citizens of the same state as a plaintiff, most likely the court refuse to allow the amendment or dismiss the action for lack of diversity jurisdiction. Citizens of different states: equated with the common law concept of domicile. AN AMERICAN CITIZEN IS A CITIZEN OF THE STATE WHERE SHE IS DOMICILED! Test for citizenship: DOMICILE The state in which the person has taken up residence (physical presence) WITH the intent to reside indefinitely. (You can only have 1 domicile at a time) - Major problem here is determining what "intent to stay indefinitely means." - Indefinitely means that a person's presence in a state is open ended. - That is he has no definite intent to leave to make a home elsewhere Citizens of Representative Suits 1332 (c)(2): Decedents, minors, and incompetents: LOOK TO THEIR CITIZENSHIP AND NOT THE REPRESENTATIVE. Citizenship of CORPORATIONS - Are deemed to be citizens of both the state where their principle place of business is located and the state in which they are incorporated in (1332c1). (with claims that involve insurance carriers see c) - Consequently, if an opposing party is a citizen of either of those states, diversity does not exist.

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PRINCIPLE PLACE OF BUSINESS: is defined as "place of operations" or "bulk of corporate activity." In cases in which it is very difficult to determine a home state, courts will look to the "nerve center," the place where activities are coordinated and decisions are made (home office, corporate headquarters) AMOUNT IN CONTROVERSY 1. Must exceed 75,000 not including costs or interest on that claim. 2. The s claim governs unless it is CLEAR TO A LEGAL CERTAINTY THAT SHE CANNOT REVOVER THAT MUCH! 3. The s ultimate recovery is irrelevant to SMJ 4. AGGREGATION: where we must add 2 or more claims together. If one versus one ( can add together all claims towards 1 ) CANNOT AGGREGATE IF: Multiple parties on either side (If has claims against 2 s BUT, with joint claims you go with the total value of the claim. (joint tortfeasers)

FEDERAL QUESTION (do not need citizenship or amount in controversy) Arising under jurisdiction: 1331 - The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. - look only at the s complaint, NOT DEFENSES - The s claim itself that must arise under federal law, we do not look at anything else within the complaint. Federal ingredient approach: one of the parties of the case would have to rely on fed. Law to establish either a claim or a defense in the lawsuit, or at least raise a fed. issue in proving her case. A lawyer seeking to file a lawsuit in federal court must ask 2 questions in determining whether the suit can be filed there: 1. Is this case one which constitutionally may be granted to the federal courts, because the power for them to hear it is granted in Article III, s. 2 of the Constitution? 2. If the case does fall into one of the categories in Article III, s. 2 of the Constitution, has Congress actually conveyed jurisdiction over this type of case in the federal statute? The Mottley Rule Only applies if the s claim requires proof of fed. law. The statute does not confer jurisdiction on the federal district courts over cases that involve federal law unless the federal issue is necessary to the proof of the s claim. In Mottley, the s were given lifetime passes for free travel on the RR, in settlement of an injuries claim. After honoring the passes for 30 years, the RR refused to renew them because Congress had passed a statute barring RRs from giving away free transportation. The s sued to obtain their passes, and the RR defended on the ground that the fed. statute barred renewal. a. For a to sue in federal court under the statutory test for arising under jurisdiction, she must assert a claim that arises under federal law. The Mott - The s case did not b/c they had sued for breach of contract, a state law cause of action that did not require them to prove any proposition of fed. law. - Even the RR had given the fed. statute as its reasoning for failure to renew the passes, and it was clear that they would rely on this statute as a defense, that is all it would be, not a chief element of the s claim. - The fed. statute was clearly an ingredient of the case and only disputed issues were of fed. law, but they didnt have to because they could have stated a perfectly adequate claim for relief alleging only contract, breach, etc.

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Well pleaded complaint rule: Is the enforcing a federal right?? The court must ask whether the would have to raise the fed. issue in a complaint which includes the elements she needs to prove to establish her claim, and only those elements. (This has nothing to do with anticipated defenses that the may assert.) Holmes Test The test for determining whether the well pleaded complaint rule is met: he suggested that a suit arises under the law that created the cause of action. - If the case meets the test then the cause of action arises under federal law. (page 64) SUMMARY 1. Jurisdiction under the arising under statute must be based on the s claim. 2. The case will arise under federal law if it satisfies the Holmes test: that the federal law creates the underlying substantive right seeks to enforce and authorizes the s to go to court for the remedy. 3. Where a fed. statute authorizes suit, but only to enforce a state cause of action, the court may well conclude that arising under jurisdiction does not exist, 4. A state cause of action can suffice, if proof of that cause of action requires proof of a proposition of federal law. (This may be enough for arising under)

WHAT IF THE ADDITIONAL CLAIM DOES NOT MEET DIVERSITY OR FEDERAL QUESTION? SUPPLEMENTAL JURISDICTION SUPPLEMENTAL JURISDICTION 1367 there must be jurisdiction by 1331 or 1332 to have supplemental jurisdiction - this gives federal courts power over state claims that arise from a federal claim as long as they sufficiently relate to a claim that has federal subject matter jurisdiction (discretionary based on subsection c). Example: Gibbs - from TN - also from TN - Both arose from the same labor dispute - 1st claim: federal question - 2nd claim: state law: no diversity and no federal question: this claim would not be able to heard by a federal court by itself! IF THE CLAIMS HAVE A COMMON NUCLEUS OF OPERATIVE FACT CAN BOTH BE TRIED BY A FEDERAL COURT. 2 part test: Does 1367 (a) grant supplemental jurisdiction over this claim yes, if it meets Gibbs Does 1367 (b) (applies only when the case is a diversity case) kill supplemental jurisdiction? - can only kill supplemental jurisdiction over claims by s - only very particular claims (listed in the statute) If the jurisdiction is based solely on 1332, there is no supplemental jurisdiction if plaintiffs claims are against parties under FR 14, 19, 20, or 24 OR plaintiffs joined by rule 19 or seeking to intervene as plaintiffs by FR 24 REMOVAL 1441 right to remove any state action where original jurisdiction arises in district courts.

