Civil Procedure

I. Personal Jurisdiction (Plaintiff’s Choice of Forum)

Personal Jurisdiction Analysis Problem:

Question: May the court constitutionally exercise personal jurisdiction over the
defendant?
Do the following process
1. Was the D present in the state when process was served on him?
a. If YES – Can validly exercise P.J. over D. (Burnham – Length of time is
irrelevant)
b. If NO – Go to next step…
2. Is there a Long Arm statute that allows forum state to serve a non-resident D?
a. If NO – You’re done, no valid exercise of P.J. regardless of minimum
contacts.
b. If YES – Go to next step…
3. Is there any other personal jurisdictional basis in the forum state of that D?
a. Domicile???? – (Milikin v. Miller)
b. Consent to be sued in the forum state? (Carnival Cruise case)
c. Owns property in the forum state? (Shaeffer v. Heitner – Ct extends
minimum contacts to property – (in re, quasi in rem). Just because D has
property in a state doesn’t mean there are minimum contacts.
d. D regularly transacts in forum state.
e. Notice – Was D aware of the suit?
***** If the answer was YES to any of these, you are done – There is P.J. over D.
***** If the answer is NO to these go to next step….
4. Are there CONTACTS?
a. If NO – you’re done, no valid P.J. over D
b. If YES or MAYBE – Go to next step…
5. Is this General Jurisdiction or Specific Jurisdiction
a. Specific Jurisdiction – Claim relates to in-state contacts. Easier to show
P.J. in Specific Jurisdiction situation. If NO specific Jurisdiction – try
General …
b. General Jurisdiction – Claim does not arise from the in-state contacts.
Harder to show that jurisdiction should be valid when contact falls under
General, must show that D’s contacts are systematic and continuous.
***** If contacts DO NOT fall under General or Specific Jurisdiction, NO P.J.
***** If contacts do fall under General or Specific Jurisdiction, GO TO NEXT STEP…
6. Are the MINIMUM CONTACTS sufficient? ------ BOTH IN REM’S STILL
REQUIRE MINIMUM CONTACTS!!!!!
a. Core of analysis is here:
i. Volkswagen - must be foreseeable that D would get hailed into
court there [specific jurisdiction not appropriate if claim not arising
out of contacts.]

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 ii. McGee – minimum contacts between the premium payee from CA
to headquarters in TX were sufficient for CA to assert P.J. over D.
– Represents the high-water mark of extending P.J.
iii. Hanson v. Denckla – Cause of action did not arise in Fl because
trust was created in PA. (no spec. juris)
***** If NO to sufficient minimum contacts : NO P.J.
***** If YES to minimum contacts …. GO TO NEXT STEP

7. Is it “fair and substantial justice to hale D into court in the forum state?
a. 2 PRONG TEST OF Int’l Shoe
i. Asahi – Can have minimum contacts but not have jurisdiction
asserted over D because unreasonable to do so. Creates a
BALANCING TEST interest in forum state v. burden upon D.
O’Connor opinion says mere awareness that it might arrive at the
forum state is not sufficient for a finding of “purposeful
availment.”
The Brennan opinion, however, says it is foreseeable and therefore
purposeful availment.
ii. Burger King – D was not unfairly surprised or terribly
inconvenienced by having to defend itself in Fl. Important
elements of determining contacts and fairness are seen here (1)
Availment to the benefits and protections of the forum state. (2)
surprise (3) inconvenience of defending in forum state.
***** If YES, meets 2 prongs of Int’l Shoe then forum state court can constitutionally
exercise personal jurisdiction over D.
***** If NO, no P.J.

A. Where can we sue this defendant? – Main question

B. 2 things a court can have power over
1. Defendant herself
2. Defendant’s Property
C. 3 Kinds of Personal Jurisdiction
1. In Personum – Court has power over the defendant
herself (not property)
2. In Rem- State does not have power over the
person, but over the property
3. Quasi In Rem – Power over property
D. These cases deal with how far a state can go in exercising
jurisdiction. (Under Due Process Clause or specific state
statutes.)
E. Basis for Jurisdiction over individuals:
1. Presence – jurisdiction may be exercised in the
forum state by virtue of their physical presence in
the state.
2. Domicile – jurisdiction may be properly exercised
over a person who is domiciled in that forum state.

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 3. Consent – jurisdiction over an individual by virtue
of their consent, even if no contacts exist in the
forum state.
a. Forum selection
b. Implied Consent

A. Two steps in determining jurisdiction

4. DOES THE STATE HAVE A STATUTE?
5. IF THERE IS A STATUTE, IS THE EXECUTION
CONSTITUTIONAL UNDER DUE PROCESS (MINIMUM
CONTACTS)?
A. Mechanical Rules for Service of Process under Rule
4 The only thing the federal govt. has done that is
close to regulating long arms.
a. In Personam Jurisdiction (If there are minimum
contacts) –
Such minimum contacts with the forum
so that the exercise of jurisdiction does
not offend traditional notions of fair
play and substantial justice. – “if the
defendant be not present”
1. General – Claim arose anywhere, claims
unrelated to activities in the forum state
require more significant activities in the
state for jurisdiction (residence,
incorporation)
Burnham (Scalia) – It may be that
General Jurisdiction is reserved for
corporations.
OR
2. Specific – Claim must arise in forum,
relation between contacts and suit where
there is jurisdiction for certain claims, but
not all.

Pennoyer v. Neff – 1877 – Territoriality If you are

present you get personal jurisdiction (unless
you are there to dispute jurisdiction only).
a. Presence Basis – Present in the state when
served with process (or your agent is)
General in personum jurisdiction applies
b. Domicile – The place where a person resides
and plans of staying in the indefinite future.
If a person has domicile in the state, the state has
general personal jurisdiction

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 c. Consent – Can always consent to personal
jurisdiction (its waivable – if you show up)
d. Holding – State court under die process clause
may not enter an in personum judgment against
an absent, non-consenting, resident who owns
land in the state. – Assumes person who owns
property is always in control of it – so you
can use quasi in rem)

Hess v. Palowski – Implied Consent

a. Implied Consent – When you use roads, etc. you
imply that the state has power over you, you
appoint someone to represent you each time you
travel into another state.
b. Holding – The obligation to respond to a lawsuit
about taking advantage of the state’s privilege of
protections, etc. comes with the privileged of
receiving these while you are in the state.

