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[‘[An Overview of Civil Procedure

a. The Idea and Practice of Procedure
i. Procedure: a set of rules about the etiquette of
1. What principle of law determined who
prevailed in this situation?
2. Which lawyer, for which side, picked this
particular fight & why? What tactical
advantage was he/she hoping to achieve?
b. Where Can the suit be brought?
i. Rules governing where a suit can be brought:
1. subject matter jurisdiction
a. federal courts can be given subject
matter jurisdiction if:
i. The nature of the claim arises
under the Constitution, laws or
treaties of the U.S. [28 U.S.C. §
1331-33] (31) federal questions
(32) division of citizens (33)
admiralty & maritime cases {see
notes for chart}
2. personal jurisdiction
a. where an individual is domiciled (physical
presence & intent to remain)
3. venue: place of trial
4. Service of process: begin the action by
notifying the ∆
c. State the case, the complaint, the response(motions &
answers), amendment of pleadings
d. Parties to the lawsuit
e. Factual development – Discovery
f. Pre-trial Disposition - Summary Judgment
i. Allows a decision to be made on a case where a trial
is not necessary and would serve no purpose.
1. Dismissal may be granted when:
a. Persistent failure to comply w/ discovery
b. Failure to prosecute the case
c. Failure to appear for calendar calls,
motions, etc.
d. ¶ can also receive voluntary dismissals,
possibly better off starting over.
g. Trial
i. Directed verdict: the power of taking a case away
from the jury is exercised.
1. Circumstances for granting a direct verdict:
a. If a party who has the burden of proof
offers no evidence at all on the issue
b. Or; they supply weak evidence
ii. JNOV (judgment notwithstanding the verdict): post
verdict reversal of the jury’s decision. The ct
considers the evidence in the light most favorable to
the non-moving party and should grant a JNOV only
where evidence strongly/favorably supports them
that no contrary verdict could be arrived at.
h. Former Adjudication = Civil double jeopardy
i. Res judicata (something already adjudicated)
1. Claim preclusion – if either party is unhappy w/
the outcome, they can’t have the courts set
aside the 1st judgment and go back for another
2. Issue preclusion – if in a prior suit you sue for
an issue and once decided, you go back and
sue for the same issue that was litigated in the
1st issue.
ii. Stare decisis (the doctrine of precedent) – under
which a ct must follow earlier judicial decisions when
the same points arise again in litigation.
i. Appeals: addresses the outcome of a trial and its
i. Final judgment rule – there has to be a final
judgment rendered before and appeal can be filed.

*Writ of certiorari – federal litigation who loses in the ct of appeals that

want their case heard before the SCOTUS (Supreme Ct of the U.S.)

II. Personal Jurisdiction

a. The Origins - Pennoyer v. Neff (AAAAAGGHHHH!!!) – The
presence of property in a forum state could be the basis for
jurisdiction over claims of any sort.
b. The Modern Constitutional Formulation of Power –
International Shoe Co. v. State of Washington
i. Elements of Modern (personal) jurisdiction
1. Power
2. consent
3. notice
4. due process = notice: actual and constructive;
being afforded the opportunity to litigate
ii. To render a binding decision in case personal &
subject matter jurisdiction are necessary. W/o either
the court is unable to give a valid judgment.
iii. Collateral Attack: the ¶ sues the Δ in a state where
they have no personal jurisdiction over the
defendant. Then file a writ of execution in the Δ
COLLATERAL ATTACK. Δ can assert lack of Pj once
the ¶ brings the judgment to their domiciliary state
unless jurisdiction was established by the court that
decided the claim.
1. Full faith & credit clause allows the ¶ to take
the judgment awarded the state where Δ is
domiciled. The presence of property in a forum
state could be the basis for jurisdiction over
claims of any sort.
iv. Types of Jurisdiction {power &authority}
1. The test on whether the ct has valid
a. Assess minimal contacts (Int. Shoe Co.)
i. If there is continuous & systematic
contact then the claim doesn’t
have to arise out of a particular
contact (event)
ii. If there is only a single contact
then the claim has to arise out of
the context of the contact (event)
in question.
b. (Exercise of jurisdiction) Comports w/ due
process = fair play & substantial justice
{see chart in notes}
v. In rem – A lawsuit directed toward property, rather
than a particular person. The action must be brought
in the ct which has jurisdiction. The judgment is
binding on all persons who claim title to the property.
