Civil Procedure Outline
I. INTRODUCTION TO THE CIVIL PROCESS
The goal of a civil action is to compensate
-power of judge is limited
-Purpose of Rule 16-judicial efficiency/get clients and attorneys to cooperate with courts
II. STAKES OF LITIGATION
A. Damages
1. Money
a. compensatory
b. punitive-depends on how outrageous/malicious
- acts as a deterrence, usually for egregious violation of con. rights
- exceptional factors
- indifference to public safety
c. nominal
2. Equitable Remedies and Contempt
a. injunction-court decree that controls the behavior of ∆ by ordering him to act or
refrain from acting
1. harm must be immediate and substantial
2. harm must be irreparable
3. must be a manageable setting for injunctive relief
example: smoking in the workplace/∏ would have irrep. Harm
4. must be no adequate remedy at law
5. If ∆ disregards injunction, can hold in contempt
a. willful- criminal contempt or compensatory civil
-vs.-noncompliance only –coercive civil (punishment to prompt
future compliance)
example-Walker v. City of Birmingham
-can’t decide on your own about the lawfulness of an
injunction so they should have taken it to court (criminal
contempt-put in jail)
6.collateral bar rule-can’t raise as a defense the unconstitutionality of an
order
b. Temporary Restraining Order (TRO)-different from injunction because one party
alone can get a TRO and it only lasts 10 days. (RULE 65)
3. Costs of Litigation
a. expenses which are awarded to the winning party of court costs are usually
insignificant (RULE 54(a))1. exceptionsa. public interest-fee shifting (gives an incentive to bring suit)
b. civil litigation-certain procedural rules to compensate parties
suffered from civil litigation abuses
III. PLEADING
A. History of Pleadings
1. Common Law Pleadingsa. only had certain forms of action
b. relied on narrowing issues as finely as possible
c. numerous pleadings/time consuming
d. writ: limited jurisdiction on ∏ claim (had to fall within writ or it would
fail
e. less about the case and more about the cause of action
f. ∏ filed declaration (formalistic)
g. no alternative pleadings
h. ∆ had only 3 choices in responding: 1. Plea in bar (traverse)confession/avoidance 2. Dilatory plea (challenge procedure or
jurisdiction) 3. Demurrer-∏ has no cause of action
i. Problems: merits were lost in the pleading
2. Field Code Pleading
a. Relaxed the common law pleading
b. Fact pleading/ give statement of the facts showing ∏ has right to a
remedy-not used to narrow the issue
c. Objective: 1. Present facts in which court is to give law 2. Present
concisely (establish points of dispute) 3. Preserve the record of rights
d. Could use any legal theory
e. Eliminated separate courts of law and equity
f. Fewer pleadings allowed
g. Must set forth facts constituting cause of action/ultimate facts must be
described in adequate detail without legal argument
h. Problems: how specific?
-must constitute a plain and concise statement of facts constituting a
cause of action
-if not, ∆ can demurrer
3. Federal Rules of Pleading (notice pleading)
a. demurrer is now eliminated (now is called failure to state a claimRULE 12(b)(6))
b. Notice Pleading-short and plain statement of the claim showing that the
∏ is entitled to relief (RULE 8(a)(2) (vague)-either detailed statement of
facts OR little more than inform ∆ they have been sued
c. Purpose-so that ∆ has notice of the claim
B. Complaint
a. componenets-Rule 3
b. caption, jurisdictional allegations, body, prayer for relief, subsctription
c. must contain a short and plain statement of the claim showing the pleader is
entitled to relief
d. allegations should be simple, concise, direct (Rule 8e)
C. Specificity –RULE 8
1. RULE 12 (e)-motion for more definitive statement but can’t if Rule 8 has been
satisfied
a. heightened requirements-RULE 9 (exception to notice)
b. rationale: protects ∆ against unfounded claims that damages their
reputations (and settlements of frivolous claims)
c. State of Mind-9(b)-malice, intent, etc. can be generally averred
d. Other types of claims (lower courts) that may require specificity: civil
rights claims, claims analogous to fraud, qualified immunity
e. Courts were using securities fraud, civil rights actions, etc. but
Leatherman showed you can’t square heightened pleading requirement
with liberal notice pleading of federal rules because 9(b) gives an
enumerated list so if not enumerated it doesn’t apply
f. What does apply-fraud, mistake, condition of mind
C. Consistency and Honesty in Pleading
1. Alternative Pleading-can plead two inconsistent stories unless you know
one set is true (example: don’t know cause of car crash, could be driver,
could be car) (see p. 142)
2. Rule 11 and Attorney’s Duty to Investigate:
a. verification and signature requirements of the attorney that “to the
best of his knowledge” it is a valid claim
b. Must have made:
1. reasonable inquiry into facts
2. factual allegations are likely to have evidentiary support (or
already do)
3. position taken is warranted by existing law or non frivolous
argument to change the law
4. paper not filed for an improper purpose
c. Rationale: promoting self policing by attorneys and deters
groundless claims
d. Scope of Application-all filings except discovery (Discovery 26 (g)
applies)
e. Applies to non attorneys as well
f. Don’t have to withdraw/file formal amendment to correct
something you know is wrong
g. 11 (c) a 1-safe harbor rule-21 days between service of Rule 11
motion to correct or withdraw
h. Not as strict as in past (pleadings must be reasonable under the
circumstances)
-pre filing factual investigation usually required interview
with client and key witnesses
Example: Zuk (filed copyright violation without reasonable inquiry
into law or facts)
i. used to be a subjective standard, now objective
j. Sanctions-11 (c) 2
1. discretionary/not mandatory (“a court may
impose sanctions (used to be mandatory)
2. Nature and measure of sanctions
1. limited to deterrence (sufficient to deter repetition)
2. motions for sanctions only made after reasonable
opportunity to respond and order to show cause why he has
not violated the rule
k. Rule 11 doesn’t apply to frivolous appeals
l. Procedure
a. separate motion from others
b. 21 day safe harbor rule
c. can’t move for sanctions when it is too late to withdraw (after
summary judgment or dismissal)
d. court can bring Rule 11 on its own
e. sanctions must describe violation and basis for sanction.
