Personal Jurisdiction Personal Jurisdiction is the right of the court to exercise power over an individual and enforce its

judgment without depriving the individual of due process. Where a forum seeks to assert personal jurisdiction, it is essential that haling the defendant into court does not offend traditional notions of fair play and substantial justice. Where a forum seeks to assert specific jurisdiction, it is essential that the defendant has minimum contacts within the forum State such that haling the defendant into the forum State does not offend traditional notions of fair play and substantial justice and the claim must arise out of those minimum contacts. The defendant must have purposely availed or purposely directed activities towards the forum State such that he, she, or it is deriving advantage from the privileges, benefits, and protections of the laws of the forum State and haling the defendant into court is reasonably foreseeable. Where a forum seeks to assert general jurisdiction, it is essential that there be continuous and systematic contacts with the forum State. The defendant may be haled into court for any and all claims, even those unrelated to the contacts within the forum state. Citizenship is irrelevant when assessing general jurisdiction, thus the court will look at the nature and quality of the contacts for a noncitizen of the forum state as well. Haling the defendant into court does not offend traditional notions of fair play and substantial justice. Where a forum seeks to assert transient jurisdiction, the defendant must be validly served within the confines of the sovereign state while his, hers or its presence in that state is volitional. The forum State has authority over the defendant irrespective to in-state activities or minimum contacts within the forum State. Subject Matter Jurisdiction Subject matter jurisdiction is the power of the court to hear and determine a particular type of claim or controversy. State courts are courts of general subject matter jurisdiction, which means they can hear all claims arising under state and federal law as long as they are not claims over which the federal courts have exclusive jurisdiction. Federal courts are courts of limited subject matter jurisdiction, which means they can only hear claims arising under federal question jurisdiction and diversity of citizenship jurisdiction. According to federal question jurisdiction [Section 1331], federal courts have jurisdiction over all civil actions arising under the Constitution, federal laws, or treaties of the United States. A suit arises under a federal question if and only if the face of the complaint is based on the constitution, federal laws, or treaties of the United States such that mere presence of a federal issue will not suffice. According to diversity of citizenship jurisdiction [Section 1332], federal courts have jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and there is complete diversity of citizenship between all plaintiffs and defendants.

For purposes of determining diversity of citizenship, courts must determine where the plaintiffs and defendants reside with intent to remain. A person is a citizen of a state if he, she or it is a domicile in that state and has intent to remain there. A student is normally a citizen of the last state in which he, she or it is domicile. An alien admitted to the US for permanent residence shall be deemed a citizen of the State in which the alien is domiciled. A corporation is a citizen of the state by which it was incorporated and the state in which it has its principal place of business. If a corporation has several states in which it does business, courts will undertake to subjectively determine which of the two principal places of business predominates. bankruptcy, tax, maritime admiralty, patent, antitrust Venue Venue is not an inquiry of the state courts, but only of federal courts. According to 28 USC 1391, a civil action may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, or (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated. If and only if a civil action is founded solely on diversity of citizenship and there is no district in which the action may otherwise be brought using either of the first two prongs, a civil action may be brought in any district which any defendant is subject to personal jurisdiction at the time the action is commenced. If and only if a civil action is not founded solely on diversity of citizenship and there is no district in which the action may otherwise be brought using either of the first two prongs, the action may be brought in a judicial district in which any defendant may be found. Additionally, an alien may be sued in any district. Transfer (or change of venue) (INCLUDE 1406) Change of venue is a district court's power to transfer any civil action to any other district or division where it may have been brought. This gives the district court the discretion to change the venue to where it feels the action can be more conveniently or effectively handled as long as the transferee district court possesses personal jurisdiction and venue as well. Forum Non Conveniens Forum non coveniens allows both a federal and state court to dismiss a case because it could be more conveniently or effectively litigated in another forum. This assumes that the court in which the case was originally filed is competent in personal jurisdiction, subject matter jurisdiction, and is an appropriate venue. Forum non conveniens will not fail just by virtue of the fact that the alternative forum provides a lesser remedy; rather, it will only fail if the alternative forum provides no remedy. (if the proper forum is in another country or state [if in a state court] and the transfer statute does not apply) Removal Any civil action brought in a state court of which the district courts of the United States have original jurisdiction may be removed by the defendant or defendants to the district court embracing the place where such action is pending.