1. Absorbing In rem jurisdiction (Shafer v. Heitner
– established the minimum contact analysis)
2. Sue b/c claim is in connection with the
property. (ex. ¶ slip & fall on property). Since it
deals w/ the actual property and complies with
tradition of fair-play & substantial justice.
a. A shareholders derivative suit (for
corporations): A shareholder steps
forward and sues the directors or officers
In the name of the corporation, alleging
some breach of fiduciary duty. The
recourse that a shareholder has when
they feel that the directors have been
mismanaging. If the shareholder wins
then the proceeds go to the corporation.
vi. In personam – Is obtained when the Δ is properly
served (i.e. personal service) A judgment can be
enforceable where they domiciled. A cts power to
bring a person under their jurisdiction; jurisdiction
over a person personal rights, rather than merely
property interest.
1. Domicile isn’t dependent on presence in
the state. Domicile in the state is sufficient
due process (even if you are not present to
receive the notice).
a. Defense to Pj is waived if the 12(b)(2)
motion to dismiss for lack of Pj isn’t
presented 1st to the ct. You have to file a
motion disputing Pj during the pre-
vii. Quasi in rem – Attaching property purely to get
jurisdiction, but have no intention of going after the
property. The property is not the basis (target) of the
lawsuit. Claim does not have anything to do with an
event that involved the property.
viii. Distinctions of Personal Jurisdiction [power and
authority over an individual , i.e. Δ]
1. General Jurisdiction: Every Individual and
business entity In the U.S. had at least one
state they can be sued in, on any claim (for
individuals, mostly likely to be where they are
domiciled; for a corporation, most likely where
they’re headquartered or state of
a. Looks @ that persons contact w/ the
state but the claim doesn’t have to arise
out of that contact (event) when there
continuous and systematic contact.
i. Federal courts: Limited jurisdiction
ii. State courts: General jurisdiction
b. Remedies: in civil cases either an
injunction or money damages/ criminal
cases = jail time
2. Specific jurisdiction (WWV v. Woodson):
Jurisdiction exists for the specific claim in
question but not necessarily for other claims
(Ex. A car accident in another state, the victim
could sue in the state where it happened)
a. Arises out of contacts
i. Minimum contact: purposeful
availment; not a mere unilateral
act by another party.
ii. The concept of minimum contacts
perform 2, distinguishable,
functions: (1) protects the ¶ from
the burden of litigating in a distant/
inconvenient forum state (2)
Ensures that the forum state don’t
overextend their sovereign.
Minimum contact has to be
considered to determine
b. The ‘substantial connection’ between the
Δ and the forum state necessary to
satisfy the minimum contact is by an
action of the Δ; Δ purposefully directed
their actions toward the forum state.
i. Unilateral activity cannot satisfy
the requirement of contact w/ a
forum state, not sufficient to
establish Pj over a Δ.
3. Due process/ fair play & substantial justice
a. To evaluate minimum contacts such that
exercise of jurisdiction does not offend
traditional notions of Fp & sJ.
i. The burden on the Δ
ii. Forum states interest in
adjudicating the dispute.
iii. ¶’s interest in obtaining convenient
and effective relief.
iv. Interstate judicial system interest
in obtaining the most efficient
resolution of controversies.
v. Shared interest of several states n
furthering fundamental substantive
social policies
b. Unilateral activity (one-sided) vs.
Purposeful availment
4. Forum shopping: The state where it would be
beneficial for the ¶’s case to be decided.
5. Courts of a state have jurisdiction over non-
residents who are physically present in the
state. A state can assert personal jurisdiction
on physical presence (being served in a state
the Δ is passing thru) [Burnham v. Superior Ct –
divorce proceedings served while Δ was on a
business trip and stopped in to visit children].