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1. This is a one way street from state federal 2. You remove ONLY to the federal district embracing the state court which it is filed 3. You may remove only within 30 DAYS of service of the document which makes the case removable. (This will almost always be at the beginning of the case) 4. You can remove ONLY IF THE CASE HAS FEDERAL SUBJECT MATTER JURISDICTION. EXCEPTIONS ONLY IN DIVERSITY CASES (not federal question) 1. There is no removal if any is a citizen of the forum: If the dismisses the claim against the from that state the case just became removable. 2. You cannot remove a diversity case more than 1 year after it was filed in state court only in cases where the case becomes removable after the fact otherwise within 30 days of service. HOW TO REMOVE 1446 Tells you how to remove 1447-1448 Tell you what happens after removal Removal should be available in cases only in which the could have originally commenced in federal court - 1441 only authorizes removal of state court actions "of which the district courts of the USA have original jurisdiction" - if could have not have chosen to bring the action in federal court originally, then cannot remove it TWO WAYS to remove: DIVERSITY (1441) or FEDERAL QUESTION (1331) 1441(e) changed this: traditionally state court must have had jurisdiction to start with example: if federal court had exclusive jurisdiction over the subject matter such as over a patent case (1338a) the state court had no right to hear the case in the first place. The case would have to be dismissed and then an original action brought in federal court. - Cannot remove to another state court - Cannot remove to a state court in a different state - Cannot remove to a federal court in another state - Cannot remove to a federal court in a different district within the same state The federal district court "for the district and division embracing the place where such action is pending [in state court]" is the ONLY proper court to be removed to (1441a) Courts require that only defendants actually served join in the removal (1441a&b) future defendants that have not been served at time of notice have recourse by moving to remand on the ground that he does not consent to approval. If last defendant is served more than 30 days after the first defendant, and wants to remove where the others have not, he is probably out of luck DIVERSITY 1441(b) - "none of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought" - if a D is sued in his home state he may not remove on basis of diversity (no need to be protected from local prejudice)

VENUE WHICH COURT ARE YOU GOING TO? BASIC PROVISIONS FOR VENUE 1391: The federal venue statute - Sections (a) and (b) provide the basic options for venue in fed. cases - Section (c) defines the residence of corporate s for the purposes of applying (a) and (b) to cases involving corporations. DIVERSITY Section (a): authorizes venue in a judicial district 1. where any resides, if all of the s live in the same state, 2. a J.D. in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, OR

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3. a J.D. in which any is subject to personal jurisdiction at the time the action is commenced, if there is not district in which the action may otherwise be brought. FEDERAL QUESTION Section (b): governs all other cases, a civil action wherein jurisdiction is not founded solely on diversity of citizenship: These cases must be brought in 1. a J.D. where any resides, if they reside in the same state, 2. a J.D. in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, OR 3. a J.D. where any may be found, of there is no district in which the action could otherwise be brought. (a)(1) and (b)(1) authorize venue in a judicial district where any of the s resides, if they all reside in one state. (residence in most states is equivalent to domicile) (a)(2) and (b)(2) say that venue is appropriate where significant events involved in the case took place. Fallback provisions: only apply if there is not district in the US which would be proper under the first 2 subsections. - (a)(3) allows venue in a district where any is subject to personal jurisdiction, while (b)(3) allows venue in a district where any may be found. - found: if a is served with process is there 3 other points: 1. venue, like personal jurisdiction, may be waived by the 2. special venue provisions govern many claims that appear to be covered by (a) and (b) so you must search statutes prior to filing the suit. 3. local action rule: local actions must be prosecuted in the district where the land is located. CORPORATE s 1391 (c): - defines corporate residence as any district in which the corporation is subject to personal jurisdiction. - Corporations are subject to personal jurisdiction in the state where they are incorporated. TRANSFER: must be within the same judicial system - Different from removal because it is in the same system - Going from fed. district court in VA to federal district court in PA STATUTES FOR TRANSFER 1404 (a) When the transferor court is a proper venue: power of court to change venue and the district courts do have the power to cross state lines if it could have been a chosen jurisdiction in the first place at their discretion. Must be based on convenience and proper venue. 1406 (a) When the transferor court is an improper venue: If you file where there is no personal jurisdiction, then the court may change venue, if statute of limitations runs out you may still bring the suit. (date of actual action filed is kept) OR you can DIMISS. FORUM NON-CONVENIENCE - Where the court dismisses the case when there is a far more appropriate court somewhere else - Transfer to another venue may occur in cases that are non convenience: when an alternative forum has jurisdiction to hear the case and when trial in the chosen forum would establish oppressiveness and vexation to defendant or chosen forum is inappropriate because considerations affecting the courts own administrative and legal problems. - Court will usually impose conditions on the : such as a waiver of statute of limitations, submit to American style discovery. 1407 a multi-district jurisdictional law suit can be brought by a panel into one jurisdiction for purposes of pretrial convenience