International Shoe v. Washington –1945– Minimum

Contacts (New way of talking about personal
jurisdiction)
a. Such minimum contacts with the forum so
that the exercise of jurisdiction does not
offend traditional notions of fair play and
substantial justice. – “if the defendant be
not present”
b. Can get in personum jurisdiction over a defendant
even though they are not in the state.
c. Presence – 4 justices say presence alone is
enough, 4 say it is not, must have minimum
contacts too.
d. Corporations – intangible entity, deciding where a
corporation is incorporated is not typically fact.

Burger King Corp. v. Rudzewicz

NEW ORDER
1. Statutory Long Arm
2. Unilateral Act –
a. Unilateral act is not
enough (Hanson v.
Denckla)
3. A. Purposeful Availment
B. Convenience (fairness)
a. Sub-Constitutional (BK)
b. Constitutional –Asahi

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Amount of Contact

The more purposeful

availment, the less
contact you might
have. (Brennan, Burger
King)

Less Related (to state)

- Even if action does not arise out of contact

can find general PJ (difficult):If a corporation
– where it has equivalent contacts: such
continuous, systematic and pervasive corporate
activities that the forum state is the equivalent of
another “home state.” Helicopteros – rejected
as insufficient the following contacts – D
negotiated K in Texas, K for training in state.

World Wide Volkswagen Corp. v. Woodson

a. must be foreseeable that D would get hailed
into court there [specific jurisdiction not
appropriate if claim not arising out of
contacts.] advertising, agents, offices,
direct sales, distributors, service networks
or if claim arose out of contact with the
state (McGee) Purposeful Availment
b. If claim did not arise out of contact –
need to find general jurisdiction
[enables Ds to be sued for a claim that
does not arise out of (or relate to) their
in-state contacts.
c. If product entered state through stream of
commerce:
Then accident arose out of contact with the
state …
Must look at Asahi and WW Volkswagen –
reviewing court might go either way

By manufacturers and distributors:

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 Asahi – O’Connor opinion says mere
awareness that it might arrive at the forum
state is not sufficient for a finding of
“purposeful availment.”
The Brennan opinion, however, says it is
foreseeable and therefore purposeful
availment.
1. By consumer: In WW Volkswagen, the
unilateral act of a 3rd party was not
sufficient for purposeful availment.

Asahi Metals Indus Corp. v. Superior Court of

Ca.
a. Used motion to quash summons
(dismiss) because of affidavit by
officer in Asahi saying they never
expected to be sued in Ca.
b. LEGISLATURE COLLAPSED STEPS I and
II.
c. SPLIT DECSION – 4 justices thought
mere foreseeability was not enough,
this is not a rejection of the stream of
commerce theory.
d. “Foreseeability”
1. Purposeful availment is not enough
2. Unilateral act is not enough (Hanson
v. Denckla)
3. Mere foresee ability is not enough
No amount of convenience can take the place of purposeful
availment.

CHOICE OF LAW --------

- The plaintiff has choice of law in that she can sue
the defendant in his home state because the state
has personal jurisdiction over him because he is
domiciled there.
- Subject matter jurisdiction can be general (if it’s a
tort claim that occurred in California and it is
brought in NY, NY has subject matter jurisdiction
because it is a general tort claim.)
- If you can get personal and subject matter
jurisdiction in another state and you like
that state better, you can sue there!

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II. Notice
A. Constitutional Standard for Notice
Mulhane v. Central Hanover Bank – Apprisal
a. “Must use a form of notice like service of process
that is reasonably calculated under all the
circumstances to apprise the defendant of the
suit.”
b. Red Flag Area – NOTICE BY PUBLICATION –
very, very unlikely to be reasonable calculated
under the circumstance to apprise actual notice. If
no way to give notice, gesture is better than
nothing.
c. Rule 4?

B. Opportunity to be Heard
a. Pre-Hearing Seizure of Property – Replevin
(Fuentes, Mitchell, etc)
b. Must:
a. Affidavit showing specific facts of ownership
b. Writ from a judge (not sheriff)
c. Required to post bond incase it should not
have been seized.
d. Person whose stuff is being seized is entitled
to notice.

III. Subject Matter Jurisdiction (NOT WAIVABLE)

1. Requirements
1. Article 3 Section II of Constitution limits jurisdiction.
(Usually Liberal Interpretation)
2. Also need Jurisdictional Statute. (Usually Strict
Interpretation)
3. Cannot consent to Subject Matter Jurisdiction Rule
12(h)(3)
2. 2 Types of Cases
1. Diversity of Citizenship
2. Federal Question
3. State v. Federal Court
- State Courts can hear all types of claims, usually all
cases federal courts can hear.