D. Scrutinizing the Legal Sufficiency of ∏ Claim (Challenging complaints)
1. Motion to Dismiss for Failure to State a Claim (Rule 12 (b) 6)
a. assuming the facts are true, do they constitute a legal claim upon which
relief can be granted?
b. Liberal Standard (dismiss only if court is certain that ∏ can’t prove a
set of facts in support of a claim.)
c. Sufficiency of complaint must be assessed with reference to some legal
theory that must be supplied by ∏.
E. Defendant’s pre answer motions
1. alternative to answering the complaint (don’t have to answer until pre answer
motions are rule upon)
2. optional (if it is not raised in pre answer of a disfavored defense, then it is
waived)
1. Rule 12 (g)- Defendant must raise all available defenses and objections
2. Rule 12 (b) 6-motion to dismiss for failure to state a claim (wrong described
does not violate rights
a. example: someone suing for voting Republican when he promised he’d
vote Democrat
b. Test: Does the complaint itself state a legally sufficient claim (assuming
the alleged facts are true)
c. Drastic measure to dismiss so ∆ must prove beyond doubt that can prove
no facts that would allow relief
3. Rule 12 (b)-motion to dismiss for lack of jurisdiction over subject matter, person,
improper venue, insufficiency of process, failure to state a claim, failure to join necessary
or indispensable parties
F. Defendant’s Default-Rule 55
1. If ∆ fails to plead or otherwise defend, he is in default (55a)
2. Default is regarded as admission of claim as long as it stands
3. ∏ must proceed to obtain a default judgment
4. Court can set aside default judgment if good cause is shown
55c-motion to set aside default
60b-after judgment is entered/motion within a year
-∆ must show: 1. valid excuse 2. meritorious ∆ 3. ∏ wouldn’t be
prejudiced
5. Who enters default judgment
a. If no sum certain then court
b. If sum certain then clerk
G. Defendant’s Answer
1. Three Types:
a. Denials
b. Defenses
c. Claims by Defendant (Counter Claims)
2. Denials
a. If not denied then it is deemed admitted
b. General Denial is no longer good practice in most jurisdictions and is
subject to Rule 11)
c. Specific Denials (8b)
d. Denial on lack of information (8b)
1. If ∆ lacks sufficient knowledge or information to form a belief,
then it operates as a denial
2. Duty of ∆ to make a reasonable inquiry
a. Example: David v. Crompton-∆ bought assets, should
have known tort liabilities of machine manufacturer
e. Failure to Deny = admission
1. exception-damages (8d)
3. Other defenses
a. preliminary-short and plain statement (if not waived)
b. affirmative- (8c)-list of some but not comprehensive, new matter
(even if ∏allegations are true, there is a reason why ∏ can’t win)
c. If ∆ fails to plead an affirmative ∆ it is waived and if you want
to assert it later, you must file a leave to amend.
4. Counter Claims (Rule 13)
a. Need not be related (13b)
b. compulsory (13a) or permissive (13b)
1. compulsory-parties having it must plead or forfeit
a. test-same transaction or occurrence
1. same issue
2. res judicata (judgment would bar the suit)
3. same evidence tests
4. logical relationship test (MAJORITY)-flexible
b. Supplemental Jurisdiction
2. permissive- can reserve for future litigation if you choose
(unrelated)
a. must satisfy jurisdiction on independent ground (such as
diversity in federal court)
b. court will almost always order separate trial on the issue
3. tested by same rules of pleading (part of ∆ answer though, not
separate pleading)
4. ∏ must reply to counter claim
a. Example: Wigglesworth
5. Cross Claim (Rule 13g)
a. Claim by one party against a co-party that relate to the transaction or
occurrence.
b. Can reserve for future litigation (never compulsory)
c. promotes efficiency and consistency
d. part of ∆ answer
H. Voluntary Dismissal (Rule 41)
1. ∏’s right to dismiss is balanced against the investment of other parties and the
courts
2. Usually a unilateral right in early stages of the litigation
3. 41(a)(1)-leave of court before answer of motion for summary judgment
( Rule 12 b doesn’t cut off the right)
5.Only one dismissal by notice, second is considered with prejudice
6. Other side or the court must agree
7. Supreme Court-voluntary dismissal doesn’t deprive court to impose Rule 11
sanctions
I. Amendments to the Pleadings
1. Whether a party is allowed to depends on the stage in the proceedings
a. Before Trial-you can amend once either before the response pleading
is served or if no responsible pleading is served, 20 days after
b. Any other situation-must get a leave of court, but his is liberal before
trial
c. Rationale-pleadings are only intended to give notice
2. Basic Question to permit an amendment:
a. To what extent does it prejudice the opposing party?
b. bad faith?
