Civ Pro Attack Outline
Pleadings
Rule
FRCP Rule 7
FRCP Rule 8
FRCP Rule 9
FRCP Rule 10
FRCP Rule 11
Case
Dioguardi v. Durning
Bell Atlantic Corp v. Twombly
Ashcroft v. Iqbal
Erickson v. Pardus
Conley v. Gibson
Summary
Shows what pleadings and motions are
allowed
Short and plain statement, grounds for relief,
demand for relief sought
Fraud and other important stuff
Setup of the pleadings
Sanctions/certification
Rule
A complaint must contain a short and plain
statement of the claim showing that the
pleader is entitled to relief
A complaint does not need detailed factual
allegations.
A plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than
labels and conclusions and a formulaic
recitation of the elements of a cause of action
will not due
Factual allegations must be enough to raise a
right to relief above the speculative level
A complaint will only survive a motion to
dismiss if it alleges nonconclusory facts, that,
taken as true, state a claim to relief that is
plausible on its face.
Specific facts are not necessary.
Statement only needs to give fair notice of
what the claim is
A complaint is sufficient as long as the
plaintiff sets forth an assertion upon which
relief may be granted
Specific detailed recitations of facts are not
necessary to survive a motion to dismiss
Motions
Rule
Rule 12(a)
12(b)
12(c)
12(e)
12(h)
Summary
Time to serve a responsive pleading
21 days to file original motion or answer
14 days to file answer after motion is denied
Motions to dismiss
Subject matter jurisdiction, personal
jurisdiction, venue, insufficient process,
insufficient service of process, failure to state
a claim, failure to join a party under rule 19
Post answer motions- party may move for a
judgment on the pleadings
Motion for a more definite statement… forces
plaintiff to write another complaint
12(b)(2)-(5) must be brought up in original
motion or answer or else it is waived
12(b)(1) is never waived
12(b)6)-(7) may be raised at trial
Answer and Reply
Rule
Rule 12(a)
Rule 8(a)
Rule 8(c)
Summary
Defendant must serve an answer
Crossclaims and counterclaims within 21
days
Reply to an answer in 21 days
Defendant must admit or deny allegations
asserted in complaint
Admit/deny/DKI
Partial admit- must deny the rest
Failure to deny then you’re admitting
Affirmative defenses
Admits you did it but gives a legal reason
why
Failure to plead waives your right to use it at
a later time
Amending Pleadings/Supplemental Pleadings
Rule
15(a)
15(b)(1)
15(d)
Cases
Beeck v. Aquaslide ‘n’ Dive Corp
Surowitz v. Hilton Hotels Corp.
Summary
Plaintiff has right to make amendment to
complaint within 21 days of serving it
Can make subsequent amendment with
consent of opposing counsel
Grand amendment if it will aid in
determination on the merits and not prejudice
the other party’s action, defense or merits
When you want to add something that
happened after case was filed
Have to ask court for permission
Summary
A party may amend his pleading only by
leave of court or written consent of the
adverse party and leave shall be freely given
when justice so requires
Under Rule 23(b), a plaintiff may verify her
complaint not based on her own knowledge
and understanding but on the basis of the
knowledge of a trusted advisor or counsel
Joinder of Claims
Type of Joinder and Case
Compulsory Counterclaim
Permissive Counterclaim
Crossclaims
LASA Per L’Industria Del Marmo Societa
Per Azioni v. Alexander
Summary
claim made by defendant against plaintiff,
must be raised in defendant’s answer or else it
is waived
Rule 13(a)(1): must arise out of the same
transaction or occurrence as the plaintiff’s
claim
Rule 13(b): does not arise out of the same
transaction or occurrence; can be brought in
current trial or in a separate case
Claims against co-party not opposing party
Rule 13(g): allows crossclaims against codefendants if it arises out of the same
transaction or occurrence; never compulsory;
if not from the same transaction or
occurrence, then it is considered a regular
claim
Under FRCP Rule 13(g)-(h), if a cross or
third party claim arises out of the same
transaction or occurrence as the original
action, a court may assert ancillary
jurisdiction over that claim
Joinder of Parties
Type of Joinder
Permissive Joinder of Parties
Mandatory Joinder of Parties
What if Party Cannot be Joined
Misjoinder
Impleader
Rule 18
Rule 13
Summary
Rule 20- when P can bring in another plaintiff
or defendant
D can use Rule 20 to bring in another D
20(a)(2)- another plaintiff
20(b)- too many parties then court can issue
orders for separate trials
Factors to Consider:
Rule 19(a)(1)(A): necessity to add party
Rule 19(a)(1)(B): new party’s interests
Rule 19(a)(1)(C): Defendant’s interests
Rule 19(b)- court determines whether action
should proceed or if it should be dismissed.
