CIV PRO OUTLINE
I. JURISDICTON

Types:
o Personal
o Subject Matter

14th Amendment (Due Process Clause) restricts courts from exercising jurisdiction
over whomever they please.
PERSONAL

Minimum Contacts Test See International Shoe
o State Courts have personal jurisdiction over a defendant with minimum
contacts in that state, such that it would be fair to require her to return and
defend a lawsuit in the state.
 Quality and nature of contacts should be taken into account
 Defendant must have purposefully availed himself of
the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its
laws (See Hanson v. Denckla)
 Solicitation of single contract in CA = MC over insurance
company in CA (See McGee v. International Life Insurance
Co.)
 Establishing a trust in DE and then moving to FL does not
= MC over trust company in FL (See Hanson v. Denckla)


“Casual” or “isolated” contacts are insufficient to support
jurisdiction
On going business relationship (See Burger King v. Rudzewicz)
will support specific jurisdiction
o Minimum contacts jurisdiction is limited to claims arising from, or related
to, the defendant’s contacts with the forum stateSpecific Jurisdiction.
o A defendant may have sufficient contacts with a state to support minimum
contacts jurisdiction there even though she did not act within the state. A
foreign act with foreseeable effects in a state can give rise to specific
jurisdictionEffects Test
o Minimum contacts analysis focuses on the time when the defendant acted,
not the time of the lawsuit.
o Stream of Commerce Split


O’ConnorMinimum contacts exist when defendant purposefully
directs an action toward the forum state
BrennanInjecting goods into stream of commerce creates
personal jurisdiction within a state

Fair Play and Substantial Justice Test
o If the defendant has minimum contacts with a state, there is a presumption
that the state has personal jurisdiction unless the defendant can show that
forcing her to defend a lawsuit in the state would violate notions of fair
play and substantial justice.
 Burden on defendant
 Forum state’s interest in adjudicating the dispute
 Plaintiff’s interest in obtaining convenient and effective relief
 Interstate judicial system’s interest in obtaining the most efficient
resolution of controversies
 Shared interests of the several states in furthering fundamental
substantive policies

General JurisdictionContacts are so substantial that defendant can be sued in the
state for any claim, even one completely unrelated to her in-state activities.
o Defendant’s activities in the state are so substantial and continuous that
she would expect to be subject to suit there on any claim and would suffer
no inconvenience from defending there.
o Line between specific and general jurisdiction is not clear

In-State ServiceSee Burnham v. Superior Court of CA; Pennoyer v. Neff
o Requires only that the defendant be present in the state at the time that the
service and complaint are served upon her.
o The defendant NEED NOT have ANY contact with the state at the time of
the events giving rise to the suit.
o Questionable whether there is a fairness issue involved (Concurring
opinion said there should be).

Long Arm StatuteStatute that confers jurisdiction on state courts (may not give
jurisdiction in every situation allowable under the Due Process Clause) See Northwest
Airlines v. Friday
o If a case interprets an enumerated long arm statute is “intended to reach
the limits of due process,” this means that the specific categories of
jurisdiction conveyed by the long arm statute are to be interpreted as
liberally as the due process clause will allow. It does not fill in any
interstices those provisions fail to cover.

Challenging Jurisdiction
o Direct: If a defendant wants to challenge jurisdiction under Rule 12(b)(2),
the defendant must raise the defense immediately, either by way of
motion, appearance or answer. If the defense is not raised immediately, it
is waived under Rule 12(h)(1).
o Collateral Attack: Defendant can refuse to appear in court, have a default
judgment entered against her and then challenge jurisdiction when the
plaintiff tries to get the judgment enforced in the state where the defendant
lives.
 Full Faith and Credit Clause requires the courts of each state to
honor the judgments of other states (unless the court where the
judgment was rendered didn’t have jurisdiction)

Rule 4 (k) (1) (A) gives a federal court the same jurisdictional reach as a court of the
state in which it sits, except when a federal statute extends that reach.
NOTICE
 Due Process requires:
o Notice
o Opportunity to be heard
 Due process requires notice so that parties know that their rights are being affected.
Therefore, notice must be by means calculated to inform the desired parties
SUBJECT MATTER JURISDICTION
 Federal courts must have jurisdiction under BOTH
o Art. III, §2 of the Constitution
o Statute

Question about subject matter jurisdiction can be raised at ANY time throughout
litigation

28 USC §1331Arising Under Federal Law
o Authorizes jurisdiction over cases arising under the Constitution, laws, or
treatises of the United States.
 Arising under = Well-Pleaded Complaint RulePlaintiff must
raise a federal issue in her complaint (See Mottley)
 Creation Testlaw that creates the cause of action
 In order for a claim to “arise under federal law” federal law
must create the cause of action.

EXCEPTION to Creation Test: If the federal issue is embedded in the state law claim
and essential to its resolution than the case “arises under federal law.” (See Smith v.
Kansas City Title and Trust Company)

“Arising Under” in this statute is construed much more narrowly than “arising under”
in Art. III, §2 of the Constitution.