Any civil action in which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the US shall be removable without regard to the citizenship or residence of the parties. Any other action is removable only if none of the parties in interest properly joined and served as defendant is a citizen of the State in which such action is brought. If a state claim is joined by supplemental jurisdiction, the entire case may be removed to district court. If there is both federal question and diversity of citizenship subject matter jurisdiction, the case may be removed regardless of the citizenship of the defendants. Supplemental Jurisdiction Supplemental Jurisdiction; Pendent Jurisdiction; Ancilliary Jurisdiction Supplemental jurisdiction (28 U.S.C. 1367) is the district court's power to use its discretion to decide whether it will attach State claims to federal claims. To clarify, District courts can exercise supplemental jurisdiction only if these State claims arise out of the same case or controversy as the federal claims. In any civil action of which the district courts have original jurisdiction founded solely on diversity of citizenship, the district courts shall not have supplemental jurisdiction. District courts may decline to exercise supplemental jurisdiction over a claim for any of the following reasons: the claim raises a novel or complex issue of State law, the State claim substantially predominates over the claim or claims over which the district court has original jurisdiction, the district court has dismissed all claims over which it has original jurisdiction, or in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Supplemental Jurisdiction In any civil action of which the district courts have original jurisdiction, the district courts can hear additional claims substantially related to the original claims in the action as long as they arise out of the same case or controversy. Notice Proper notice is a constitutional requisite for exercising adjudicatory power, evident in the 14th amendment, which states that government cannot deprive a person of life, liberty, or property without due process of law. In order to summon a defendant into court, a plaintiff must be properly noticed by service of process, wherein service of process is the method in which a defendant is notified and process is the actual papers of notification. A method of service must either be reasonably desirous to provide actual notice or be a feasible form of notice that is not substantially less likely to give actual notice than other options. If the state learns that notice failed, it must take reasonable additional steps to provide notice. The notice must be reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action. Notice must be reasonably desirous of actually informing the intended target; mere gesture is not enough to validate notice. The P is responsible for having the summons

served with a copy of the complaint within the time limit and must furnish the necessary copies to the person who makes service: a person who is at least 18 years old, a US marshal, or a person specially appointed by the court. Service to an individual consists of either delivering a copy of the summons and complaint personally, or leaving a copy at the individuals dwelling or usual place of abode with someone of suitable age and discretion who resides there (substituted). Service to a corporation or association must be done personally by delivery notice to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive the service. The D has a duty to avoid unnecessary expenses, so the P may notify the D that an action has commenced and request that the D waive service of summons. If the D fails to waive service without good cause shown, the D may incur ALL expenses of personal service Service Service is the method in which the defendant is notified of a possible suit. Service must consist of both the summons and the complaint. The process server must be any person who is not a party and is not less than 18 years of age. The process server must leave the summons and complaint with either the individual personally, a person of suitable age and discretion residing therein, or to an agent authorized to receive a service of process. A corporation may receive notice through an officer, a general or managing agent, or an authorized agent. A minor or incompetent person must be served by following the state law in which such person is subject to general jurisdiction. An individual or corporation in a foreign country may be served by means in which are reasonably calculated. To commence a suit with minimum cost, a plaintiff can ask for a waiver of service, which uses first-class mail to notify the defendant. The waiver of service must consist of a copy of the complaint, two copies of the waiver form, and a prepaid means of returning the form. Upon receiving waiver of service, a defendant in the US has 30 days to respond while a foreign defendant outside has 60 days to respond. By waiving service, the defendant waives objections to the sufficiency of the summons but does not waive objection to personal jurisdiction or to venue. In this situation, the defendant has a duty to avoid unnecessary costs, which will be imposed on them if they do not waive. A waiver of service cannot be requested if the defendant is the US government, incompetents, minors, and others whose service is though to require special formality so as to reduce the possibility of an inadvertent default. Erie Doctrine Erie directs federal courts sitting in diversity jurisdiction to apply the substantive law of the state in which it sits. Erie doctrine only applies in diversity cases, and federal courts have the option to use their own procedural law if they choose. If there is no Federal rule on point and the state rule is bound up with state created interests, the federal court should apply the state rule. If there is no federal rule on point and the state rule is not bound up with state created interests, the court must analyze whether applying the rule would dictate the result. If applying the rule will not dictate the result, the federal rule applies. If applying the rule will dictate the result, the federal court will enter a balancing test to determine whether to further state interest or federal interest. If there is a Federal rule on point, Federal Rule applies provided it does not violate Rules Enabling Act or the Constitution. If it does violate the Rules Enabling Act or is unconstitutional, the court should analyze whether adhering to federal practice would lead to forum shopping or encouragement of inequitable administration of the law.