Factors to consider:
Prejudice to absent party or existing parties,
extent to which the prejudice could be
lessened, whether judgment without party
would be adequate, adequate remedy without
party
Rule 12(b)(7): if case is dismissed
Rule 21: Not a ground for dismissing the
action. The court may drop a party on its own
or by motion
Rule 14: a defendant can bring in a third party
who they think is liable in part or whole
Defendant files claim from same transaction
or occurrence
Rule 14(a)- derivative liability; someone is
liable to you in part or whole; impleaded
party may be liable to defendant for all or part
of plaintiff’s claim to defendant
14(a)(2)(A) and (C)- allows 3rd party D to
assert defenses against P and D
14(a)(3): plaintiff can assert against 3rd party
D if it is out of same transaction/occurrence
Additional unrelated claims can be joined
against third party defendant
If plaintiff brings a claim against third party
D, then the 3rd party D and P become
opposing parties
Case
Ryder v. Jefferson
Provident Tradesman Bank & Trust Co. v.
Patterson
Jueb v. B/G Foods
Summary
Two claims may not be joined if, although
arising out of the same event, the rights
violated and the injuries are several
A court should proceed without a party who
should be joined if feasible, if, after
examining the interests of the plaintiff, the
defendant, the party to be joined, and the
courts ,the court determines in equity and
good conscience that proceeding is
appropriate
Impleader of a third party who is or may be
liable is appropriate even if independent actin
for monetary recovery could not be brought
against the third party or original defendant at
that time
Discovery
Rule
Rule 26
Rule 24
Rule 30 + 31
Rule 33
Rule 36
Rule 34
Rule 35
Rule 37(d)(3)
Rule 37(a)(1)
Rule 37(b)(2)(A)
Rule 45
Summary
Mandatory initial disclosures Rule 26(a)(1)
Mandatory disclosures of expert witnesses
Rule 26(a)(2)
Pre trial disclosures Rule 26(a)(3)
Enforcement of provisions Rule 26(b)
Privileged Information- Rule 26(b)(1)
Rule 26(c) Protective Order
Work Product Provision
Depositions
Testifies under oath/live
May be oral (30) or written (31)
10 depositions at 7 hours each… MAX unless
court order
Very expensive
Can be parties or non parties
Interrogatories
Written questions to parties only; 25
questions max, 30 days to return
Requests for Admissions
Admit or deny any discoverable matter; if you
don’t deny, you admit; only to parties
Requests to Produce
Written request for access to things
Parties/non parties
Medical Exam
Court order; must show medical condition in
controversy and good cause; only of party or
someone in a party’s custody
Sanctions for outright refusal to respond or
show to deposition: all 37(b)(2)(A) motions
BUT contempt
Motion to compel
Sanctions: refused facts decided in other
parties favor, prohibit any challenge or
defense to this matter at trial, contempt of
court, default judgment, dismissal of
complaint, staying proceedings or striking a
pleading
Subpoena any nonparty for any discoverable
matter
Summary Judgment
Rule and Cases
Rule 56
What is required when party making
summary judgment motion does not have
burden of persuasion
If defendant is making the motion suggesting
the plaintiff doesn’t have a claim, then they
have two choices
Cross v. United States
Adickes v. S.H. Kress and Co.