28 USC §1332Diversity Jurisdiction
o Citizens of different states
o More than $75,000

Citizenship = Domicile
o Domicile (Individuals) = physical presence in a state + intent to remain
indefinitely when complaint is FILED
 Residence does NOT = citizenship in a state
o Domicile (Corporations) = state of incorporation AND state where
principle place of business is located (See §1332(c)(1))
REMOVAL
 28 USC §1441(a)
o Allows a defendant to move a case from state court to the federal district
and division embracing the place where the action is pending in cases in
which federal court has original jurisdiction.

28 USC 1441(b)
o Diversity case is only removable if none of the defendants is a citizen of
the States in which the action is brought.

Displaces plaintiff’s choice of the state court system in favor of a federal court within
the same geographic area.

Entire suit is removed, including not only the specific claim that gives rise to
removal, but any related claims that the federal court has the power to hear under
supplemental jurisdiction.

Counterclaim CANNOT be the basis for removal. For the purposes of removal, court
only looks at main claim
NOTICE OF REMOVAL
 28 USC §1446
o Procedure for removal is set forth
o In §1446(b) if the case was not removable on the basis of diversity
originally, but later becomes removable on diversity grounds, removal
MUST take place within one year after commencement of the action.
VENUE
 Venue rules are meant to further restrict the places where the plaintiff may choose to
bring suit, to assure that suits are tried in a place that bears some sensible relationship
to the claims asserted or to the parties to the action.

28 USC §1391Federal Venue Statute
o §1391(a)(1) and §1391(b)(1): Venue based on individual residence
o §1391(a)(2) and §1391(b)(2): Venue based on events or omissions giving
rise to the claim
o §1391(a)(3) and §1391(b)(3): Fallback provisions
o §1391(c): Venue when dealing with corporate defendant under (a)(1) or
(b)(1)

Court must inquire into whether it has personal jurisdiction over each individual
defendant BUT the question of venue it a matter of whether or not the court is the
proper place for the whole suit.
TRANSFER OF VENUE
 28 USC §1404(a)
o Provides for geographic transfer from one district court to another in a
different state or district

§1404 asks a court with jurisdiction to transfer the case to another court within the
same system

Displaces the plaintiff’s geographical choice for litigation.
FORUM NON CONVENIENS
 Motion to dismiss. Court may dismiss a case where the interests of justice indicate
that it should be litigated somewhere else.

Forum non conveniens asks a court to dismiss the case so that it can be re-filed in
another system [invoked between different states or different countries]
SUPPLEMENTAL JURISDICTION
 Federal Courts must have authority under Art. III of the Constitution AND a statutory
grant to exercise jurisdiction over a case
o 28 USC §1367 provides the Court with the necessary statutory grant to
hear related state claims in most circumstances.

28 USC §1367
o §1367(a): Federal courts have supplemental jurisdiction over all other
claims that are so related to the federal claim(s) that they form part of the
same case or controversy under Art. III of the Constitution. Federal courts
have jurisdiction when “federal and state claims arise under the same
nucleus of operative fact.” (See United Mine Workers v. Gibbs)
o §1367(b): If a case is in federal court on diversity jurisdiction, the court
does not have supplemental jurisdiction over any claims where exercising
supplemental jurisdiction would defeat diversity jurisdiction. (See Kroger)
o §1367(c): Courts can exercise supplemental jurisdiction but are NOT
required to do so. Courts should consider:
 Whether state law claim predominates
 Whether it would require the court to decide sensitive or novel
issues of state law
 Whether hearing the claims together might confuse the jury
 Whether the federal issue has been resolved and only the state
issue remains

3 Step Analysis for determining Supplemental Jurisdiction:
1. Is there constitutional power under Art. III, §2 to hear the supplemental claim?
[Proper Federal Claim + State Claim arising from same nucleus of operative fact]
2. Is there a statutory grant of jurisdiction over the related claim? §1367 provides
that grant in basically all cases, except certain claims in diversity cases.
3. Based on the various discretionary factors listed in §1367(c), should the court
hear the case?
CHOICE OF LAW
 28 U.S.C. §1652: Rules of Decision Act
o The laws of the several states, except where the Constitution or Acts of
Congress otherwise require or provide, shall be regarded as rules of
decisions in civil actions in the courts of the United States, in cases where
they apply.

