You are on page 1of 16

Civil Procedure Outline

DUE PROCESS:

PLEADINGS:
Pleadings serve the function of notice to the opposing parties

I. Complaint: Rule 8
a. Each claim for relief should have: Rule 8(a)
i. A short and plain statement showing jurisdiction
ii. A short and plain statement of the claim showing entitlement to relief
***FORM 9***
iii. A demand for judgment
b. Dioguardi v. Durning (pg. 177)
i. All that is necessary is a short and plain statement of relief
c. Court must have subject matter jurisdiction
i. Must provide short statement showing jurisdiction (PJ and SMJ)
d. Statement showing entitlement to relief:
i. Conley v. Gibson
1. All allegations taken as true
2. Read the complaint in the light most favorable to P
3. Makes extremely difficult to win 12(b)(6)
ii. Complaint must withstand a 12(b)(6)
1. No set of facts (that give rise to cognizable CofA
2. No such cause of action
3. Facts alleged miss an element of the Cause of Action
iii. Notice must be given (RULE 4)
1. 120 days from time of filing of complaint
2. Rule 4(e-j) shows = how to serve process
iv. Real Party in Interest RULE 17(a,b)
1. must be prosecuted in real party at interest
2. not grounds for dismissal
3. Must have real name, except for special privacy cases
a. Doe v. U.S. Life Ins.
v. Inconsistent Claims: 8(e)(2)
1. Party may brings as many claims as necessary regardless of
consistency
2. Henry v. Daytop Village
a. Inconsistency is not grounds for dismissal or summary
judgment
vi. No Heightened Pleading Requirements
1. Leatherman v. Tarrant County - EXCEPTION
a. Only “short and plain statement”
2. Exceptions: Rule 9(b)
a. Fraud and Mistake must be pleaded with some degree of
specificity
e. Demand For Judgment or RELIEF***
i. FILL THIS SECTION IN***
f. Due Process Requires NOTICE and therefoe service of Process
i. SEE BELOW
II. Pre-Answer Motions: Rule 12
a. Rule 12(b) : prior to filing an answer, the defendant may, if he chooses, file a
motion and raise any or all of the following defenses:
i. Lack of subject matter jurisdiction
ii. Lack of personal jurisdiction
iii. Improper venue
iv. Insufficiency of process
v. Insufficiency of service of process
vi. ***Failure to state a claim upon which relief can be granted (even if P’s
allegations are true, relief can not be granted**)
1. Conley v. Gibson (must prove “no set of facts that would entitle
him to relief…”)
2. Bower v. Weissman;
3. look at the facts pleaded and determine if the elements of a cause
of action are laid out
vii. Failure to join a party needed for just adjudication (RULE 19)
1. Motions 1,2,3, and 6 are fatal motions that will terminate the case
if granted
b. Motion for a more Definite Statement: Rule 12(e)
i. Party may file if the complaint is “so vague and ambiguous that a party
cannot reasonably be required to frame a responsive pleading”
ii. An opposing party has 10 days to provide the more definite statmnt
c. Motion to Strike: Rule 12(f)
i. Made to strike any redundant, immaterial, impertinent, or scandalous
material
d. Consolidation of Defenses: RULE 12(g)
i. Generally, a motion under Rule 12 may join any other motions or defenses
under Rule 12 or they are waived
ii. EXCEPTIONS: “favored motions”
1. Failure to state a claim
2. Failure to join a party (rule 19)
3. Lack of Subject Matter Jurisdiction
a. May be brought to attention by ‘parties or otherwise’
iii. Basically, Motions 1,6,7, are preserved but 2,3,4,5 are waived if not
brought in a motion if one or the answer (first response to the complaint)
III. Answer
a. Rule 8(b) ADMIT OR DENY
i. Party must admit or deny every averment in the complaint
ii. Statement of lack of sufficient knowledge or information takes the form of
DENIAL
1. Must do sufficient investigation before stating that you lack the
knowledge or information (Greenbaum v. U.S.)
b. Rule 8(c): AFFIRMATIVE DEFENSES
i. Must state any Aff def. that the party may have
ii. EX: SOL, res judicata, Statute of Frauds, etc…
iii. The D has the burden of pleading, production, and persuasion
c. Failure to deny – Rule 8(d)
i. Failure to deny an averment in the complaint takes effect of admitting the
averment
d. Timing of answer RULE 12(a)
i. If personally served: 20 days RULE 12(a)
ii. If served by mail and waiving formal service: 60 days
iii. If Rule 12 motion: 10 days after decision on motion
e. Objections to Complaint – (RULE 12(b)
i. File motions
f. Counterclaims and Cross Claims: RULE 13*** (fill in info on T&O)
i. Claims the defendant has against the plaintiff may be brought in the
answer
ii. Rule 13(a): if the claim arises from the same T&O must be brought or
barred “Compulsory Countercliam”
iii. Rule 13(b): any other claim is permissive and may be brought
iv. Rule 13(g): Cross claim against a co-party
1. must arise out of the same transaction or occurrence
2. EX: D1 files cross claim against D2 for indemnification.
3. “claimant may allege the other party is or may be liable for all or
part of the claim asserted in the action against the cross claimant
v. Impleader (see Joinder below
1. Rule 14
g. Reply:
i. Generally, the P need not reply, unless answer contains a counterclaim
ii. Must reply within 20 days of receiving answer if counterclaim
h. Jury Request – RULE 38
i. Request must be in writing before the trial, no later than 10 days after
service of last pleading
ii. For D usually jury request is placed in the answer
iii. May be waived if not placed in the answer
iv. Voire Dire – Rule 47
1. Each side has unlimited strikes for cause
2. 3 preemptory strikes per side
3. strikes may not be based upon race or gender
IV. Motions for Involuntary and Voluntary Dismissal

