CIVIL PROCEDURE
I. PERSONAL JURISDICTION (PJ)
A. Specific Jurisdiction (Jx) (MC + TNFPSJ)
1. Minimum Contacts (MC)
(a) A state may exercise personal jurisdiction over a ∆ if she has such MC with the state that it would
be fair to require her to return and defend a lawsuit in that state.
(b) Specific Jx: Considers the relationship between the contacts that gave rise to the suit and
the sate where the suit is brought.
(c) Applies to both individuals and corporations.
(d) Miscellaneous contacts are not minimum contacts. Look at contacts that spawned the suit.
(e) Must look at quality and nature of contact not the quantity.
(f) One does not need to act within the state to have MC. (Calder: defamation case from magazine to
actress in CA)
(g) Analysis focuses on the time when the defendant acted, not the time of the lawsuit.
(h) Applies to in rem as well.
2. Traditional Notions of Fair Play and Substantial Justice (TNFPSJ)
(a) Burden on the ∆
(b) The states interest
(c) The π’s interest
(d) Interstate efficiency (Most convenient forum)
(e) Interstate Policy interest
B. General Jx (MC + C/S)
1. Minimum Contacts
(a) General Jx: If the ∆’s forum contacts are very substantial, the ∆ may be sued in the state for
any claim, even one completely unrelated to its in-state activities.
2. Continuous and Systematic
(a) State of Incorporation
(b) Principle Place of Business (PPB)
C. Purposeful Availment
1. The ∆ must have purposely availed itself of the privilege of conducting activities within the forum
state, thus invoking the benefits and protection of its laws.
2. ∆ must make deliberate choice to relate to the state in a meaningful way.
3. Advertising in a state = Purposeful Availment
4. Application of PA in “Stream of Commerce” Cases
(a) Scenario #1: Out-of-state component manufacturer sells components to a manufacturer of a
finished product outside the state. Manufacturer then incorps the component into a finished
product and distributes the finished product in the forum state.
(i) Likely be subject to jx for claims arising from those sales in the state where it directs its
goods.
(ii) And subject to specific jx if advertised in forum state.
(b) Scenario #2: A manufacturer sells finished products to a wholesaler outside the state, the
wholesaler then resells to a retailer in the forum state, and the retailer resells to the consumer.
5. Application of PA in Internet (Zippo Test)
(a) Passive website: Just show you stuff. No PJ if a site is passive.
(b) Active website: Sell you things. PJ if site is active.
D. Tag (Transient) Jx: If you are in a state and get served in that state, that state has Jx over you.
E. Jx based on Consent
1. Expressed Consent
(a) ∆ stipulates cts Jx in advance to litigation
(b) Parties to a K may specify Jx
(c) Parties to a K may appoint in state agent to accept process
(d) Appearance or filing of a motion
2. Implied Consent: State statute may specify what activities = consent
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(a) Some states make driving a car in a state enough for consent.
(b) Committing a tortious act
(c) Conducting business in forum state
(d) Ownership of property in state
F. State of domicile = PJ in that state
1. Can only have one domicile
2. Domicile = physical residency + intent to reside indefinitely
3. If more than two locations are at issue use “center of gravity” test, which looks at various factors such
as intent, drivers license, etc.
G. Long Arm Statutes
1. Some states have their long arm statutes the same as the Constitutional limit.
2. Enumerated L-A Statutes: Authorize their courts to exercise Jx over defendants based on specific
types of contact with the forum state.
3. Analysis for PJ Questions
(a) Ask whether there is a state statute that authorizes exercise of PJ
(b) Ask whether constitutional under due process clause
4. If state long-arm statute does not grab ∆ in SMJ case, then PJ is still valid in that federal ct.
5. If state long-arm statute does not grab ∆ in diversity case, then PJ is not valid in that state.
H. Attacking PJ
1. Direct Attack
(a) Special Appearance
(i) Some states allow the ∆ to appear before the court at the beginning of the action for the sole
purpose of challenging its power to exercise PJ.
(ii) If ∆ raises another defense, ct concludes that ∆ has waived PJ.
(b) Fed. R. Civ. P. 12(b)(2)
(i) ∆ may also raise other objections at the same time, without waiving PJ.
(ii) ∆ may move to dismiss for lack of PJ immediately or it is lost.
(iii) Cannot answer on merits (12(b)(6)) AND THEN on PJ. Must either do so jointly or with the
PJ one first.
(iv) “First Paper” Rule: can be brought up in the answer as well if no pre-answer motion is filed.
(1) Also in an amendment as of right to answer (Rule 15(a))
(v) If PJ objections are not brought up, then ∆ has waived it.
(vi) If ∆ files a pre-answer motion, ∆ has 10 days after court has ruled on motion to file the
answer.
(c) Appealing
(i) If ∆ challenges Jx at beginning but loses. Then defends on merits and loses. ∆ can then appeal
the PJ decision in CoA.
(ii) Some cts allow an interlocutory appeal via writ of prohibition. (Federal ct generally does not
allow them.
2. Collateral Attack
(a) When the ∆ ignores the suit entirely and uses PJ as a defense when the π goes to the ∆’s state to
get the judgment.
(b) Full Faith and Credit Clause: requires the cts of each state to honor judgments of other states.
(i) 28 USC § 1963: honors federal judgments in other federal districts.