3. Relation Back (15c): A ∏ can usually amend her complaint after the statute of
limitations period otherwise would have run on the claim as long as the claim
asserted in the pleading arose out of the same conduct, transaction, or occurrence
a. Effect-as long as same transaction, ∏ can amend complaint to establish
new theories of recovery or show new facts even after statute of
limitations
1. rationale: ∆ not prejudice because she had notice within the
statue of limitations period that ∏ was asserting some claim
against her on the basis of the transaction involved.
b. Can’t amend to have totally new party after statute of limitations
c. Federal Rule-15 (c) 3- relation back permitted if an amendment changes
the party or the naming party against whom a claim is asserted only if the
new claim arose from the same transaction and the new party had notice of
the suit
IV. ESTABLISHING THE STRUCTURE AND SIZE OF THE DISPUTE
A. Joinder of Claims
1. Rule 18 (a)
2. ∏ has option of joining or suing on separate claims
3. Field Code Pleading-had to be same type of complaint or same transaction
but federal rules now (18) say that you can join as many claims as ∏ has against
a party regardless of the subject matter.
B. Permissive Joinder of Parties (Rule 20)
1. Can be by multiple ∏ or against multiple ∆
2. Right to relief asserted by/against them jointly, severally, or in the alternative
3. Requirements:
a. Arises out of same transaction or series of transactions (logical
relationship, same evidence)
This is broadly construed
b. Common question of law or fact common to all parties
4. Rationale: Efficiency and Consistency =
5. Why not mandatory? Tactical difference between parties, jurisdictional issues
C. Compulsory Joinder of Parties (Rule 19)
1. Required for any person who has a material interest in the case and whose
absence would result in substantial prejudice to the absentee or to other parties
2. Test/Approach:
a. necessary vs. indispensable
1. necessary-if severable interests and couldn’t be located, you can
still go forward
2. indispensable- nonseverable and failure to join means action is
dismissed
b. modern approach: practical
1. feasibility
a(1)-if without him, other parties can’t get complete relief
a(2)-without him, would be prejudiced (impair his interest
in later proceedings or parties before the court would be
exposed to double liability or inconsistency)
2. non joinder- either proceed without him or it is dismissed
D. Impleader
1. procedure that allows a ∆ to bring a third person into the lawsuit if they may
share liability (Rule 14) (a third party who is or may be liable to the ∆)
a. ∆ must have right to indemnity against the third party
b. ∏must have some causal connection with original action
c. Examples: indemnity against an insurer
d. third party’s liability depends on the outcome of the claim
e. ∆ must not be contending that third party is directly liable to ∏ (can’t
bring in another ∆). Must be contributory (if allowed in state) or liable
only to ∆ and not the ∏
f. procedure is the same as if it was an original suit
g. third party disregarded with venue but the court must have separate
basis for subject matter jurisdiction (see supplemental)
h. once impleaded, can have other claims if same transaction or
occurrence
i. STILL must satisfy personal and subject matter jurisdiction
E. Interpleader
1. procedure that allows a party whom conflicting claims with respect to the same
debt or property (the stakeholder) to join all adverse claimants in the same action
and requires them to litigate among each other to determine who, if anyone, has a
valid claim. (Rule 22)
a. Must deposit money (stake ) with the court that is the target (for state
but not Rule 22)
b. Must have limited liability
c. Purpose-∆ can avoid inconsistency, double liability, multiplicity of
actions
d. Example: Insurance Companies
F. Intervention
1. Outsider who has an interest to voluntarily join it as a party (Rule 24a)
2. Rule 24 (a) (2)a. lawsuit carries possibility of detriment to him
1. nature of interests (significantly legally protectable interest)
2. stare decisis is sometimes sufficient but more properly you’d do
an amices curre
b. substantial possibility that no one already a party will represent his
interests
1. minimal burden of inadequacy
2. factors-amount at stake for each party, ability and resources to
litigate, conflict of interests
c. permissive (24b)-court has discretion- it “may be granted if: (cost
efficient)
1. statute-conditional right
2. question of law or fact in common
G. Class Actions
1. One or more members of a class, similarly situated, may sue or be sued on
behalf of all members and it has a binding effect on class as a whole
2. Requirements (23a)
a. so numerous that a joinder is impractical
1. no fixed number but more likely if:
a. smaller claim, more likely will be allowed
b. lower likelihood that individual suits will be brought
c. greater public importance
d. more difficult geographic location of members
e. no maximum number but must be manageable and some
require all members to have notice
b. common question of law or fact
c. claims or defenses of representative parties are typical of those in class
d. representative will adequately represent the class interests
e. class must be defined with clarity
3. Categories of Class Actions (23b)
b1-if separate actions run the risk of inconsistent adjudication OR impairs
other class members interests
b2-declaration or injunctive relief that would benefit the class as a whole
b3-common question of law or fact (most common)
1. interests of the individual to control their case
2. nature of any litigation in progress of same controversy
3. desirability of consolidating all claims
4. difficulties in management
b1 and b2 require close relationship among class interests than 23a3 . b3
requires predominance and b3 requires notice
V. DISCOVERY
A. Prediscovery1. 26 (a) Disclosure of certain information before discovery-all discoverable
information and witnesses you may use to support the claim or defense (don’t
have to disclose harmful information up front)
a. Identity (name, address, etc) of witnesses
b. List of documents that may be used
c. Damages computation
d. Insurance Agreements
2. 26 (b) No formal discovery until 26f conference.