28 U.S.C. §2072: Rules Enabling Act

3 Main Problems with Swift:
1. Resulted in no uniformity in law. Different law depending on if case was in
state vs. federal court or depending in what state case was heard.
2. Discriminated against citizens because non-citizen got to pick the law
depending on whether non-citizen brought the case in state or federal court
3. Unconstitutional because it allowed federal judges to “make” law in areas in
which the federal government has no delegated powers

Erie DoctrineIn diversity cases federal courts must apply the law that would be
applied by the courts of the state in which they sit.
o If state case law is not settled, federal court judges are entitled to make
an educated judgment on what rule the state supreme court would
apply to the case today
o Federal court judges can also certify an issue to a state supreme court
(if the state has a certification procedure)

Whether a Court apply the Erie Doctrine or the Rules Enabling Act depends on
whether the laws that are in conflict are substantive law or procedural law.
o If substantive use Erie
o If procedural use Rules Enabling Act
 To determine whether something is substantive or procedural
apply the Hanna test

Hanna Choice of Law Test
1. Outcome-determinative test (in light of Erie policies):
-Will federal procedure lead to forum shopping?
-Will federal procedure result in inequitable administration of the laws?
If the answer to both questions is no, the federal rule is NOT outcomedeterminative
2. Is there a Federal Rule of Civil Procedure?
-Does it exceed the Rules Enabling Act?
-Is it constitutional?
Outcome Determinative Test (Guaranty Trust)Must apply state law when failing to
do so would result in a different outcome in federal court
Balancing of Interests (Byrd)
Nature of Issue
Result
Matters bound up with the
rights and obligations created
by state law (clearly
substantive law)
Apply state law
Matters of procedure where
applying separate rule would
likely affect outcome
Apply state law
Matters of procedure where
applying separate rule would
likely affect outcome, but
where there are important
countervailing considerations
Apply federal law
Matters of procedure where
applying separate federal rule
is unlikely to affect outcome
Apply federal law
4 Types of Federal Provisions that may Conflict with State Law:
1. Conflicts between a Federal Constitutional Provision and State Law
Constitutional Provision ALWAYS applies over state law
2. Conflicts between a Federal Statute and State Law
If the statute is arguably procedural, the federal statute applies over state
law due to supremacy clause
3. Conflicts between a Federal Rule and State Law
Federal Rule applies if it (1) does not exceed the Rules Enabling Act
[exceeding = abridges, enlarges, or modifies a substantive right] and (2) it
is constitutional
4. Conflicts between a Federal Judicial Practice and State Law
Federal Judicial Practice should apply unless it encourages forum
shopping or inequitable administration of laws.

Under the Erie Doctrine, the federal court should apply the state in which it sits
choice of law rules.
REMEDIES
Specific Remedies
 Remedies that seek to restore directly and specifically that which the defendant has
taken from the plaintiff
o Injunction
o Constructive Trust
o Rescission of Contract
o Reformation of Contract
o Accounting
o Quiet Title
 These were equitable remedies in common law courts and
therefore require Bench Trials
Exceptions:
o Replevin
o Ejectment
o Writ of Mandamus
o Habeus Corpus
 These require Bench Trials
Substitutionary Remedies
 Remedies that seek to provide the plaintiff with a reasonable substitute
o Compensatory Damages
o Liquidated Damages
o Punitive Damages

These were legal remedies in common law courts and therefore
require Jury Trials
Exception:
o Damages
 This requires a Bench Trial
Punitive Damages
Remedies that seek to punish and deter

8th Amendment does not apply to punitive damages but the Due Process Clause
places outer limits on the size of a civil damages award.
o Due Process concerns of deprivation of property require procedure for
judicial review of punitive damages awards (Honda Motor Co. v.
Oberg)
o Although punitive damages serve the same purpose as criminal
penalties, defendants subjected to punitive damages in civil cases have
not been accorded the protections applicable in a criminal proceeding.
Guideposts Courts Reviewing Punitive Damages Award Should Consider:
1. Degree of reprehensibility of the defendant’s misconduct
a. Harm caused was physical vs. economic
b. Tortious conduct evidenced an indifference to or reckless disregard of
health or safety of others
c. Target of the conduct had financial vulnerability
d. Conduct involved repeated actions vs. isolated incident
e. Harm was the result of intentional malice, trickery, or deceit vs. mere
accident
2. Disparity between the actual or potential harm suffered by the plaintiff and the
punitive damages award
a. No bright line ratio, however few awards exceeding a single digit ratio
between punitive and compensatory damages will satisfy due process
b. Wealth of defendant cannot justify an otherwise unconstitutional punitive
damages award
3. Difference between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases
Test for Injunctions:
1. No Legal Remedy Available
2. Balancing of Interestsif granting the injunction would do more damage to the
defendant than denying it would do to the plaintiff, the request should be refused.
Preliminary Injunctions and Temporary Restraining Orders are court orders entered
prior to trial for the purpose of protecting the rights of the plaintiff form irreparable injury
during the pendency of the action.
Rule 65(a) Preliminary Injunction
Rule 65(b) Temporary Restraining Orders
Test for Preliminary Injunctions:
1. Plaintiff will suffer irreparable injury if relief is not granted
2. Balancing of InterestsDefendant will not be harmed more than the plaintiff is
helped
3. Plaintiff will probably prevail on the merits OR If the harm that may occur to the
plaintiff is sufficiently serious, it is only necessary that the moving party be
reasonably certain to succeed on the merits
4. Court may consider injury to the public welfare
Temporary Restraining Orders (TRO) Due Process Requirements:
1. Notice
2. Opportunity for a hearing before seizure of property
Instances When Seizure Is Allowed Without Opportunity for Prior Hearing:
1. The seizure has been directly necessary to secure an important governmental or
general public interest
2. There has been a special need for very prompt action
3. The State has kept strict control over its monopoly of legitimate force: the person
initiating the seizure has been a government official responsible for determining,
under the standards of a narrowly drawn statute, that it was necessary and justified
in the particular instance.
Procedural Safeguards for TRO’s under Rule 65(b):
 Expires on own terms after 10 days
 Judge makes the decision
 Requires a bond
 Hearing that takes place after TRO is issued is required to take place ASAP
COMPLAINT
Requirements:
1. Caption
a. Name of court
b. Title of the action
c. Names of the parties
2. Jurisdiction Allegation
i.e. why Federal Question and/or Diversity Jurisdiction exists
3. Body of allegations comprising the cause of action or claim for relief
4. Demand for relief to which the pleader believes he/she is entitled