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A. Diversity of Citizenship §1332(a)
(1)
1. Must be between citizens of different states.
Individuals
d. There is no diversity if any plaintiff is a
citizen of the same state as any defendant.
(Strawbridge v. Curtiss)
e. Test for diversity at the MOMENT the case
was filed.
f. DON’T USE THE WORD RESIDENT
g. Citizenship – (for all people) it is the state
of domicile. (treat territories as states)
h. Domicile – (1) Presence in the state (2)
Intent to stay there.
Corporations
a. §1332 (c)(1) – Statute Regulation Citizenship
of Corporations – A corporation is a citizen
of ALL STATES IT IS INCORPORATED. And
the one state where its principle place of
business is there is only 1 principle place of
business). (CITIZENSHIP OF A CORPORATION
CAN BE MORE THAN 1 STATE)
Discretionary
b. Principle Place of Business (Can only
have one)–
i. Nerve Center Test – Where are the
major decisions made
ii. Muscle Center Test – Where more
activity takes place then anywhere
else
iii. MOST COURTS – will use nerve center
unless all of the activity is in a single
state (then they will go with that).
Unincorporated Associations (Labor
Unions)
i. Supreme Court tells us to look to the
citizenship of ALL OF ITS MEMBERS
ii. Most of labor law is federal question
so unions can go to federal court.
Representative Suits
a. Minors, Incompetents, Decedents
Estates - §1332(c)(2) – Look to the
citizenship of the represented person.
b. Class Actions – Look to citizenship
of representative.

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2. Amount in controversy must exceed
$75,000
a. Requires a GOOD FAITH
ALLEGATION that the amount in
question EXCEEDS $75,000 (at
least $75,000.01) NOT COUNTING
interest and costs.
b. Does not matter what is ultimately
recovered. (plaintiff may be liable
for costs if actual winnings are not
$75,000)
c. The only way to dismiss a case for
amount in controversy is if it is
CLEAR TO A LEGAL CERTAINTY that
the amount does not exceed
$75,000.
d. Aggregation Rules – Aggregation
– where the plaintiff must add
together 2 or more claims to get
over $75,000 limit. It is only allowed
when there is 1 plaintiff v. 1
defendant. If there is 1 claim with
several parties that exceeds
$75,000 it is not an aggregation
problem. In a joint right (property)
look to the value of the property,
not divided by owners.
e. Claims do not have to be related
to aggregate.
f. Zahn – Said every member of the
class must claim more that $75,000.
§1367(a) seems to overrule Zahn.
BUT it is a split decision today. Free
v. Abbott Labs is the only judgment
on it and its an appellate decision.

i. Federal
Question
1. Cases ARRISING UNDER Federal Law. – No
amount in controversy requirement. Look only
to Plaintiff’s claim!
Well Pleaded Complaint Rule – A complaint
that sets forth only the plaintiff’s complaint
with no window dressing. What the claim itself

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is. Federal Question must be an integral part of
the Plaintiff’s complaint.
Does it arise under Federal Law?
Louisville and Nashville RR Co. v. Mottley
(Lifetime passes from RR) §1331 (governs
federal question)
a. Face of the complaint was Federal – BUT the
claim itself was a contract claim (arises
under the contract claim, not a federal
question)
b. Is the plaintiff suing to enforce a RIGHT
under a federal law? Can only look at claim.
c. State courts can hear federal question
cases.
d. Anti-trusts, copyrights, federal tort claims
act, and patent infringement cases are
exclusive federal court cases.
e. Deterence Opinion – So cases go through
he proper steps to Supreme Court.
f. Holmes
a. Holmes Creation Test – A claim will
arise under federal law if its federal
law that created the cause of action
A little too narrow and a little too
broad (Smith)
Federal Statue Created a cause of
action. Constitution said no (Smith).

B. Supplemental Jurisdiction
1. Every single individual claim must have
diversity of citizenship or federal question. If
not….
a. §1367 Allows federal court to hear claims
that do not meet diversity or federal
question. (Pendent or Ancillary)
2. United Mine Workers v. Gibbs §1367(a)
(Strike case)
a. 2 claims, 1 federal and 1 state. Court can
hear the state law claim if it is a Common
Nucleus of Operative Fact. (the same
transaction or occurrence)
b. As long as the non-federal, non-diversity
case has the same common nucleus of
operative fact, it can be heard in federal

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 court. (looks like Supreme Court overrules
Zahn – but its undecided)
c. 1990 – It overruled Finley (not Kroger), it put
Ancillary and Pendant Party Jurisdiction
together.
3. §1367(b) – Cuts back on Supplemental
Jurisdiction in Diversity cases.
1. Claims by plaintiffs over people
joined by certain rules. (14,19, 20,
24)
2. Claims by someone who is proposed
to be a plaintiff under Rule 19.
3. Claims by someone seeking to
intervene as a plaintiff under Rule
24.
4. Moore v. N.Y. Cotton Exchange
1. Under Rule 13(a) If federal and
state claims are related enough
to be the same case (under
Article III) then they can be
heard in federal court.
2. Rule 13(b) Permissive
counterclaim – if it doesn’t arise
out of the same facts then it
better have federal jurisdiction.
5. Finley v. United States
(Airplane crash in California)
a. 2 claims arising from same transaction, 1
federal (against U.S.) and 1 state (against
private company).
b. Pendant Parties – Different claims arising
from same common nucleus of operative
facts.
c. §1367 overrules this case and §1367(b) does
not apply because it is a federal question
case, not a diversity one.

Gibbs Kroger
Fed

PL D PL D

State no diversity NO, cant do it

Yes, can do
D(2)

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Cotton Exc Aldinger (1979)
13(a)
fed ? D(1) NO, Can’t do it
PL_________D PL
No fed subj D(2)

Finley
exclu D(1)
PL fed

D(2) Plaintiff doesn’t have choice to got to state court, but

s court says too bad.

3. Removal
1. Gives the defendant a choice to go to federal
court.
a. Can only remove from state to federal court.
b. §1441 – Can only remove a case to the
federal district court that embraces the
district court where it was initially filed.
c. All of the defendants have to agree to the
removal. EXCEPT §1441(c) which allows a
defendant to remove when there is a
separate and independent federal question
claim against her. Claims must be
unrelated to each other – Cuts through
attempts to make a claim un-
removable by fraudulent joinder.
a. IF THIS DOESN’T WORK FOR
YOU, LOOK TO §1367.
2. General Test
a. A case is removable if it could have
originally been heard in federal court.
(federal subject matter jurisdiction)
b. EXCEPT: (ONLY IN DIVERSITY CASES)
a. No removal if any defendant is a
citizen of the forum.
b. No removal more than 1 year after the
case was filed in state court. §1446(b)
3. JUST DO IT
a. Removal is not something you ask for, you
just do it.

