1Under 28 U.S. Code § 1367, the discretionary reasons that a Federal Court would decline supplemental jurisdiction to hear a state claim related to the pending federal claim are COOP:
C – state claim presents COMPLEX or novel issues;
O – court dismissed claim on which it had subject matter jurisdiction ON the merits;
O – Other compelling reasons; or
P – where state claims PREDOMINATE over federal claims.
2Under Rule 12(h)(1), DF must timely raise VIP in a motion to dismiss, if such a motion is made. If not, raise it in the answer, or VIIP is waived:
Rule 12. Defenses & Objections. (h) Waiving & Preserving Certain Defenses.
VIIP
V – improper VENUE
I – INSUFFICIENT service of process
I – INSUFFICIENT process
P– lack of PERSONAL jurisdiction
3SWAPS is proper service in federal courts under Rule 4(e):
Rule 4. Summons. (e) Service and Individual w/in U.S. Judicial District
Unless federal law provides elsewise:
S – Leaving process at DF’s dwelling place or usual place of abode with a SAD person residing there,
W – Where DF agrees in writing to WAIVE formal service of process,
A – Delivering process to an AGENT authorized by law or by appointment to receive it, or
P – Delivering it PERSONALLY to DF
4To obtain valid procedural jurisdiction, the 14th Amendment Due Process Clause requires DF have MOP:
• M – Some MINIMUM contact with forum state
• O – An OPPORTUNITY to be heard in suit
• P – Been PROPERLY served with process
5Three ways for DF to formally “appear” in a federal court action (MAN):
M – By making any pre-answer MOTION, which extends DF’s time to answer
A – By serving an ANSWER to PL’s complaint
N – By serving a NOTICE of appearance (“entry of appearance”)
6Rule 4. Summons. mnemonic.
Rule 4(a) someone.
7Joinder & Interpleader Tip
– If the joinder device begins w/ a C (counter or cross) it is between parties already in the case.
– If it begins with the letter I (impleader or intervention) it involves bringing a new party.
8Amending a federal pleading to add a time-barred related claim can be done with an ANT:
A – AROSE out of same facts pleaded in original complaint
N – Original pleading gave NOTICE of new claim
T – New claim was TIMELY when original pleading was filed with County Clerk
9There are 2 types of corrective motions – MDS SIPS
Rule 12. Defenses & Objections.
MDS – Rule 12(e). Motion for MORE DEFINITE STATEMENT in the pleading.
SIPS – Rule 12(f). Motion to STRIKE IRRELEVANT, PREJUDICIAL, or SCANDALOUS matter from a pleading.
10In a Rule 12(b)(6) motion to dismiss, court opinions always cite FAT DRIP:
Rule 12. Defenses & Objections. (b) How to Present Defenses.
The complaint's FACTUAL ALLEGATIONS
are accepted as TRUE,
and the court will
DRAW all REASONABLE INFERENCES
in PL’s favor.
11To certify a class action in federal court (Rule 23(a)) think CANT:
Ruler 23. Class Actions. (a) Prerequisites.
C – COMMON QUESTIONS of law or fact
A – ADEQUATE representation by the class rep.
N – Class size so NUMEROUS ordinary joinder is impracticable
T – Class rep’s claim is TYPICAL of all other claims
12Rule 8(a)
Rule 8. General Rules of Pleading of Pleading. (a) Claim for Relief.
Formerly K.I.S.S. (Conley), now SHOW ME THE MONEY! (Twiqbal)? (claim for relief). (SPSx2+DRS)
– SPS of court's jurisdiction
– SPS of claim showing entitlement to relief.
– DEMAND for RELIEF SOUGHT.
13Rule 9(b)(2)
Rule 9. Pleading Special Matters. (b) Fraud or Mistake
GIMME MORE! (must "state w/ particularity" the circumstances of fraud and mistake)
14Rule 11(b)
Rule 11. Signing Pleadings, Motions, and Other Papers. (b) Representations to the Court.
– THE GOLDEN RULE (reasonable investigation, non-harassment, truthfulness, and non-frivolity in papers presented to court)
15Rule 12(b)(6)
Rule 12. Defenses & Objections. (b) How to Present Defenses
– SO WHAT? (failure to state a claim, ties into 8(a)(2))
16Rule 12(e)
Rule 12. Defenses & Objections. (e) Motions for More Definite Statement
– SAY WHAT? – motion for more definite statement (MDS)
17Rule 12(f)
Rule 12. Defenses & Objections. (f) Motion to Strike
– HOW DARE YOU! – Motion to strike regarding redundant, immaterial, impertinent, or scandalous (RIIS) matter.
18Rule 15(a)
Rule 15. Amended & Suppemental Pleadings. (a) Amendments Before Trial.
