CIVIL PROCEDURE OUTLINE
I.
CONSTITUTIONAL NOTICE REQUIREMENT
In order to satisfy the requirements of due process, constitutional notice must be reasonably
calculated under the circumstances with the intent to inform the individual and provide them
with an opportunity to be heard in court (Mullane). Further, the notice must include sufficient
information with a reasonable amount of time to appear. The notice must also be given in a
manner that one truly desirous of informing would resort to in order to ensure actual notice
(Dusenbery). If the party serving finds out that notice was not received, they must start the
process of acting as one truly desirous of informing would all over again (Flowers).
II.
SELECTING A COURT WITH JURISDICTION
A. Personal Jurisdiction
Long Arm
Assuming the long arm statute of [] allows the exercise of jurisdiction on a defendant, comports
with due process, and the Constitution of the United States it will not require any additional
action.
Traditional Basis for Personal Jurisdiction
The forum state may establish personal jurisdiction through the traditional basis; consent,
presence, or residence (Pennoyer).
Minimum Contacts
Under the modern doctrine of personal jurisdiction where the nature of the contact is continuous
and systematic, jurisdiction is proper when the “activities…give rise to liabilities sued on”.
However, if the defendant is an absent, non-resident that doesn’t consent, personal jurisdiction
may be established through minimum contacts such that the exercise of personal jurisdiction
does not offend the traditional notions of fair play and substantial justice (International Shoe).
General Jurisdiction
General Jurisdiction is rarely used by the courts, but calls for the defendant’s contacts with the
forum state to be so continuous and so systematic that it justifies the exercise of jurisdiction even
when the contacts are unrelated to the cause of action.
Specific Jurisdiction
Specific jurisdiction is proper when the cause of action arises out of the defendant’s isolated
contact with the forum state; such that they purposefully availed themselves of the laws,
protections, and benefits of the forum state (Mcgee) so as it would be reasonable to expect to be
haled into court there (Worldwide). When the contacts are isolated and the cause of action is
unrelated to that contact, jurisdiction is not proper.
Minimum Contacts
Further, when the defendant engages in intentional harmful conduct that was felt in the forum
state, personal jurisdiction may be established via the Effects Test set forth in Calder
(Calder/Keeton). This test asks if the harmful effects were felt in the forum state and if the
infringement was intentional. However, personal jurisdiction is not established by the unilateral
activity of the plaintiff or a 3rd party (Hanson/Denckla).
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Stream of Commerce
For stream of commerce cases, the court was split into three different opinions (Asahi).
O’Connor’s opinion (California) is that the mere placement of a product into the stream of
commerce, without more (offices, marketing, etc.) is not an act the defendant purposefully
directed toward the forum state. Brennan’s opinion is that as long as a participant in this process
is aware that the final product is being marketed and might end up in the forum state, the
possibility of a lawsuit cannot come as a surprise. Steven’s opinion is that jurisdiction depends
on the volume, value, and hazardous character of the product.
If sufficient minimum contacts are established, the traditional notions of fair play and substantial
justice must be examined through the fairness factors set about in Asahi. This five factor test
includes: burden on defendant (most important), the plaintiff’s interest in adjudicating the case
in California, the forum’s interest, efficient resolution, and the advancement of substantive
policies. However, these factors are only analyzed once sufficient minimum contacts have been
established.
Internet Contacts
In order to determine internet contacts, the courts have established a Sliding Scale Test in order
to determine purposeful availment (Zippo). Passive websites simply make information available
and are not enough to establish purposeful availment. Interactive sites allow the user to exchange
information with the host computer; purposeful availment is determined by the level of
interactivity. Through commercial sites, the defendant clearly does business over the internet;
purposeful availment is always established, making jurisdiction proper.
- New Haven – Online defamation case (π claims ∆ defamed him in an online
article)
a. Court ruled in favor of ∆ b/c the internet posted material must be more
directed at the forum and less in a commercial nature (not intentional)
(Young) – Local focus of posting; intended audience or express aiming of the
publication.
Power over Property
Transient Jurisdiction (Shaffer) – Apply the standard Minimum Contact Analysis when the claim
is based on property (No more “In Rem” or “Quasi”).
