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A court may only order a new trial if the jury's "`verdict is against the manifest weight of the evidence, ... or if for other reasons the trial was not fair to the moving party.'" Marcus & Millichap Inv. Servs. v. Sekulovski, 639 F.3d 301, 313 (7th Cir.2011). The moving party cannot just allege a manifest weight of the evidence argument without giving the court specific reasons. Willis v. Lepine, 687 F. 3d 826, 836 (7th Cir. 2012). Here, defendants make only a bald allegation and give nothing to back it up. A motion for new trial should not be granted "simply because the court would have arrived at a different verdict." Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002); U.S. v. 40 Acres, 175 F.3d 1133, 1139 (9th Cir. 1999). A motion based on insufficiency of the evidence can only be granted if the verdict is against the great weight of the evidence or if the jury has reached a seriously erroneous result. Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th Cir. 1984).
Fed.R.Civ.P. 23(a)(2) requires commonality, i.e., that there are questions of law or fact common to the class. Rule 23(a)(2) does not require identical claims or facts among class members. Chiang v. Veneman, 385 F.3d 256, 265 (3d Cir.2004). For purposes of Rule 23(a)(2), even a single common question will do. Wal-Mart Stores v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2556 180 L.Ed.2d 374 (2011). However, having “widely divergent facts and legal issues” would not serve the efficient administration of justice. Commonality requires the plaintiff to demonstrate that the class members have suffered essentially the same injury. Their claims must depend upon a common contention which must be capable of classwide resolution—which means that determination of its legal validity will resolve an issue that is central to the decision for all claims in one stroke. Dukes, 131 S.Ct. at 2551. Here, the individual employees may have different losses and some divergent facts, but they are all victims of the same employer policy of making them work overtime, fill in forms, and not get paid.
Rule 23 of the FRCP governs class actions. The class representative must be part of the class and possess the same interest and suffer the same injury. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550, 180 L. Ed. 2d 374 (2011) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). See also, Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 360 (3d Cir. 2013) ("It is axiomatic that the lead plaintiff must fit the class definition"). The dismissal of the second claim was upheld.
Rule 30(a)(1) says that a party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45. Here, none of the exceptions in 30(a)(2) exist, and she must attend or the plaintiff can file a motion to compel her attendance.
Rule 60(b) (1) may relieve a party from a judgment on the following grounds: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. The request must be made within one year for the first three grounds above. This motion was made less than one year after the entrance of judgment, even though the sheriff's sale will be held over one year from the entrance of judgment.
See Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 377-78 (2008). In the makeup of the court in 2008, national defense interests outweighed wildlife concerns. Also, the Court held that the possibility of irreparable harm was too easy of a standard and that it had to be “likely” that harm to wildlife would be irreparable.
Rule 13(g) is a Crossclaim Against a Coparty. It allows that a pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
See Seattle Times Co. v. Rhinehart, 467 US 20 - Supreme Court 1984. Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. There was a prior finding of potential oppression. The appellate court will affirm the protective order where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.
The right to amend should be unimpeded in these facts. The court committted an abuse of discretion in failing to consider and grant the right to amend at an early stage in the process. See Eminence Capital, LLC v. Aspeon, Inc., 316 F. 3d 1048 (9th Cir. 2003); Foman v. Davis, 381 U.S. 178 (1962).
The exercise of diversity jurisdiction also requires complete diversity, which means that “the citizenship of all defendants must be different from the citizenship of all plaintiffs.” McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir. 2008) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)); see Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 553 (2005) (“In a case with multiple plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action.”).
Rule 4( e) provides that the complaint and summons must be delivered to the person individually, or by leaving a copy at the defendant's dwelling or abode with someone of suitable age and discretion who resides there. Clearly, the cleaning person does not reside there and service under these facts is defective.
A party may demand a jury trial by serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served. See FRCP 38(b)(1).
Claim preclusion, or res judicata, bars the litigation of claims that either have been litigated or should have been raised in an earlier suit. Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir.2004) (quoting In re Southmark Corp., 163 F.3d 925, 934 (5th Cir.1999)). The test for res judicata has four elements: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions. Id.