IV. Venue
1. Which Federal Court (district) do you go to?

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a. If no Constitutional component, purely
statutory.
b. These rules DO NOT apply to Removal cases.
c. These rules do not apply in local actions (land
cases), but to transitory ones (all other cases).

a. B
as
ic
V
e
n
u
e
R
ul
es
ii. §1391(a)(3) – Venue Rules for
diversity of citizen cases.
iii. §1391(b)(3) – Venue Rules for
Federal Question cases.
iv. Only slight difference between
the 2.
v. FOR ALL CASES, THERE ARE 2
CHOICES
1) Defendant’s Residence
Lay venue in any district
where all defendants
RESIDE (if they all reside
in different districts of the
same state then venue
can be in any district
where 1 resides OR
2) Substantial part of
events occurred Lay
venue in any district
where a substantial part
of the claim arose. (Can
pretty much always lay
venue under this choice –
unless the claim arises
overseas)
vi. Residence – Usually the same as
your domicile, CORPORATIONS

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 reside in all districts where the
corporation is subject to
personal jurisdiction when the
case is commenced. – different
than citizenship.

a. Tr
a
n
sf
er
of
V
e
n
u
e
R
ul
es
1. Deal with inTRAsystem transfer (1
federal district court to another federal
district court) It is not removal.
2. Hoffman v. Blaski
b. Can only transfer to a federal
district court that has personal
jurisdiction over the defendant
and is a proper venue.
c. Rejected notion that if all rights
were waived it might have been
filed. S.Ct said NO.
d. Any room for forum non
conveniens when §1404 won’t
work?

3. §1404(a) – Only available if the original

court was a proper venue.
e. Can only transfer to a federal
district court that has personal
jurisdiction over the defendant
and is a proper venue. – BUT
the new venue is better.

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 f. Choice of law rules from the
original court go with the case
(Ferens – Jurisdiction leads to
forum shopping, not §1404)
4. §1406(a) – Only applies when the
original court is an IMPROPER venue.
a. Court can transfer OR dismiss if
venue is wrong.
b. Usually they will transfer if
possible.

b. F
or
u
m
N
o
n-
C
o
n
v
e
ni
e
n
s
4. Doctrine by which a court dismisses
the case because the balance of
convenience tips strongly toward
another court.
5. Need a stronger showing than
traditional transfer. Comes up when
you cannot transfer. (Piper v. Reyno
– was way to inconvenient)
6. If you dismiss under Forum Non-
Conveniens, the court can impose
conditions.

V. Challenging Jurisdiction
1. Special Appearance Doctrine – Some courts
recognize it. By coming to the state to challenge

15
 jurisdiction you do not subject yourself to personal
jurisdiction. (Protective Bubble) You can go too far,
and constitute a general appearance.
2. Federal Rule 12 – Says there are 2 ways to
respond
a. File an answer
b. Plead a motion to dismiss the case 12(b)
Never Waived
1. Lack of Subject Matter Jurisdiction
Waivable Defenses – Must be put in FIRST
RULE 12 RESPONSE!
2. Lack of Personal Jurisdiction
3. Improper Venue
4. Insufficient Process (Summons and
Complaint are messed up)
5. Insufficient Service of Process
Non-Waivable
6. Failure to State a Claim
7. Failure to Join an Indispensable Party

VI. Erie Doctrine

Analyzing Erie:
1. Is this a diversity case?
If NO, ignore Erie
If YES, next step
2. Is there a statute on point?
If YES, ignore Erie
If NO, go to next step
3. Is there a FRCP on point?
If YES, ignore Erie: See Hanna v. Plumer, takes FRCP out of Erie consideration
If NO, go to next step
4. Does the federal policy conflict with state policy?
If NO, follow federal policy
If YES, go to next step
5. Is the state policy in conflict procedural or substantive?
If SUBSTANTIVE, follow that state policy rule
If PROCEDURAL,
General rule of thumb is to follow federal case law. But some exceptions:
See statute of limitations (is a state procedural matter but given the state
policy interest found in Guaranty Trust, would be followed by federal
court)

FEDERAL QUESTION?

Yes No

16
 R.E.A.
Go down Erie track
R.D.A.
Direct collision
Room for (Federal Law Wins)
Erie both (Stewart & Burlington)

(Guaranty Trust v. York, Byrd, Hanna v. Plumer)

Salve v. Regina College (If district court is hearing law of state you’re in, then appeals
court wont review, if not it will)
If they are looking at state law, it’s the highest court in the state.

* Note – On appeals in federal court, they make no deference to the judge sitting
on the bench, so it is important to have your state represented

1. Diversity of Citizenship Cases are only affected. – In

Clash of Federal and State Law.
2. Swift v. Tyson – Said Federal Courts do not have to
consider state claims.
3. Erie v. Thompkins – In a diversity case, federal
court has to apply state substantive law
because of the Constitution and the Rules of
Decision Act. (Deemed Swift unconstitutional
because it granted federal courts the power to
make laws) Federal rules and procedure
control procedural matters.
a. Rules of Decision Act – If there is no applicable
federal law, you must apply state law.
b. If it is a matter of procedure the federal courts
can do whatever they want.
4. Distinguishing between substance and procedure.
a. Substance v. Procedure – Erie Doctrine has 2
steps:
1. Federal Rule. Does a FRCP apply? Then
apply it and skip the Erie analysis. (As
long as the FRCP is Constitutional – and it
never has not been, it trumps state law)
Rules Enabling Act if not…..
2. Rules of Decision Act
i. Outcome Determinative –
Guaranty Trust v. York – Outcome
should be the same in both federal
and state court. Does the outcome

17
 differ significantly in different
courts? Statute of limitations is
substantive for Erie purposes.
Choice of law is substantive
(Klaxon) – the federal court must
do whatever the state court would
do.
ii. Balancing – Byrd v. Blueridge –
Balance strength of respective
interests. Supreme Court has never
gone back to this case. Balancing
interest, federal law won out.
iii. Avoidance of Forum Shopping.
Hanna v. Plumer (dicta) Do not
want to promote flocking to federal
court. Will people look to another
court to avoid remedy in the other
court?
If there is a federal statute on
point, it controls, no
application of Erie doctrine.