Pleading COMPLAINT A complaint must contain a jurisdictional allegation, a statement of claim, and a demand for relief. The complaint must be a short and plain statement showing that the plaintiff is entitled to relief. Fraud must be pled with heightened particularity. The position of the pleading must be warranted by existing law or by a nonfrivolous argument for the extending, modifying, or reversing of existing law or establishing new law. Allegations must be likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. The plaintiff may assert as many alternative versions of the claim as there is evidence to support regardless of consistency, and may include both legal and equitable claims in the same complaint. ANSWER Upon answering the complaint, the defendant must take a position on each allegation, by admitting those that are true, and denying those that arent. Allegations that are not denied are admitted. A defendant may plea traverse, which means that they deny all allegations. They may also plea a confession, which is an affirmative defense. A defendant who fails to respond to the complaint can have a default judgment entered against him, her or it. A reply is required only if the answer contains a counterclaim that is labeled a counterclaim. Amendment A party may amend its complaint once as a matter of course before being served with a responsive pleading or within days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave to amend when justice so requires. An amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence in the original pleading. Any party can amend its motion to add or change a party if it relates back to the original pleading, such party received such notice of the action that it will not be prejudiced in defending on the merits, and knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity. Sanctions If, after notice and a 21-day opportunity to respond, the court determines that Representations to the Court 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 its partner, associate, or employee. Motion Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. A motion does not require a party to set forth her version of the facts, but requests the court to take some action in regard to the lawsuit. A party may assert the following defenses by motion: 1) Lack of SMJX, 2) Lack of PJX, 3) Improper venue, 4) Insufficient process, 5) Insufficient service of process, 6) Failure to state a claim upon which relief can be granted, 7) failure to join a party under Rule 19. A party that makes a motion under this rule

must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion unless it is a 12(b)(6) motion. Special Appearance A defendant may choose to specially appear in a state to challenge the states power to exert personal jurisdiction over the defendant. If a defendant chooses to specially appear to file for lack of personal jurisdiction, any other defenses raised will waive their defense for lack of personal jurisdiction. Collateral Attack A defendant may choose to collaterally attack a preexisting case by filing a separate suit on the same issue in a different state than the original case was brought. Discovery (Rule 26) Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. In general, each party is required to make initial disclosures to the other parties of the following: the name and, if known, the address and phone numbers of each individual whom it may use to support its claims or defenses, a copy or description of all documents in its possession that it may use to support its claims or defenses, a computation of the damages the party is claiming, and any insurance agreement that might cover the claim. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. Further, the court may impose an appropriate sanction on a person who impedes, delays, or frustrates the fair examination of the deponent. Further, the court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Interrogatories (Rule 33) Interrogatories are written questions from one party to another, requiring written responses. Unless otherwise provided, a party may serve on any other party no more than 25 written interrogatories, including all subparts. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. The grounds for objecting to an interrogatory must be stated with specificity. An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until a more appropriate time. Contention Interrogatories