- In Rem → where the title to the property is the issue, personal jurisdiction is appropriate
based on defendant’s assertion of protection of his interest
- Quasi In Rem → Where the action concerns something other than the property, personal
jurisdiction cannot rest on the locality of the property
B. Subject Matter Jurisdiction
Federal courts may adjudicate cases as defined in Article III of the United States Constitution.
However, under Title 28 of the United States Code, Congress extended authority to Federal
courts through subject matter jurisdiction, which includes: diversity jurisdiction, federal question
jurisdiction, supplemental jurisdiction, and removal jurisdiction. If there is no basis for subject
matter jurisdiction the court must, at the moment of its discovery, dismiss the action (FRCP R.12
(h) (3)).
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Diversity Jurisdiction §1332
Diversity jurisdiction (28 U.S.C. § 1332), requires complete diversity where no plaintiff can be a
citizen of the same state as any defendant and the amount in controversy exceeds $75,000
(claims by the same π and another π with a common interest can be aggregated). Citizenship for
individuals is based on the domicile where a person is physically present and intends to reside
indefinitely (Mas). Citizenship for corporations is determined by their state of incorporation and
their principal place of business (§ 1332 (c) (1)) as determined by the nerve center test or the
locus of corporate decision making authority and overall control (Hertz).
 Older Test
 Corporate Activities Test → location of production or service activities
 Total Activity Test → all the circumstances surrounding a corporation’s business;
balancing of all relevant factors
Federal Question Jurisdiction §1331
Federal Question Jurisdiction (28 U.S.C. § 1331), requires that a claim contain an essential
federal element that appears on the face of the plaintiff’s well-pleaded complaint (Motley). The
claim will contain an essential federal element when the cause of action is created by federal law,
(i.e. Civil Rights, Antitrust) or when the plaintiff’s right to relief is based on the application or
interpretation of Federal law, provided there is a substantial federal interest at stake. Federal
defenses anticipated by the plaintiff will be insufficient as a basis for federal question
jurisdiction.
Master of complaint rule – allows party to elect between state or federal claims
Supplemental Jurisdiction §1367
Supplemental Jurisdiction (28 U.S.C. § 1367), allows the Federal courts to hear non-qualifying
claims as long as they share a common nucleus of operative fact with the qualifying claim (§
1367(a)). However, when the qualifying claim is one only of diversity, then the § 1367(b) test
applies. All of the following answers in regard to the supplemental claims must be YES in order
to kick the claim back to state court:
1) Has the claim been brought by π either the original or one under Rule 19
2) Is the claim against a person joined under Rules 14, 19, 20, 24
a. If the party is not joined under these rules we have to check “no”
3) Does the claim fail to meet the requirements under §1332
Lastly, supplemental jurisdiction is only an issue for claims that don’t independently qualify for
Federal Jurisdiction.
§1367(c) → Discretion to decline supplemental claims
→ claims involve novel or complex state law issue
→ state claim substantially predominates
→ Qualifying claims have all been dismissed
→ other compelling reasons
Removal Jurisdiction §1441
Removal Jurisdiction (28 U.S.C. § 1441), allows a defendant in a state court action to have the
case removed to the federal district court for the district geographically embracing the location of
the state court if the case could have been brought to the federal court originally. Removal can
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only be based on the plaintiff’s complaint and other restrictions apply. Defendants from the same
state can’t remove to federal court within the same state. All defendants must consent to the
removal. And lastly, defendants must comply with the time limits in the removal statute, which is
thirty days from the date of the complaint or when the case becomes removable. However, under
diversity jurisdiction, the case may not be removed after one year.
III.
SELECTING A CONVENIENT COURT
A. Venue
If all defendants resides in the same state, then any district where any defendant lives is
acceptable (analysis is the same as personal jurisdiction). §1391(a). Venue is also proper where a
substantial part of the events and omissions took place or where there exists a substantial part of
the property (for delivery contract). If the defendant is a foreign company, then jurisdiction is
proper wherever personal jurisdiction is proper. However, if there is no place where a substantial
part of the events took place, there is not a place where a substantial part of the property in
question exists, and the defendants are not from the same state the court use the “Fall Back
Provision.” This provision states that if the case is one of diversity, then venue is proper
anywhere there is personal jurisdiction over the defendant. If the case is one of federal question
jurisdiction, venue is proper where the defendant can be found.