DISCOVERY
V. DISCOVERY
a. Purposes:
i. Reduces trial by ambush, Promotes settlement
b. RULE 26
i. A party is entitled to demand the discovery of any matter:
1. relevant to the claim or defense of a party
2. Not unreasonably cumulative or burdensome
3. that is not privileged – RULE 26(b)(1)
a. Hickman v. Taylor (attorney work product)
4. Things unrelated to the claim or defense if with leave of court
c. Methods of Discovery:
i. Depositions: may depose a party or non-party
1. expensive
2. Rule 30
ii. Interrogatories (in federal court you get 25 questions)
1. only sent to parties
2. Rule 33
iii. Request for production of documents
1. Rule 34
iv. Requests for admissions
1. Only for parties – failure to deny = admission
d. Scope of Discovery
i. RULE 26(b)(1) – “parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any party”
1. can discover anything relevant to a claim or defense or reasonably
believed to lead to admissible evidence
2. privileged matter may not be discoverable
3. Relevant information need not be admissible if it is likely to lead to
admissible evidence
ii. Exceptions to the broad scope of discovery:
1. privileged information (ex: attorney/client privilege)
2. Work-product privilege RULE 26(b)(3)
a. Bars the production of certain materials developed in
anticipation of litigation Hickman v. Taylor
iii. Experts
1. RULE 26(a)(2)
a. Parties are required to disclose the names of testifying
experts atleast 90 days before trial
b. Must also include report on their opinions and the basis for
those opinions
e. Sanctions for Discovery
i. Rule 37
ii. Moving party must first demonstrate the it tried to resolve the issue
iii. Sanction for continued noncompliance include:
1. Contempt
2. pay money
3. A lot weaker sanctions that RULE 11