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CHALLENGES TO PERSONAL JURISDICITON (OPTIONS AVAILABLE FOR THE ) Rendering state: the state in which the action is brought Enforcing state: another state where the judgment is wanted Option #1: Direct Attack - Challenging jurisdiction in the rendering state must be raised immediately or it will be lost. - The s 1st option is to appear in the original court at the beginning of the suit and object to the courts exercise of jurisdiction over her. - To do this the must file a special appearance, where the will be allowed to appear before the court at the beginning of the action for the sole purpose of challenging its power to exercise PJ over her. o By doing this she will not subject herself to jurisdiction by the very act of appearing before the court. - When filing a special appearance the MUST NOT RAISE ANY OTHER ISSUE o If the raises an objection or argument that the court could construe as a defense on the merits of the case, the court may conclude that the has waived her jurisdictional objection. Under the Federal Rules approach, may appear before answering to the merits of the complaint & object to PJ. FR 12 (b) (2). - However, the may also raise other objections at the same time, w/o waiving the objection to PJ. - Ex: Under FR 12 (b)(6) a may move to dismiss for lack of PJ and at the same time for failure to state a claim upon which relief can be granted. FR 12(B) DEFENSES (can be raised by motion or answer) 1. Subject matter jurisdiction 2. Personal jurisdiction 3. Venue 4. Insufficient process 5. Insufficient service of process 6. Failure to state a claim upon which relief can be granted 7. Indispensible parties FR 12 g and h o 12 b 2,3,4, and 5 : must be put in the 1st 12 rule response or they will be waived o 12 b 6 and 7 can be raised any time thru trial o 12 b 1 can be raised ANY TIME- never waives

If a challenges PJ at the beginning of a suit and loses then she may proceed to defend the merits of the suit w/o waiving the objection to PJ. If she loses the suit on the merits, she may appeal to an appellate court in the rendering state, claiming that the trial courts conclusion on PJ was wrong. Option #2: Collateral Attack - A second option for the who objects to PJ is to ignore the suit entirely. - If the rendering state really does lack PJ then the judgment entered will be unenforceable. - RISK: If the fails to appear in the rendering states court, either to object to PJ or to defend on the merits, the court will enter a default judgment, of that judgment is enforceable the will have lost his suit w/o ever having a chance to defend it. Method of enforcement

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against out of state s is for the to take the judgment against the to a state where the lives or has property and seek a court order from the courts of that state authorizing the sheriff to sell the s assets to satisfy the judgment. The courts of the new state will not automatically enforce the other states judgment: 2. The must obtain recognition of the rendering states judgment by a. Filing a new action on the judgment in the enforcing state, basically seeking a judgment on a judgment. b. Or, under the registration statute the could register a certified copy of the judgment made in the first court eliminating the need to file the case again. Full Faith and Credit Clause: 1. Requires the courts of each state to honor the judgments of other states by entering judgments upon them and allowing out-of-state creditors to use the court process to collect them. - EXCEPTION: The enforcing court may always inquire as to whether the rendering state had jurisdiction in the original action and refuse enforcement if it did not. - Collateral Attack: the challenges the original courts jurisdiction in the enforcement action rather than directly on the original suit. 2. RISK: The Full Faith and Credit Clause allows Wolfe to question the rendering courts jurisdiction but not to reopen the merits of the underlying libel action. 3. If court 2 concludes that court 1 had jurisdiction over the , it will automatically enforce the default judgment. 4. Basically, if the is wrong in believing that there was no PJ when there was, the default judgment will be valid, and this is a high price to pay for avoiding the s chosen forum. 5. The Full Faith and Credit Clause allows s to resist enforcement of another states judgment on the ground that the rendering state never obtained PJ 6. BUT THERE IS AN EXCEPTION TO THIS AS WELL: The may not challenge PJ in the enforcement action if she has already done so in the original action. Ex: appeared in court 1 and moved to dismiss for lack of PJ. The motion was denied and he defaulted on the merits he could NOT challenge jurisdiction in court 2 because he had already litigated and lost on that issue. If s motion was denied in court 1 and he loses on the merits then he can still appeal the trial courts decision that he was subject to PJ in court 1. o If he wins for lack of PJ then the case will be dismissed even though there had already been a full trial on the merits. o A few states still follow the older rule that waives the jurisdictional objection by defending the case on the merits.

POSSIBLE ANSWERS- Defenses and Objections FR 12 (a1a) answer must be served with in 20 days after summons and complaint OR (a1b) within 60 days after the date when the request for waiver was sent or 90 days if outside US, (a2)party that receives cross-claim must serve answer or pre-answer motions within 20 days of being served (a3a) US and US officials have 60 days (a4) service of motion can alter the times by 10 days. (b) every defense in law or fact made in responsive pleading unless you use one of the following six defenses then they can be done by motion, a. (1) lack of subject matter jurisdiction, b. (2) lack of personal jurisdiction, c. (3) improper venue, d. (4) insufficient process, e. (5) insufficient service of process, f. (6) failure to state a claim upon which relief can be granted, g. K(7) failure to join a party.