Celotex Corp. v. Catrett
Summary
No genuine issue of factand movant is entitled
to judgment as a matter of law
1) Submit affirmative evidence negating
non moving party’s claim
2) Moving party may demonstrate to the
court that the nonmoving party’s
evidence is insufficient to establish an
essential element of nonmoving
party’s claim
1. Defendant can say that the plaintiff
doesn’t have sufficient evidence to
satisfy burden of proof at trial
2. Defendant making motion on
plaintiff’s claim is to suggest
affirmative evidence
If the plaintiff is moving for summary
judgment, personal/sworn depositions are
likely not enough for court to award summary
judgment
In a motion for summary judgment, the
moving party has the burden of showing the
absence of a genuine issue as to any material
fact
A party making a motion for summary
judgment does not need to provide affirmative
evidence in the form of affidavits to support
its motion.
Trial
Rule and Case
7th Amendment
Rule 38
Beacon Theatres v. Westover
Summary
Right to a jury trial if it is a legal, not
equitable dispute (for money, not for
injunctions/specific performance/etc.)
Right to a jury trial and demand
When legal and equitable issues exist in the
same trial, the legal issues must be first
resolved by a jury before the equitable issues
may be resolved by the judges
Directed Verdict
Rule
Rule 50
Rule 50(a)
Denman v. Spain
Standard for Directed Verdict
Summary
A party makes a request for the court to
render a judgment without having the matter
go to the jury
If the jury already has given a verdict, it’s a
motion that opposes the verdict
Directed verdict- motion before jury’s verdict
Rule 50(a)(1): if a party has been fully heard
on an issue during a jury trial and the court
finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for
that party on that issue, the court may:
- Rule 50(a)(1)(A): Resolve the issue
against the party
- Rule 50(a)(1)(B): grant a motion for
JMOL against the party on a claim or
defense that, under controlling law,
can be maintained or defeated only
with a favorable finding on that issue
Rule 50(a)(2): a motion for directed verdict
may be made at any time before the case is
submitted to jury
When a jury’s conclusion in a civil suit for
personal injury is based on a mere possibility,
but not the preponderance of the evidence, a
judgment notwithstanding the verdict is
appropriate
No reasonable jury would have found for
nonmoving party
Judgment Notwithstanding the Verdict and Motion for New Trial
Rule and Case
Rule 50(b)
Ginsburg v. Williams
Aetna Casualty Co. v. Yeatts
Rule 59
Summary
If the court does not grant a 50(a) motion, the
court is considered to have submitted action
to jury
Movant must file a JNOV motion within 28
days and may also file a request for a new
trial
MUST have moved for Directed Verdict
Rule 59 is comprehensive and needs no other
reasons. A new trial for a new rule is arbitrary
and a review would not be available which his
unfair. It is too subjective and should not
stand.
The granting or revising of a new trial is a
matter resting in the sound discretion of a trial
judge
The court may, on motion, grant a new trial
on all or some of the issues
Must be filed no later than 28 days after entry
of judgment
Appellate Review
Standards of Appellate Review
De Novo
Clearly Erroneous
Abuse of discretion
Summary
Applies to a question of law
Use for summary judgment/directed
verdict/JNOV
Appellate court doesn’t care what the trial
court did and makes a brand new
determination on its own starting from ground
up
Applies to questions of fact when the judge
served as fact finder
Applies to questions of fact; when the
appellate court gives great weight to the
reasons why the trial court decided the way it
did
Will only reverse trial court’s judgment if
there was no basis for decision that the trial
court rendered
Used for granting a motion for new trial
Methods of Securing Judgment
Rule
Rule 64
Rule 64
Rule 65
Rule 65
Rule 66
Civil Arrest
Notice of Pendency
Summary
Attachment
Gives P the opportunity to seize/limit real or
personal property during the trial so that P is
guaranteed some assets
If it’s attached you can’t use it throughout the
trial
Garnishment
Plaintiff asks the court to seize property that’s
being held by a third party for D.