AMENDING THE PLEADINGS


VI. AMENDMENT and Supplemental Pleadings: Rule 15
a. A party may amend once before a responsive pleading is served; if no responsive
pleading required within 20 days of service
i. Other amendments may be granted w/ leave of court
ii. Leave shall be freely given when “justice so requires”
b. Relation Back 15(c): amendment dates back to the original pleading when:
i. Permitted by law (no violation of SOL)
ii. The claim or defense arose out of same T or O
c. Rule 15( c) (3): a party may be added and have RELATION BACK if:
i. Claim or defense arose out of same T&O – Rule 15(c ) (2)
ii. The newly named party received notice of the lawsuit within 120 days of
the filing AND
iii. There is not prejudice that prevents the party from defending the claim
AND
iv. The new party knew or should have known that “but for a mistake” they
would have been named in the original suit
1. Christopher v. Duffy (no relation back if prejudice towards the
defendant…must be argued)
d. Due Process Limitation: amendments must satisfy due process
i. Nelson v. Adams (The Court found that a post-verdict amendment that
related back and provided for immediate judgment against a new party did
not meet Due Process because they did not allow her defend the claim)
e. Supplemental Pleadings: relate to matters that occur after the original pleadings
i. EX: a breach of K and then a continued breach gives rise to a
supplemental pleading
VII. RULE 11- SANCTIONS:
a. Signature Requirement: RULE 11(a); every pleading, motion and paper filed with
the court must be signed by an attorney of record
b. Representations to the COURT: Rule 11(b)
i. Paper not presented for improper purpose
ii. Claims are warranted by existing law or nonfrivolous argument for the
extension of existing law
iii. The allegations have evidentiary support or are likely to have evidentiary
support
iv. Denials are warranted on the evidence OR reasonably based on a lack of
information or belief
c. Sanctions: if after notice and a reasonable opportunity to respond the court
determines a party to be in noncompliance w/ Rule 11(b) they MAY
(discretionary) impose sanctions
i. Safe Harbor RULE: a party shall serve a motion for sanction to the
offending party but not file w/ the court. IF after 21 days, the offending
party has not amended, motion may be filed with the court
ii. Court may impose sanctions at its own initiative
iii. Sanctions include various types of penalties
1. Ex: money, writing lines of books, attending civ pro classes, etc.
SUMMARY JUDGMENT
VIII. SUMMARY JUDGMENT
Rule 56
a. Cite to: Celotex. Moving party has burden of showing “no genuine issue as to any
material fact”…therefore entitled to judgment as a matter of law
b. Standard
i. Rule 56(c) – Look only at potential evidence: pleadings, depositions,
answers to interrogatories, and admissions on file w/ any affidavits:
1. If potential evidence shows no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law – shall be granted
ii. Modern Standard – Moving party is not required to negate claim. Must
point to something in the record that would demonstrate a lack of an issue
as to material fact (Celotex)
1. If moving party is defendant, he may simply point to the record
and state there is not sufficient evidence to win at trial
2. Nonmoving party (plaintiff) who will have the burden of
production at trial will then have to produce something to show
there is a sufficient question as to a material fact in the case.
(Celotex).
iii. Partial Finding
1. Rule 56(d) – Case not fully adjudicated on motion: if the SJ does
not address entire case – may dispose of part of it.
iv. Rule 56(e) – When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon
mere allegations or denials of adverse party’s pleading
1. must respond with affidavits (shift of production burden)
2. must set forth specific facts showing a genuine issue for trial
c. Timing – Plaintiff – Rule 56(a)
i. Any time after the expiration of 20 days from the commencement of the
action or after service of a motion for summary judgment by adverse
party. Prior to trial. With our without supporting affidavits.
d. Timing – Defending Party – Rule 56(b)
i. At any time after a claim has been asserted against. Prior to trial. With or
without supporting affidavits.
e. Purpose:
i. Test sufficiency of proof – has the burden of production been met?
ii. Used to eliminate claims for which there is insufficient proof (see Rule 1)
f. To Win:
i. Plaintiff must show admissible, persuasive, non-controverted evidence to
prove every element of the cause of action – (met production and
persuasion burden)
ii. Defendant must show that P has failed to meet production burden on one
element – lack of potential evidence.
g. To Attack:
i. Attack the reasoning that the moving party uses (Celotex)
ii. Show that there are issues of material fact (traditional)
h. Compared to 12(b)(6)
i. Considerations
1. 12(b)(6) – allegations
2. Summary judgment – pleadings, affidavits, discovery
ii. Burden
1. 12(b)(6) – P stated facts sufficient to allege all elements of a
compensable claim
2. Summary judgment – Will plaintiff survive a directed verdict at
trial because she will have admissible, persuasive, non-
controverted evidence to prove every element of her cause of
action?
i. Burdens
i. Of Proof
1. Preponderance of the Evidence: The party having the persuasion
burden in the trial must produce convincing evidence – certainty,
more likely than not
ii. Of Persuasion
1. P must come up with witnesses and other evidence to prove the
claim. This burden never shifts.
iii. Of Production
1. First: Concerns whether party has enough evidence to go to trial in
the first place
2. Shifts as burden to produce evidence shifts during litigation
3. Summary Judgment device is concerned with the burden of
production
4. Party with the burden of production must present evidence
sufficient to meet that burden – enough evidence that a reasonable
finder of fact could find for him (if evidence is clear that jury must
find for him, the burden shifts)
j. Example motion:
i. Defendant moves for judgment on the grounds that there is no genuine
issue as to the facts established in the affidavits attached hereto and, on
those facts, defendant is entitled to judgment as a matter of law.