The test of Fp & sJ are used to approximate
physical presence.
c. Consent as a Substitute for Power
i. “Real” consent: a specific agreement to submit to a
d. The Constitutional Requirement of Notice
i. NO notice = NO jurisdiction
1. If you know of a physical address it is
unconstitutional to only give constructive
(publish) notice. If address is unknown then it
is constitutional if you’re reasonably certain
that it will provide actual notice/ and is the best
feasible option. Investigate to locate the
person though b/c you have to show that you
reasonably calculated to provide actual notice.
e. Self Imposed Restraints on Jurisdictional Power
i. Long-Arm statutes as a restraint on Jurisdiction
1. A court may exercise jurisdiction over a
defendant only when the state or federal gov’t
authorizes it to do so.
2. These are statutes by the states that establish
how far the courts can reach. Most states
exercise what’s allowed by the due process
clause of the Constitution; some states limit
the amount they extend.
3. Obtaining in personam jurisdiction over a non-
resident Δ requires:
a. ¶ must allege sufficient jurisdictional
facts to bring the Δ within coverage of
the long-arm statute
b. Determine whether sufficient “minimum
contact” was shown to comply w/ the
requirements of due process.
i. The court must have both personal
jurisdiction & proper venue to hear
a case. The venue provision allows
the litigants to see where their
claim can be brought. Won’t matter
if there is a proper venue if court
can’t exercise PJ over the Δ.
c. The state can establish a limiting long-
arm statute, even though the
Constitution allows them certain
sovereign over case, some states choose
to limit the extension of their jurisdiction.
ii. Venue as a Further Localizing Principle
1. Venue determines where litigation will take
a. General federal venue statute 28 U.S.C.
§1391 place lawsuits in areas either
connected to the parties or in areas
where the events took place that gave
rise to the lawsuit in the first place.
i. Under 28 USC 1391 venue is
proper in [1] a judicial district
where Δ resides; if all Δ’s
reside in the same state [2] a
judicial district where a
substantial part of the events,
giving rise to the claim,
occurred [3] a judicial district
where the Δ might be found, if
there is no other district where
the suit can be brought. Only
get to 3, if 1 &2 are not satisfied.
b. When an action is brought in state ct,
federal venue statutes are irrelevant;
only applied to claims brought in federal
ct. States have their own venue rules: [a]
where cause of action arose [b] where
some fact is present/ happened [c] where
Δ resides [d] where Δ is doing business
[e] where Δ has an agent/rep [f] where ¶
resides [g] where ¶ is doing business [h]
where Δ is found [i] where Δ is
summoned/served [j] in the county
designated in ¶’s complaint [k] in any
county [l] where the seat of govnm’t is
located. Δ’s residence is most common.
iii. Declining Jurisdiction: Transfer & forum Non-
1. Both state & federal courts may decline to
exercise jurisdiction even though they posses
it. Reasons a court declines to exercise
a. Transfer {applies only to federal cts.}:
transfer among federal judicial districts
under §1404; this is the proper way to
keep the claim in litigation in the U.S. but
have it transferred to another forum
b. Forum Non Conveniens {applies to both
state/federal cts.}: allows them to move
cases around the country “for the
convenience of parties and witnesses, in
the interest of justice.”
c. There are circumstances where for
reason of justice and efficiency that the
ct should not hear the case.
III. Subject Matter Jurisdiction of the Federal Courts
a. The Idea & the structure of SMJ
i. Personal jurisdiction limits both state and federal
courts to exercise jurisdiction over a Δ.
ii. To render a binding decision in a case personal &
subject matter jurisdiction are necessary. W/o either
the court is unable to give a valid judgment.
iii. 2nd jurisdictional boundary: Powers of state and
federal courts. Constitution allows the federal court
to be supreme only in certain areas. The other areas
states are sovereign. Some they share power.
iv. The sorting of cases between state/ federal court
systems = SMJ
1. Federal courts are limited in jurisdiction.
a. Federal courts look to 3 bodies of law to
determine if they can exercise
jurisdiction over the case:
i. The Constitution
ii. The statutes conferring jurisdiction
iii. The case law interpreting both
b. Federal courts share most of their
jurisdiction with state courts. Shared
jurisdiction = Concurrent
c. Federal courts are exclusive for certain
issues: [1] Admiralty [2] Bankruptcy [3]
i. Litigants care about where the
claim will be heard b/c of tactical
advantages, shorter waiting time,
d. Federal courts are shielded from hearing
certain issues: [1] Family law disputes
e. An individual can’t raise SMJD (only
personal JD) only the courts can assert.