(ii) Quasi in rem is not subject to FF&C Clause. (Property is seized for the purpose of the
judgment not because it’s the property that led to the suit)
(c) ∆ can not defend on merits if this method is chosen.
(d) ∆ may not challenge PJ in the enforcement action if he has already done so in the original action.
I. Final Judgment Rule (28 USC § 1291)
1. Rule: You can only appeal when a final ruling has been made on the case.
2. Cannot appeal an interlocutory ruling (a ruling that does not fully decide the case)
(a) EXCEPTIONS
(i) Extraordinary writs
(1) Writ of mandamus: mandates judge to do something he must under the law
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(2) Writ of prohibition: prohibit judge from something he should not do
(ii) Injunctions
(iii) Certification under § 1292(b): where both the trial and appellate judge agree that an
immediate appeal is proper. Limitations?
(1) Must involve controlling question of law which there is substantial grounds for
disagreement
(2) Trial judge must determine that immediate appeal would advance future termination of
litigation
(3) Trial must state in writing that (1) and (2) are satisfied.
(4) Appellant must appeal within 10 days of order.
(5) Appellate court must agree to hear the issue
II. NOTICE/SERVICE
A. Notice: notice must be “reasonably calculated”
(a) If you have the addresses, go through mail. (do not use constructive notice here)
(b) If no information, constructive notice is fine. (newspaper)
B. Who can personally serve? // Rule 4(c)(2)
1. Personal service may be made by any person who is over 18 years of age and
2. Not a party to the action
C. Service on Individuals // Rule 4(e)
1. Personal delivering the summons and complaint to the defendant
2. Leaving copies of the summons and the complaint at this dwelling or usual place of abode with a
person of suitable age and discretion residing therein
3. Delivering the papers to an agent appointed by the ∆ to receive service of process on his behalf.
4. Serve individual ∆s under the provisions governing service on individuals in the courts of the state
where the federal court sits.
5. Service pursuant to the law of the state where the ∆ is actually being served.
D. Service on Corporations and Other Entities in US // Rule 4(h)(1)
1. Delivery of copy of summons and complaint to an officer, a managing or general agent of ∆, or to an
agent authorized to receive service of process.
2. Method prescribed by law of st where federal ct sits
3. Method prescribed by law of st where process is to be served on ∆
E. Service on Corporation and Other Entities outside of US // Rule 4(h)(2)
F. Waiver of Service or Process // Rule 4(d)
1. Authorizes the π to solicit a waiver of all by sending the ∆ the complaint, a notice of the action, and a
request that the ∆ waive formal service of the summons and complaint upon him.
2. ∆ must then return the request, thus waiving formal service.
3. 4(d)(1): Creates a duty to avoid unnecessary expenses of serving the summons
4. 4(d)(2)(B): The ct must impose the costs of service on a ∆ who refuses to waive service without good
cause
5. 4(d)(3): offers ∆ 60 days, rather than 20 days, to respond to the complaint.
6. Timeliness of Answer and Waiver
(a) Time for waiver to process
(i) Domestic: 30 days from date sent
(ii) Foreign: 60 days from date sent
(b) Time to Answer complaint
(i) Not waived? 20 days from being served with complaint and summons
(ii) Waived?
(1) If domestic, 60 days. (Rule 4(d)(3) stated above)
(2) If foreign, 90 days.
G. In rem actions // Rule 4(h)
1. Fed ct may exercise in rem Jx only when π cannot obtain in personam Jx over ∆ by reasonable means.
2. Π can obtain in rem though when enough contacts to exercise in personam.
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H. Person making service must make proof of service by filing affidavit with ct setting forth the
manner in which service was made // Rule 4(l)
I. Service of process must be made within 120 days of filing the complaint, or the action may be
dismissed if π fails to prove “good cause” // Rule 4(m)
1. Statute of Limitations only applies to filing time not service time.
J. Service of documents after complaint may be filed to the every parties attorney instead of person in
suit // Rule 5
K. Rule 12(b)(5) Motion: challenges insufficiency of service and uses same first paper rule as PJ.
III. FEDERAL LONG ARM STATUTE (RULE 4(K))
A. Service of process establishes PJ over a ∆ in four circumstances:
B. Rule 4(k)(1)(A) (Most common): The federal ct is authorized to assert Jx if the cts of the state in which
the federal ct sits could assert Jx over the ∆.
1. The reach of PJ in fed ct is the same as the reach of PJ in the cts of the state in which it sits.
2. Minimum contacts under 14th Amendment not 5th.
C. Rule 4(k)(1)(B): impleaded parties served within 100 miles of courthouse
D. Rule 4(k)(1)(C): when authorized by a federal statute
E. Rule 4(k)(2): in federal question cases, over parties who have sufficient contacts with the US as a whole
to constitutionally support Jx, but whose contacts would not suffice to support PJ in cts of any state.
F. Federal cts exercise Jx under the 5th Amendment due process clause which require MC with the US as a
whole not with any particular state.
G. However, most use 14th amendment because Rule 4(k)(1)(A) applies to most cases.
IV. VENUE // 28 USC § 1391
A. Action may be brought in three situations:
1. If all ∆ are residents of the state in which the district is located, then venue is proper in any judicial
district in which any ∆ resides.
(a) Not applicable if any ∆ are from different states.
2. Venue is proper in a judicial district in which a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is subject of the action is situated.
(a) In products liability cases, venue is authorized where product was manufactured and where injury
occurred.