VII. Pleadings
1. Documents filed with the court setting forth claims
and defenses.
2. Good for 1 purpose – TO GIVE NOTICE.
3. Transubstantive – 1 form of action (civil action)
4. Code Pleadings – Required plain and concise
statement of the facts.
a. Still very restrictive on joinder of clams
b. Was seen as liberal at first, but was replaced
be federal rules
c. NOW WE HAVE OTHER MECHANISMS TO COVER
THE FACTS.
5. Complaint, Answer and Reply (an answer to a
counter claim) = RULE 7(a)
6. Rule 8(a)(2) – Short and plain statement of the
claim showing that she’s in relief should be filed by
plaintiff.
7. Notice Pleading – The other side has to have
notice of what they are being sued for.
8. Motion to Dismiss for Failure to State a claim
12(b)(6) – Only granted when there is absolutely
no set of facts under the allegations that would
justify a judgment.

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A. Rule 11

1. Think about what you are doing first, do

the research, examine the facts.
2. Requires the attorney to sign all
documents (except discovery ones). This
certifies that after an inquiry reasonable
under the circumstances, 4 things are
true.
i. Paper is not for an improper
purpose
ii. Any legal contentions are
warranted by law or non-frivolous
argument that the law should be
changed.
iii. Any factual contentions have
evidentiary support, or are likely to
after further consideration.
iv. Denials of factual contentions have
evidentiary support or are likely to.
Changes after 1993
3. Certification under Rule 11 is continuing.
Every time a document is presented to
the court it is certified.
4. Motions under Rule 11 are served not
filed. The person has 21 days to
withdraw offending argument, or
sanctions are charged.
5. Sanctions are discretionary under Rule
11. (They didn’t used to be) They can be
imposed against attorney, firm, or party.
Sanctions are deterrents

B. Complaint
3 Requirements (under Rule 8(a))
1. Statement of Subject Matter Jurisdiction
2. Statement of the Claim (doesn’t require a great
amount of detail)
Must provide detail for:
a. Circumstances constituting fraud or mistake
b. Items of special damage (must be pleaded with
specificity) those items that do not naturally flow
from an event.
3. A demand for judgment

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C. Defendant’s Response
1. Answer
a. If motion is denied, an answer may be
filed.
b. Defendant response must be within 20
days of service of process. (Motion OR
answer)
c. Answer must RESPOND to complaint.
3 types of responses:
a. Admit
b. Deny
c. State you lack sufficient info to
admit or deny – you can never
use this if the answer is in your
control, or its public knowledge.
d. Affirmative Defenses Rule 8(c) –
must be in answer
2. Motion
a. 12(b) motions
b. 12(e) – motion for more definite
statement (pretty rare) 12(f) motion
to strike (21 days after answer is filed)
c. 37(b)(2) – Sanctions

D. Amendments
Rule 15(a) (very, very liberal)
a. Plaintiff has a right to amend
once before defendant serves
his answer (not motion).
b. Defendant has the right to
amend once within 20 days of
serving answer. (20 day rule
applies only to defendant)
c. If there is no right to amend,
ask for relief of court = it
SHALL be given (unless you
are abusing system)
d. Can always order separate trials
under Rule 42(b).

Rule 15(b)

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 1. Treat complaints as though they were
amended to show new claims when they are
not objected.
2. Can move to amend during trial and burden
goes to non-amending trial to show it will make
them prejudice to show his case on merits.
(that it was sprung on them---then they get a
few weeks)
Statute of Limitations
When it has run:
1. Amend to add a new claim. Rule 15(c)(2) –
relates back to original pleading if it concerns
the same conduct, transaction, or occurrence
then it is ok under stat of limitations.

2. Amend to change the party to which the claim

is asserted.
Rule 15(c)(3) Must show:
vii. The transaction is from the
same conduct, transaction, or
occurrence.
viii. New party knew about the case
w/in 120 days after the filing.
ix. The new person knew that but
for a mistake, they would have
been sued originally.

Rule 42(b)
1. Can order separate trials to avoid jury confusion.

VIII. Joinder
1. How big is a Civil Action able to be?
2. Every single claim in federal court must have a
basis for subject matter jurisdiction. Look for it in
every joinder case. OR Supplemental jurisdiction
may be available.
A. Claim Joinder by the Plaintiff (Rule 18(a))

Plaintiff can join all claims against defendant within subject

matter jurisdiction boundaries.

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 B. Claim Joinder by the Defendant
1. Counterclaim
a. Claim against an opposing party. (offensive by the
defendant back against the plaintiff)
b. Filed with pleading
c. Two types:
a. Rule 13(a) Compulsory Counterclaim – Arises
from the same transaction or occurrence as the
plaintiff’s claim. Defendant must assert it in the
pending claim or IT’S GONE!
b. Rule 13(b) Permissive Counter Claim – Does not
arise from same transaction and does not have to
be asserted.
2. Cross claim
a. Offensive claim against a co-party.
b. Rule 13(g) – May assert a cross claim if it arises
out of the same transaction or occurrence. (not
compulsory) – against someone joined by 20.
C. Party Joinder
1. Rule 20(a) – Proper Parties (Permissive
Party Joinder) You can have co-plaintiffs if
you meet a 2 part test:
i. Claims arise from the same
transaction or occurrence
ii. Claims raise at least 1 common
question of law or fact.