3. Subject to Rule 11
4. Duty to supplement
5. If you fail to disclose, you can’t use evidence at trial and hearings and other
sanctions may be imposed.
6. Parties can agree to forgo this part.
B. Depositions
1. Rules 27-32
2. Examination of witnesses under oath in presence of court reporter
3.When can you take them?
a. 37a-before suit is failed or while appeal is pending but only by leave of
court
b. after 26f meeting
4. Party can interview non party witness without court supervision
5. 30a2A-10 depositions is the limit and a witness can only take one deposition,
but parties can vary by stipulation in writing
6.30 (d) 2- Limited to one 7 hour day
7. Compulsory Appearance
a. subpoena
b. deposition must be within 100 miles of home or work of witness
c. a party witness’ deposition can be done at any reasonable place
8. Notice to Parties
a. form of notice-must give to over other party and identify deponent, time
and place
b. 30(b)-reasonable length of time in which notice must be given
9. Production of Documents-30 (b) 5- can make the witness bring documents
proper under Rule 34, but it requires more notice.
10. Questioning of Deponent
a. oral (first by examining party then others)-witness’ attorney probably
won’t ask much though
b. writing-questions can be in writing but answers given orally (Rule 31)
c. Objections to Questions
1. Lawyer can object to a question and instruct witness not to
answer if:
a. preserve a privilege
b. enforce limitation on evidence imposed by court
c. present motion for protective order under 30(a)(1)
2. If witness is instructed not to answer the examining party may
move for an order to compel (37a)
3. If disobeys order, he may be held in contempt and other
sanctions (37b)
4. If questioner is unreasonably oppressive, can move for
protective order ending exam
d. Transcripts-witness can review and make corrections but if it is used in
trial, the examining party can comment on changes (30e)
e .video tapes allowed (30b2)
11. Depositions are considered hearsay and thus inadmissible at trial.
a. Exceptions (32a)
1. by party witnesses against them
2. contradicting testimony to impeach a witness
3. unavailability of deponent (dead, sick, can’t be subpoenaed)
12. Value and use
a. Deposition is more useful because you speak directly to witnesses and
you can follow up but long and arduous preparation because you need to
woodshed witnesses, expensive, unuseful testimony, but you can observe
demeanor, pin down witness with factual arguments or impeachment.
b. Most effective way to get detailed information
c. Can see the witness and evaluate effectiveness
d. witness must spontaneously answer
e. you can follow up
f. it commits the witness
g. expensive and time consuming
13. Tactical Aspects
a. usually is done after interrogatories so that you have thorough
understanding of the case and it is expensive so you may want to wait until
the end of discovery when it seems certain you’ll go to trial
b. earlier depositions may be good to pin down the opponent before they
can do expansive discovery
C. Interrogatories-Rule 33(a)
1. Written questions from one party to another party requiring written responses
2. Only addressed to a party in the action
3. Must answer if he has reasonable access to the information (vs. deposition is
only what he knows)
4. Parties limited to 25 (33a)
5. Duty to respond
a. must answer or object within 30 days (Rule 33(b)3)
b. must give all information that is under your control
c. if extensive search is required, can make reference to the records and
let the other party look at them.
6. Failure to make adequate responses
a. motion to compel response (37a)-can be made at any time
b. can’t compel answer if valid objection has been raised
c. 37(a)2-unsubstantial requests are subject to awarding the adversary
costs of discovery
7. Use and Value-should draft broadly
a. cheap to access collective knowledge
b. time consuming, expensive for attorneys
c. unhelpful answers because lawyers answer them
d. useful to flush out allegations, identify witnesses, documents, and
narrow the issues
D. Production of Documents-Rule 34(a)
1. Requests must explain with particularity
2. Inspection must specify time, place, manner of production or entry
3. If you object, by item, must specify grounds
4. Can get things within the custody/control (legal right) of the other party
5. Can’t avoid by giving the document or item to someone else
6. Sufficient clarity to determine if it is produced
7. Have to produce in categories to not hide the documents
8. To examine the materials of a non party you must subpoena
9. Use and Value
a. can be used at trial
b. costly
c. prior to depositions its useful
d. relative to costs
e. sometimes undue burden and many objections (atty-client, wk product)
E. Physical and Mental Examinations-Rule 35
1. If physical or mental condition is at issue, then a motion must be made to
require the party to submit to an exam
2. Limited only to conditions that are in issue (ex: to show physical injuries if
claiming damages)
3. Must show good cause (that it is reasonably likely to produce information about
the condition at issue) and obtain a court order (35a)
4. 35 (a)-exams only compelled for parties are people in control or custody of the
parties
5. qualifications of examiner-35(a)-any suitable licensed or certified examiner
(usually examiner is selected by requesting party unless and objection)
6. Requesting party must pay
F. Requests for Admissions)-Rule 36-must admit, deny, or object
G. Scope of Discovery-allows virtually any information that is relevant to the claims or
defenses (but now limited to the issues that are framed by the pleadings)
1. 26 (b)1-all information relevant to the claims is discoverable
a. must be reasonably calculated to lead to discovery of admissible
evidence
b. court can expand if good cause is shown
2. 26 (b)3-court must limit discovery if:
a. unreasonably cumulative or can get from more convenient source
b. Party seeking it has already had the opportunity to get it
c. Discovery is unduly burdensome or expensive with regards to the
needs of the case
3. Low threshold for evidence (common sense)
4. Insurance Coverage usually is
5. Financial Status usually is not (Except relevant with punititive)
6. Bank Records can be subpoenaed
H. Exemptions from Discovery
1. Expect confidentiality
2. Socially approved purpose
3. Hasn’t been waived by discovery to outsiders (communication itself is
privileged) (for example you can’t cloak evidence by telling it to your lawyer)
4. 26(c)-protective order if it is too burdensome or expensive, private and intimate
information or used to annoy, etc.