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Rule 12 b 4 and 5 may be waived if you sign waiver of notice. (c) After pleadings there may be a motion for judgment simply based on those pleadings, (d) decisions by court on defenses 1-7 or c shall be made before trial unless the court defers them until trial. (e) A motion for more definitive statement may be made on any pleading that requires a response, (f) you may motion to strike any insufficient defense, immaterial, impertinent, redundant, or scandalous material. (g) if motions consolidated and any defense or objection omitted it may be waived see h, (h1) b2, b3, b4, and b5 may be waived if omitted from motion as stated in (g) or if it is not made by motion nor included in the responsive pleadings or amendment thereof as in rule 15. (h2) b6, b7, and failure to state a legal defense to a claim may be made in any pleading under rule 7a, or motion (c), or at trial on the merits. (h3) subject matter objection is allowed at anytime. PLEADING Context governed by FR Scope FR 1, 2, - These rules govern the procedure in the United States district courts in all suits of civil nature whether cognizable as cases at law or in equity. There shall be one form of action known as civil action

LAWYER ETHICS Signing and representation to court FR 11 - This is a continuing ceritification - Sanctions are discretionary under this rule now\ - A motion for violation is served but not filed (21 day safe harbor) after this time you can file the motion (a) there must be signature ON ALL DOCUMENTS EXCEPT DISCOVERY DOCUMENTS (b) certifies that to best of their knowledge after inquiry reasonable under the circumstances that there is no improper purpose, no non-frivolous arguments, there is factual evidentiary support, and denials of factual contentions are warranted (c) if b is violated then reasonable sanctions maybe imposed by courts discretion (c1) How brought (c1a) another party may move for sanctions by motion, served by rule 5, but not filed with court unless it is not fixed within 21 days (safe harbor defense), OR (c1b) court may initiate the sanctions themselves, but give party chance to defend against allegations of sanctions (no safe harbor). (c2) sanctions shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct of others (attorneys fees not automatic), (c2a) no monetary sanctions for violation of b2, (c2b) if case is over no monetary sanctions. (c3)sanctions handed out by order. (d) Rule 11 sanctions do not apply to discovery and disclosure use rules 26-37. Inherent powers these are removed from FR 11 and can be used to discipline misbehaving lawyers.

STATING A CLAIM Sufficiency - Must have legal remedy and enough facts to support. - If not opposing side can Demurrer (motion to dismiss) the complaint which is a motion that defendant uses to challenge sufficiency of the complaint (even if everything you say is true there is no legal relief).

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Must give defendant fair notice to defend the case. The demurrer does not likely end the case usually plaintiff has a chance to amend his pleadings.

Writ of Mandate In such proceeding the applicant asserts to appellate court that a trial court has acted so improperly that the error is both obvious and important to remedy immediately, infrequently granted however. Pleadings and motions FR 7 (a) there shall be complaint and answer (b) applications to the court are by written motion with grounds and relief sought, use form rules applicable to all other pleadings, sign the pleading. (c) Demurrers not used anymore, use 12b6 General rules of complaint and answer FR 8 (a) short plain statement of jurisdiction, short statement of claim and why pleader entitled to relief, demand for relief the pleader seeks, (b) defenses to complaint shall be short and plain, admitting or denying the claims, (c) party must set forth affirmative defenses in answer or cant bring up later (all three burdens on defendant), (d) claims that require responsive pleading are admitted when not denied, (e) the answers shall be concise and direct, but may include two or more defenses regardless of consistency Forms of pleadings FR 10 (a) must be caption with name of court, title of action, file number, and designation as in 7a (complaint, answer, crossclaim), (b) all claims in separate paragraphs that are numbered.

SPECIFICITY Pleading special matters FR 9 (b) fraud, mistake, and conditions of mind shall be stated with particularity Heightened pleading will include (1) detailed statements that are contended to be fraudulent, (2) ID of speaker, (3) where and when statements made, and (4) explain why they are fraudulent. As of right now immunity does not receive a heightened pleading standard, but courts get around that by requiring a reply by plaintiff to immunity defense by using rule 7a

AMENDMENTS Amendments and supplemental pleadings FR15 FR 15 (a) o has a right to amend once anytime before the serves her answer o The has a right to amend once within 20 days of serving her answer o If there is no right to amend ask for leave of the court FR 15 (b) : VARIANCE: only comes when evidence beyond what was pleaded comes up at trial. o When the evidence at trial does not match what was pleaded

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When this evidence is presented the other party does not object to it The evidence will come in. o If evidence objected to at trial on ground that it is not within the issues made by the pleadings the court may allow the pleadings to be amended. FR 15 (c) : TRYING TO AMMEND AFTER THE STATUTE OF LIMITATIONS HAS RUN o Relation back- amendment of pleading can relate back to original pleading date when permitted by law for SOL issues o claim or defense must of arose out of original pleading, amendment changes party or naming of party if meet 15a and 15c2, if within 120 days, and party has notice of law suit then amendment of party name may occur, FR 15 (d) o upon motion of a party the court may allow supplemental pleadings that come about by events or transactions that occur after the date of the original pleading. Allowing amendments discretion is with courts they will look at (1) prejudice to opposing party and it is their burden to show (2) no undue delay (3) no bad faith. o