D. Necessary and Indispensable Parties (Letter “C”

= claims with existing parties) -
1. Rule 19 Compulsory Party Joinder –
Because absentee is necessary.
2. 3 Steps of Rule 19
1. Who is necessary? (Rule 19(a)(1) –
Considers if complete relief is possible
w/out absentee – efficiency concern)
a. Rule 19(a)(2) – Absentee must
have some interest relating to
transaction.
b. 19(a)(2)(1) Absentee’s interest
may be hurt if they are not
joined.
c. 19(a)(2)(2) – Defendant may
be hurt if absentee is not joined

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 2. Is joinder feasible? i.e.…Lack of
personal jurisdiction over absentee or
lack of subject matter jurisdiction.
a. If NOT, either proceed without
them or dismiss the case Rule
19(b) – has 14 factors to
consider.
b. Courts generally wont dismiss
unless there is an alternative
forum. Joint tortfeasors are NOT
necessary parties.
3. If it would destroy the litigation,
courts will go to great lengths to
NOT find parties indispensable.
E. Impleader (Letter “I” means bringing in new parties)
1. Third Party Practice – 3rd party
brought in (usually by
defendant in vicarious
liability claim)
2. Third Party Complaint- Must be
filed and process must be
served on 3rd party.
3. Rule 14(a) – After Third Party
Defendant is asserted, new
claims can be asserted by the
parties against each other if
they arise out of the same
transaction or occurrence.
1. uphill by plaintiff cant get
supplemental jurisdiction
in a diversity case
because of §1367(b) only
D can!
2. Owen Equipment v.
Kroger, downhill by
defendant)
4. Every time we assess one
of these claims we must
check for subject matter
jurisdiction.
F. Intervention
Rule 24 – An absentee (non-party) wants to join
the case, they can come in as a plaintiff or a
defendant (with permission of the court.)
2 Types
d. Intervention of Right

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 a. Rule 24(a)(2) – Must show 2
things.
b. Absentee’s interest may be harmed
if they are not joined – Like 19(a)
(2)(1)
c. The absentee’s interest is not
being adequately represented now.
d. Rule 19 applies to defendant Rule
24 applies to absentee

e. Permissive Intervention
a. Rule 24(b)(2) – All you have to
show is that absentee’s pending
case and the claim or defense have
at least 1 common question (at
discretion of court)
b. In a diversity case – it does not
make much sense to let absentee
in if they destroy jurisdiction.
NEVER SUPPLEMENTAL
JURISDICTION!
G. Interpleader
1. Involves ownership of a stake (a thing).
2. Stakeholder forces all claimants into single litigation over
who owns property.
2 Steps
1. Stakeholder goes into court
and depositing stake and
claiming it’s a proper litigation
case
2. All of the possible owners duke
it out one the merits.
3. Stakeholder can be included as
an interested party OR be a
disinterested stakeholder.
3. Two Kinds of Interpleader
a. Rule interpleader under FRCP 22
a. Basically a Diversity of citizenship case.
i. Stakeholder must be diverse from
every claimant.
ii. Must exceed $75,000
iii. Service of process is the same as
regular law suit
iv. Use regular venue rules
v. If all claimants are co-citizens – MUST
USE RULE INTERPLEADER.

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 b. Statutory Interpleader (under statutory basis)
a. Under §1335 all you need is one claimant to
be diverse from 1 other claimant.
(citizenship of stakeholder is irrelevant.
b. All you need is $500 or more
c. §2361 Nationwide service of process (never
a personal jurisdiction problem unless
someone is out of the country)
d. §1367 – Can lay venue anywhere any
claimant resides.
e. Given a choice we would ALWAYS go w/
statutory interpleader.

IX. Discovery
1. Federal Rules are very liberal in letting people get
info from the other side. Not formalistic!
2. The idea is that we are not looking for new
evidence coming out at trial.
1. Why is all discovery laid out ahead of time?
a. Settlement value
b. Save costs
c. So you can evaluate the case before you file it
B. Rule 26(a) – Required Disclosures
1. Rule 26(a)(1) - Requires parties to produce Info even
though no one asks for it. CAN OPT OUT
Three Types of info:
d. Computation of Damages
e. Any info on insurance
f. Give info that relates to disputed facts alleged with
particularity in the pleadings.
2. Rule 26(a)(2) (During Discovery) - Experts – Must
identify any experts that may be used in the trial w/
written report of info used. NO WAY TO OPT OUT
3. Rule 26(a)(3) (Pre-trial) – Info about trial evidence,
documents, witnesses, etc. NO WAY TO OPT OUT

C. Discovery Devices (not really)

4. Required disclosure do not overrule regular discovery
rules.
5. Depositions under either Rule 30 or Rule 31 and
Requests to Produce under Rule 34 are different than
other discovery devices because they can be directed at
non-parties and parties. BUT if we are going to use
either of those to get info from a non-party, we have to
subpoena the non-party.

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 6. Rule 35 – The physical or mental examination – Must
get a court order (based on showing of actual
controversy over the health and good cause) in order to
do it. (Obviously to protect privacy interest).

X. Pre-Trial Adjudication
Mechanisms of Discovery
1. Rule 26(g) – Discovery requests and responses
must be certified, the lawyer must make
reasonable inquiry and is telling the world (by
signing them) that they are not for an improper
purpose or unduly burdensome.
2. Rule 26(e) – There is a duty to supplement – If a
party learns that its response is incorrect, it must
supplement it.