3. Fallback Provision: If no district under first two, then any judicial district in which any ∆ is subject
to ct’s personal Jx with respect to such action. (CANNOT USE IF ONE OF THE FIRST TWO ARE
POSSIBLE) (USUALLY APPLIES IF ACCIDENT HAPPENED IN OTHER COUNTRY)
B. What counts as residence?
1. § 1391(c)(1): Any natural person, including aliens lawfully admitted for permanent residence in US,
Shall be deemed to reside in the judicial district in which the person is domiciled.
2. You can only reside in one district. The one where the ∆ actually lives.
C. Venue can be waived same way PJ can.
D. If a statute says where venue is, then it overrides what this venue statute says.
1. Example: §1400(b) says where venue is for patent infringement claims
E. § 1391 does not apply to actions removed to federal court.
1. Proper venue for removal actions is the district and division embracing the place where such
action is pending in state court. § 1441(a),
F. Venue for Corporations // §§ 1391(c)(2), (d)
1. A corp or other entity with the capacity to sue and be sued in its common name under applicable law
shall be deemed to reside, if a ∆, in any judicial district in which such ∆ is subject to PJ with respect
to the civil action in question.
(a) Where corp is incorporated
(b) Where PPB is
(c) Where minimum contacts are
2. A corp also resides in any district of a multi-district state, which its contacts would suffice to support
PJ for the claim in action. (Treat each district as if it were a state)
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3. AT THE TIME THE ACTION COMMENCED not when the accident occurred.
G. An alien may be sued in any district in which the court has PJ over the alien ∆.
1. IF MULTIDISTRICT STATE, alien can be sued in ANY district of that state.
2. IF ONE ∆ IS A CITIZEN AND OTHER ∆ IS AN ALIEN, alien is said to reside in every district
in the US. Therefore, venue is proper where citizen ∆ resides.
H. Forum non conveniens // 28 USC §1404
1. The ct may dismiss a case where the interests of justice indicate that it should be litigated elsewhere.
2. Usually for state cts because fed cts can just transfer the case. Unless the ct is foreign. Then ct will
use forum non conveniens.
I. TRANSFER- fed cts can only transfer to other fed cts
1. 28 USC §1404 // Xfer with both PJ and Venue
(a) Any party can move for transfer.
(b) There is no time limit.
(c) The court has discretionary power. (Public vs. Private Interests)
(d) Strong presumption for π’s initial choice of forum.
(e) Does NOT chance substantive law. Apply same law that applies had it not been transfer. (This is
important for diversity cases)
2. 28 USC §1406 // Xfer from court lacking either PJ or Venue
(a) Either one may be missing, but the case must be transferred to a ct that has BOTH.
(b) Either party can move for transfer.
(c) This DOES change the substantive law because its saying that venue was improper.
(d) The ct may dismiss or in the interest of justice, transfer the case. (If SoL has run out)
3. 28 USC §1631 // Xfer when court is only lacking PJ
(a) Cts lacking PJ can transfer in the interest of justice to a ct with both venue and PJ.
V. SUBJECT MATTER Jx (SMJ): FEDERAL QUESTIONS “ARISING UNDER” Jx
A. SMJ cannot be waived, and it can be brought up at any point in the lawsuit via a Rule 12(b) motion.
B. A ct can bring up SMJ issue sua sponte. (On its own behalf)
C. Federal questions can be heard in state cts as well since they are not exclusive.
1. Only things exclusive to federal cts are (BAAPS): Bankruptcy, Admiralty/Maritime, Antitrust,
Patent/Copyright, Securities
D. Where can federal questions arise? Constitution, Legislative statutes, Treaties
E. Article III § 2 (Broad Scope)
1. “Federal Ingredient” approach that is broad.
2. Satisfied in any case in which a party seeks to rely on or establish a proposition of federal law in
order to prove either a claim or a defense.
3. Used by the SCOTUS.
4. This is not for federal district courts. Congress confers jurisdiction on these lower cts via statutue.
F. 28 USC §1331
1. Same arising under language but a lot narrower.
2. §1331 only applies if the π’s claim requires proof of federal law.
3. For a π to sue in federal ct under the statutory test, she must assert a claim that arises under federal
law.
4. Mottley “well pleaded” complaint rule
(a) Does not include defenses
(b) Not enough to refer to federal law. It must be determined from what necessarily appears in the π’s
statement of his own claim in the bill or declaration.
5. Applies to Court of Appeals and district cts.
VI. SUBJECT MATTER Jx: DIVERSITY Jx (28 USC §1332)
A. Diversity
1. For §1332 (district cts), there must be “complete diversity” between the parties.
2. Complete diversity: all πs in a suit are from different states than all ∆s AT THE TIME SUIT IS
BROUGHT.
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B.
C.
D.
E.
3. Article III §2 allows diversity if SOME opposing parties in the action is diverse.
4. State Citizenship
(a) For people
(i) State citizenship for diversity purposes is equated to domicile.
(ii) Domicile: the state where he has taken up residence with intent to reside indefinitely.
(iii) Indefinitely: a person’s presence in the state is open-ended. No definite intent to leave to
make a home elsewhere.
(iv) Only one domicile at a time
(v) Complete Diversity must exist at time judgment is entered not necessarily at timeit was
removed to fed ct. (Caterpillar v. Lewis)
(b) For aliens
(i) If admitted for permanent residence, then deemed a citizen of where domiciled.