Plaintiff can plead alternatively and even inconsistently, at least when the facts are
not all within the plaintiff’s knowledge, as long as the pleading is made in good faith.
Rule 12(b) Pre-Answer Motions

Filing a pre-answer motion under Rule 12(b) is an alternative to answering the
complaint. Defendant need not answer until after the motion is decided.

Filing a pre-answer motion is optional. Defendants can raise any of the defenses
listed in Rule 12(b) in the answer instead.
Rule 12(b)(6) Motion to Dismiss
 Asserts that even if the plaintiff were to prove all the allegations in the complaint, she
would still not be entitled to any relief.

For purposes of 12(b)(6) motion, court assumes the facts alleged in the complaint are
true.

Court construes the pleadings in favor of the pleader.

A plaintiff, whose complaint is dismissed under Rule 12(b)(6) will almost always be
given at least one opportunity to amend the complaint to state a compensable
complaint before her case is dismissed.

Court does not consider any other pleadings or evidence in deciding the motion.
Rule 11
 Applies to every pleading, written motion, or other paper presented to the court
whether by signing, filing submitting or later advocating a position.

Includes a “safe harbor” period of 21 days during which an attorney can withdraw or
amend the challenged allegation or denial.
o Party must wait until this period expires before filing a Rule 11 motion
with the court

Signature RequirementPurpose is to ensure truthful pleading and thus deter
frivolous litigation

Purpose of sanctions is to deter improper conduct, not compensate the opposing party.
Sanction Inquiry:
1. Are the parties’ claims objectively frivolous?
2. Did the person who signed the pleadings know, or have reason to know,
that they were frivolous?

If a claim turns out to be untrue, the attorney does not have to amend the complaint,
he just can’t advocate it anymore

In filing a TRO, attorneys may not have time to investigate the facts provided by the
client. However, if after investigating, an attorney discovers a fact/claim is untrue,
the attorney can be sanctioned if he “later advocates” the fact/claim.

Rule 11 applies an objective (reasonable) standard NOT a subjective standard.
ANSWER
 Defendant’s options when he served with a complaint:
o Nothing
 Suffer default judgment
o Pre-answer motion
 Must be filed within same period of time D would have to file an
answer [Rule 12(a)]
 If D’s motion is denied, D has 10 days from denial to answer
[Rule 12(a)(4)(A)]
o File an answer
 Within 20 days unless service is waived, then D gets 60 days
[Rule 4(d)(3) or 12(a)(1)(B)]
 Serves to determine which allegations in the complaint a defendant intends to contest
at trial and to permit the defendant to raise additional matters as defenses or claims.

Defendant will admit allegations in the complaint either by stating in the answer that
they are true or by failing to properly deny them.

Defendant should deny matters he wishes to place into contention [Rule 8(c)]
o General DenialConsists of one sentence stating that the defendant
denies every allegation in the complaint
 Federal court limit general denials to those cases in which the
defendant actually intends to controvert each and every one of the
plaintiff’s allegations.
o Specific DenialInvolves a sentence-by-sentence or paragraph-byparagraph analysis of the complaint, denying only those allegations that
the defendant intends to contest

Defendant can deny an allegation for lack of information and belief

An allegation is admitted unless it is denied.
Affirmative Defenses
 Must be pleaded in the answer [Rule 8(c)]

Deal with entirely new matter that has nothing to do with whether the plaintiff’s
claims are or are not true.

Affirmative defenses seek to prevent unfair surprise

Policy Issues To Consider in Evaluating whether an Argument is an Affirmative
Defense:
o Whether the matter at issue constitutes a necessary elements in the
plaintiff’s cause of action
o Which party, if either, has better access to relevant evidence; and
o Policy considerations: should the matter be indulged or disfavored?
Denial vs. Affirmative Defense
Denialdenying facts in plaintiff’s complaint vs. Affirmative Defenseagreeing facts
are true but that there’s additional facts that change the legal import of the alleged facts
12(b)(6) Motion vs. Affirmative Defense
12(b)(6) MotionEven if plaintiff’s facts are true, defendant still wins vs. Affirmative
DefenseEven if plaintiff’s allegations are true, defendant still wins because of
additional facts that give defendant a defense
AMENDMENTS
Rule 15(a)
Allows a pleader to amend a pleading once as a matter of right, so long as no responsive
pleading has been filed or, if the original pleading did not call for a response, within the
normal time that responsive pleadings are required. Also allows a pleader to obtain leave
of court to amend.