Scope of Discovery
3. Rule 26(b)(1) – We can discover anything that is
relevant (reasonably calculated to lead to
admissible evidence)
4. Scope of the Suit – Can only ask for info that is in
the scope of the suit.
5. Evidentiary Privileges – Cannot get privileged
info (atty client, etc.)
Work Product
6. Rule 26(b)(3) – Calls it trial preparation material
(Hickman v. Taylor) – Material generated in
anticipation of litigation. Does not have to be
generated by a lawyer.
Court shall protect against disclosure of mental
impressions, theories, conclusions and opinions of a
lawyer.
2 Prong Test (from Hickman – to avoid “free
riders”)
a. Substantial Need for the information
b. Cannot get the info or its equivalent without
undue hardship.
Discovery Sanctions – Rule 11 does not cover
7. Rule 37(c)(1) – If you fail to make a required disclosure
under 26(a).
8. Rule 37(c)(2) – Sanction for failure to admit. (if you
prove 1 side didn’t admit something – they have to pay
all of the costs for proving it)
9. Rule 26(c) – Protective Order (many reasons listed in
rule).

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 10. Rule 37(a) and 37(b) – Before we can seek any
sanctions we must clear to the court that we tried to
attaint he info:
a. Rule 37(a)(2) – Partial failure to respond. (not a
heavy sanction – basically all you can get is order
compelling the answers)
b. Rule 37(b)(2) – Rambo Sanctions – Very strict
sanctions for not disclosing info (may even get
contempt) – Need to get an order compelling info

c. Rule 37(a)(2) – Partial failure to respond. (not a

heavy sanction – basically all you can get is order
compelling the answers)
d. Rule 37(b)(2) – Rambo Sanctions – Very strict
sanctions for not disclosing info (may even get
contempt) – Need to get an order compelling info
THEN the sanctions can apply. RAMBO SACTIONS
LISTED IN RULE 37(b)(2)
e. Rule 37(d) – Total failure to comply w/ discovery
rules. (bigger sanctions – you go directly to RAMBO
sanctions, but cant get contempt)
11. Rule 41(b) – Involuntary Dismissal Pretrial adjudication
against the plaintiff, failure to prosecute, or abide by
court order.

Dismissals
12. Involuntary Dismissal under Rule 41(b) – Failure to
prosecute, Failure to abide by FRCP, Failure to live
up to a court order. (Motion is not entirely
necessary, court has power to do this on its own)
13. Involuntary Dismissals under 12(b) Rules.
14. Rule 41(a) – Voluntary Dismissal without prejudice
by plaintiff (can only do it once)
15. Rule 55 – Default and Default Judgment – Default is
a notation on the docket sheet made by clerk of the
court (doesn’t entitle you to money). Default
Judgment made by clerk of judge, cannot exceed
what plaintiff demanded in the complaint.
16. Rule 56 - Summary Judgment – Speaking 12(b)
(6)
a. Why –
1. To win case short of trial
2. To avoid useless Trials
3. Simplify trial (partial summary judgment)
4. Educate judge
5. Lock adversary into a stay
b. When –

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 1. Clamant – 20 days can file by itself or in
answer
2. Defendant – Any time
c. What papers –
1. Notice of motion (what you file)
2. Memorandum of law – brief
3. Statement of concise facts
4. Affidavit (sworn statement)
d. What you must show –
1. Moving Party (Must show both) –
i. No general issue of material fact
ii. Moving party is entitled to
judgment as a matter of law
2. Respondent (Only has to show 1) -
i. Is it a question of material fact
ii. Moving Party is not entitled to
judgment as a matter of law
e. Looks at evidence – Goes beyond the face of
the complaint.
f. Looks at whether the case should GO TO TRIAL.
(Whether there is an issue of material fact)
g. Looks at admissible evidence only and ask if
there is a general dispute of material fact.
h. IT IS A DISCRETIONARY JUDGEMENT
1. Celotex – told district courts to use
summary judgment more often.
2. More difficult in tort cases (more likely to
be denied)
3. Judge cannot resolve a disputed fact on
summary judgment.

XI. Trial
D. Jury Trial
1. Jury is to settle dispute over fact. (Constitutional Right)
2. Rule 38(a) – Must demand jury trial in writing within
time frame or its waived and judge is the fact finder.
3. 7th Amendment – PRESERVES the right to a jury trial in
actions at law (not equity). Sets up dichotomy of law
and equity. There are equity claims and law claims even
though they work together.
a. Law- get jury if it’s a legal question
b. Equity- if no legal question, no jury
c. Mix of law and Equity – Beacon Theaters – 3
Important Principles
1. Instead of looking at the case as a whole,
the court must look at it issue by issue.

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 2. If there is an issue that underlies both
law and equity you must give a jury.
3. Always try jury issues first.
d. 7th Amendment does not apply to the states,
only civil cases in federal court.

E. Selection of the Jury

4. Rule 48 – Lays out composition of jury.
5. Potential Venier of Jurors – questioned by vaudier.
6. Strikes of jurors – for cause
7. 3 Preemptory Strikes per side, must give gender and
race neutral reason for strikes (Edmunson).
F. Post Trial Motions
8. Directed Verdict - Motion for Judgment as a
Matter of Law. (JMOL)
a. Governed by Rule 50(a).
b. Effect is to take the case away from the jury,
judge says she’s in charge.
c. Can be brought by the defendant TWICE, at
the close of plaintiff’s evidence and close of all
evidence. Can be brought by plaintiff once, at
the close of all evidence.
d. Standard – Reasonable people could not
disagree on the result. (exactly same idea as
summary judgment)
9. Judgment Not Withstanding the Verdict -
Renewed Motion for Judgment as a Matter of Law.
a. Rule 50(b) – Loosing party files and if it is
granted it results in judgment for them.
b. Standard – Reasonable people could not
disagree on the result, and its different from
what jury found.
c. Cannot make the Judgment Not Withstanding
the Verdict UNLESS you made the motion for
judgment of Directed Verdict AT CLOSING OF
ALL EVIDENCE.
10. Motion for New Trial.
a. Rule 59 – Motion for a New Trial
b. Errors at trial require fresh start. (Not as
extreme as JMOL and JMWV)
c. Does not necessarily take the judgment away.
d. Rule 59(a) – grounds for the new trial motion.
i.e. The judge messed up, new evidence came
to life, misconduct by a juror.