(ii) If not admitted for permanent residency, citizen of another nation. Therefore, always
diversity.
(iii) Diversity does not allow for two aliens to sue each other.
(c) For corporations
(i) State of incorporation
(ii) PPB = “nerve center” from which the corp operations are directed, not merely board
meetings.
Amount in Controversy
1. Article III § 2 does not have an amount in controversy req.
2. § 1332 requires the claim be for more than $75k AT THE TIME SUIT IS FILED.
3. π’s good faith claim for more than the amount required controls, unless it appears to a legal certainty
that the claim is really for less.
4. Aggregating Amount
(a) Where a single π asserts two or more claims against a single ∆, the amounts may be added
together.
(b) A single π cannot aggregate amounts sought from different ∆. Must meet $75k for EACH ∆.
(c) Πs may not add their claims together to meet amount.
(d) If one π satisfies the amount but another π does not, the fed ct has supplemental Jx over the lesser
claim, but ONLY IN A CASE AGAINST A SINGLE ∆.
5. Interest and Court costs are not included.
6. If AIC is not contested and judgment is less than $75k, ct may impose court costs on π.
Two exceptions where diversity does not apply
1. PROBATE // wills, trust, estates
2. DOMESTIC // divorce, child support, alimony
Retaining citizenship while moving indefinitely to another country “falls between the cracks” and gives
that person NO domicile giving courts no diversity Jx.
Lawsuit between two foreign citizens (even if one is residing indefinitely in the US) is not a diversity case
unless one has a permanent residence status.
VII.
SUBJECT MATTER Jx: SUPPLEMENTAL Jx (28 USC §1367)
A. If ct can exercise Jx some of the claims in the case, it may be able to exercise Jx over other claims that do
not qualify for Fed Jx (Fed Q or Diversity).
B. Supp Jx is possible when at least one claim independently qualifies for Fed SMJ.
C. Supp Jx ONLY applies to Fed district cts
D. Why? Art III gave cts Jx over cases not claims. Cases are broader.
E. Cases comprise of all claims that arose out of a COMMON NUCLEUS OF OPERATIVE FACTS
(CNOF).
F. Two step process:
1. Determine if the state and fed claim have a sufficient factual relationship
2. Does it fall under one of the exceptions?
G. Relationship Test § 1367(a)
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1. Claims are sufficiently related if the two form art of the same case or controversy (same evidence,
witnesses) and stem logically form the same core transaction or occurrence.
H. Exceptions under § 1367(b)
1. Supp. Jx does not apply when Jx over fed claim is based solely on diversity.
2. Bars only claims by π, those parties captioned as π in the complaint.
3. Never bars counterclaims or cross-claims by ∆.
4. When a ∆ impleads a 3P∆, he is known as 3Pπ, but he is not barred.
5. Supp Jx does not apply for state law claims made against parties who are sued under:
(a) Rule 14: Third-Party Claims
(b) Rule 19: Joinder of Indispensable Parties
(c) Rule 20: Permissive Joinder of Parties
(d) Intervention
I. Exceptions under § 1367(c) -> Discretion -> Appellate SOR? Abuse of Discretion
1. District ct may decline to exercise Supp Jx over claims if:
(a) Claim raises a novel or complex issue of state law
(b) State claim substantially predominates over federal claim
(c) District ct dismisses all federal claims: OR
(d) For any other compelling reason
VIII. REMOVAL (STATE CT -> FEDERAL CT)
A. Removal allows the ∆, after the π has chosen a state ct, to second-guess that choice by removing some
types of cases from the state ct to a fed ct.
B. Removal should only be available to the ∆ only in cases that the π could have commenced in fed ct.
C. 28 USC §1441(a): authorizes removal of state ct actions of which the district ct of the US has original Jx.
D. Not all cases with OJx are removable. §1441(b)(2): a diversity case may not be removed if any of the
parties in interest properly joined and serve as ∆s is a citizen of the state in which such action is
brought. (If case brought in ∆ home state, not removable)
E. §1441(f): The fed ct is not precluded from hearing the case simply because the state ct lacked Jx of it.
F. Diversity must be both when the case is filed and at the time of removal.
G. Limits as to which ct it may be removed TO
1. Can’t remove to another state ct or to a state ct in a different st
2. Can’t remove to a fed ct in another st or another district in that same st.
H. Usual venue rules do not apply in removed actions.
I. Transfer displaces π geographical choice for litigation while removal displaces choice of st ct over fed ct
within the SAME geographical area.
J. The removal statute applies to cases not claims. So ever claim will go to the fed ct under Supp. Jx.
K. After removal, a case proceeds in fed ct under the FRCP.
L. Orders prior to removal remain in effect in the fed ct, unless modified by fed judge.
M. Procedure for Removal §1446
1. The ∆ or ∆s must file a notice of removal in the appropriate fed district ct, together with all pleadings,
process, and other papers on file in the st action
2. The notice must be filed within thirty (30) days of receiving the π’s pleading in the state suit (or
first paper that puts ∆ on notice that the case is removeable).
3. If multiple ∆s, time runs form the time first ∆ received notice.
4. Once notice is filed and the st ct is notified, st ct loses control of the case automatically.
5. If π thinks failure to comply with procedure, must file remand on the bases of failure to comply
within 30 days after removal, or the objection is waived.