DIRECTED VERDICT.
/ JUDGMENT AS MATTER OF LAW.
I. Directed Verdict (Judgment as a matter of law)
a. Rule 50
i. Motion must be made prior to submission of case to the jury
ii. Judge looks only at evidence
iii. Takes the decision away from the jury.
iv. Standard:
1. “The judge should consider all of the evidence (non-mover’s and
mover’s) in the light most favorable to the non-moving party. If the
facts point so strongly to one party that the court believes the
reasonable man could not arrive at a contrary verdict, the motion
should be granted…However, if the reasonable man could differ
the motion should be denied and the case should go to the jury
v. Judge must consider the evidence in the most light of the nonmoving
party.
b. Timing
i. Can be brought after any party closes their case-in-chief, but regardless,
ii. must be renewed at the close of the record to preserve future rights of
appeal.
1. happens after jury has been heard and permits the judge to reverse
jury while preserving the fact-finders decision for appeal.
iii. Must be renewed at the close of all evidence to allow a j.n.o.v.
1. judge may deny the motion and still render j.nov after the jury
decides??/

JURY INSTRUCTIONS / VERDICT.


I. Jury Instructions
a. Rule 51
i. Authorizes judge to require attorneys to submit jury instructions.
ii. Requires judge to disclose the instructions before closing arguments to
attorneys. If he doesn’t, grounds for appeal. If he does, you must show
your initial request for jury instruction and objection to the judge’s
proposed instructions for appeal.
II. Types of Verdicts
a. General verdict – finding for either P or D and if for P, how much money.
b. General verdict with Special verdict – giving comparative fault
c. Special verdict – judge outlines how the jury should approach each issue, step by
step.

ENTRY OF JUDGMENT

JUDGMENT N.O.V. /.
JUDGMENT AS MATTER OF LAW.
I. Rule 50
a. Identical to Judgment as a matter of law, by standard.
b. Occurs after a jury has decided
c. Must be submitted no later than 10 days after entered judgment.