5. Examples:
a. attorney client privilege
1. purpose-full and frank disclosure (candor)
2. requirements:
a. legal advice sought (not business advice)
b. from a lawyer
c. communications are related to that legal advice
d. made in confidence/intended it to be confidential
e. eavesdroppers testimony usually not precluded
f. by client (modern view is also by lawyer)
3. can be waived (unintentional disclosure usually waives)
4. corporate (Upjohn)-used to be only if in control of company,
extended privilege to any Ee as long as
1. within the scope of the employment
2. not available from higher management
3. other requirements satisfied
a. no safeguards for Ee because corporation can
waive the privilege and disclose Ees information
5. If information is withheld from discovery on grounds that its
privileged, it should describe materials with sufficient specificity
to enable other parties to assess its applicability.
b. Work product-now partially under 26 (b) (3)
1. Hickman Taylor- materials prepared and information developed
by or under direction of a party or attorney in anticipation of
litigation is subject to discovery only if:
a. substantial need
b. unable to get by other means
2. Purpose-lawyer can work with privacy, proper preparation, legal
theories, etc. The adversarial process (what is now written without
work product wouldn’t be)
3. Definition of Work Product-26(b)3-broad
a. any materials in anticipation of litigation for trial
b. 26(b)-documents and tangible things (covers non attys)
c. Hickman included intangible things such as atty
deposition regarding strategies
4. Can get facts in document but can’t recreate the document for
you
5. Not absolute protection (need for it can be shown)
6. not clear if it continues after the litigation is over
7. witness statements
8. opinion work products-26 (b)3-generally protected when
intermixed, but the court can inspect an order disclosure only
of severable factual materials. Must show more than need and
hardship (impressions, conclusions, opinions, legal theories)
c. Experts (specialized knowledge, skill, experiences, or training)
1. if nontestifying then usually protected (if ordered, reimbursed)
a. if unique and irreparable then can most likely discover
(or one of a kind expert)
2. Can depose testifying experts and a testifying expert has to issue
a report
I. Mandatory Disclosure and Protective Orders
1. Protective Orders-26(c)7-protect against specific hardships to discovery
(unduly burdensome) (good cause)
a. information is confidential
b. disclosure-specific harm
J. Failure to Comply (Sanctions)
1. Rule 37(a)-order compelling discovery/sanctions
2. must show good faith effort to resolve (must first confer informally)
3. Sanctions usually if failure to comply with discovery order
a. evasive/incomplete answer if motion to compel is treated as failure
to answer
b. failure to file a response-sanctions can be sought immediately
c. exclude undisclosed material from evidence or 37(b) sanctions
(must not have substantial justification or if failure is harmless)
4. 37(b) 2 Disobedience of an order compelling
a. order establishing facts
b. deny offender right to present claims or defenses raised
c. dismissal or default
d. contempt
5. Sanction must provide general deterrence
VI. SUMMARY JUDGMENT
A. Rule 56-when no genuine issue as to material fact (same as judgment as a matter of
law standard)
B. When it is Ordered
1. If moving party has burden of proof then summary judgment will be entered
only if jury could not reasonably disbelieve the moving party’s evidence.
2. If opposing party has the burden then unless the opposing party comes forward
with sufficient evidence to support a verdict in her favor, then summary judgment
3. case by case basis
C. General Rules
1. make all reasonable inferences in favor of the opposing party and view
evidence in the light most favorable to that party.
2. court may not weigh evidence and choose most persuasive side
3. If party has higher burden of proof at trial, the court should use it to scrutinize
the evidence
4. can’t assess the credibility of the witnesses
5. Uncontradicted witness must be believed
6. If issues of motive, intent, or state of mind are presented, then summary
judgment is wrong.
7. cross motions for summary judgment must be evaluated independently
8. complex cases used to be inappropriate for summary judgment but today
they are okay
D. Procedure
1. moving party-must show no genuine issue as to any material fact (56c)
a. if moving party has burden then- no reasonably jury could find for
opposing party
b. If moving party doesn’t have burden then
earlier-same as burden of proof (adickes)
current-must identify portions of discovery record that demonstrate
absence of an issue (celotex)
c. method
1. affirmative evidence negating an essential element
2. if no evidence on the other side you must show that
3. 26(a)1-initial disclosure may be used to satisfy initial
requirement
2. opposing party’s burden
a. if nonmoving party’s burden is met, then the opposing party has to
come forward with material of sufficient evidence to support a jury
verdict in his favor
b notice-entitled to it (56c)-10 days
3. Timing
a. ∆-any time
b. 56(a)(b)-∏ must file 20 days after commencement of action
4. Materials Considered
a. pleadings and admissions
b. affidavits made on personal knowledge of facts (showing competent to
testify in trial) (most common but not required)
c. Discovery Materials (usually not oral testimony-43 e authorizes it/not much)
d. Must generally be admissible (opposing party may not be held to this)
5. Can grant partial summary judgment to some claims
6. 56(d)-court may enter order establishing certain facts
7. If opposing party has no materials the court may give them more time if the opposing
party shows that a continuance is appropriate (56f)