6. Motion to remand on bases of lack of SMJ can be made any time prior to final judgment.
7. Defendant may allege in the notice of removal any facts necessary to demonstrate the grounds for
removing the suit (ex. diversity).
N. What if there are two ∆ and one doesn’t want to remove? §1446(b)(2)(A)
1. ALL ∆ THAT HAVE BEEN SERVED MUST CONSENT TO THE REMOVAL.
2. One who is served late and is a co-defendant, may ask for a remand based on his lack of consent after
removal.
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O. If π amends the complaint in st ct to include a federal claim, the ∆ may still remove even though they
couldn’t before hand.
P. If π joins another ∆ that will destroy SMJ in fed ct, the fed ct may approve the joining and remand to
lower ct, or deny it and keep it in fed. Look at the purpose for the joining and whether it was legit or
under bad faith to merely bring it back to st ct by the π.
Q. What if π purposefully sues for less that AIC ($70k) in order to avoid removal? Π can do so. But ∆ can
remove and argue that the AIC is greater than $75k under 1446(c)(2).
R. A π may not remove on a counter-claim against him. Only the original ∆ can.
S. Diversity Jx cases must be removed within one year of commencement of the action unless the
district ct finds that the π acted in bad faith in order to prevent ∆ from removing the action.
IX. ERIE DOCTRINE (ONLY FOR DIVERSITY CASES)
A. Easy Erie
1. In diversity cases, fed cts must apply the law that would be applied by the cts of the sate in which
they sit. Their job is to apply state common law.
2. Fed ct should apply the state court’s interpretation of a statute.
3. Which state law should apply (state supreme court, appellate, district, etc.)?
(a) Fed ct construing state law should give “proper regard” to decisions of trial and intermediate
appellate cts, but that its job is to apply the law announced or as it would be announced by a st’s
highest court.
(b) Certification procedure: allows a fed ct faced with a state law issue to certify the issue to the st
supreme court. St ct gives an opinion and then the parties puck up litigation in the fed ct. The st ct
has the power to accept or refuse the certification.
B. Eerie Erie (how to deal with FRCP)
1. When fed substantive law is silent, apply state law. (Easy Erie rule)
2. Procedure vs. Substantive Law
3. Whether a fed procedure is outcome determinative must be viewed in light of the policies underlying
Erie
(a) Forum shopping
(b) Inequitable administration of the laws
4. Court and congress (under REA) have broad constitutional authority to promulgate any Rule that is
arguably procedural.
5. Substantive if it fails outcome determinative test.
6. Formal Rule may not be applied if it impinges on substantive rights.
C. How to analyze Erie
1. Conflicts Between a Fed Constitutional Provision and State Law
(a) The Constitution must always prevail.
(b) 7th Amendment vs. State jury law
2. Conflict Between a Federal Statute and State Law
(a) Does Congress have the authority to enact the federal statute?
(b) Cannot govern K, torts, property rights.
(c) If it is arguably procedural, then Congress has right to enact it.
(d) Transfer statutes, removal statute, etc.
3. Conflicts between a Federal Rule and State Law
(a) Fed rule applies if it is valid.
(b) All fed rules are valid unless they abridge, enlarge or modify a substantive right under second
part of REA.
4. Conflict between Federal Judicial Practice and State Law
(a) If fed practice is outcome determinative, apply the state law. (Lead to forum shopping or
inequitable administration of the law)
X. PLEADINGS
A. Rule 7: Allows a complaint, answer, and sometimes a reply.
B. Rule 10: Parties have to divide their claims into separate statements. (Count I, Count II, etc.)
C. Complaint (Rule 8)
1. Must have three basic components:
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(a) Basis for SMJ
(i) For Fed Q: cite the fed statute or Con provision
(ii) For Diversity: state the citizenship and specify the AIC
(iii) For Supp Jx: indicate the claim in the suit which the claim in question is supplemental and
specify that the claim forms part of the same T/O as the other claim.
(b) Short and plain statement of π’s Claim
(c) Demand for judgment setting out relief sought
2. Iqbal
3. 9(b): Asks for particularity in fraud and mistake claims.
4. Malice, intent, condition of persons mind can be said generally.
D. Response to Complaint (Either pre-answer motion or answer)
1. Pre-answer Motions
(a) Rule 12(b) Defenses: Allows ∆ certain defenses
(i) (b)(1): Lack of SMJ (Not waivable)
(ii) (b)(2): Lack of PJ
(iii) (b)(3): Improper Venue
(iv) (b)(4): Insufficiency of Process // something wrong with paper you are serving
(v) (b)(5): Insufficiency of Service // service not in conformance with statute of service
(vi) (b)(6): Failure to state a claim upon which relief is granted (brought up through trial on the
merits)
(vii)
(b)(7): Failure to join a party as required by Rule 19 (brought up through trial on the
merits)
(b) Rule 12(c): Judgment on the Pleadings
(i) Only may be failed after pleadings are complete
(ii) Standard? Cts must accept all factual allegations in all the pleadings as true, and ask whether
the law has a remedy for it, does it state a cause of action.
(iii) If a party introduces new matters outside of the pleading, it is treated as an MSJ.
(c) Rule 12(e): Motion for more Definite statement (If granted, ∆ must answer new complaint in 10
days)
(d) Rule 12(f): Motion to strike portions of pleadings that are redundant, immaterial, or scandalous,
and it must be made within 20 days of service of the pleadings.