RESPONDING TO THE COMPLAINT Serving and filing pleadings and other papers FR 5 (a) Service for every paper after the complaint shall be carried out to each party unless specifically told otherwise in these rules, (b) Service is made upon attorney unless court orders otherwise; this may be done by personal delivery or mail, (c) With cases involving numerous defendants the court may order no service needed as between defendants, (d) All papers requiring service must then be filed with the court in a timely fashion except for, disclosure rules 26a1+2 and discovery papers, (e) Papers are filed with clerk or judge. Time issues FR6 (a) day of act or event is not included in computation; last day is unless it is a Sat., Sun., legal holiday, or inaccessible due to weather; if time allowed is <11 days then Sat., Sun., and legal holidays not included in computation; all legal holidays then listed. (b) enlargement may occur with or without motion or notice if requested before expiration, if time expires court may still allow enlargement if motion made that shows excusable neglect and does not extend time in action under rule 50b or c2, 52b, 59b or d or e, and 60b. (d) service of motion shall be made no later than 5 days before hearing date unless different time affixed by another rule or court, affidavit if involved must be attached to the motion, opposing affidavits must be served no later than 1 day before hearing. (e) if services is done by mail party is allowed to add three days onto prescribed period if they must take some act or proceeding within a specified period.

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THE BASIC RULES OF JOINDER ASSESS JOINDER SUBJECT MATTER JURISDICTION If no, SUPPLEMENTAL? JOINDER OF PARTIES RULES 13, 14, 18, and 20): one of these rules must always be met. FR 20 (a): Governs the Joinder of parties If you want to add parties as other plaintiffs or defendants this must be done before the suit is in place. - Joinder is used so that issues can be resolved in a single action and it also helps to avoid the possibility of inconsistent judgments on the same issue. - FR 20 does not REQUIRE parties to be joined, this decision is left to the s. Sue together as co-s, if: - Claims arise from the same transaction and occurrence, and - Their claims against the will give rise to at least one common question of law or fact. Sue co-s, if: - Claims arise from the same transaction and occurrence, and - Their claims against the will give rise to at least one common question of law or fact. Counterclaims and Cross-claims (CLAIM BETWEEN THOSE ALREADY JOINED IN CASE) FR 13- authorizes a defending party in a suit to assert a claim back against a party who has made a claim against him. 13 (a) o compulsory counterclaims- occur if the defending partys counterclaim arises from the same transaction or occurrence as the claim against him. o It is compulsory, which means that the must assert this in the original action or lose it. o This forces parties who are already adversaries to litigate all claims arising from the same set of facts in a single action. 13(b) o Defending parties may also assert counterclaims that are completely unrelated to the original claim. o Permissive counterclaims- will involve different events from the main claim, and the court will almost certainly order a separate trial of the permissive counterclaim. This rule allows a to settle all of his claims against his opponent without having to file a separate lawsuit. 13(g) o Provides for assertion of cross claims arising out of the same transaction or occurrence as the main claim. o A cross claim is asserted by one party against a co-party NOT against an opposing party. Example: X sues Y and Z for injuries that she sustained in an accident. If Y also suffers injuries and believes that the accident was Zs fault, she may cross claim against Z for her injuries. o This rule makes joinder optional leaving Y to sue Z separately if she prefers to do so. JOINDER OF CLAIMS

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FR 18 (a): provides that a party seeking relief from an opposing party may join with his original claim any additional claims he has against the opposing party. - Unlike FR 20, there is no common transaction or occurrence requirement. - This applies to the and any party seeking relief from another party, whether on counterclaim, cross-claim, or a 3rd party claim. - For this to work you must properly implead under Rule 14 first and then you can add claims under this rule. IMPLEADER ( JOINING SOMEONE NEW) ASSESS JOINDER SUBJECT MATTER JURISDICTION If no, SUPPLEMENTAL? FR 14: Defending party is joining someone who owes her indemnity ot contribution on the underlying claim (example: sues 1 of 2 joint tortfeasers) Gives a limited right to implead, bring into the suit, new parties against whom she has claims related to the main action. The can bring in a person, not yet a party to the suit who may be liable to her, the , for all or part of any recovery the obtains on the main claim. o This rule allows the and the 3rd party to assert claims against each other if they arise out of the same transaction or occurrence as the main claim. o The may implead a 3rd party within 10 days of answering the complaint, w/o obtaining leave of court. Courts always have the right to refuse to listen to the impleader claim if they so choose. o This can happen when there is undue delay in seeking it, complication of issues in the main action, and potential prejudice to the from impleading a sympathetic 3 rd party. 3rd parties are usually impleaded for contribution, to obtain a judgment that the 3rd party is liable to pay the main part of the damages she is ordered to pay the . ( A cannot implead a 3rd party on the mere allegation that the 3rd party is liable to the . o if we have to pay to plaintiff, you owe us for that $ o Derivative- I did it b/c he messed me up; (depends on the substantive law) Impleading a 3rd party does not affect the courts jurisdiction over the original claim. The 3rd party is also disregarded in determining whether venue is proper. WHO MUST BE JOINED? FR 19 3 steps: 1. Is the absentee (A) necessary? a. Test #1: (19) (A) (1)- without A, the court cannot accord complete relief among the parties (based on efficiency) b. Test #2: 19 (A) (2) (1)- As interest may be harmed if she is not joined. (PROTECTS A) c. Test #3: (A) (2) (2)- As interest may subject the to multiple or inconsistent obligations (PROTECTS ) 2. Is joinder of A feasible? a. Personal jurisdiction b. Subject matter jurisdiction (diversity) If yes, bring A in If no, do we proceed or dismiss? FR 12 (B)(7) 19 b: 4 factors to determine whether A is indispensable to what extent a judgment rendered in the persons absence might be prejudicial to the person or those already parties the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided. Whether a judgment rendered in the persons absence will be applicable