Under Rule 15(a), federal courts "should freely give leave [to amend] when justice so requires."[1] In the Court's view, this meant that the standard for granting leave to amend was quite liberal: only in very limited circumstances would a denial of leave to amend be justified. Specifically, the Court found that undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by previous amendment, prejudice to the opposing party, and futility of amendment would support a denial. Absent such special circumstances, it would be an abuse of discretion for a court to deny leave to amend. The Court granted Foman's motion to amend her complaint and remanded the case to the First Circuit for proceedings consistent with its opinion. Foman v. Davis, 371 U.S. 178 (1962).
The federal diversity jurisdiction statute provides that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1) See The Hertz Corporation v. Friend, 130 S.Ct. 1181 (2010). The Supreme Court ruled in Hertz that the "principal place of business" for purposes of determining whether there was diversity citizenship was the place where the corporation's officers direct, control, and coordinate the corporation's activities. It is called the corporation's "nerve center." Hertz, 130 S.Ct. 1192. In practice, it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the "nerve center," and not simply an office where the corporation holds its board meetings.
Where there is still an employment relationship, the courts will presume bias and grant a strike for cause. Vasey v. Martin Marietta Corp., 29 F. 3d 1460, 1468 (10th Cir. 1994); Gladhill v. General Motors, Corp., 743 F.2d 1049, 1050-51 (4th Cir.1984); Francone v. Southern Pacific, 145 F.2d 732, 733 (5th Cir.1944). In these situations, the relationship between the prospective juror and a party to the lawsuit points too directly to bias.
Following entry of final judgment, a party may not seek leave to amend their complaint without first moving to alter, set aside or vacate the judgment pursuant to either Rule 59 or Rule 60 of the Federal Rules of Civil Procedure. Yuhasz v. Brush Wellman, Inc., 341 F. 3d 559, 569-70 (6th Cir. 2003); Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002). Since the investor never filed a Rule 59 or 60 motion following the district court's entry of judgment, he cannot seek leave to amend on appeal.
See Didier v. JC Penney Co., Inc_., 868 F. 2d 276, 281(8th Cir. 1989). It is doubtful that wife had a reasonable opportunity to deliberately elect to subject herself to the danger because she was in an emergency before she realized the extent and nature of the danger. She faced a sudden peril or emergency not of their own making, and had less of an opportunity to make an intelligent choice because of the element of surprise. The court will not find that the wife voluntarily assumed the risk as a "as a matter of law." Instead, this type of inquiry is a textbook example "of an issue of fact" inappropriate for determination through summary judgment.
A federal court must have at least one of three types of subject matter jurisdiction: (1) under a federal statutory grant; (2) federal question jurisdiction under 28 U.S.C. § 1331; or (3) diversity jurisdiction under 28 U.S.C. § 1332. (1) and (2) do not apply here because this is a state law tort case. Under (3), diversity jurisdiction is where (1) the amount in controversy exceeds $75,000, exclusive of interests and costs, and (2) the parties are citizens of different states. A corporation is a citizen of the state of incorporation and also of the state where it has a principal place of business. 28 U.S.C. § 1332(c)(1). The “principal place of business” is where the corporation's high level officers direct, control, and coordinate its activities, which is often called its `nerve center.' Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 1189-90, 175 L.Ed.2d 1029 (2010). Here, the man is domiciled in, and a citizen of, State A where he works and resides. The manufacturer is a citizen of State D, where it has its nerve center and of State C where it is incorporated. Thus, the man and the company are citizens of different states.
See FRCP 16(b). After consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference, the Court must issue and Order within the time specified in the Rule. The Order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. There are several other permissible functions listed in Rule 16(b).
Federal Rule 14(a)(1) requires that the third-party plaintiff (the original defendant) obtain leave of court if it files the third-party complaint more than 14 days after filing its answer. In this case, the defendant waited months to file the the third-party complaint, making it subject to a motion to dismiss by the third-party defendant (the benefactor).