(e) Rule 12(g): Allows ∆ raising any rule 12 defense to join all rule 12(h)(1) defenses available to
him at the time, if he does not, he is precluded from asserting them in a second pre-answer motion
(f) Rule 12(h)(1): These motions must be brought with any other rule 12 motions: 2,3,4,5. If not
pleaded in initial answer, then they are waived. NOT INCLUSIVE OF 1,6,7.
(g) Rule 12(h)(2): Specifically states b1,b6,b7 motions can be raised in a pleading after initial answer
2. The Answer
(a) If ∆ files a pre-answer motion, he must still answer complaint within 10 days of the court ruling
on his pre-answer motion.
(b) ∆ must admit or deny all averment alleged in π’s complaint. If ∆ answers by stating he has no
information, it counts as denial.
(c) Denial must meet the substance of the averments. It must specify what it is denying. If it does not,
it is an ineffective denial, and it might constitute and admission.
(d) If ∆ dos not deny them, 8(d) says its an admission.
(e) General denials are when ∆ denies every allegation in the entire complaint.
3. Defenses and Denials
(a) A defense is a reason put forth by ∆ alleging that even if π facts are true, π still can’t recover.
(b) A denial is a saying that the π facts aren’t true.
(c) Types of defenses:
(i) Ordinary defenses: considers only the complaint and argues that π may not recover because
of a procedural, legal, or a pleading defect. (12(b) defenses)
(ii) Affirmative Defenses 8(c): introduces new facts not included in the complaint, that when
coupled with π’s fact, prevent recovery.
(1) Ex. Comparative negligence, easement, necessity, fraud, SoF
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(d) Amendment of Pleadings (Rule 15)
(i) 15(a) As a matter of course
(1) Allows one amendment without obtaining ct permission
(2) If it is a complaint/answer with a counter claim or 3P complaint it must be before other
party responds.
(3) For all other pleadings it must be within 20 days after pleading is served.
(4) If you want to amend a second time, need ct permission
(ii) 15(b) Permission
(1) When justice so requires
(iii) 15(c) Relation Back
(1) When a party wants to add a new claim after the SoL has expired.
(2) If original pleading was timely and the new claim relates back, new claim will not be
bared.
XI. ETHICAL LIMITATIONS (RULE 11)
A. Designed to ensure honesty and accuracy in pleadings and motions, and oral representations to the court.
It is for any certification made whenever a pleading, motion, or other paper that is presented to the court
by (FLASS):
1. Filing of any document filed with the court. It does not matter if it is signed or not. BUT DOES NOT
INCLUDE DISCOVERY. (NOT INCLUSIVE OF FAILURE TO FILE)
2. Later Advocating any of the content above to the court.
3. Submitting any document with the court irrespective of whether it is signed
4. Signing any paper
B. Certification
1. By doing any of the above, the attorney certifies that:
(a) The pleading, motion, or other paper is true to the best of his knowledge, information, and belief.
There must be reasonable inquiry under the circumstances.
(b) Existing laws support all legal contentions. (If not, non-frivolous argument to change law)
(c) All factual contentions are:
(i) Supported by evidence OR
(ii) Likely to be supported after investigation or discovery (Same with denials)
C. Sanctions
1. May move for sanctions by:
(a) Serving the motion on the offending party (or letter advising him of same)
(b) Waiting 21 to see if OC cures the defect. IF NOT,
(c) File motion with the ct.
(d) If the ct finds in your favor, it may award costs and reasonable attorney’s fees an may impose
sanctions but before it must
(e) Issue an order to show cause why sanctions shouldn’t be imposed.
2. (c)(1): Applies to law firm, parties, attorneys (law firm = jointly responsible)
3. Rule 11(c)(2): MSJ and sanctions must be made separately
4. (c)(5): Monetary sanctions
5. §1927: Narrower (Unreasonable and vexatious)
XII.
DISCOVERY
A. Scope of Discovery
1. Rule 26(b)(1): “Relevant to any party’s claim or defense” and “nonpriviliged” information.
2. Discovery is limited to the issues framed by the parties’ pleadings.
3. Though broad, a party may seek a protective order from the ct limiting discovery.
(a) “To protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense”
4. Can also be stuff related to claims or defenses of the other party.
B. Initial Disclosure
1. Automatic disclosures:
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C.
D.
E.
F.
G.
(a) Discoverable information and witnesses the party may use to support its claims or defenses.
(b) Not required to disclose damaging information if the party does not intend to present it at trial.
“support” its claims or defenses. Other party must get unfavorable docs through other discovery
devices.
2. Parties must confer about disclosure and the subsequent course of discovery. Until this meeting,
parties are barred from discovery by other devices.
3. Within 14 days after discovery conference
4. Name and contact info of any person with discoverable info that the party may use to support its
claim EXCEPT if used for IMPEACHEMENT.
5. Impeachment: Discredit other’s testimony/evidence
(a) Bias
(b) Confidential Docs
6. Must also disclose computation of damages and any liability insurance policy that may apply.
Expert and Pre-trial Disclosures
1. As trial approaches, parties must disclose the identity and reports of experts, the names of witness to
be called at trial, and documents and depos each party expects to offer in evidence at trail.
2. Experts: No later than 90 days before trial.
3. Witnesses and tangible evidence: 30 days before trial
Depositions (Oral) (Rule 30)
1. Under oath and on the record.
2. Rule 30(a)(1): Allows counsel to take the depo of any person, including a party.
3. If deponent is a party: Counsel must send a notice of depo to all parties in the action, stating the
time and place of depo.