IV.
APPLICABLE LAW
A. Erie Doctrine
The Erie Doctrine applies to Diversity Jurisdiction §1332 cases when there is a conflict between
states substantive law and a Federal Rule of Civil Procedure that addresses or governs the issue
at hand. The court will use the federal rule unless it is unconstitutional and violates the Rules
Enabling Act §2072, thus enlarging, abridging, or modifying a substantive right (Hanna). If the
federal rule does violate §2072, the state rule will be used. When there is no federal rule that
directly addresses the issue and the court relies on a doctrine or practice, then the court must
determine whether the federal doctrine or practice is essentially procedural, and if it leads to
forum shopping or inequitable administration of the law (Twin Aims of Erie). Procedural rules
are limited to methods and means, while substantive rights go beyond means.
V.
PLEADING & JOINDER
A. Pleading
R.7 – Pleadings Allowed
(1) complaint
(2) answer to complaint
(3) answer to counterclaim
A. A counterclaim is a claim by a defendant against the plaintiff.
a. Compulsory: A claim that arises out of the same transaction or occurrence that is the
subject matter of the opposing party’s claim. The defendant must raise it, or else lose
the opportunity to raise it in subsequent litigation. These claims fall under
supplemental and don’t require independent subject matter jurisdiction evaluation.
b. Permissive: FRCP Rule 13(b) allows any defendant to bring against any plaintiff any
claim not arising out of the transaction or occurrence that is the subject matter of the
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opposing party’s claim and independently satisfies subject matter jurisdiction
requirements.
(4) answer to cross claim
A. A claim by a party against a co-party (i.e. π against π or ∆ against ∆). Crossclaims must
arise out of the same transaction or occurrence as the original action, or relate to any
property that is the subject matter of the original action. Under FRCP Rule 13(g), all
crossclaims are permissive
(5) 3rd party complaint
(6) answer to 3rd party complaint
(7) if court ordered, reply to an answer
The Complaint
FRCP 8(a) requires the pleader to show in a short and plain statement the grounds for subject
matter jurisdiction; a short and plain statement of the claim showing a right to relief; and a
demand for judgment for the relief the pleader seeks. The complaint must establish fair notice
(Conley) and the facts must be suggestive of plausible liability (Twombly) without considering
conclusory statements or allegations (Iqbal). Furthermore, such complaint may include
inconsistent theories for relief. Under FRCP 9, when the complaint is of mistake or fraud or
special damages, the complaint must state with particularity the circumstance of the allegations
made such that the defendant will be able to form a response.
R.9 – Special Matters – fraud or mistake; conditions of mind
Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
Responding to Complaint
The Answer
Under FRCP 8(b), the defendant must include a short and plain statement of defenses raised to
each claim AND either admit or deny each allegation (Zelinsky). Further, denials must respond
fairly to the substance of the allegation, denials of only part of an allegation must be
specific/clear as to what is denied and what is not. Lastly, the failure to properly deny is
equivalent to an admittance of the allegations.
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if
one is required as a Rule 12(b) motion. But a party may assert the following defenses by motion.
Of which, 2-5 are waivable and must be asserted together or not at all pursuant to Rule 12(H)(1).
R.12(b) Motions
1. Lack of Subject Matter Jurisdiction
2. Lack of Personal Jurisdiction
3. Improper Venue
4. Insufficient Process
5. Insufficient Service of Process
6. Failure to state a claim under which relief may be granted (most important)
7. Failure to join a party under Rule 19
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Amending & Supplemental Pleadings
FRCP Rule 11
Counsel must sign pleadings and paper filed with the court certifying that such claims are not
frivolous, have some evidentiary support, and are not made for an improper purpose such as to
harass, cause unnecessary delay, or needlessly the cost of litigation. If a party believes that
opposing counsel has filed a pleading with such motives, that party may move to impose
sanctions against opposing counsel if such filing has not been withdrawn by opposing counsel
within 21 days after a copy of the motion has been delivered to opposing counsel. Also, the court
on its own may find such violation but must give counsel the opportunity to demonstrate that
such violation has not occurred. Sanctions include non-monetary directives, penalties to the court
or adverse party to include attorney’s fees and costs to deter such conduct for counsel and other
similarly situated. Rule 11 does not apply to discovery.