An order to garner D’s wages from employer.
Preliminary Injunction
Granted before trial
Has same impact as injunction and is only
used in the most necessary cases
Won’t be put into effect until you win lawsuit
P must show irreparable injury absent a
preliminary injunction
Temporary Restraining Order
Used in emergency situations where there is
no time to bring matter of trial
Good for a short period of time until there is a
hearing for preliminary injunction
Only if emergency
Receivership
The court appoints a 3rd party guardian to
preserve/manage D’s property
When P fears D may be bankrupt
Used in immigration cases most frequently
P pays for legal fees if arrest is unwarranted
Requires P to file notice of litigation before
protection of constructive notice can be
claimed.
Appeals
Rules and Cases
28 USC §1291
Rule 54(b)
Liberty Mutual Insurance Co. v. Wetzel
28 USC §1292(a)
28 USC §1292(b)
Rule 58
Summary
The court of appeals shall have the
jurisdiction of appeals from all final decisions
of the district courts of the United States
Interlocutory Decisions
The court may direct entry on a final
judgement as to one or more, but fewer than
all, claims or parties if the court expressly
determines that there is no just reason for the
delay
Allows court to enter judgment for one claim
or one party which is then a final judgment
which can be appealed, while still hearing
other claims
A claim is appealable under rule 54(b) when
the claim is complete and there has been final
summary judgment on it. Partial summary
judgement relief is only appealable to the
court of appeals if injunctive relief is granted
If injunctive relief- appealable
Even if court refusing to grant an injunctive
relief is an interlocutory order
D would have to appeal
Appeal in 10 days?
Are 1292((b) requirements met?
Entering a final judgment
1. See if final judgment
2. Does it satisfy 1292(a) or (b)?
3. Does it satisfy writ of mandamus or
prohibition?
4. Does it satisfy collateral judgment?
Departures from Final Judgment Rule
Rule and Cases
Will v. Hallock
28 USC §1651
LaBuy v. Howes Leather Co.
Cheney v. US District Court
28 USC §1292
Atlantic City Electric Company v. General
Electric Company
Summary
A refusal to apply the judgment bar of the
federal torts claim act is not appealable
The Supreme Court and all courts established
by the Act of Congress may issue all writs
necessary or appropriate in aid of their
respective jurisdictions and agreeable to the
usages and principles of law
A court of appeals have the power to issue a
writ of mandamus compelling a district judge
to vacate his order referring an antitrust case
for trial before a magistrate
A court should issue a writ of mandamus
denying civil discovery of presidential
advisory materials created by federal officials
within the president’s close operational sphere
without first requiring that the officials assert
executive privilege
The court of appeals has the discretion
whether or not to hear an appeal on an
interlocutory opinion
Pretrial leave to appeal applications should
only be granted when the filing party will not
have a full opportunity to assert its rights on
appeal of the final judgment
Personal Jurisdiction
Type of Personal Jurisdiction
In personam jurisdiction
In Rem Jurisdiction
Quasi in Rem Jurisdiction
Summary
The power of a court to exercise jurisdiction
over a person
You get in personam jurisdiction:
- If the defendant consents
- If the defendant is a resident of a
forum
- If the defendant is present and served
The power of a court to exercise authority
over a thing rather than a person
Refers to a court’s jurisdiction over the
property which may not be the source of the
dispute but is sought in compensation by the
suing party
Cases
Pennoyer v. Neff
Summary
A court may enter a judgment against a nonresident only if the party:
1. Is personally served with process
in state
2. Property in state and attached
before litigation
3. Consent is given
4. if non resident then if domiciled
Traditional Bases for Jurisdiction
1. presence and service in the state and
personally served
2. presence of person within state lines
3. personal service and defendant is
present in the state when served
4. gives state general jurisdiction
Blackmeyer v. United States
Milliken v. Meyer
Allowed Personal Jurisdiction Under 4
categories
1. defendant consents/appears
2. the defendant is a resident of forum
3. the defendant is present and served in
forum
4. the defendant owns property in forum
The United States Government may exercise
personal jurisdiction over its nationals and
residents abroad and may impose penalties for
disobeying US laws provided due process is
provided
Domicile in State is enough to bring an absent
defendant within reach of state’s jurisdiction
– authority over a state over one of its citizens
is not terminated when that citizen is absent.