4. If deponent is not a party: They must be subpoenaed for the depo under Rule 45.
5. Examined on any issues within scope of discovery.
6. Unlike trial, deponent is required to answer the question even if there is an objection to it. (It is noted
on the record as “subject to objection”)
7. However, if an objection is based on a privilege not to reveal information, counsel for the
deponent may instruct her not to answer the question. (Rule 30(c)(2)).
8. There is a right to cross-examine.
9. Opposing counsel could cross-examine fully if the depo is a trial depo rather than a discovery depo.
10. Trial Depo: one that will be used at trial in place of the witness’s live testimony.
11. 10 depos can be taken per party.
12. No duty to investigate, must answer from personal knowledge.
13. One Shot Rule: One depo per person
14. Length? For every day, no more than 7 hours unless stipulated otherwise.
Deposition on Written Questions
1. Instead of deposing, you submit depo questions which the person presiding at the depo will then as
the deponent.
Interrogatories (Rule 33)
1. Questions propounded by one party to another, seeing information relevant to the issues in dispute.
2. Drafted by counsel and are under oath (unless objected to).
3. 25 interrogatories per party. Subparts count.
4. Must investigate and provide answer if you don’t know it.
5. Can ask questions of law.
6. If don’t wanna investigate, point to where in record it is.
Request for Production of Documents (Rule 34)
1. Requires a party to require an opponent to produce designated documents or things in its control for
inspection and copying.
2. If objections are asserted without a substantial basis, may be sanctioned under Rule 37 (NOT RULE
11)
3. Rule 34(b)(2)(E)(i): allows a party to open their records as they are kept in the ordinary course of
business for inspection.
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H.
I.
J.
K.
L.
M.
(a) Party should indicate how the records are organized, what sets of records respond to which
request, and any other information necessary to locate requested items.
4. The producing party usually will pay the costs of the search.
5. Motion to compel production is used if party things they should have those docs. Burden is on party
being asked to compel to show good reason for refusal.
6. Includes electronically stored information.
7. 30 days to respond.
Physical and Mental Examination (IME) (Rule 35)
1. Parties must obtain a court order for an IME with “good cause”.
2. IF party does obtain an IME, she must provide a copy of the report to the examined party if requested.
3. The party who has submitted to the exam must provide copies of any reports she has from her
examining physician.
Request for Admissions (Rule 36)
1. Authorizes a party seeking admission of certain facts to send a request to an opponent to admit those
facts.
2. Receiving party is required to admit or deny the truth of the statement, or raise an objection.
3. One can withdraw the admissions.
4. If failure to deny, then you are deemed to have admitted the matter.
5. 30 days to respond.
Motion to Compel
1. Must first confer with other party to see if dispute can be resolved without resort to the court.
2. If not, move for motion to compel.
3. If motion is granted, ct may order noncomplying party to pay the moving party’s expenses for the
motion.
4. If ct, grants a MTC, but party still does not respond, ct can strike claims, take disputed facts as
established, exclude evidence, dismiss the action, or order payment of fees and expenses.
Protective Orders: annoyance, embarrassment, oppression. Must in good faith confer with OC. Privacy
and trade secrets are usually protected.
1. Romantic private life is protected.
2. Condition of party must be in controversy
Privileged
1. Self-incrimination (5th Amend): Can refuse provide info that constitutes an admission of guilt of a
criminal act.
2. Attorney-client privilege: bars inquiry into communications between a client and her counsel in the
course of legal representation.
3. Other privileges recognized by cts: priest and penitent, doctor-patient, psychotherapist-patient, and
husband-wife.
4. Some privileges may be created by state or federal common law/statute.
5. Work Product Privilege (Rule 26(b)(3))
(a) Bars production of certain materials developed in anticipation of litigation.
(b) Notes on witness interviews, recordings of witness interviews, memo’s on factual or legal issues,
trial notebooks, lists of exhibits, indexes of depositions, emails among co counsel about strategy.
(c) Even when such a showing is made, mental impressions, conclusions, opinions, or legal theories
of attorney is protected.
(d) Three categories of WP Priv:
(i) Docs prepared in anticipation of litigation that can reasonably be obtained through other
means
(ii) Written witness statements may be subject to discover there is a sufficient showing of need
for the material and inability to obtain it through other means without undue hardship.
(iii) OC thought process in preparing couldn’t be discoverable.
(1) *Unless used to show opinion for a bad faith claim?
Expert Testimony
1. Testifying Expert
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(a) Expert witness: A person whose testimony, because of her specialized knowledge, will assist the
trier of fact in understanding the facts and reaching conclusions on the contested issues.
(b) They may offer opinions on issues critical to the case.
(c) Disclosure at least 90 days before trial, together with a report concerning their opinions and
bases of those opinions, qualifications, compensation, and other information.
(d) After disclosure, they may be deposed as well.
2. Non-Testifying Expert
(a) Experts used by counsel to help them understand a case. They won’t be testifying.
(b) No disclosure of identity or opinion of non-testifying expert needed.
(c) May only seek discovery concerning non-testifying experts upon a showing of exceptional
circumstances.
XIII. FAILURE TO STATE A CLAIM 12(b)(6) MOTION
A. A ∆ may move to dismiss the π’s complaint on the grounds that it fails to state a claim that entitles the π
to any form of relief.