Contention interrogatories requires a party state what it contends to, explain the facts underlying the contention, explain how the law applies the facts, and the legal reasons. A party who does not properly answer a contention interrogatory may be exposed to summary judgment. Depositions (Rule 27-32) check for highlights A deposition is an examination of a witness under oath and in the presence of a court reporter. Each side is limited to 10 depositions, no deposition may exceed a day of 7 hours, and no person may be deposed a second time without permission of the court and the other side. Request for Admission (Rule 36) check for highlights A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of discovery relating to facts, the application of law to fact, or opinions about either and the genuineness of any described documents. A matter is admitted unless a written answer or objection to the matter and signed by the party or attorney is served on the requesting party within 30 days. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states it has made reasonable inquiry ad that the information it knows or can readily obtain is insufficient to enable it to admit or deny. Objecting to a request must be stated. Document Production Requests (Rule 34) A party may serve on any other party a request within the scope of discovery to produce and permit the requesting party or its representative to inspect, copy, test, or same any designated documents, electronically stored information, any designated tangible things, or to permit entry onto designated land or other property possessed or controlled by the responding party. A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request. The requested party must respond in writing within 30 days after being served. If a party fails to respond they are subject to a motion to compel and possible sanctions. Physical and Mental Examinations (Rule 35) Where a partys mental or physical condition is in controversy, the court may order a party to submit to a physical or mental examination by a suitably licensed or certified examiner. The order may be made only on motion for good cause and on notice to all parties and the person to be examined. Expert Testimony (Rule 26(a)(2)) A party must disclose to the other parties the identity of any expert witness it may use at trial. The disclosure must be accompanied by a written report prepared and signed by the witness which contains a complete statement of all opinions the witness will express and the basis and reasons for them, the data or other information considered by the witness in forming these opinions, and any exhibits that will be used. Work Product Rule 26(b)(3)(A)

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. However, those materials may be discovered if they are otherwise discoverable OR the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Opinion Work Product Rule 26(b)(3)(B) If the court orders discovery of work product materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. Discovery Abuse Rule 26(b)(2)(C) On motion or on its own the court must limit discovery if it determines that: 1. discovery sought is unreasonably cumulative 2. party seeking discovery had ample opportunity to obtain information sought 3. The discovery request is unduly burdensome. Discovery Sanctions Rule 37(b)(2) If a party ignores or disobeys a courts discovery order, the court may order for such sanctions: 1. Order that the facts pertinent to the undisclosed material be established in favor of the party seeking discovery 2. Deny the non-disclosing party the right to present claims or defenses related to the material sought 3. dismiss or default the non disclosing party 4. hold the non disclosing party in contempt. Purposes of a Pretrial Conference Rule 16 (PEEDS) In a case without a case management order, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as (1) expediting disposition (2) exercising control (3) discouraging wasteful pretrial activities;(4) thorough preparation, and; (5) settlement. Scheduling order governs the pretrial conference and describes how the case will be litigated. The scheduling order must limit the time to join parties, amend pleadings, complete discovery, and file motions. A schedule may be modified only for good cause and with the judge's consent. Failure to miss a deadline pursuant to this Rule will subject a party to discovery sanctions. Spoliation A party who willfully destroys, loses through neglect, or throws away relevant information in the ordinary course of business before a discovery request is made may be subject to a dismissal as a discovery sanction. Motion in Limine Brought prior to commencement of trial, asking judge to make evidentiary order prior to the end of trial. For example: Seek a judges ruling whether deposition was improper. Party that took improper discovery may not be permitted to use it. Attorney-Client Privilege

Privilege limits the right to certain information in discovery due to a special relationship related to any matter in controversy, and can be involuntarily waived by failure to assert or taking inconsistent action. Relationships: (including attorney/client, spousal, dr./ patient, priest/penitent, self-incrimination) Default Judgment Rule 55 A default judgment is a binding judgment in favor of the plaintiff when the defendant has failed to answer or otherwise plead within the time permitted. The court may set aside entry for default for good cause. Voluntary Dismissal A plaintiff may dismiss an action without a court order by filing a notice to dismiss before the opposing party serves an answer or motion for summary judgment, or at any time if all the parties agree. Involuntary Dismissal (Rule 41(b) If the plaintiff fails to prosecute or to comply with the FRCP, the defendant may move to dismiss any action or claim against it, which operates as an adjudication on the merits. Alternative Dispute Resolution Settlement Settlements are a common way for settling litigation and help control the risk of trial. Mediation Mediation is a helpful tool used in many civil suits. In a mediation, the parties present their case to an impartial mediator who then attempts to weigh the strength of each claim and defense and aid in reaching a settlement. Mediation, unlike arbitration, is not binding. Summary Jury Trial A somewhat rare method of alternative dispute resolution in which the lawyers for each side present a condensed version of their case to a jury of 8 or fewer members who then return a nonbinding verdict. Arbitration Often included in contracts, arbitration is a private, nonjudicial adjudication in which both parties present their claims and defenses to a neutral party who then issues a binding order on the parties. Summary Judgment Rule 56 Summary judgment is a pretrial device that permits the court to determine whether there is an issue of fact to be tried. The moving party has the initial burden of showing that no reasonable juror could find for the non-moving party or that the non-moving party is unable to meet their burden of proof. The burden then shifts to the opposing party to come forward with evidence that tends to establish there is a genuine issue of material fact. Summary judgment is appropriate only when there has been enough time for adequate discovery, there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Summary Adjudication A federal court can dismiss certain causes of action without dismissing the entire complaint.