Section 1332(a) sets forth the qualifications for diversity jurisdiction. The applicaple provision at 1332(a)(2) says that diversity is allowed for: citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State. Because the former friend is a citizen of a foreign state, there is diversity. However, the former friend is also a citizen of a foreign state and admitted for lawful permanent residence. This will not change the diversity permission unless the former friend is also a domiciliary of the same state as the plaintiff. That is not true here so that diversity is allowed because the defendant is a citizen of France, a lawful permanent resident, and not a domiciliary of the same state as the plaintiff.
See Carpenter v. Wichita Falls Independent School Dist., 44 F. 3d 362, 366, 367-68 (5th Cir. (1995). There must be federal subject matter jurisdiction. Garrett v. Commonwealth Mortgage Corp. of Am., 938 F.2d 591, 593 (5th Cir.1991). To support removal, the defendant bears the burden of establishing federal jurisdiction over the state-court suit. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). Removal faces significant federalism concerns. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, 106 366*366 S.Ct. 3229, 3233, 92 L.Ed.2d 650 (1986), which mandates strict construction of the removal statute. Here, there appears to be a solid independent grounds for age discrimination.
Rule 37 does not require that a motion to compel be completed prior to asking for sanctions. Instead, the rule states only that, "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." Fed.R.Civ.P. 37(a)(2)(A). The Supreme Court has described the process of weighing the statutory factors in calculating civil penalties as "highly discretionary" with the trial court. Tull v. United States, 481 U.S. 412, 427, 107 S.Ct. 1831, 1840-41, 95 L.Ed.2d 365 (1987).
See Schiavone v. Aveta, 41 A. 3d 861 (Pa.Super. 2012). Employer's decision to provide employee with a vehicle furthered its own pecuniary interests by enabling employee to travel to work and to various job sites from his home in Pennsylvania. Employee acted in the business of employer. Thus, employer's contacts with Pennsylvania, where accident occurred, were not mere "random, fortuitous, or attenuated contacts," or the "unilateral activity of another party or third person." It was activity that occurred consistently and repeatedly over the entire course of employee's employment. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
Federa Rule 50(a) states that 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 enter a judgment as a matter of law. Under Rule 50(a)(2), a motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. Here, the mere suspicions of a plaintiff can not stand as sufficient evidentiary support for the proof needed to prove a conspiracy and fraud. There is no alternative but to enter a final judgment as a matter of law and dismiss the jury.
See Krupski v. Costa Crociere SpA, 130 S. Ct. 2485, 2493-94 (2010). Here the claims in the amended complaint did directly consist of occurrences contained in and arising out of those mentioned in the original complaint. Also, the true party in interest, Power Cruise, in fact knew about the case prior to the expiration of the statute, so that it met all the requirements of Rule 15(c)(1). The only question under Rule 15(c)(1)(C)(ii), then, is whether party A knew or should have known that, absent some mistake, the action would have been brought against him.
Rule 13(a) defines compulsory counterclaim. A pleading must include a counterclaim that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. If it is not raised with the other claims, it is forever barred. The purpose is to cut out duplicative litigation. The Ninth Circuit applies the "logical relationship test" which "analyze[s] whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit." Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1249 (9th Cir. 1987) (quoting Harris v. Steinem, 571 F.2d 119, 123 (2d Cir. 1978)) Here, the relationship is so close in subject matter and time that the second lawsuit should not be allowed and the purchaser should have raised it in the first case.
A court orders summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” See F.R.C.P. 56(c). To survive summary judgment, there must be a “genuine issue as to any material fact.” If there is no genuine issue and “the movant is entitled to judgment as a matter of law,” summary judgment is granted. In this case, the answer is easy because the law precludes punitive damages so that the plaintiff could not allege any facts that would raise an issue of material fact, and most importantly, the defendant is entitled to judgment as a matter of law. See, generally for standards required for summary judgment, Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U. S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U. S. 242 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences.Henry v. Gehl Corp., 867 F. Supp. 960 - Dist. Court, D. Kansas 1994. The plaintiff's failure to respond does not therefore eliminate the jury's need to resolve credibility issues. Here, the woman's testimony is specific enough to consist of sexual harassment and the attacks on her credibility are up to the jury to decide, making summary judgment inappropriate.