JOINDER :
Rules: 19, 18, 20, 13

I. Necessary Joinder (Compulsory) RULE 19:


a. RULE 19 - ??????
b. We have not gone over this yet?? Filll
II. Permissive Joinder:
a. Rule 18: a party may bring as many claims as it may have
i. Liberal rules that allow you to bring many claims
ii. Judge has the right to sever claims to create separate trials…RULE 20(b)
b. RULE 20: May join as co-defendants in an action IF:
i. Claim arises out of the same T&O or series of T&O AND
1. make argument for T&O
2. Courts tend to look at if there is similar facts and claims are
logically related
3. Purpose of joinder is to increase efficiency
ii. There is a common question of law or fact
1. Kedra v. City of Philadelphia
c. RULE 20(a): MAY join as co-plaintiffs IF:
i. Claim arises out of the same T&O AND
ii. There is a common question of law or fact
1. This is the same test as to co-defendants
2. EX: It is common for all persons injured in an auto accident to join
as plaintiffs. The common issue is the D negligence and the car
accident is the same occurrence for all plaintiffs***
d. SMJ
e. PJ
III. IMPLEADER (third party practice) RULE 14(a):
a. Rule 14(a): D may bring claim against any person not already a party in the suit
who “is or may be liable for all or part of the P’s claim against the third party
P(Defendant)
b. D MAY implead any person
i. Not already a party in the action
ii. Original D must have legal theory
1. Contribution
2. Indemnification
iii. Third party defendant is or may be liable to the D (third party plaintiff)
iv. Leave of court necessary if after 10 days of serving original answer
c. 3rd Party Defendant may;
i. Assert any defense against P that third party plaintiff asserted
ii. Assert any claim against P arising out of same T&O
iii. Implead a 4th party who is or may be liable for the claim by the D against
the 3rd party
d. P may:
i. Assert claim against third party defendant with same T&O
IV. Intepleader: Rule 22:
V. Misjoinder: Rule 21
a. Not grounds for dismissal of the claim
b. All parties and claims must satisfy SMJ
c. All parties must have personal jurisdiction under the court
VI. Joinder of Claims: the policy is to permit the adjudication of all claims between the
parties and all claims out of a single transaction. A P can join any number and type
of claims against a D; where multiple P or multiple D are involved, it is essential only
that at least one of the claims arise out of same T&O in which all were involved?????
a. By the Plaintiff – Rule 18(a):
i. Original claim, counterclaim, cross-claim, third party claim
1. join as many independent or alternative claims as they have against
the opposing party
2. Rule 42(b)
a. For convenience or to avoid prejudice, the court may split
claims into multiple trials
ii. MUST determine if SMJ permits the claim
b. By the Defendant: Rule 13
i. Compulsory Counter Claim: Rule 13(a)
1. Claim arises out of same T&O
a. Are issues of law and fact raised by the claim and counter
claim the same?
b. Would res judicata bar a subsequent suit on the counter
claim?
c. Will substantially the same evidence support or refute P’s
claim as well as D’s counterclaim
d. Is there a logical relationship between the claim and
counterclaim?
2. If these claims are not brought then they are barred (res judicata)
3. Counterclaim rules are written in general language, so as to allow
any party once an adversary to counterclaim
a. For example, not the original defendant is not the only
party that has the right to assert a counterclaim
ii. Permissive Counterclaim – Rule 13(b)
1. May be allowed (they do not arise out of same T&O
2. Allowed on basis of increasing efficiency (policy argument)
3. However, under Rule 42(b) the claims may be separated into
separate suits if so justified
4. MUST determine if SMJ permits the claim
iii. CROSS-claim – Rule 13(g)
1. against a co-party
2. Must meet the same T&O test
3. After asserting a Rule 13(g) cross claim, can assert any other claim
against co-defendant allowed under rule 18(a)
4. must determine SMJ permits
5. MAY assert that co-defendant is or may be liable to cross claimant
for all or part of a claim asserted in the original action
6. cross claims are optional (the defendant MAY bring the claim; he
can still bring the claim later if necessary)
c. Judge can separate/consolidate claims for trial RULE 42(a)