New Theory of Personal Jurisdiction
Term
Domicile of Corporation
Doing Business Test
Constitutional yardstick
Consent theory
Presence theory
Burnham v. Superior Court
Definition
1. where it’s incorporated
2. the state of its principal place of
business
Corporations are deemed as people!!!
1. measure quantity of your contact with
the forum state
2. how many goods shipped in, how
much money you’re taking out, how
many goods are shipped out
3. how many widgets?
When a service statute is strictly construed,
check to see if constitutional
Presupposed that a corporation could transact
business in a state in which it was not
incorporated only with state’s consent
A corporation engaged in activity within a
state established a presence there for
jurisdictional purpose
A non-resident is properly served if he is
physically present in the forum state, and the
forum state may exercise personal jurisdiction
over him without violating due process.
International Shoe Co. v. Washington
2 step Shoe Test:
1. need sufficient minimum contacts with the forum state
2. forum needs to be fair to out of state defendant (sufficient notice and opportunity to be
heard so that it does not offend fair play/ substantial notice)
Categories of Jurisdiction According to International Shoe
There will be personal jurisdiction if:
1. there is a systematic activity in the forum state and the cause of action arises out of that
activity (general jurisdiction)
There might be personal jurisdiction if:
1. there is a systematic activity in the forum state and the cause of action does not arise out
of that activity (general jurisdiction)
2. There is an isolated activity in the forum state and the cause of action arises out of that
activity (specific jurisdiction)
There will not be personal jurisdiction if:
1. There is an isolated activity in the forum state and the cause of action does not arise out
of that activity.
Specific Jurisdiction
Case or Test
Gray v. American Radiator and Standard
Sanitary Corp.
McGee v. International Life Insurance Co.
Hanson v. Denckla
Keeton v. Hustler Magazine
Calder v. Jones
Calder Effects Test
Kulko v. Superior Court
Summary
Tortious act arises in state where injury
occurs
If a state forum has a strong interest, PJ is
likely to be found over the defendant
There is personal jurisdiction if some act
where the defendant purposely avails itself of
conducting activities within forum, thus
involving protection/benefit.
Personal jurisdiction is proper over a
nonresident magazine in any state where that
corporation has sold and distributed a
substantial number of copies
Personal jurisdiction is proper over a
defendant where the defendant has certain
minimum contacts such that the maintenance
of the suit does not offend traditional notions
of fair play and substantial justice
The test for determining whether a forum’s
courts may constitutionally exercise specific
personal jurisdiction over a defendant is based
on whether or not the defendant’s
intentionally tortious conduct was felt in that
state
A state may not exercise personal jurisdiction
over a parent in a custody proceeding based
soley on the parent’s act of sending his or her
child over to live in the forum state.
World Wide Volkswagen v. Woodson
Foreseeability- is there reasonable anticipation of pulling the defendant into the forum state?
If product is moved within the stream of commerce there is jurisdiction.
If the product is moved due to a consumer’s unilateral action there is no jurisdiction
Minimum Contacts Test
1. Sovereignty Factors
a. Ensures that the states do not reach out beyond the limits imposed on them by
their status as coequal sovereigns in a federal system
b. How to tell if being followed: the defendant purposely went into forum state and
knew that it was possible that he could get sued in that state
2. Convenience Factors
a. Protects defendant against the burdens of litigating in a distant or inconvenient
forum
b. How to tell if being followed: balancing the interests of the defendant, plaintiff
and forum state.