The court can raise the issue anytime
before a ruling.
b. Federal Question Jurisdiction
i. 28 U.S.C. § 1331- the district ct will have original
jurisdiction of all civil actions arising under the
Constitution/laws/treaties of the U.S. [Congress
enacted 1331, limited the range allowed by the
ii. U.S. Const. Art 3 §2 - The judicial power shall
extend to all cases arising under the Const./laws of
the U.S./ treaties made. [Constitution]
1. Federal courts: Limited jurisdiction; limited JD is
meant to protect the federal ct system so the
system doesn’t have omnipresence and the
state also have boundaries.
2. State courts: General jurisdiction
iii. The ¶’s complaint should allege a violation under the
Constitution/ federal laws, etc. to arise under the
smjd of federal courts.
1. If ¶ can show that there is a violation under
federal law then it is possible for the case to be
heard in front of federal ct.
2. Does a state law claim raise a federal issue?
Which a federal forum may entertain w/o
disturbing any congressionally approved
balance between state/federal judicial
a. A substantiality test:
i. Well pleaded complaint rule – does
their action arise out of the
Constitution/federal law
ii. Precedential value
iii. How key the federal law is to the
¶’s claim
iv. Application vs. interpretation
v. Grable and Empire case contradict
by applying smjd in a different way
than Smith and Mottley
b. Subject matter jurisdiction is to allow
federal cts to protect themselves on
whether they have the jurisdiction to
even render a valid decision.
c. Diversity Jurisdiction
i. For partnerships the courts will look at the citizenship
of the individuals.
ii. SCOTUS has held that case presented in federal ct,
because of diversity jurisdiction (where the parties
are from 2 different states), then state (substantive)
law will apply, instead of federal law.
1. 12(b)(1) – motion to dismiss for lack of smjd;
when it is determined that the federal ct
doesn’t have smjd, they have no power to hear
the case
2. 12(b)(6) – formally dismisses on the merits
iii. 28 U.S.C. §1332 - Congress grants district courts JD
in civil actions between citizens of different states,
between U.S. citizens and foreign citizens, or by
foreign states against U.S. citizens.
1. 28 U.S.C. §1332
a. The district cts. Shall have original JD of
all civil actions where the matter in
controversy exceeds the sum of value of
i. Citizens of different states
ii. Citizens of a State & citizens or
subjects of a foreign state
b. Citizenship depends on present domicile
and intent to remain.
iv. How to determine the principal place of business:
1. Nerve center test – where the CEO conducts
business of the company.
2. Muscle center test – where the corporation is
getting the work done.
3. Hybrid approach – consider both to decide.
Look at the totality of circumstances.
4. §1359 – naming a party to invoke federal
jurisdiction; prohibits collusion to prevent
parties from getting together to gain diversity;
look to the real party of interest
v. Amount in controversy
1. The law on aggregation – Can’t aggregate a
claim to reach the amount controversy, but
you can piggyback on a claim that already
meets the 75k
a. Quantum study: gives a definitive figure
to an amount on recovery; what it’s been
valued at before in court, to determine
the amount in controversy.
2. Counterclaims Note 3 pg 204
a. Compulsory counterclaim: can be heard
before the court regardless of the
b. Permissive counterclaim: requires an
independent jurisdictional basis.
of Congress or Diversity
d. Supplemental Jurisdiction
1. 28 USC §1367(a)[FQ] throwing the net wide for
supplemental JD except those restricted by
1367(b)[Div. of citizenship] & 1367(c)
2. Meant to include JD over a 2nd related claim.
3. Also it keeps those related claims together
since they operate on a common nucleus of
ii. Supp JD does not extend to those parties attempting
to join and get over on diversity JD. Where there is
now no diversity b/c the joining party is from the
same state as the plaintiff.