PERSONAL JURISDICTION

I. Statutory Analysis (LONG ARM STATUTES


a. General Statutes – can go to the full extent of the Due Process Clause
i. Flexible and allow for wide jurisdiction
ii. Rule 4(k)(2) – requires federal courts to only exercise jurisdiction in a
state if the long arm statute of the state allows
b. Enumerated
i. Specific
ii. EX: tort in other state when effects felt in the forum
II. CONSTITUTIONAL ANALYSIS (due process clause)
a. General Jurisdiction
i. A court w/ GJ can any claim in the world
ii. Traditional Basis for GJ:
1. D is personally served in the forum (Burnham case)
2. D’s agent is served in the forum??
3. D is domiciled in the forum
4. D consent’s to jurisdiction in the forum
5. Systematic and Continuous contacts (Helicopteros case)
iii. Systematic and Continuous contacts = General Jurisdiction
b. Specific Jurisdiction
i. Court can only hear a claim that arises from the D’s contacts with the
forum state
1. Maybe allowed if claim “relates to” – Brennan’s dissent in
Helicopteros
ii. D must have minimum contacts with the state such that jurisdiction does
not offend traditional notions of fair play and substantial justice
(International Shoe)
c. Minimum Contacts
i. Torts
1. Intentional Torts
a. Calder v. Jones – jurisdiction found
i. If you cause an effect in a forum, intentionally, you
can be found to have had contact with the forum
and haled in the state
ii. Knowledge that the effects would occur in the
forum state
2. Non-Intentional
a. World Wide VW – jurisdiction NOT found
i. The car was taken to the forum by the unilateral act
of a 3rd party
ii. Foreseeability is relevant, but could the D foresee
that it could be haled in the forum?
iii. Not foreseeable because the car entered the state
because of a unilateral act of a third party…
therefore they did not purposefully avail themselves
to the laws of the state
b. Asahi – jurisdiction not found (based on fairness factors)
i. Stream of Commerce:
1. Brennan – If person places a product into the
stream of commerce they should reasonably
expect to be haled in forums where the
product ends up. “as long as a participant is
aware that the product is being marketed in
the forum state, the possibility of
jurisdiction should be a surprise….”
2. O’Conner – Commerce PLUS = person
must place the item into the stream plus
some act that avails itself to the forum
(advertising) would show that it could be
expected to be haled in the forum.
3. Stevens – argued for a theory based upon
value, and/or volume and hazard
ii. Commercial
1. Burger King: - jurisdiction found
a. Purposeful availment – contemplated relationship
i. Obtain the benefits of the laws of the forum state
b. Choice Law Provision
2. McGee – jurisdiction found (TX company haled into CA court)
a. D solicited life insurance policy
b. Maintained operations (payments, etc.)
c. D was found to have purposefully availed itself by
soliciting in the forum state
3. Hanson –no jurisdiction
a. Lady set up trust in DE and then moved to FL – where the
dispute occurred. FL tried to get jurisdiction
b. The D (DE company) did not purposefully avail itself to the
FL forum, therefore, no jurisdiction
c. D did not reach out to the forum, the P moved and carried
the D there
iii. Property (in rem jurisdiction)
1. Schaffer
a. Eliminated quasi in rem jurisdiction
b. The suit must arise out of the property in the state
c. Property gives specific jurisdiction
d. Property can be a min imum contact that suffices for
jurisdiction purposes
e. If the action does not arise from the property…then must
do fundamental fairness test…probably will not give
jurisdiction
iv. Service of Process in the forum
1. Burnham
a. Scalia: service of process is sufficient based upon tradition
b. Brennan: concurring
i. Must still use fairness factors from Int. Shoe
ii. Members of the court found that 4 days in CA was
sufficient to give GJ
v. Consent
1. Carnival Cruise Line – forum selection clause
d. Fundamental Fairness Factors
i. DEFENDANT BURDEN vs.
ii. Interest of the forum state
iii. Plaintiff’s interest
iv. Social Policy interest: to encourage people to engage in commerce without
fear
v. Interstate judicial interest: sovereignty of states
III. Minimum Contacts Analysis:
a. What is the contact with the forum?
i. Purposeful Availment –
1. D “purposely availed itself of the privilege of conducting activities
in the forum, thus invoking the benefits and protections of its
laws...” (Hanson v. Denckla)
a. Foreseeability of being haled in the forum
b. Brennan – “the defendant could bring suit in the forum
2. Stream of Commerce: court split on the basis of contact
a. O’Conner = stream of commerce +
b. Brennan = stream of commerce sufficient (foreseeability)
3. Contract issues (Burger King)
4. Intentional Torts (Calder v. Jones)
a. If a person intentionally causes harm in another forum, he
should reasonably expect to be haled in the forum
b. Does the cause of action arise out of the cause of action?
i. COA must arise out of the contacts in order to give specific jurisdiction
c. What are the fairness factors?
i. Defendant Burden VS.
ii. Interest of the forum state
iii. Plaintiff’s interest
iv. Social Policy
v. Interstate judicial interest (efficiency)