Recusal 28 USC 455(a) and (b) pg. 582-3 Any justice, judge or magistrate shall disqualify himself or herself: 1. In any proceeding where his or her impartiality may be reasonably questioned, 2. Where he or she has served as a lawyer in the matter in controversy before becoming a judge, (question: exact matter or issue in general?) 3. Or where he or she has served in governmental employment and expressed an opinion concerning the merits of the particular case or controversy. *Note: A writ of mandamus to recuse will likely get more deference by the court for an interlocutory appeal then other writs. Right to Trial by Jury (practice on pg. 560) The right to a jury trial in certain civil suits is provided by the preservation clause of the 7th Amendment. To determine which plaintiffs are entitled to a jury, the court performs a historical analog test by asking 1. Did this type of issue exist in 1791? 2. In not, does this issue have a historical analog that existed in 1791? The remedy sought plays a big role in the decision: If the plaintiff is seeking money damages then it is legal and the plaintiff is entitled to a jury. If the remedy sought is an equitable claim then the plaintiff is not entitled to a jury. If a claim has both legal and equitable claims, the judge may bifurcate the claims, trying the legal claims in front of a jury, which binds the judge to the findings in the legal claim and must apply those findings in the equitable claim. Jury Selection 28 USC 1861 and 1867 A lawyer can use a peremptory challenge to strike a juror for almost any reason. Where a pattern of peremptory striking jurors of a certain race and or gender is detected, the counsel must have a viable reason that is not race related. Litigants entitled to trial by jury shall have the right to juries selected at random from a fair cross section of the community. Within seven days after the party discovered or could have discovered, by the exercise of diligence, any party may move to stay the proceedings on the ground of substantial failure to comply with the provisions of jury selection. Burden of Proof The standard of proof in a civil suit is that one litigants version of events is more likely than not to be true. The burden of proof is comprised of 3 burdens: 1) Burden of Pleading: Plaintiff must allege all of the elements of a particular cause of action. The test of the sufficiency of the pleading is by a 12b6 in the federal court and a demurrer in the state court. 2) Burden of Production: You have to produce evidence that tends to prove your claim. 3) Burden of Persuasion: You must convince the trier of fact (judge in bench trial or jury in a jury trial) that your version of the events are more likely true than not. Judgment as a Matter of Law Directed Verdict Rule 50 New: If a party has been fully heard on an issue during a jury trial and the court finds that no reasonable juror could find for the non-moving party, the court may grant a motion for judgment as a matter of law as a directed verdict. The judge instructs the jury on which verdict to render

because the party failed to meet its burden of proof. JNOV is similar to a directed verdict except it indicates that the case went to jury and returned a verdict. However, if the court decides that no reasonable juror would have a legally sufficient evidentiary basis to find for the prevailing party, they may issue JNOV (judgment notwithstanding the verdict) with alternative for new trial. According to the 7th Amendment Reexamination Clause, no fact tried by a jury shall be otherwise reexamined in any Court of the United States. However, if there is insufficient evidence from which a reasonable juror could infer a verdict, the judge may enter judgment as a matter of law in accordance with the great weight of evidence. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may resolve the issue against that party by granting a motion for judgment as a matter of law. Judgment Notwithstanding the Verdict (judgment as a matter of law) Standard is that no reasonable juror could have found for the party If it is a directed verdict, it never went to the jury If it was a JNOV, it went to a jury FROM JENNA: Judgment as a Matter of Law Directed Verdict (Rule 50(a)) If a party has been fully heard on an issue during a jury trial and the court finds that no reasonable juror could find for the non-moving party, the court may grant a motion for judgment as a matter of law The judge instructs the jury on which verdict to render because the P has failed to meet the burden of production and persuasion Judgment Not Withstanding the Verdict (Rule 50) Similar to judgment as a matter of law except that it indicates that the case went to the jury and the jury returned a verdict However, if the court decides that no reasonable juror would have a legally sufficient evidentiary basis to find for the prevailing party, they may issue a JNOV (judgment as a matter of law) with alternative for a new trial Motions For New Trial (usually brought with JNOV) The court may order a new trial for any reason a Federal Court has granted a new trial previously. This includes (1) Flawed procedures (including impermissible arguments to the jury, improper jury instruction, improper evidence or juror misconduct), or(2) Flawed Verdicts, where the verdict is against the great weight of evidence or contrary to law. A motion for new trial must be filed within 28 days of entering a verdict. Additionally, the court can remit a jury award, but the court cannot increase a jury award. - can be conditional - Remitter and reduced award - Additure, increases the award, cannot occur in federal court - Can reduce award, cannot Final Judgment Rule 28 USC 1291 (FINISH THIS ONE 3/8) The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States. A final judgment is when there is nothing left for the trial court to do