1. Can’t allow a 3rd party to intervene in a lawsuit
when it will quash the diversity of citizenship.
2. 28 USC §1367(c) – Discretionary: allows the ct
to determine if they’ll exercise JD
e. Removal
i. 28 USC §1441 “ Removable Actions”
1. Except as otherwise expressly provided by Act
of Congress, any civil action brought in a State
court, may be removed by the Δ to the district
ct of the United States…
a. Vertical forum shopping – moving from
state ↔ federal courts. 28 U.S.C. 1441
IV. The Erie Problem
a. State Courts as lawmakers in a Federal System
i. The issue in historical context
ii. Constitutionalizing the Issue
1. Erie RR v. Tompkins “Determines what law is
applied in a diversity of citizenship cases”
a. Federal courts in diversity cases must
respect state created rights/obligations.
Federal courts are to apply state
“substantive” law and federal
“procedural” law.
i. 28 U.S.C. 1652 – Rules of Decision
Act “Law of the several states
b. Erie Problem – changed the way that the
cts looked @ choice of law; when a
federal ct sits in diversity JD what law will
it apply in the case?
i. Pre – Erie: cts would look to “state
laws” + statutes/”local laws” [Swift
v. Tyson]
ii. Post – Erie: they now will look at
judge-made laws (PA); precedent
iii. Federal cts will look to the state to
make a decision that’ll be uniform
if that states cts were to
adjudicate. Fed’l law = apply to
procedural issues; State law =
apply to substantive issue
c. Twin aim of Erie rule [1] to discourage
forum shopping [2] to avoid inequitable
administration of law.
i. Another benefit it allows
ii. Erie dealt w/preventing vertical
forum shopping.
b. The Limits of State Power in Federal Courts
i. Interpreting the Constitutional Command of Erie
1. Guaranty v. York “The federal practice - to
apply the common law equitable Statute of
a. Outcome determinative test: if affects
the outcome then it is substantive but
not practical b/c an issue that may affect
the outcome isn’t always important /
substantial with the issue of the claim
2. Byrd v. Blue Ridge
a. Balancing test: what is the federal
interest –vs- the states interest?
b. Federal courts will use both to make a
ii. De-Constitutionalizing Erie
1. Hanna V. Plumer “Statutory -vs- Constitutional
a. If it is a Federal Rule of Civil Procedure
(FRCP) then:
i. Is it within the Rules Enabling Act?
Interpret narrowly.
ii. Is it Constitutional? Then the
federal rule will prevail.
b. If a FRCP or federal statute applies:
i. Is the rule consistent with the REA;
is it rationally capable of
classification as procedural? Is rule
sufficiently broad to control the
issue before the court?
ii. Is the rule or statute
Constitutional? (Art. III gave
Congress power to make rules
governing practice & procedure in
federal courts)
c. If there is no federal rule but there is a
federal practice:
i. How bound up with the right is
state law? (the underlying state law
that is providing ¶ a remedy; is the
procedural hurdle a formality?;
looking at how a remedy might
differ from proceeding in state vs.
fed. ct.)
ii. Is the difference outcome
iii. How important is the federal
interest v. state interest (Why do
we have the particular federal
statute/state provision)AND
1. Would adhering to federal
practice encourage forum
2. Would adhering to federal
practice result in inequitable
administration of justice?
(Erie & Hanna court used this
iii. Determining the Scope of Federal Law: Avoiding and
Accommodating Erie
1. Semtek v. Lockheed
a. Federal Rules cannot infringe on state
substantive rights.
b. Simply in federal ct b/c of the diversity of
c. Erie guess: What the Supreme CT of that
state would have done to adjudicate the
claim (the federal ct wants uniformity)?
V. Incentives to Litigate {Remedies & Access to justice}
a. Litigation in the United States at the start of the 21st
b. Substitutionary Remedies
i. Money damages b/c they since they can’t replace
what was lost or contracted for, it will at least
compensate the ¶ (compensatory damages).