– DO-OVER or MULLIGAN (amended pleadings) [Perhaps 12(h)(1)(B)(2) + 15(a)(1) = PRESIDENTIAL MULLIGAN] (rescuing a disfavored 12(b) defense through an amendment as a matter of course)
19Rule 15(c)
Rule 15. Amended & Suppemental Pleadings. (c) Relation Back of Amendments
– BACK TO THE FUTURE (relation-back)
20Rule 41(a)
Rule 41. Dismissal of Actions. (a) Voluntary Dismissal
– UNCLE! (voluntary dismissal)
21Rule 41(b)
Rule 41. Dismissal of Actions. (b) Involuntary Dismissal
– YOU’RE OUT! (involuntary dismissal)
22Rule 55
Rule 55. Default Judgment
– FORFEIT! (default judgment)
23Rule 59.
Rule 59. New trial. Motion for a new trial.
– I 20 h8 this verdict.
– 28 days to file a motion for new trial after the verdict is entered.
24Service on corporation must be made on a GO A.M. person:
Rule 4. Summons. (h) Serving a Corp.
G – GENERAL agent;
O – OFFICER (CEO, Pres., VP, etc.);
A – AUTHORIZED agent to receive process (expressly impliedly or by estoppel);
M – MANAGING agent ;
25Under Rule 12(b), a party may assert seven defenses by bringing a motion before serving a responsive pleading:
Rule 12. Defenses & Objections. (b) How to Present Defenses.
FJ FS VIIP
FJ – FAILURE to JOIN a required party;
FS – FAILURE to STATE a claim upon which relief can be granted;
SM – lack of SUBJECT MATTER jurisdiction;
V – improper VENUE;
I – INSUFFICIENT service of process;
I – INSUFFICIENT process;
P – lack of PERSONAL jurisdiction ;
26Elements of Issue Preclusion (Collateral Estoppel)
SAFE
– SAME issue;
– ACTUALLY litigated;
– FINAL judgment;
– ESSENTIAL to prior judgment;
27Elements of Claim Preclusion (res judicata, "matter judged"):
PAM
– sufficiently identical PARTIES;
– sufficiently identical causes of ACTION;
– valid, final judgment on the MERITS;
28RAPP B needs a court order for deposition:
R – REFUSAL to comply w/ deposition demand.
A – AFTER the court's "bar date" closing pretrial further discovery in its "scheduling order." Rule 16(b)(3)(A).
P – Prisoners
P – PREVIOUSLY deposed witnesses after too many depositions.
B – BEFORE an action has been commenced, to assist in bringing an action, or to preserve evidence. Rule 30(a)(2)(A)(iii) & 26(d).
29Dirty Thirty Removal
28 U.S. Code § 1446 - Procedure for removal of civil actions. (b)Requirements; Generally.
(e) Motion for Removal
– 30 days to remove;
– "thirty" and "remove" both have six letters.
30Joinder & Interpleader Tip
– If the joinder device begins w/ a C (counter or cross) then it is between parties already in the case.
– If it begins with the letter I (impleader or intervention) it involves bringing a new party into the case.
31Rule 13(a)-(b)
Rule 13. Counterclaim and Crossclaim (a)-(b) Compulsory & Permissive Counterclaim
– BACK AT YOU (counterclaim)
32Rule 13(g)
Rule 13. Counterclaim and Crossclaim (g) Crossclaim Against a Coparty
− ET TU, BRUTE (crossclaims)
33Rule 13(h)
Rule 13. Counterclaim & Crossclaim (h) Joining Additional Parties
– AND YOUR LITTLE DOG, TOO! (joining additional parties to counterclaim/crossclaim)
34Rule 14.
Rule 14. Third-Party Practice.
– BRING A DATE (impleader a/k/a third-party practice)
35Rule 17.
Rule 17. Capacity
36Rule 18
Rule 18. Joinder of Claims.
– Jerry Springer (pile it on!)
– Can add unrelated claims but have to have a basis of jurisdiction.
37Rule 20
Rule 20. Permissive Joinder.
38Rule 19(a).
Rule 19. Required Joinder of Parties. (a) Persons Required to Be Joined if Feasible.
− Invite a VIP? (compulsory joinder of necessary parties, if feasible).
39Rule 19(b)
Rule 19. Required Joinder of Parties. (b) When Joinder if Not Feasible.
− Cancel the party? (whether to proceed or dismiss if necesarry parties cannot be joined)
40The two Interpleader codes.
Rule 22. Interpleader.
28 U.S. Code § 1335 - Interpleader
− Come and get it!
41Rule 50(a)
Rule 50. Judgment as a Matter of Law in a Jury Trial. (a) Judgment as a Matter of Law.
DO NOT PASS GO! (judgment as a matter of law).
42Rule 50(b)
Rule 50. Judgment as a Matter of Law in a Jury Trial. (b) Renewing the Motion After Trial; Alternative Motion for a New Trial.
− No soup for you! (renewed judgment as a matter of law)
43Rule 24.