Amendments may be denied in situations in which unfair advantage would be taken
of the opposing side.
o The later the time of the amendment, the more likely it will be that the trial
judge will find the amendment to be prejudicial to the opposing party

When ruling on an motion to amend courts look for:
o Bad faith
o Negligence
o Prejudice on the opposing party
Rule 15(c)
An amended pleading is treated as having been filed at the same time as the original
pleading, provided that the claim or defense asserted in the amended pleading arose out
of the same transaction or occurrence set forth in the original pleading. The amended
pleading is said to relate back to the original filing date.

Whether or not a claim relates back (arises out of the same transaction or occurrence)
depends on how narrowly or broadly the court defines the transaction.
o The important question is: Did the original complaint give the D notice
that there was another legal claim that may be brought at a later date?
[15(c)(3)]
DISCOVERY
Rule 26(b)(1)
Discoverable information:
 Relevant
o To claim or defense of any party
 Not privileged
Rule 26(a)
Mandatory initial disclosure
 Parties must automatically exchange basic information about the identity of witnesses
and relevant documents or other tangible evidence a party may use to support his
claims.
 As trial nears, parties must exchange information as to evidence that the party will or
may use at trial
Exceptions
 Attorney-Client Privilegebars inquiry into communications between a client and
her counsel in the course of legal representation.
o Rationale: effective representation requires full and frank communication
between lawyer and client
o Absolute privilegeImmune from discovery no matter how compelling
the need for the information may be
o In order for something an employee tells the employer’s attorney to be
privileged, the communication must be about something the employee did
in her capacity as an employee.

Work Product Doctrinebars production of certain materials developed in
anticipation of litigation
o Not an absolute privilege. Certain work product materials may be
discoverable if the party seeking discovery:
 Made a sufficient showing of need for the materials; and
 An inability to obtain it through other means [23(b)(3)]

Privileges protect information from certain sources. Privileges are NOT meant to
hide evidence or protect underlying facts.

Any party may obtain a copy of her own statement, even though that statement
otherwise would be protected from disclosure.
Waiver
 Once privileged information has been voluntarily disclosed, the privilege is waived as
to all communications of the same information.

Experts
o Parties are required to disclose names of testifying experts at least 90 days
before trial, together with a report. [Rule 26(a)(2)]
o Testifying experts may be deposed, as well [Rule 26(b)(4)(A)]
o Parties are NOT required to disclose the identity or opinions of nontestifying experts [Rule 26(a)(2)]
Rule 55 Default
 Occurs when defendant doesn’t answer complaint
 Results in judgment for the plaintiff on liability but there still must be a hearing on
damages
Rule 41(a) Voluntary Dismissal
When this occurs:
 Party needs more time to investigate
 Party decides to re-file in another court
 Settlement—Two Types:
o Private contract between parties, court is not involved at all. Only thing
court sees is filing of dismissal under 41(a)
o Consent Judgmenttaken to the court which is approved and entered as
the court’s judgment
Rule 41(b) Involuntary Dismissal
Two times this can occur:
1. Failure to Prosecute
2. Sanction by the Court
 Operates as an adjudication on the merits even though the decision is not being made
on the substance of the claim
MEDIATION
 Neutral third party is brought in as a facilitator to help the parties reach a settlement
 Decision is NOT binding
ARBITRATION
 Arbitration renders a binding decision on the parties

Considerations in evaluating arbitration as an alternative to trial:
o Is the arbitrator impartial?
o Is the arbitration going to be held at a neutral location?
o Are there financial barriers to vindicating a person’s rights?
o Do both sides have a chance to uncover enough evidence?
o Are there limitations on remedies?
SUMMARY JUDGMENT
Rule 56(c)
Summary judgment should be granted when:
1. There is no genuine issue as to any material fact and
 Material Factfact that makes a difference in the outcome of a case

Genuine Issueeach person has enough information so that a reasonable
trier of fact could find in his favor
2. The moving party is entitled to judgment as a matter of law

Evidence is construed in the light most favorable to the party opposing the motion
Evidence Court will Consider to Support a Motion for Summary Judgment:
 Affidavits
 Depositions
 Interrogatories
 Admissions
 Only evidence that is admissible at trial will be considered [Rule 56(e)]
Rule 56(e)
If the nonmoving party does not oppose the motion with evidence to contradict that of the
moving party, the court may accept the moving party’s undisputed version of the facts
and grant summary judgment.