FRCP Rule 15(a)
A party may amend its pleading once as a matter of course within 21 days after serving it, if the
pleading is one to which a responsive pleading is required; 21 days after service of a responsive
pleading; or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
In all other cases, a party may amend its pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave when justice so requires.
B. Claim Joinder
A π may bring all the claims, counterclaims, cross claims, or third-party claims it may have
against a given party (FRCP 18(a)) as long as the requirements for personal and/or subject matter
jurisdiction are satisfied (King Fisher Marine Serv.) and has approval from the court pursuant to
its discretion.
C. Party Joinder
R.19 → Compulsory Party Joinder
Under FRCP Rule 19(a), a 3rd party must be joined if possible where
1) In his absence complete relief cannot be accorded
2) His absence would impair or impede his interest, OR
3) His absence would leave an existing party exposed to multiple or inconsistent obligations
Likewise, a 3rd party cannot be joined if there is no personal jurisdiction, no subject matter
jurisdiction, or the governing court is not the proper venue. In certain instances, the absence of
an indispensable party may estop the entire action from proceeding. This determination depends
on an equity and good conscience evaluation of FRCP Rule 19(b); the extent of a judgment
causes prejudice to all parties in the absence; the extent to which the prejudice can be avoided by
protective provisions; the adequacy of the judgment in the absence; and if the plaintiff will have
an adequate remedy if the action is dismissed for a non-joinder.
R.20 → Permissive Party Joinder Rule
A plaintiff may join w/ other plaintiffs if they assert claims arising out of the same transaction,
occurrence, or series of transactions or occurrences AND there is at least one common question
of law or fact. A party may join w/ other ∆ so long as the claims arise out of the same
transaction, occurrence or series transactions or occurrences and there is at least one common
question of law or fact (FRCP R.20 (a)). The court however may issue orders – including orders
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for separate trials – to protect against embarrassment, delay, expense or other prejudice (FRCP
R.20 (b)).
R.14(a)(1) → Joinder of 3rd Party Claims
A defending party may bring a claim against a 3rd party, within 10 days of service of its answer
without permission of the court, claiming the 3rd party is liable to the defending party (now a 3rd
party π) for all or part of the claim being brought against the 3rd party π. However, the
requirement for personal and subject matter jurisdiction still applies or the 3rd party cannot be
joined.
R.24(a) → Intervening Party Joinder
(1) On timely motion, any party can intervene who is given the right by federal statute or (2)
claims an interest relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede the movant’s
ability to protect its interest, unless existing parties adequately represent that interest
VI.
DISCOVERY
A. Discovery
Under FRCP Rule 26(b), the scope of discovery includes anything that is relevant and may be
reasonably calculated to lead to the discovery of admissible evidence. However, the courts must
exercise proportionality (Rule 26(b)(2)(c)) and restrict if it is found to be unreasonably
cumulative or duplicative, inconvenient or inefficient as to source, if the requesting party has
already had ample opportunity to conduct the discover, or if the burden outweighs the benefit.
Devices typically used for discovery include: mandatory disclosures (Rule 26(a)(1)), requests for
documents (including ESI), depositions, request for admissions, interrogatories to parties, and
physical/mental examinations.
If the requesting party moves to compel production of ESI (electronically stored information),
the responding party bears the burden of establishing undue burden, or excessive costs. However,
Rule 26(b)(2)(B) permits the responding party to identify ESI as “not reasonably accessible” and
not to produce it because of “undue burden or cost.” If that burden is met, the court may still
order production but may impose restrictions (including shifting the cost of production but may
impose restrictions (including shifting the cost of production to the requesting party – Google).
Experts function as a part of the litigation team so there draft reports are protected from
discovery. However, when testifying at trial or depositions they are witnesses so the final draft or
report must be submitted to discovery.
B. Privileges
Privilege - FRCP Rule 26(b)(3)
Trial preparation materials are not discoverable unless it falls within the scope of discovery and
the requestor show a substantial need and cannot, without undue hardship, otherwise obtain
equivalent information (Hickman). Elements of attorney-client privilege are:
I.
Where legal advice of any kind is sought
II.
From a professional legal advisor in that capacity
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III.
IV.
V.