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Whether the will have an adequate remedy if the action is dismissed for nonjoinder. is there an alternative forum where all of these people can be joined in a single case

BURDEN OF PROOF Burden of Pleading-if you have burden it must be in your pleading, Burden of Production-you have to produce the evidence Burden of Persuasion-convince judge or jury your facts are correct. Burdens are assigned if you can show, then these are P burden; if rule starts with but or unless, then these are D burden. Through legal research you can find out who needs to plead a burden. Immunity is an affirmative defense and is D burden to plead

DISCOVERY Limits Scope and Limits FR 26b1 Discovery is allowed with any matter, not privileged, that is relevant to the claim or defense of any party. Privileged - the right not to incriminate ones self by the power of the 5 th amendment, client patient information such as (psychotherapist, physician, lawyer) to protect confidential material Relevance logical relationship between fact you want and an element of the case, relevance to the law of pleading to the law of evidence. Court may get involved in this action METHODS *those things underlined can only be gotten from parties or someone under their control Required disclosures FR 26a1 Within 14 days after the 26f first meeting the parties must share: - the names of witnesses and - description of documents relevant to disputed facts alleged with particularity in the pleadings, - as well as calculations of damages and copies of insurance agreements. - Rule 26a1e has the cases that may be exempt from initial disclosure. Scope of disclosure - 26a1a to determine what is proper disclosure look at whether it may be used to support the partys claims or defenses. Asking Questions: Interrogatories and Depositions Subpoena FR 45 a way to compel by court power Depositions Before whom FR28 (a) in the US a court appointed official or an officer authorized to administer oaths by the laws of the US must be present at deposition, (b) if outside the US someone must be present as identified by subpart 1-4, (c) no deposition shall be given in before a person that has interest in the case. Stipulations FR 29 parties by written stipulation may alter rule 28 and have depositions taken anywhere in front of anyone or alter any other proceeding of discover as long as it is not a time constraint as laid out in rules 33, 34, or 36 then you need court approval. Oral examination FR 30

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(a1) deposition can be taken without leave of court except as provided in a2, attendance may be compelled by subpoena rule 45, (a2) leave of court needed and will be granted based on 26b2, if the party to be disposed is in prison, or without written stipulation of parties more than 10 depositions would occur, person already deposed, seeks deposition before time allowed in 26d. (b1) a deposition of any person upon oral examination requires notice in writing to all other parties to action, (b2) party must state in notice method being used to record the oral depose, (b3) other parties may use other means of recording as long as they give proper notice to all parties involved, (b4) must use officer as designated in rule 28, (b5) notice may have attached to it request for documents in compliance with rule 34, (b6) deponent may be corporation or government agency, (b7) by stipulation or court motion, order depositions to be taken by phone or other electronic means. (c) the officer appointed at the deposition shall allow examination and cross examination as in trial evidence rules allow, all objections will be noted but not acted upon, (d1) all objections noted not acted on, unless to preserve privilege then deponent may be instructed not to respond, (d2) deposition is 1 day seven hours, court may extend based on rule 26b2 (d3)sanction may be awarded if delay in deposition has frustrated the fair examination of deponent, (d4) official at the deposition may be asked to stop the proceedings if they are being carried out in bad faith or in such a manner as to emotionally harm the deposed. (e) deponent may make changes in form or substance to deposition if done within 30 days after notice by official that recording or transcript is ready for review, (f) the deposition shall be certified and delivered to attorney requesting it, it can then be copied for other parties or used as exhibit, (g1) if one party does not attend the deposition reasonable attorney fees maybe awarded to the attending side, (g2) if party wishing deposition does not get a subpoena to person they want to depose and they dont show up, attorney fees may be issued to compensate other side for showing up.

Written FR 31 Deposition with written question is allowed pursuant to same rules in 26 and 30.

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Use of in court FR 32 - (a) Any part or all of that admissible under rules of evidence may be used at trial or in hearing of a motion, - (a1) any party may use the deposition, - (a2) any person as designated under rule 30b6 or 31a to testify may be used by an adverse party, - (a3) There are exceptions to use if the witness has died, greater distance than 100 miles from trial or hearing, age or illness thus they cant testify, cant procure attendance of witness at trial by subpoena, - (a4) if only part of deposition used by deposing party other parties may ask to use other parts of the deposition. - (b) Objections to admissibility may be made based on rule 28b and 32d3. - (c) Deposition may be presented in stenographic or non-stenographic form. - (d1) all errors and irregularities in notice must be brought up promptly during service of notice or they are waived, - (d2) disqualification of officer waived if not done in timely fashion, - (d3) objections to competency or relevance are not waived if not brought up during deposition, errors and irregularities at oral examination could be waived if not brought up there, objections to written deposition question can be waived if not brought up in timely fashion, - (d4) errors with manner of transcribing, signing, or transcribing may be waived if not brought up with reasonable promptness of identifying them. Interrogatories To parties FR 33 (a) without leave of court or written stipulation any party may serve upon another party, not exceeding 25 interrogatories, extent of this number may be allowed based on rule 26b2, (b) all answers are written under oath unless objected to, then answers signed by party, objections signed by lawyer, you have 30 days to serve answers after receiving the interrogatories, may be extended based on rule 29, must state grounds for all objections, may object or not answer based on rule 37a. (c) Questions allowed involve scope of 26b1 and submission as evidence to extent allowed in rules of evidence, (d) to answer an interrogatory you may point to a business record.