1. Compensatory damages also valuate those
things that are a non-economic harm (i.e.
emotional distress)
2. Liquidated, Statutory, and Punitive Damages
a. U.C.C. §2-718: it permits and limits the
amount of liquidated damages that can
be received.
b. Gore Test
i. The degree of reprehensibility of
the Δ’s misconduct
ii. The disparity between the
actual/potential harm suffered
iii. The difference between the
punitive damages awarded and the
civil penalties authorized/imposed
in comparable cases.
1. Jury isn’t instructed to keep
punitive damages award w/i
a ratio.
c. Specific Remedies (ordered to follow thru on contract)
i. Look at the substantive law to see what remedies are
available → then look at substantive law to see what
will have to be proven to support her claim
1. Ejectment – having the party removed
2. Replevin – repossession of personal property
3. Injunctions
a. Sigma Chemical Co. v. Harris “Irreparable
Injury Rule”
i. Balance test: (1) what’s the
hardship on ¶ if relief is denied? (2)
On Δ if relief is granted?
ii. Is the legal remedy adequate? Are
money damages not adequate to
remedy the issue
d. Declaratory Relief
i. When a party has a legal problem that damages or
specific performance can’t solve.
ii. 28 U.S.C. 2201 &02 Federal Declaratory Judgment
iii. Asking for a declaration of their rights before being
sued. Potential Δ preemptively sues the potential ¶.
1. Have to have real parties; based on real
activities; can’t be based on hypothetical;
needs to be a real threat of a lawsuit. There
needs to be a dispute/some contention from
the other side.
e. Financing Litigation
f. Provisional Remedies
VI. Pleadings
a. The Story of Pleading
i. FRCP 7(a) – pleadings allowed
1. Pleadings. Only these pleadings are allowed:
a. A complaint;
b. An answer to a complaint;
c. An answer to a counterclaim designated
as a counterclaim;
d. An answer to a cross-claim;
e. A 3rd party complaint
f. If the court orders one, a reply to an
ii. FRCP 8(a) Claim for Relief
1. A pleading that state a claim for relief must
a. A short and plain statement of the
grounds for the court’s jurisdiction,
unless the court already has JD and the
claim needs no new JD support
b. A short and plain statement of the claim
showing that the pleader is entitled to
relief; and
i. Form 11 – Complaint for
1. Short & plain statement =
on date & at place Δ
negligently drove motor
vehicle against the ¶
2. As a result (causation), ¶
was… [list types of damages
c. A demand for the relief sought, which
may include relief in the alternative or
different types of relief.
iii. FRCP 8(d)
1. Each allegation must be simple, concise and
direct. No technical form required.
2. A party may set out two or more statements of
a claim or defense alternatively or
hypothetically, either in a single count or
defense or in separate ones. If a party makes
alternative statements
iv. FRCP 10(a)
1. Every pleading must have
v. FRCP 10(b) – paragraphs; separate statements
1. A party must state a claim/defense in
numbered paragraphs, each limited to a single
set of circumstances.
vi. FRCP 12 (b) – (dilatory)(DELAY)
1. Lack of subject matter JD
2. Lack of personal JD
3. Improper venue (transfer or potential
4. Insufficient process
5. Insufficient service of process
6. Xxxxxx
7. Failure to join a party under Rule 19
vii. Preemptory (ON MERITS)
1. 12(b)(6) failure to state a claim upon which
relief can be granted (decided by the judge)
a. Δ alleges ¶
2. 8(b) general or specific denial
3. 8(c) affirmative defenses
viii. Judge or Jury
1. ? of Law
2. ? of Fact
3. Get out early & cheap of rule
a. Haddle v. Garrison
4. FRCP 9(b) [requires specificity]; prevent
unwarranted claims from advancing to
a. Fraud or Mistake; Conditions of the Mind.
i. In alleging fraud or mistake, a
party must state with particularity
the circumstances constituting
fraud or mistake.
b. Ethical Limitations in Pleading - & in Litigation
c. Responding to the complaint
VII. Discovery