Notice
I. Due process requires Notice and a Chance to be Heard
a. Service of Process (RULE ANALYSIS)
i. FRCP 4
1. Timing: 4(m): 120 days of filing complaint or action may be
dismissed
2. Process consists of a summons AND a copy of the complaint
a. Summons – Rule 4(a,b) – an official notice of suit
3. Service can be made by any non-party who is at least 18: Rule 4(c)
(2)
4. How to serve a person
a. Rule 4(e)(2)
i. Personal Service (hand it to him) anywhere in the
state
ii. Substituted Service (serving a substitute, not D)
1. OK if:
a. At D’s usual abode or dwelling
house AND
b. Must serve someone of suitable age
and discretion who resides there
iii. Service of Agent – contract or operation of law
b. Rule 4(e)(1)
i. Use any method of serving process that is allowed
by state law where the federal court sits OR
ii. The use of state law where the service is being done
if out of state
1. Ex: if D in Maine…under the laws of Maine
iii. Can use state, or FRCP methods
5. How to serve a corporation
a. Serve an officer or managing general Agent or to an agent
authorized to receive service
b. Also may be made pursuant to 4(e)(1) – pertaining to state
laws
6. Waiver by Mail: Rule 4(d)
a. Does not allow service of process by mail
b. Rule 4(d)(2) provides a duty to waive service if asked
unless there is good cause
c. 4(d)(3)- provides incentive to waive service…60 days to
answer rather than 20 days
7. Geographic Limits: Rule 4(k)(1)(a) – “Federal LA statute”
a. The federal court is authorized to assert jurisdiction if the
courts of the state in which the federal court sits court sits
could assert jurisdiction over the defendants
b. Rule 4(k)(1)(b) – bulge rule for ADDITIONAL parties
i. Impleaded parties subject to jurisdiction is served
within 100 hundred miles of the courthouse
c. 4(k)(1)(c)- parties subject to interpleader jurisdiction
ii. Constitutional Analysis
1. Mulane
a. Notice must be reasonably calculated under all the
circumstances to appraise the D of the suit.
b. Notice by Publication
i. Almost always in newspapers and almost always
invalid
ii. Would be permissible if you can’t identify all
parties or the residence.
c. “An elementary and fundamental requirement of due
process is notice reasonably calculated, under all the
circumstances to apprise interested parties of the pendency
of the action and afford them an opportunity to present their
objections” - Mullane
iii. Opportunity to be heard
1. Fluentes – pre judgment seizure of property
a. P must give an affidavit of the claim
b. P must show specific facts
c. Must get a court order to seize the property
d. P may be required to post a bond
e. D must get a hearing on the merits at some point

Venue
I. Basic Provisions: § 1391(a,b)
a. § 1391(a) – diversity
b. § 1391(b) – federal question
c. P can lay venue in:
i. Any district where a substantial part of the claim occurred OR
ii. Any district where a D resides as long as all D’s live in same state
1. EXCEPTION – if all D’s reside in different districts of the same
state, can be brought into a district where one D resides
a. Reside
i. People
1. where they are domiciled
ii. Corporations
1. All places subject to PJ (§ 1391(c))
iii. A district in which any D is subject to personal jurisdiction at the time the
action if there is not other district in which the claim may otherwise be
brought
II. Transfer of venue – can only transfer within the same jurisdictional system
a. Tranferor court – original court, where case is leaving
b. Transferee court – court to which case is going
c. Transferee court MUST be a proper venue and MUST have PJ. D can’t waive
them.
d. § 1404(a)
i. Used for convenience if venue is proper
ii. Applies when the transferor is a proper venue
iii. Look at convenience of the parties and witnesses and interest of justice
e. § 1406(a)
i. Applies when the transferor is an Improper venue
1. District court shall dismiss OR
2. transfer to a proper venue if in the interest of justice
III. Forum Non Conveniens
a. A court dismisses because the litigation would be more appropriate elsewhere
(usually involves a foreign state
b. Dismissed b/c transfer is impossible – because that other court is in a different
judicial system. Often a foreign country
c. Factors for dismissal
i. Public Factors
ii. Private Factors
d. Courts normally impose conditions such as consent to additional discovery, or
waiving SOL defense.

Challenging a Forum
I. Special Appearance
a. Cannot attack anything on the merits
II. Rule 12
a. Watch out for proper timing