OTHER METHODS IN DISCOVERY Supplementation FR 26e you are under a duty in certain cases to fix all material of disclosure or discovery if additional information comes in. Production of documents and entry on land FR 34 (a) you may request any document or tangible item within scope of rule 26b and access to property as long as that party has control over it, (b) the request must set forth all items to be inspected and describe each, it must also include reasonable time, manner, and place for inspection to occur, for time look to 26d, part who is request must serve response within 30 days after service of request, (c) a person not a party may be compelled to provide documents as provided in rule 45 Physical and Mental Examination FR 35 (a) order for examination must be given by court order, controversy and good cause must be shown, (b) written reports may be requested by adverse party, by requesting or obtaining a report of examination or by taking deposition of examiner, the party waives any privilege they may have had in that action or any other action involving the same controversy, this subdivision applies to examinations made by agreement of the parties. If partys mental or physical condition not raised in pleadings then it is not considered in controversy. Request for Admission FR 36 (a) a party may serve upon any other party a written request for admission, for purposes of pending action as long as it is within scope of rule 26b1, this may be objected, (b) admission under this rule is conclusive unless the court allows for withdrawal or amendment PRIVACY

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FR 26c gives the judge power to enter any order which justice requires protecting a party or person from annoyance, embarrassment, oppression, or undue burden or expense. A party is entitled to request a protective order to preclude any inquire into areas that are clearly outside the scope of appropriate discovery.

SANCTIONS Signing of Disclosures every disclosure made pursuant to subdivision Failure to cooperate in discovery FR 37 - A party upon reasonable notice may apply for order to compel disclosure or discovery, - (a1) application is made to court in the district where action is taking place or if not a part then to district court where person is to be discovered, (a2) if party fails to make disclosure required by rule 26a any other party may move for motion to compel disclosure and appropriate sanctions, may also move to compel answer of questions issued in either 30, 31, 33, or 34, - (a3) any incomplete or evasive response is treated as failure to disclose, - (a4) if motion granted the court may impose cost on party that did not comply in a timely fashion prompting the motion to compel, if motion is denied court may enter a protective order granted under 26c and impose costs against the party filing motion, if denied in part and granted in part the court may enter protective order and set costs appropriate. - (b1) If party is in another district and after order still refuses to comply they may be found in contempt of court, - (b2) if they are party to court in which action is pending, just action may be taken that includes, a-e. - (c) Failure to disclose, or making false or misleading disclosure, and refusal to admit without substantial justification, on motion and after affording an opportunity to be heard may impose other appropriate sanctions. - (d) Failure of party to attend deposition or answer interrogatories carry with it the possibility of expenses, - (g) Failure to participate in discovery plan as suggested by 26 f the court after hearing may apply expenses and attorneys fees. o o o o 1) You can move to compel inspection/ production of a document 2) Move the court to instruct the jury that a fact is proven, if opponent will not hand over proper documentation. 3) Move court to order defendant to pay expenses, including attorneys fees, caused by failure to respond to plaintiffs discovery requests To compel court to seek compliance by opposing side in discovery issues use rules: 26g, 30d and g, 35, 36a, and 37.

DISOCVERY IN THE ADVERSARY SYSTEM Trial prep. Material FR 26b3 (objection for work product privilege) A party may obtain documents and tangible items only upon showing that there is a substantial need of the material for the case and the party is unable to get the item without undue hardship from any other means. The court protects against disclosure of mental impressions and thoughts of opposing council. Trial prep. Experts FR 26b4 (a) A party may depose any person designated as an expert and there testimony will be used in court. (b) A party may depose an expert who will not be used at trial if they can show exceptional circumstance where by they could not possibly get the same information (way to get non-deposed expert witness testimony). Unless injustice would result the party seeking the expert testimony should pay a reasonable fee for such service. Disclosure of expert testimony FR26a2 you must disclose the identity of any expert witness you may use or any person to be used to present evidence and submit a report 90 days before court date.

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Testifying use rule 26a2 for disclosure and 26b4a for discovery Non-testifying no disclosure required and 26b4b for discovery if witness is one under 35b court ordered physical report that report was then asked for, or unpractical situations where you cant get same information

AVOIDING TRIAL Default Judgment FR 55 (a) when party fails to show or defend case, the clerk shall enter the partys default, (b1) can get certain sum amount from clerk unless against infant or incompetent, (b2) For all other cases you must go through the judge and if in some way you did hear from defendant then you have to serve notice of judgment three days prior to meeting with the judge for hearing on judgment Dismissal FR41 (a) voluntary dismissal is allowed by filing notice and it will be given without prejudice unless you have already dismissed the same claim before in another court then it will be dismissed on the merits. (b) The case could be dismissed by the court, and important to look at if it is on merits or without prejudice Summary Judgment FR 56 (a) Any time beyond 20 days of commencement of action claimant can motion for summary judgment unless summary judgment was already asked for by defendant then you may also move for summary judgment, (b) defendant at any time can move for summary judgment, (c) the motion must be served 10 days before hearing, and judgment sought will be given if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law What is considered: Material facts not in controversy, and entitlement as a matter of law Burden of proof used to be on moving party now you just have to show no proof Pretrial conferences and judicial management FR 16 (a) the court can call conferences with parties, to expedite the action, to show court control over controversial matters, facilitate settlement, and improve quality of trial by preparation, (b) Allows for scheduling orders that shall not be modified unless court allows for showing of good cause.