Rule 24. Intervention
− Party Crasher.
44Rule 42.
Rule 42. Consolidation; Separate Trials
− Break it up! (consolidation and separate trials)
45Rule 56
Rule 56. Summary Judgment
− Put up or shut up.
46Twiqbal Three Part Test Acronyms
ICE. DLC. DP.
ICE − IDENTIFY the CLAIM & ELEMENTS.
DLC − DISREGARD LEGAL CONCLUSIONS for purposes of inference.
DP − DECIDE whether PLAUSIBLE.
47Serving a SAD invidiual of “suitable” age and discretion with SAID:
− State law statutes and methods.
− Agent.
− Individual directly.
− Dwelling with a SAD individual.
48Diversity and Supplemental jurisdiction require federal courts to apply state procedural law and not FRCP for PIPS:
P − Privleges
I − Incompetency of witnesses
P − Presumptions and inferences
S − Statute of limitations
49SCRAM if you don't have a justiciable claim:
S − Standing
C − Case or controversy
R − Ripeness
A − Abstention
M − Mootness
50Look at VCR for exceptions for the mootness doctrine:
V − VOLUNTARY change in position, but not permanently.
C − CLASS action.
R − Capable of REPETITION doctrine.
51SAD-J is the key to challenging a state law and getting into a Federal Courthouse:
S − SUPPLEMENTAL jurisdiction
A − ARISING under jurisdiction
D − DIVERSITY jurisdiction
J − JUSTICIABILE claims
52To remove a nonfederal claim from state to federal court based on diversity, DF must be shown to be a STUDD.
28 U.S. Code § 1446 - Procedure for removal of civil actions
STUDD
S − claim exceeds \$75,000
T − petititon & attachmetns are filed in Fed. court w/in 30 days of receiving.
U − Under the rule of UNANIMITY, all DFs must sign the removal petition.
D − No DF can be DOMICILED in the removal state.
D − Complete DIVERSITY of citizenship.
53If the applicable Statute of Limitations has expired, then PL shoud consider tolling & extending provisions — CAD's LEAP:
C − Time-barred, related COUNTER-CLAIM;
A − AMENDING a pleading to add a time-barred claim;
D − DISABILITY of the PL;
S − SOLDIERS & Sailors Civil Relief Act
L − The parties LENGTHENED the SOL;
E − EQUITABLE estoppel
A − Written ACKNOWLEDGEMENT of an old debt;
P − Part-Payment of an old debt.
54Collateral estoppel (issue preclusion) is avialable in a federal court IF:
I − Identical Issues
F - Party against whom collateral estoppel is being asserted against had a Full & Fair opportunity to Litigate Issue.
55When thinking about summary judgment, think about LIPS:
L − Motion can be decided as matter of LAW.
I − There are no material ISSUES of fact to litigate.
P − Court can grant PARTIAL summary judgment.
S − Court can SEARCh the record, but only on issues raised in motion papers.
56In Federal Practice, use AID MD devices for pre-trial discovery:
AID MD.
A − ADMISSIONS demand.
I − Written INTERROGATORIES.
D − DEPOSITIONS (aka EBTs − "examinations before trial").
M − MENTAL & Physical Exam.
D − DISCOVERY & Inspection of evidence.
57Protective orders seek to prevent unreasonable DEEP abuses of discovery procedures:
D − DISADVANTAGE
E − EMBARASSMENT
E − EXPENSE outweighs the benefits.
P − PREJUDICE. Rule 26(c).
58A-DRIPS are discovery sanctions: Rule 26(g)
Rule 26. Duty to Disclose; General Provisions Governing Discovery. (g) Signing Disclosures and Discovery Requests, Responses, & Objections.
A − ATTORNEY'S FEES & punitive sanctions against non-disclosing party.
D − DISMISSING an actions against A-DRIPS PL or ordering a DEFAULT judgment against A-DRIPS.
R − RESOLVING issues against a non-disclosing party.
I − An adverse INFERENCE jury charge.
P − PRECLUDING that party from offering evidence on certain issues.
S − STRIKING that party's pleading or any part thereof.
59Under Rule 26(b), a critical issue limiting discovery requests is "proportionality" which is decided by a RAABBII:
Rule 26. Duty to Disclose. (b) Discovery Scope and Limits.
R − Parties' RESOURCES.
A − Parties' relatieve ACCESS to the material.
A − AMOUNT in controversy.
B − BURDEN on party.
B − BENEFIT from discovery.
I − IMPORTANCE in resolving ISSUES of the claim.
60Main stages of a civil lawsuit:
"I Demand Every Attorney's Honest Cooperation"
Main stages of a civil lawsuit under FRCP:
IDEAHC
• Initial pleadings (complaint, answer, counterclaim, cross-claim, and reply)
• Discovery
• Evidentiary motions
• Adjudication
• Appeals
• Enforcement