The communication relate to that purpose
Made and maintained in confidence
Statements by the client or advice by the attorney
Work-Product Production
FRCP Rule 26(b)(4) provides limited protection to otherwise discoverable trial preparation and
work product materials. Such materials are subject to discovery only when the information is not
reasonably available from any other source, and when the discovering party has substantial need
for the information. This immunity applies to documents, mental impressions and legal
evaluations prepared by or on behalf of an attorney, investigator, or claims agent in anticipation
or litigation
VII.
DISPOSTION WITHOUT TRIAL
A. Summary Judgment
Summary Judgment is the means by which courts may dispose of claims that plaintiffs can’t
prove or hand a pretrial victory to plaintiff having claims that the defendant can’t refute. A party
may move for summary judgment, identifying each claim or defense (or the part of each claim or
defense) on which the summary judgment is sought (Rule 56). The court shall grant summary
judgment if the movant (having the burden of production) shows there is no admissible evidence
on which a reasonable jury could find these material fact. Further, if the moving party doesn’t
bear the burden of proof at trial, they need not bring forth evidence, instead merely “showing” an
absence of the nonmoving party’s case suffice (Celotex)
The nonmoving party need only show that at least one fact is genuinely contested, unless the
nonmoving party bears the burden of proof at trial, then they need to show that admissible
evidence will be available and that a reasonable jury may find in favor of him/her on one or more
of those facts. A party may file motion for summary judgment at any time until 30 days after the
close of discovery.
VIII.
TRIAL & POST-TRIAL MOTIONS
A. Trials
Judgment as a Matter of Law FRCP 50(a)
Despite being very similar to a summary judgment or R. 56 motion, the federal rules permit
either party to seek judgment as a matter of law (JMOL) if they believe that their adversary has
failed to present evidence sufficient to meet its evidentiary burden of proof. Under FRCP Rule
50(a), JMOL is granted if a party has been fully heard on an issue during trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to find for the
nonmoving party on that issue. Additionally, the court must make all reasonable inferences in
favor of the non-movant. A JMOL must be timely in that it is brought at any time prior to
submitting the case to the jury. However, it may be renewed after the verdict if it was originally
brought before the case was submitted to the jury and denied (Reeves).
Sequence of Trial
I.
π presents evidence
a. ∆ can submit for JMOL
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∆ present evidence
a. Either party can submit for JMOL
III.
Closing statement
IV.
Judge instructs jury
V.
Jury deliberates/renders verdict
a. ∆ JMOL waived
VI.
Judgment entered
a. JMOL for either party can be renewed if was previously denied
II.
IX.
JUDGMENT & APPEALS
A. Preclusive Effects of Judgments
Res Judicata – Claim Preclusion
If judgment is rendered in favor of a plaintiff in a lawsuit, the plaintiff is precluded from raising
claims in a future litigation which were raised in, or could have been raised in, the first lawsuit.
To apply this doctrine there must have been an initial litigation in which claims arising out of the
same nucleus of operative facts; between the same identical parties or those in privity to the
parties were brought up, or could have been brought up; and finally there must have been a final
judgment to that litigation.
I. Privity:
a. The nonparty succeeded to the interest of a party
b. The nonparty, though it did not technically participate in the first suit, controlled one
party’s litigation in that suit
c. The nonparty shares a property interest with the party
d. The party and the nonparty have an agency relationship
e. The party otherwise adequately represented the interest of the nonparty in the
previous litigation
II. Counterclaims
a. Preclusion does not generally apply to counterclaims by ∆, so they are not necessarily
barred from raising a counterclaim in future litigation if they comport with FRCP
Rule 13(a) and are waived by virtue of being compulsory.
Collateral Estoppel – Issue Preclusion
If an issue has been decided in a particular case, it is treated as decided–without further proof–in
any subsequent litigation that involved the issue. In other words a person or party who seeks to
relitigate any already decided issue is collaterally estopped from doing so. Similar to res judicata,
to apply this doctrine there must have been a previous litigation regarding identical issues; the
issue must have actually been litigated and the estopped party must have full and fair opportunity
to litigate the issue; and the issue must have been decided and rendered a necessary part of the
final judgment. Unlike res judicata, collateral estoppel does not bar future litigation over issues
not actually raised in the original judicial proceeding, even if the issue could have been raised.
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