TRIAL Fact Finders FR 43 Taking testimony (a) Form In every trial, the testimony of witnesses shall be taken in open court. The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location. (d) Whenever under these rules an oath is required to have been taken, a solemn affirmation may be accepted in lieu thereof. (e) When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or deposition. (f) The court may appoint an interpreter of its own selection and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court. FR 44 Proof of official records dealing with authenticity FR 46 Formal exceptions to a courts ruling are unnecessary FR 49 Special verdicts or answers to interrogatories can be requested by the court, of the jury. FR 38 There is a right to trial by jury, any party may demand it and filing the demand is pursuant to rule 5d, if no demand is filed jury trial is waived. FR 39 Either jury or court will try issues FR 52 Findings by court when no jury trial, 52c a party who bears the burden of proof at trial with no jury needs the most evidence to survive there opponents motion for judgment as a matter of law. Trial starts

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You are awarded trial date Then you pick a jury Opening statements for jury purposes The plaintiff puts on their case then rests Defendant can then move for judgment of law based on plaintiffs case If they lose then defendant proceeds with their case, then rests Plaintiff could move for judgment of law, but unlikely Plaintiff can then put on rebut case in light of defendants case The defendant can then rebut these new things Then everyone rests either plaintiff or defendant can move for judgment of law Then instructions are given to jury what issues are and what judges findings are Then closing arguments to jury plaintiff gets last say The judge then charges the jury with the instructions in which time you must object or you waive that right Jury then deliberates and gives verdict Either party can enter motion for judgment of law if jury has acted irrationally, or new trial where a new jury will again hear arguments, or other possibility is appeal, or rule 60b reopen judgment

SELECTION OF JURY FR 47 (a) The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper. (b) The court shall allow the number of peremptory challenges provided by 28 U.S.C. 1870. (c) A juror may be excused for good reason A juror may be kicked out for showing to close of a connection to the case 1870 Challenges Each party is allowed three peremptory challenges, you can use this to get anyone off the panel you want except for gender or race reasons. FR 48 (a) The court shall seat a jury of not fewer than six and not more than twelve members and all jurors shall participate in the verdict unless excused from service by the court pursuant to rule 47c. Unless the parties otherwise stipulate, (1) the verdict shall be unanimous and (2) no verdict shall be taken from a jury reduced in size to fewer than six members. 1867c can be used to challenge a pool of jurors 1865 Citizens of the US, over 18, speak English, no record of criminal punishment

JUDICIAL CONTROL Jury Instructions FR 51 - At the close of the evidence or at such earlier time during the trial as the court reasonably directs any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The court, at its election, may instruct the jury before or after argument, or both. No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. FR 59 New Trials and amendment of judgments FR 61 Harmless error: most errors in proceedings are disregarded if it does not affect the substantial rights of the parties. RATIONAL INFERENCE

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Judgment as a matter of law FR 50 (a) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law, Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. (b) The mover may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment -- and may alternatively request a new trial or join a motion for a new trial under Rule 59 Jurors are allowed to make reasonable inferences or answer questions of credibility. Directed verdict a judge shall direct a verdict only if there is no rational basis for a jury to find in favor of the party against whom the verdict is directed Evidence can be circumstantial (inferences) or direct (credibility) New trials FR 50c and d new trials granted from incorrect instructions, verdict contrary to evidence, contrary to law, or error in admission of evidence Partial new trials Remitter: judge orders a new trial unless the plaintiff agrees to accept reduction in damages. Additur: the judge orders additional damages or a new trial If JNOV (judgment notwithstanding the verdict) is awarded to plaintiff, then defendant appeals as plaintiff you will have to argue why the JNOV should not be over turned at the same time argue for a possible new trial because if it gets reversed then as plaintiff you must be prepared to appeal for a new trial.

FEES Judgment costs FR 54d (1) Costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. (2) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial Offer of Judgment FR 68 - At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. 1920 Taxation of costs, judge or clerk may tax as costs any of the following: see pg 351

APPEAL 1291 US court of appeals shall have jurisdiction over all appeals from final decisions of district courts of the US FR 61 Harmless error: most errors in proceedings are disregarded if it does not affect the substantial rights of the parties. These errors could lead to appeals. FR 62 Stay of proceedings, In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59.

AVOIDING ADJUDICATION Done by either mediation, arbitration, or settlement Mediation - method of settling disputes outside court with entrance of neutral third party

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Arbitration - Having a third person hears both sides and then make a binding decision Settlement the two opposing parties come to a mutual agreement outside of court.

MOTION TO DISMISS (Rule 12) A pre-answer motion under 12b is an alternative to filing the answer. A defendant who has moved to dismiss under 12b need not answer the complaint until after the motion is decided (see 12a4) filing a pre-answer motion is entirely optional 12g, h - provide that four of the 12b defenses will be waived (personal jurisdiction, venue, form of process, method of service of process) if not raised in the defendant's first response to the complaint (in the pre-answer motion). If D fails to raise one of these four "disfavored" defenses in initial response, D has waived the omitted defenses for all time

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