except for enter judgment. If the court denies the motion for summary judgment, the party seeking the motion for summary judgment may not appeal because there is something left for the trial court to do. If the trial court grants the motion for summary judgment, the opposing party may appeal because the motion for summary judgment ends the case. Standards for Appellate Review Standards of Appellate Review Depending on the nature of the appeal, an appellate court is required to apply one of three standards of review. 1. De Novo The reviewing court looks at the case as though there have been no proceedings before. They are free to reexamine facts and owe no deference to the trial court. * Whether the court looks at the record in its totality. The least deferential of the standards. The appellate court looks at both the facts and the law. 2. Clearly Erroneous An appellate court may overturn a factual finding when it decides that no reasonable juror could have reached the conclusion they did based on the facts in record. This is similar to the standard for issuing a directed verdict. *Midlevel scrutiny. 3. Abuse of Discretion Most deferential standard of review and the one most often applied. Under this standard, the appellate court will reverse the dist. ct. only if the dist. ct. judge has abused his/her discretion. Because of the great discretion to district court judges, pursuant to the judges inherent authority to manage his/her courtroom, most cases viewed under this standard are affirmed. Scope of Review Scope of review refers to what appellate courts can consider on appeal. Generally speaking, parties cannot introduce new material at the appellate level. The scope of the review is confined to what is in the record below. Interlocutory Appeal 28 USC 1292 Interlocutory appeals are appellate court reviews while litigation is ongoing of a prior interim order issued by a district court. They are invoked by a writ of mandamus. They are proper when a case involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may advance the ultimate end of litigation. District court must certify and appellate court must agree. Full Faith and Credit Clause 28 USC 1738 The Full Faith and Credit Clause requires the court in the second action to give weight in the first action. Records and judicial proceedings shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. Harmless Error 28 USC 2111 Federal courts are forbidden to reverse for errors or defects that do not affect the outcome of the case. Compulsory Counterclaim Rule 13 (Transactional Test codification of common law doctrine of former adjudication) EXAM A pleading must state as a counterclaim any claim that at the time of its service the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction.

NO COMPULSORY JOINDER OF CLAIMS Collateral Attack Collateral Attack is an attempt to overturn a judgment rendered in a previous judicial proceeding. For instance, a defendant may make a collateral attack on a judgment entered against them by claiming the court lacked personal jurisdiction. Claim Preclusion (res judicata) An action is barred by claim preclusion or res judicata when (1) the claim is based on the same transaction or occurrence or series of transactions or occurrences as the original claim, (2) that could have been but was not brought with the original claim, (3) there is mutuality (or privity) of parties, and (4) the original (final) judgment was on the merits, fully, and fairly litigated, and the parties were properly incentivized to litigate. Issue Preclusion (collateral estoppel) Issue preclusion involves an issue of fact or law actually litigated and determined by a valid and final judgment, where the determination was essential to the judgment, and the party burdened with issue preclusion has had a full and fair opportunity to litigate. Mutuality is not a requirement. There are two types of non-mutual issue preclusion: offensive non-mutual collateral estoppel and defensive non-mutual collateral estoppel. Non-mutual offensive collateral estoppel allows a plaintiff who was not a party to the original suit to hold judgment against the defendant in the original suit. The defendant must have had a full and fair opportunity to litigate. A defendant who has been previously sued for a minor or inconsequential damage award may not have been fully incentivized to litigate. Non-mutual defensive collateral estoppel allows a defendant who was a party to the original suit to use the prior judgment defensively against an attack by a new plaintiff. Relief from Judgment Order (MEFJRR) Rule 60b (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: mistake, newly discovered evidence that could have been discovered in time to move for new trial, fraud, judgment is void, based on an earlier judgment that has been reversed, any other reason that justifies relief. This motion must be filed no more than a year after the entry of the judgment or order or the date of the proceeding. This rule does not limit a courts power to entertain an independent action to relieve a party form a judgment, order, or proceeding. Permissive Joinder of Parties (Rule 20) A party may be joined if they assert any right to relief 1. jointly, severally, 2. or arising out of the same transactions or occurrences, 3. and any question of law or fact common to all plaintiffs Compulsory Joinder of Parties (Rule 19) So long as the person can be served with process and does not deprive the court of smjx, the party must be joined if:

1) in that persons absence, the court cannot accord complete relief, OR 2) person claims an interest and the persons absence may, a) impair or impede the ability to protect that interest; OR b) leave others subject to inconsistent obligations Permissive Joinder of Claims (Rule 18) A party asserting a claim, counterclaim, cross-claim, or third party claim may join as many claims as it has against an opposing party whether they are related or not Compulsory Counterclaim (Rule 13) A counterclaim is compulsory if: o It arises out of the transaction or occurrence that is the subject matter of the opposing partys claim; and o It does not require adding another party over whom the court cannot acquire jx If the D fails to assert a compulsory counterclaim, it is forever barred Cross-claims (Rule 13(g) A pleading may state as a cross-claim any claim by one party against a co-party if the claim arises out of the transaction or occurrence that is the subject matter of the original action or a counterclaim Or if the claim relates to any property that is the subject matter of the original action Impleader A defendant as a third party plaintiff may bring an action against a nonparty who is or may be liable for all or part of the claims against it. A third party defendant may also bring an action against a nonparty who is or may be liable for all or part of the claims brought against it. Third party impleader is limited to cases in which the liability is derivative. If the third party defendant is nondiverse from the plaintiff, the court can exercise supplemental jx over that third party defendant. Third party defendant can exercise compulsory counterclaim against the original plaintiff, however, original plaintiff cannot exercise compulsory counterclaim against third party defendant. Intervention of Right: On motion, court must allow anyone to intervene who is given this right by statute or claims an interest relating to the property or transaction that is subject to the action where disposing of the action may impede movants ability to protect its interest, unless existing parties adequately represent that interest. Permissive Intervention: On motion, court may permit anyone to intervene who is give the right by statute or has a claim or defense that shares with the main action a common question of law or fact. Interpleader: Allows (stakeholder) who is in possession of property that is claimed to be owned by two or more plaintiffs is placed in the custody of the court and the plaintiffs try and demonstrate who has superior right. Statutory Requirements: minimal diversity, amount in controversy is $500, no pjx, and venue is determined by residence of one party. Rule Requirements: complete diversity, amount in controversy is $75K+, ordinary jx rules, ordinary venue rules Class Actions

A person who is a member of a representative class may sue on behalf of all of the members only if there is: o Numerosity: The class members are so numerous that joining them would be impractical o Commonality: There are questions of law or fact common to the class o Typicality: Established in the claims or defenses of the representative parties are typical of the class o Adequacy of Representation: The representative parties will fairly and adequately protect the interests of the class and the counsel has enough resources to competently handle the case The litigation must fit into one of three categories: o 23(b)(1): A class interpleader that would otherwise substantially impair the other class members o 23(b)(2): Injunctive or declaratory relief is most appropriate for the class as a whole Generally used to enforce civil rights o 23(b)(3): Commonalities of law and fact predominate and this is a superior way to manage the case (economically) Typically mass tort claims Persons in this class must receive notice and the ability to opt out

Class Action Fairness Act: (defendant trying to remove) Lawyer has a fiduciary duty to client: duty of competence, duty of loyalty, duty of confidentiaility, and the duty to (zealously advocate on behalf of the client) protect clients interest; if fails to do this, guilty of ethical misconduct CONFLICT OF INTEREST: an attorney may not to represent conflicting interests, which is violation of attorneys professional responsibility and if he does that, may be disciplined