Personal Jurisdiction- Due Process
Asahi Metal Industries v. Superior Court
4 Tests on how to satisfy Minimum Contacts
1. Purposeful Direction Test made by Justice O’Connor
a. Defendant must actually target the forum state.
i. Minimum Contacts Analysis:
1. Foreseeability is not enough
2. Injection into the stream of commerce not enough
3. What is enough: INTENTION to serve a particular market
ii. Convenience Analysis:
1. Forum is inconvenient to both parties (foreigners)
2. Purposeful Availment Test made by Justice Brennan
a. Defendant needs to have awareness that the product could end up in a particular
forum
i. Balances Minimum Contacts with Inconvenience
1. FINDS MINIMUM CONTACTS
a. D has benefited from selling product in forum
b. D has notice that he will be subject to PJ, simply by doing
business in that state
2. FINDS MAJOR INCONVENIENCE
a. overcomes the minimum contacts (NO JURIS.)
3. Fairness Test- made by all but Scalia
a. Balance three interests:
i. Defendant’s burden
ii. Plaintiff’s interests
iii. State’s interest
4. Volume- Value - Hazard Test made by Stevens; not used
a. Defendant needs to have awareness and something else (could be the fact that
they know a lot of products are sold)
b. An examination of minimum contacts is not always necessary to determine where
a state court’s assertion of personal jurisdiction is constitutional
i. MINIMUM CONTACTS ANALYSIS UNECESSARY HERE:
1. Instead, look at quantity, quality & hazardous nature of the product
to find jurisdiction
J. McIntyre Machinery v. Nicastro
For a defendant to be subject to a state’s personal jurisdiction, it must purposefully avail itself of
the privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws.
Internet and Other Technological Contacts
Zippo Manufacturing Co. v. Zippo Dot Com
3-Pronged Test
1. The defendant must have sufficient minimum contacts with the dforum state
2. The claim asserted against defendant must arise out of those contacts
3. The exercise of jurisdiction must be reasonable
General Jurisdiction
Case
Goodyear Dunlop Tires Operations v. Brown
Perkins v. Benguet Consol. Mining Co.
Helicopteros Nacionales de Columbia v. Hall
Community Trust Corp. v. Community Trust
Summary
A court may assert general jurisdiction over
foreign corporations to hear any and all
claims against them when their affiliations wit
the state are so continuous and systematic as
to render them home
In order to get general in this category, the
defendant must need to be present
A state can entertain a complaint against a
foreign corporation only if the corporation has
substantial contacts with the state
Domicilliaries are always subject to PJ
regardless of whether the injury occurred in
the state or the lawsuit arose out of actions
occurring in the state.
Even if a defendant purposely avails himself
to the benefits of doing business in a forum,
the exercise of specific jurisdiction only
complies with due process if the cause of
action has a substantial connection with the
defendants in state activities
Personal Jurisdiction- Power over Property, Presence Plus Service
Full faith and credit- the enforcement by one state of another state’s laws or legal decisions
Writ of attachment- a writ sought by one party seeking to obtain proceeds from in some cases a
debt of another party.
Cases
Harris v. Balk- OVERRULED
Shaffer v. Heitner
Burnham v. Superior Court of California
Subject Matter Jurisdiction
Diversity Jurisdiction
How to fulfill US citizenship:
1. Born to US parents
2. Born on US soil
3. Naturalized
4. If dual citizen then US is dominant
5. Does not apply to alienage jurisdiction
How to fulfill state citizenship:
1. Domicile
Cases
Summary
A judgment of garnishment or attachment
against a debt that is handed down in one state
is entitled to full faith and credit when the
parties to the debt are residents of another
state
There must be minimum contacts between the
forum state, the defendant and in the litigation
for quasi in rem jurisdiction.
In order to get quasi in rem jurisdiction, there
needs to be an analysis of sufficient contacts,
according to Shoe.
Two types of QIR jurisdiction:
Quasi In Rem I: lawsuit over property, but
only between TWO people
Quasi In Rem II: Claim is unrelated to the
property that was served
A nonresident is properly served if he is
physically present in the forum state and the
forum state may exercise personal jurisdiction
over him without violating due process