Although the party moving for summary judgment always bears the burden of
establishing the nonexistence of an issue of material fact, the nature of the showing
depends on who would bear the burden of persuasion at trial and what standard of
proof is required.
o If the moving party would have the burden of persuasion (because it’s
the Plaintiff or the defendant asserting an affirmative defense) then he
must establish ALL essential elements of the claim or defense
o A moving party who would NOT bear the burden or persuasion can obtain
summary judgment simply by showing the nonexistence of ANY essential
element of the opposing party’s claim [he DOES NOT have to present
evidence negating the plaintiff’s claim]

If the issue in dispute is a party’s state of mind, summary judgment should be denied
so that the person can be examined before the trier of fact.
o The right to use depositions for discovery DOES NOT mean that they are
to supplant the right to call and examine the adverse party before the jury
12(b)(6) vs. Summary Judgment
 12(b)(6) tests the sufficiency of the allegations vs. Summary judgment tests the
sufficiency of the evidence
JURY TRIAL
Rule 38(a)

7th Amendment preserves the right to a jury trial in federal courts as it existed in
1791.
o Congress can extend the right to a jury trial through statute. If the law is
silent THEN it becomes a Constitutional question
To Determine Whether a Party has a Right to a Jury Trial Courts Look to:
1. Nature of Claim
a. Would the claim have been given a jury trial in 1791?
i. Court of EquityJudge
ii. Court of LawJury
2. Remedy Sought [More important]
a. Equitable/SpecificJudge
b. Legal/SubstitutionaryJury

If there are both legal and equitable claims in a trial, the jury will rule on the legal
issues FIRST and the judge rules on any remaining issues to avoid inconsistent
rulings
Role of Judge and Jury
 Jurydetermining (often from competing and conflicting evidence) the facts
germane to a given dispute and how the relevant law should apply to those facts

Judgescreens the evidence and determines what is relevant and how much is
sufficient to permit the jury to make a finding on a given proposition
BURDENS OF PROOF
 Burden of Persuasiondegree of certainty necessary for a trier of fact to find in favor
of the party who bears the burden
o Civil Trials = Preponderance of the Evidence (more likely than not)
o Only matters when the evidence is 50-50, then the party with the burden of
persuasion has not met his burden

Burden of ProductionComing forward with evidence from which a rational trier of
fact could find for a party
o When this burden is satisfied, a trier of fact MIGHT find for a party the
trier does not HAVE to find for that party
DIRECTED VERDICT
Rule 50(a)
 Granted if a party has been fully heard on an issue and the court finds that a
reasonable jury would not have a legally sufficient basis to find for the party on that
issue
o Dafter P rests and anytime before case goes to jury
o Pafter D rests and anytime before case goes to jury
Directed Verdict vs. Summary Judgment
 For summary judgment, judge basis decision on paper record vs. For directed verdict,
judge basis decision on evidence presented at trial
o The decisions are based on different information
JNOV
Rule 50(b)
 Granted after the jury has returned a verdict that no reasonable person could reach
o Can be granted ONLY if a directed verdict motion was made prior to
submission of the case to a jury
 No analogue to JNOV at common law but analogue to directed
verdict.
 This makes JNOV a delayed ruling on a motion for a directed,
which makes it valid under the 7th Amendment,
NEW TRIAL
Rule 59
 Can be granted for any of the reasons for which new trials have heretofore been
granted [no grounds for granting new trials are specified]
o New trial motion must be made within 10 days after the judgment has
been entered [Rule 59(b)]

A new trial does not make a winner out of the loser, it merely begins the contest over
again

If a defendant moves for a JNOV and a new trial and the trial judge refuses to grant
the JNOV but GRANTS the new trial, there is NO right to appeal because a final
judgment was not rendered

Judge CANNOT grant a new trial because he thought the jury got it wrong

Trial judge’s decision on a new trial motion will only be reversed if appellate court
finds abuse of discretion
CLAIM PRECLUSION
 Forbids a party from re-litigating a claim that should have been raised in former
litigation

A valid and final judgment on the merits of a cause of action is accorded binding
effect in all subsequent lawsuits involving the same cause of action.
o Applies to:
 What was litigated
 What should have been litigated (including defenses)
Goals:
 Efficiency
 Finality
 Avoidance of Inconsistency
Diversity Cases (Rule from Semtek)
The preclusive effect of a federal judgment rendered in a diversity action should be the
same that would be attached to that judgment if a state court had rendered it EXCEPT in
cases where the state law is incompatible with federal interests
o Under 41(b), adjudication on the merits does not necessarily give a suit
claim preclusion effect
o 41(b) precludes a party from re-filing a claim adjudicated on the merits in
a federal court in the state where the first judgment was rendered
TEST:
1. Were both cases brought by the same claimant against the same defendant?
a. YesMove to question 2
b. NoNo claim preclusion
2. Was the first case end in a valid judgment on the merits?
a. YesMove to question 3
b. NoNo claim preclusion
3. Could the claim/defense have been brought in the first lawsuit?
a. YesMove to question 4
b. NoNo claim preclusion
4. Should the claim/defense have been brought in the first lawsuit?
a. Determine what law applies
i. Claim Preclusion Law of state where first judgment was rendered
b. Determine what test applies
i. Both suits arise from the same transaction or occurrence? [Federal
Courts]
ii. Both suits arise from the same cause of action?
iii. Both suits require the same evidence?