8. See March 13 notes and look in book/Currie approach, etc.
VII. JUDGMENT AS A MATTER OF LAW
A. Rule 50-at close of proof, either party can move when the other party is done
presenting its case (also known as motion for directed judgment/judgment n.o.v
B. Standard
1. No Legally Sufficient Evidentiary Basis on which judgment could find for
nonmoving party
a. moving party has burden of proof-evidence is so compelling that a jury
couldn’t reasonably find for the opposing party (even if the jury disbelieve
a witness)
b. Opposing party has burden of proof-if they have no substantial evidence
c. Must consider in light most favorable to non moving party
d. court can’t weigh the evidence
e. Scintilla Rule (not in federal but in some states)-if scintilla of evidence
then case presented
2. After a verdict, can move for renewed motion for judgment as a matter of law
a. 50(b)-if you don’t move for judgment as matter of law before verdict,
you can’t move for one after it.
b. Reasons a judge may defer until after verdict:
1. Jury may agree and so its harder to overturn on appeal
2. If judge is wrong, appellate court can just reinstate jury verdict
without a second trial
3. may not defer to save time
c. 52(c)-non jury trial-judgment as a matter of law (used to be demurrer)
motion to dismiss/judgment-if judge finds ∏ proof unpersuasive
VIII. MOTION FOR A NEW TRIAL
A. Rule 59
B. Reasons for motion
1. Misconduct of court, jury, or adversary
a. must be prejudicial and not corrected (Rule 61)
b. moving party must not rely on misconduct that was known to him
prior to the verdict and not pointed out)
2. Accident or Surprise (by evidence) that had material affect on outcome
a. party must have been diligent in guarding against it
b. at earliest opportunity
3. Newly Discovered Evidence
a. proof must pertain to facts in existence at the time of the trial
b. new proof must be highly significant
c. moving party must show that the evidence was not attainable
by due diligence (disfavorable)
4. Improper Evidence
a. If wrong ruling on admission of evidence and it was prejudicial
5. Evidence is not legally sufficient to support the verdict
6. Contrary to the manifest of the weight of the evidence (if judge says seriously
erroneous result)
C. Rule 60 (b)-party may obtain relief from judgment at a later time than Rule 59 motion
for new trial (10 days) but no later than one year and must be reasonable time.
1. this is hard to get only if mistake, neglect, or fraud.
IX. PERSONAL JURISDICTION
Questions to Ask: 1. Is there a statute that authorizes it? 2. Is it constitutional under due
process?
A. General Jurisdiction-∆ activities in the forum are so substantial and continuous that ∆
would expect to be subject to a suit and would suffer no inconvenience being tried there.
1. If general jurisdiction then ∆ is subject to any claim in that forum
2. (vs. specific-only for claims related to contact)
3. purpose- safe harbor for ∏ to bring suit
4. In the persons domicile (present in the state and intend to stay)
5. Corporations
a. where incorporated
b. headquarters
c. substantial activity
d. used to be small office was okay, not tighter requirements
e. sales in forum not enough
f. nationwide business-questionable
g. possible reasonableness limitation
B. Consent
1. Express/Implied General Appearance
2. Express-either by signing a document or corporation registering, etc.
3. Implied
a. class action-failure to opt out
b. voluntary appearance (appearance occurs when ∆ does it on merits)
c. 12 (b)-can oppose jurisdiction in motion or answer but if you fail to raise it in
initial motion or answer while 12(h)(1)
d. By moving to dismiss for lack of personal jurisdiction, ∆ consents to court’s
power to decide
1. if ∆ appears and litigates, jurisdiction can’t be raised later as a bar to
full faith and credit (to preserve this objective=default)
C. Statutory Authorization for Jurisdiction
1. Must have a statute
2. Long Arm Statutes
a. extending reach
b. some say any jurisdiction that doesn’t interfere with Constitution
c. Specific acts (most jurisdictions)
1. examples: business within the state, torts, ownership of real property,
contracts to insure, marital domicile
d. Must decide:
1. terms of statute include acct and
2. constitutionality
e. Act matters (if within the statute), can use different legal theory
f. Usually claims must arise out of the act
3. Federal- generally not broader than long arm
a. 4(k)(a)(1)-If the state gives jurisdiction in that state, then a federal court in that
state will too
b. Rule 14 and 19-bulge jurisdiction-If party is served within a judicial district
then federal court has jurisdiction
c. Some federal statutes give nationwide jurisdiction (interpleader and fraud)
d. 4(K)(2)-claims under federal law- federal courts have jurisdiction anywhere if
∆ can’t be sued anywhere
D. Court may order discovery if factual issues might determine jurisdiction
E. Personal Jurisdiction (history)
1. Over parties or property
a. in personam-personally binding on a person
b. in rem-court can adjudicate rights of all possible claimants to specific property
(all persons in property)
c. quasi in rem- particular disputes related to property
2. Pennoyer v. Neff- Power Theory-must be valid service of process on individual or
attachment of property
a. no in rem/no quasi in personam because court didn’t attach his property at
outset
b. physical
c. state cannot serve individual domiciled in another state with process and
summon him to that state
3. Methods to Obtain Jurisdiction
a. Service within the state (transient jurisdiction)- physically present
1. example: plane flying over the state
2. exception: fraudulently enticed to come to that state
b. Prejudgment Seizure of ∆ Property
1. satisfy claims not related to property
-don’t have to serve process within jurisdiction
-attach property before judgment
2. what is property?
a. debt- debt follows the debtor (debt was present)
3. exceptionsc. Exceptions
1. statue of citizen toward nonresident (divorce)
2. consent- implied by in state activities
F. Shift to Minimum Contacts-International Shoe-∆ should understand that his activities in the
state will have an impact in that state and he enjoys benefits and protection there so should be
subject to suit there.