29
 e. New Trial Orders can be partial. (jury is off on
damages, etc.)
f. Remittitur – Tell plaintiff that unless they take
a lower amount, there will be a new trial. (ok in
federal court)
g. Additiur – Court tells defendant that unless
they give more $ there will be a new trial.
(Unconstitutional in federal court)

XII. Appeal
G.What is Appeal-able
1. Final Judgment Rule – We cannot appeal until there is
a final judgment (the merits of the case are decided) –
After making this order, does the trial judge have
anything left to do on the merits of the case (besides
attorney’s fees)? – If no, Final Judgment Rule is met.
2. EXCEPTIONS:
a. Some are review-able as of right (injunctions, etc)
b. §1292(b) – Can appeal if judge orders it’s a
controlling issue of law and there is a substantial
difference in opinion. (Finley)
c. Rule 54(b) – When 1 lawsuit involves multiple
claims or parties and trial court disposes one, it can
enter a final judgment on that claim, but it had to
be very specific and make an express finding that it
has no just reason for delay on the appeal.
d. Collateral Order Exception – (Cohen) Puts
discretion in the apeallate court. Must show 3
things:
1. That it is an important issue separate from
the merits.
2. Order completely resolved that issue
3. That issue is effectively un-reviewable if we
have to wait until final judgment. – If district
court denies class action it is not apealable.
e. Going through a Writ –
1. Writ of Mandaemus – Trying to stop the
district judge from doing something.
2. Writ of Prohibition – Trying to get the
district judge to do something.
3. These are tough to get – only supposed to be
used to correct a jurisdictional type defect.

H. What is the Standard of Review.

3. How much deference is the court of appeals willing to
give the trial court judge.

30
 4. De Novo – Appellate court will decided questions of law
De Novo (itself).
5. Findings of Fact by the Judge – Appeals court will only
reverse if its clearly erroneous.
6. Findings of Fact by the Jury – Court of appeals will
generally uphold this if the jury could reasonable have
found it.
7. Discretionary Abuse – Whether to compel discovery, etc.
If there was an abuse of discretion the Court of Appeals
will reverse.

XIII. Claim and Issue Preclusion

1. Earlier case has gone to judgment, there is a

second case asking if the first case’s
judgment precludes the litigation of the
second case?
2. Two ways to be precluded
a. Res Judicata
b. Collateral Estoppel

A. Res Judicata – Claim Preclusion

1. One Bite at the Apple Rule – You only get
one day in court so you better argue
EVERYTHING the first time. (all rights to
relief should be requested)
2. Three Steps
i. Did the same claimant sue the
same defendant in both cases?
(More precise than requiring the
same parties) Bar (claimant
looses) or Merger (claimant wins –
all claims are merged into
judgment)
ii. The first suit must have ended in a
valid final judgment on the merits.
(not necessarily litigated) See Rule
41(b). Everything has been argued
on the merits unless it was based
on jurisdiction, venue, or
indispensable parties.
iii. The two cases must involve the
same claim. The claimant must
seek in 1 suit all rights to relief she
wants from that claim or the
opportunity to do so is waived.

31
 Claim – Most courts define it
transactionally. A right to relief
arising from the same transaction
or occurrence, or a series of related
transaction. (some state courts
disagree)
iv. Herandine Case – Preceeded by
new restatement (would probably
over rule)
3. Costello v. United States –
i. Govt. is able to avoid ascertion of
affirmative offense of claim
preclusion by convincing the
Supreme Court that it was a
procedural defect.
ii. Procedural dismissal based on
jurisdiction.
iii. People who are trying to avoid
claim preclusion try to assert
Costello and people trying to
prevent claim preclusion try to
avoid it.

I. Collateral Estoppel – Issue Preclusion

3. Precludes litigation of a particular issue that was
argued and determined.
4. Says that issue is deemed established in the second
action. (Don’t re-litigate the issue)
5. Element common to 2 different claims
6. Four Steps:
a. The same issue was actually litigated and
determined in the first case. (Can’t get it from
a default judgment)
b. That issue must have been essential to the
first judgment. (Without the issue we could not
have had the judgment or the same result)
c. Collateral Estoppel can only be asserted
against someone who was a party to the
case. (Was in privity of a party in the first case
– represented by) RULED BY DUE PROCESS –
cannot be changed.
d. Rule 36 can be used to settle questions before
trial because of issue preclusion.
e. Mutuality Rule – Collateral estoppel can only
be used by someone who was a party. (if you

32
 cant be bound by it why should you be able to
take advantage of it) Traditional Approach
f. Non-Mutual Defensive Collateral Estoppel
– Plaintiff using Collateral Estoppel in the 2nd
case was not a party to the first case. (Almost
every court uses this)
1. You can punish “bench sitters” by
not letting them use preclusion.
g. Non-Mutual Offensive Collateral Estoppel
– Defendant using Collateral Estoppel in the 2nd
case was not a party in the first case. (Some
courts do not allow it, more will use it if it’s fair
under the circumstances (Parklane Hosiery)
h. Fairness Factors – (Parklane Hosiery)
1. Had a full and fair opportunity to litigate
in the 1st case.
2. Multiple suits were foreseeable.
3. New party could not have joined easily in
the first case.
4. No inconsistent judgments.
i. Privity – if earlier judgment was not a party,
but was close enough, they are bound.

Issue Preclusion Overview

a.
Enforcing Court (looks
to law of issuing state)
Issuing Court
State State
Full Faith & Credit
Clause

b.
F §1738 Full
Fed Faith &
OR state
Credit

33
 S Statute

c.

Fed
Fed
OR State Supremacy
Clause

State

* There is an exception to preclusion in

different circuits. A case can be argued in 1
circuit’s federal court and RE argued in another
circuit without preclusion.

34