In Federal Court, a 12(b)(6) motion is a judgment on the merits and therefore receives
claim preclusive effect

A plaintiff’s right to recover from separate defendants are considered distinct claims
under claim preclusion analysis even though they arise out of the same occurrence.
With claim preclusion do you simply apply the above test or do you have to discuss
efficiency, finality and inconsistent judgment considerations as well??
ISSUE PRECLUSION
An issue is precluded when:
1. The issue in the second case is the same as the issue in the first
2. The issue must have been actually litigated
3. There was a valid and final judgment on the issue
4. The determination on the issue in the first case was essential to the judgment
Restatement of Judgments
 When a court gives alternative grounds for a decision, NEITHER is binding in
subsequent litigation [even if rendered by special verdict] UNLESS they are both
appealed and the appellate court upholds both grounds
o If only one ground is upheld, only that ground is precluded
o REASON: don’t know which ground was essential to the judgment

Conclusive effect of a judgment can only be invoked on a party from the first suit or a
party in privity with someone from the first suit
Privity occurs when:
o A nonparty who has succeeded to a party’s interest in property is bound by
any prior judgments against that party
o A nonparty who controlled the original suit will be bound by the resulting
judgment
 Controleffective choice as to legal theories and proofs
o A nonparty whose interests were represented adequately by a party in the
original suit
 Adequate RepresentationRequires express or implied legal
relationship between the nonparty and party

Offensive Collateral EstoppelPlaintiff seeks to foreclose the defendant from
litigating an issue the defendant has previously litigated unsuccessfully in an action
with another party

Defensive Collateral EstoppelDefendant seeks to prevent a plaintiff from
asserting a claim the plaintiff has previously litigated unsuccessfully in an action with
another defendant
Factors Suggesting Offensive Collateral Estoppel May be Unfair
1. If the first action involved a small or nominal amount, defendant may have had
little incentive to defend vigorously, particularly if future suits are not foreseeable
2. If the judgment relied upon as a basis for the estoppel is itself inconsistent with
one or more previous judgments in favor of the defendant
3. Where the second action affords the defendant procedural opportunities
unavailable in the first action that could cause a different result

Issue preclusion is both narrower and broader than claim preclusion
o Narrower because it does not preclude all possible issues that might have
been raised in a prior action but only those actually decided in that action
o Broader because it can foreclose litigation of a particular issue in an
entirely new context
JOINDER
Steps for ANY joinder problem:
1. Is it permissible to join these claims/parties under the Rules?
2. Is there subject matter jurisdiction over the added claims?
3. Is there personal jurisdiction over the new party?
Rule governing joinder of PARTIES (Court MUST have personal and subject
matter jurisdiction over additional party or supplemental jurisdiction):
Rule 20
Plaintiffs may join in one action if their claims:
1. Arise out of the same transaction or occurrence
2. Involve a common question of law or fact [some questions must be in common
not all]
A plaintiff may join defendants in one action if she asserts a claim that:
1. Arises out of the same transaction or occurrence
2. Involves a common question of law or fact

Rule 20 claims are optional
Rule 21Misjoinder of Parties
Misjoinder is not a basis for dismissal
Rule 14Third Party Claims
Defendant can implead any party who may be liable to the defendant for all or part of any
recovery the plaintiff obtains on the main claim

Defendant CANNOT implead if she is only contending that a third party is liable
directly to the plaintiff but not to the defendat

Third party’s liability will depend on the outcome of the main claim. Therefore the
impleaded party may escape liability either by:
o Defeating the plaintiff’s original claim, or
o Defeating the defendant’s derivative claim against the third party

Third party defendant DOES NOT affect the court’s jurisdiction over the original
claim or determining proper venue
Rule 19Indispensable Parties
1. Is the absent party necessary? Yes when
a. Without absent party, court cannot accord complete relief
b. Absent party’s interest may be harmed if she is not joined
c. Absent party’s interest may subject the defendant to multiple or
inconsistent obligations
2. Is joinder of the absent party feasible?
a. Question of personal and subject matter jurisdiction
3. If joinder is not feasible, court can either:
a. Proceed without absent party
b. Dismiss the case
c. Rule 19(b) gives factors to guide this decision
**Joint tortfeasors ARE NOT indispensable parties under 19(a)**
Rules governing joinder of CLAIMS (Court MUST have subject matter jurisdiction
over additional claims or supplemental jurisdiction):
Rule 18(a)
Allows a party to join any additional claims he has against an opposing party with his
original claim
o There MUST be a claim in existence before this rule can apply
o DOES not require the new claim to arise from the same transaction or
occurrence as the original claim
 Rule 18 claims are optional
Rule 13(a) and 13(b)Counterclaims
Claim against an opposing party
 CompulsoryClaim against an opposing party that arises from the same transaction
or occurrence as the main claim
o It MUST be asserted [in the pleading], otherwise it is lost [Rule 13(a)]
o Most courts use logical relation test to determine same transaction or
occurrence