1. ∆ must have certain minimum contacts with the forum such that the maintenance of
of suit does not offend traditional notions of fair play and substantial justice (don’t need
service within the state if there are minimum contacts)
a. systematic and continuous contacts (and volume) (amount of claims directly
related to activity in the state)
b. Forum directed activities (can have jurisdiction if single contact)-high water
mark of personal jurisdiction
c. substantial connection with the state
d. purposeful availment limitation (invoking benefits/protection of laws)
e. specific jurisdiction is limited to claims arising from or related to the ∆
contacts with the forum state
G. Today: 2 prong test
1. Purposeful Availment (Hanson)-∆ must have made deliberate choice to relate to the
state in some meaningful way.
a. focus only on ∆ activities (not ∏)
b. purpose: give fair warning that may be subject to jurisdiction (BK)
and predictability (VW)
c. forseeability alone isn’t enough (must be such that he’d reasonably anticipated
being hauled into court)
d. unilateral act of ∏ is not enough
e. long term relationship may be considered minimum contacts
(BK-“reached out to FLA corp.)
f. Seeking to serve (VW)-usually sufficient (even with single act)
g. Stream of commerce (VW)-ends with retailer, may not be enough alone
(Asahi-unreasonable)
h. Targeting or Intending Effects in the Forum (at least for intentional
torts)
(Calder v. Jones-Nat’l Enquirer, CAL is focal point of story and
harm is there)
i. Relations between contacts and claim (specific jurisdiction)
2. Reasonableness
a. not enough alone (still need purposeful availment)
b. fair play and substantial justice
c. Factors
1. interest of state in providing forum
2. interest of state in regulating activity
3. burden on ∆ to ∆ in forum
4. burden on ∏ of prosecuting elsewhere
5. systematic and continuous activity of ∆
6. claim related back to ∆ local activity
7. avoidance of multiple conflicting suits
8. volume
9. benefits to ∆ of state
10. forseeability
d. none are critical
e. easy to satisfy
f. Example: Asahi-unreasonable because of burden on ∆
3. Don’t need minimum contacts between ∏ and forum
4. Internet (purposeful availment is more questionable)
a. usually ongoing contact should suffice
b. effects test usually (Calder) to show that ∆ should have realized
the effect of the forum would lead to the suit
c. access to website is not enough
d. level of interaction
passive-not jurisdiction
interactive- if local in nature still may not be enough though
5. Presence of Property
a. no quasi in rem but may be enough to establish relevant contact-Shaffer
b. Location of property
1. tangible-where it is physically
2. intangible-usually where the instrument is located
(Ex: certificate) but sometimes otherwise
c. Contacts Test-Shaffer-minimum contacts of International Shoe
is extended to property
1. exempt with true in rem cases (ex: condemnation)
and preexisting claim to property (perfect title) OR
if claim relates to duties of owner
d. OVVERRULES BALK (if property is completely unrelated to ∏ cause
of action, its presence alone is not enough for jurisdiction.)
6. Personal Jurisdiction in federal courts is usually the same requirements for
personal jurisdiction in that state
7. If you can’t get personal jurisdiction, try to get transient.
X. SUBJECT MATTER JURISDICTION
A. State courts have broad subject matter jurisdiction
B. Federal Courts-Article III sec. 2-generally only ones in federal are between states,
citizens of different states, citizens and aliens, etc.
1. Diversity 2. Claims arising under a Federal Statute or the Constitution
Article II doesn’t give jurisdiction to lower federal courts, but Congress can.
C. Questions that must be asked:
1. Is this case constitutionally given to federal courts under Article III?
2. Has Congress given jurisdiction over this in a statute?
D. Subject Matter Jurisdiction may be raised at any time even after final judgment has
been entered (Rule 12 (h) (3)). It is never waived.
E. Even if the parties don’t raise the issue, the court is to raise it on its own motion.
F. Why federal courts are often preferred
1. location
1. broader discovery opportunities
3. speedier trial
4. single assignment system
5. source of jurors are from entire district
G. Federal Question
1. 28 USC 1331- they have jurisdiction when “Arising under…”
a. ∏ claim must arise under federal law
b. Tests
a. Holmes test-under the law that creates the cause
of action (under inclusive)-federal law creates the
claim (Express or implied)
b. Smith test-can’t prove claim without establishing
the federal law proposition(substantial federal issue)
(nonfederal claim that turns on construction of
federal law) (Merrell Dow)
-federal question must be important to the outcome
c. Generally the issue must appear in the well pleaded complaint
(not enough that the answer contains it)
d. federal issue must be an element of the state law claim
b. Clear things:
1. Must be based on ∏ claim (not ∆)
2. Will for sure be satisfied under Holmes test(statute must)
1. substantive right 2. authorizes court remedy
3. If statute authorizes suit but only to enforce a state cause
action then no jurisdiction
4. State cause of action may be okay if proof of federal
requirement is needed for that claim (occasionally)
G. Diversity of Citizenship
1. 28 USC 1332-diversity of citizenship (complete diversity)
a. no ∏ can be from same place as any ∆
b. claim must be greater than 75,000 dollars
1. required under 28 USC 1332
2. good faith claim is okay unless legal certainty that claim
will be much less
3. Traditionally, all claims against the ∆ had to be greater
than the amount but you can’t add claims against different
∆ or by other ∏. (look at it as if each suing alone)
-some use supplemental jurisdiction ideas to say
that as long as one ∏ satisfies the amount, other
∏can add under supplemental jurisdiction.