PermissiveClaim against an opposing party that does not arise from the same
transaction or occurrence as the main claim
o Permissive counterclaims are optional [Rule 13(b)]
**If counterclaim is compulsory, court has supplemental jurisdiction because both 13(a)
and §1367 require that the claim arise under the same transaction or occurrence.
However if the counterclaim is permissive, the court must have an independent basis for
supplemental jurisdiction.**
Rule 13(g)Cross Claims
Claim asserted by one party against a co-party (someone on the same side of the v).
MUST arise out of the same transaction or occurrence as the main claim
Rule 42(b)Separate Trials
The Court can order a separate trial of any
 Claim
 Cross-claim
 Third party claims
28 USC §1367
Grant of supplemental jurisdiction depends on 3 variables:
1. The basis of original jurisdiction over the case
2. The identity of the party—plaintiff or defendant—seeking to invoke supplemental
jurisdiction
3. The Rule authorizing the joinder of the party or claim over whom supplemental
jurisdiction is sought
CLASS ACTION LAWSUITS
Rule 23
23(a) Requirements:
1. Numerosity [joinder is impracticable]
2. Commonality [there are questions of law or fact common to the class]
3. Typicality [claims/defenses of representatives are typical of the class]
4. Adequacy of Representation
23(b) Classes
b(1)Permits a class action when:
a) Prosecution of separate actions would create a risk of inconsistent
judgments which would establish incompatible standards of conduct for
the party opposing the class, or
b) Individual litigation might result in judgments that would be dispositive of
the interests of other members of the class who are not parties to those
individual actions
 Essentially, b(1) permits class-action treatment if individual actions would result in
prejudice to the party opposing the class or to members of the class itself.

Having to compensate some plaintiffs but not others is NOT subjecting the defendant
to inconsistent judgments

Example of b(1) class: Individual class members are seeking to recover out of a
limited common fund
b(2)Permits a class action when:
a) The party opposing the class has acted or refused to act on grounds
generally applicable to the class as a whole, and
b) The class representatives are seeking final injunctive relief or
corresponding declaratory relief
 Seeking relief for damages is permissible so long as the damages are incidental
b(3)Permits a class when:
a) Common questions of law or fact predominate over questions that only
affect individual class members


b) The class-action procedure is superior to other means of adjudicating the
controversy
 Do individual class members have an interest in controlling the
prosecution or defense of individual suits?
 Are other actions concerning the controversy pending?
 Desirability of having controversy resolved in one action
(considers if forum is appropriate)
 Management difficulties
Requires the best notice practicable to reasonably identifiable class members of:
o Nature of the class action, and
o Their right to opt-out
Due process does not require an un-named plaintiff to opt-in (consent to jurisdiction)
like it does for an out-of-state defendant because:
o At worse, un-named plaintiff is losing right to litigate a small claim in the
future whereas a defendant could lose a lot more
o If un-named plaintiff does nothing, class representative is arguing on his
behalf whereas no one argues on behalf of out-of-state defendant if he
does not show up
Why have extra requirements for b(3) class?
 b(1) and b(2) classes are more cohesive than b(3) classes
o Often each class member would be affected by a judgment obtained in an
individual action instituted by another member of the class
o More likely that representative will protect the interests of the absent class
members, so the court is less concerned about making certain each
member of the class is given notice and an opportunity to be present
o Lack of cohesiveness is b(3) classes increases concern about whether the
interests of absent class members are identical with those of the class
representative
Subject Matter Jurisdiction Standards
 Federal Question
 Diversity
o Citizenship: Look only to representatives (not all class
members)plaintiffs must be completely diverse from defendants
o Amount in Controversy [if aggregate is less than $5 million otherwise see
CAFA]: ONE representative’s claim must exceed $75,000 (court has
supplemental jurisdiction over smaller claims)

Class Action Fairness Act of 2005 (CAFA) [28 USC §1332(d)(2)]
o Citizenship: Minimum diversityOne plaintiff is diverse from ONE
defendant
o Amount in Controversy: Aggregate of claims must exceed $5 million
o Removal is allowed even if suit is filed in state where defendant is a
citizen
o No one year limitation on removing a case due to diversity
28 USC
§1331Federal Question Jurisdiction
§1332Diversity Jurisdiction
§1441Removal
§1446Notice of Removal
§1447Removal Procedure
§1391Venue
§1404Transfer of Venue
§1406 Transfer to Improper Venue
§1367Supplemental Jurisdiction
§1653Rules of Decision Act
§2072Rules Enabling Act
§1292Interlocutory Orders