H. Supplemental Jurisdiction
1. Goal-promote judicial economy and consistency of decision
2. Pendant Jurisdiction-∏ asserts jurisdictionally proper claim against a non
diverse party (assertion of nonfederal claims by the ∏ related to ∏ fed. claims)
a. Example: Gibbs- ∏ had 2 claims (1 federal and 1 state)against ∆ on
same dispute. They were not diverse but got jurisdiction on federal issue.
Because it was joined with federal claim, the federal court has pendant
jurisdiction (Art. III gives jurisdiction over cases, not claims)
b. Requirements for pendant jurisdiction:
1. Court has the power to hear the related claim
2. it makes sense to exercise jurisdiction
a. examples-which claim dominates, sensitive issues of
state law, issues together would lead to jury confusion,
federal issues will be resolved early
2. Ancillary Jurisdiction-related claims asserted by ∆ or others after the first
complaint (counter-claims, etc) (assertion of a claim by a party other than the ∏
that was related to the claim made by the ∏).
a. test-close relationship between the original claim and the added claim
such that it makes it one case
logical relationship-cross claims, compulsory counter claims,
intervention (but not permissive counter-claims because no logical
relationship), impleader (but if ∏ makes a claim against third party
∆ then there had to be an independent basis for federal jurisdiction)
(but 3rd party ∆ claim against ∏ may have jurisdiction)
3. Statutory Supplemental Jurisdiciton- 28 USC 1367
a. Federal courts that have original jurisdiction over a claim have
supplemental jurisdiction over all other claims that form part of the same
case or controversy.
4. Three part test in Gibbs for pendant claims (and maybe also apply for diversity)
a. substantial federal claim
b. common nucleus of operative facts
c. ∏ would ordinarily be expected to try them in one proceeding
4. 3 Part Analysis
a. constitutional power under Article II sec. 2 (proper claim within federal
jurisdiction and the related claim arises from same nucleus of facts?)
b. statutory grant (1367a)-all related claims that are part of the same case
c. Does it make sense to do so?
XI. JURISDICTION IN GENERAL
A. As a general rule, ∏ chooses the forum subject to the limitations of personal
jurisdiction, subject matter jurisdiction, and venue.
1. Exception-Removal (28 USC 1441)
a. rationale-∆ should have option to choose federal court for cases that are
within the federal jurisdiction originally (jurisdiction is intended to protect
both parties)
b. only available if ∏ could have sued in federal court originally (well pleaded
complaint rule for federal question or complete diversity)
d. only available if none of ∆ is a citizen of that state (if ∆ is sued in home state
then it is non removable)
e. can only remove to federal district court in the same district/division even if
that venue wouldn’t be proper under original jurisdiction
f. case proceeds in federal court under federal rules (court picks up from where it
was left) and state court preliminary judgments remain in effect unless modified.
g. Procedure: (28 USC 1446)
1. ∆ file a notice of removal in appropriate district court with all
the pleadings, process, papers, etc.
2. state court notified and loses control and may not proceed
3. ∏ can move in federal court to remand back to state court (even
if federal court has no jurisdiction, state court can’t proceed until
∏ challenges and it is remanded)
B. Venue
1. 28 USC 1391
2. Personal Privilege of ∆ and may be waived by responding to ∏ complaint or
in a contract with a forum selection clause.
3. May be other venue provisions by law
4. Local actions must be brought in district where land is located
5. In all cases- where ∆ resides if all ∆ same as state or where substantial part of
of events or omissions giving rise to the claim took place. However, if no district
anywhere in US has proper venue, then it can be where ∆ is subject to personal
jurisdiction (in diversity cases) or where ∆ is found (in issue cases)
6. Corporations- 28 USC 1391 (c)
a. only as a ∆ (not as a ∏)
b. Defines a residence of corporation as either where it would be subject to
personal jurisdiction or any district that has sufficient contacts
C. Personal vs. Subject matter jurisdiction
1. Personal-geographical Subject Matter-doesn’t depend on location
2. Personal-courts have authority based upon the party Subject Matter-authority based on
the issue
D. States have concurrent jurisdiction over federal unless Congress has made it exclusive (so that
even if a federal question, it can be tried in state courts)
E. Summary of Jurisdiction: Questions to Ask
1. Personal Jurisdiction?
2. Subject Matter Jurisdiction?
3. Venue
F. Challenging Jurisdiction
1. If you appear in the original action and beginning of suit and object to exercise of
jurisdiction
a. special appearance (may not be subject to suit)
b. federal Rule 12 (b)(2)-∆ can appear and object without waiving the right
c. must be raised immediately or it is lost (if you answer on the merits then the
personal jurisdiction objection is waived)
d. If objection is properly raised and the court has the hearing, if it didn’t have
jurisdiction, it is dismissed, if it does, it will proceed. (can appeal later only if
you raise it at the beginning)
2. You can ignore the suit (if ∏ wins they usually go to the state court that ∆ lives in to
enforce a judgment.) State court must give full faith and credit
a. exception-home state may conclude the court didn’t have jurisdiction
3. Can’t do both (can’t challenge jurisdiction in the suit and then in your state)