B. Purpose is to test whether the π’s allegations state a claim for which a ct might grant relief, the only
question posed is whether the complaint itself states a legally sufficient claim
C. Ct does not consider any other pleadings or evidence in deciding the motion.
D. The ct must assume that all the alleged facts are true.
E. Only poses a legal question: If the π proves the allegations in the complaint, he will have established a
cause of action entitling him to some form of relief from the ct.
F. Cts does not consider the likelihood that the π will be able to prove his allegations. It must assume that the
π will prove them.
G. If there is an oversight in drafting the complaint (missing an element by accident), the ct may allow the π
to amend and the proceedings will continue.
H. This motion applies pre-answer. Anything after the answer is considered a JUDGMENT ON THE
PLEADINGS ACCORDING TO RULE 12(c).
I. Iqbal: “Plausibility standard”
XIV.
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
O.
P.
Q.
R.
MOTION FOR SUMMARY JUDGMENT (RULE 56)
When? 30 days after disco closes and BEFORE trial.
When may ∆ file? Any time. Even before filing response to claim.
When may π file? After ∆ files their MSJ OR 20 days after commencement of action.
Must be filed at least 10 days prior to hearing on the motion.
MSJ on claim (whole suit)? Immediate appeal
MSJ on issue? Wait until dispositive ruling. (Final judgment rule)
Designed to allow early resolution of cases in which the π meets the minimum burden to plead the
elements of a compensable claim, but cannot PROVE one or more of those elements.
Entry by judgment without trial.
Appropriate only if the evidence before the ct demonstrates that there is NO disputed issue of material
fact to be tried and that the moving party is entitled to judgment as a matter of law.
When the motion is made, nonmoving party must respond by producing admissible evidence that tends to
prove the challenged element.
Not meant to try the facts, only to determine whether there are genuinely contested issues of material fact.
The burden of the party opposing summary judgment is only to show that he has legally competent
evidence upon which a jury could resolve the factual issues in his favor.
Must present evidence that creates a dispute if anything.
Judge does not determine credibility. Unless it is so incredible.
If cannot produce countervailing evidence, then no demonstration that there is a factual dispute for the
jury to decide.
May be used to resolve individual claims in a multi-claim suit.
May be supported by affidavits, depos, answers, admissions, and documents.
When ∆ files for MSJ
1. Burden of production: on π
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2. ∆ has to merely show that there is absence of a GIMF in π’s case. ∆ need not offer proof that negates
π’s claim.
S. When π files for MSJ
1. Harder for π because even if ∆ has no evidence, jury could always disbelieve π.
2. Must present enough evidence to switch the burden of production to ∆ for each and every claim, and
∆ must have either no or really weak contradictory evidence.
T. If court looks outside of pleadings, then it constitutes an MSJ.
U. RULE 56(d): Allows continuance to get more evidence. This is discretionary.
XV.
DEFAULT AND VOLUNTARY/INVOLUNTARY DISMISSALS
A. Default (RULE 55)
1. 55(a) Entry: Failing to plead affidavit and done by the clerk
(a) Contact them first
(b) If pattern, then can avoid by setting aside 55(c)
2. 55(b) Default Judgment
(i) By the clerk
(1) For “sum certain” (Usually for debts)
(2) ∆ hasn’t appeared, if appeared (responding or communication) they have a 7 day notice
(3) ∆ isn’t a minor or incompetent
(ii) By the court
(1) Sum is uncertain
 Do a hearing and get witnesses
(2) 7 days notice to give ∆ opportunity to show up
3. 55(c): Good cause & 60(b) mechanism to set aside DJ
(a) How to set aside?
(i) Mistake
(ii) New evidence that couldn’t have been found out
(iii) Fraud
(iv) Void
(v) Satisfied/Released
(vi) Any other reason
B. Voluntary Dismissals (RULE 41(a))
1. Π can dismiss as of right
(a) Once
(i) Quickly before the answer or summary judgment motion
(b) Without prejudice (Allowing to refile)
C. Involuntary Dismissal (RULE 41(b))
1. Devise for going against π who fails to prosecute (foot dragging)
2. Failing to follow rules (Used as a sanction)
3. On the merits
(a) UNLESS LACK of Jx, VENUE, RULE 19 (ESSENTIALS)
XVI. JUDGMENT AS A MATTER OF LAW (RULE 50)
A. Directed Verdict
1. A motion that takes the case from the jury on the grounds that the evidence is too weak to support a
verdict.
2. Does not resolve factual issues. Rather makes a legal judgment that the evidence is so lopsided that
there is really no meaningful factual dispute for a jury to consider.
3. Timing: ∆ can file a DV after the π case in chief or after π has given evidence for a claim. Π can only
file one after the ∆ case in chief. Even after the ∆ case in chief, the ∆ can file another DV.
4. Standard? “Where a reasonable jury would not have a legally sufficient evidentiary basis for finding
for the nonmoving party”.
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(a) The judge is required to consider the nonmoving party’s evidence in its most favorable light,
AND ALSO consider any evidence put forward by the moving party that is not impeached or
contradicted by the opposing party’s evidence.
5. What if π files for DV after the ∆ case in chief and the ∆ offered no evidence? The judge can only
grant π’s DV if it proves it beyond a reasonable doubt even if there is no ∆ evidence. There may be
bases for credibility issues on π claim that ∆ need not have evidence for.
B. Judgment Not Withstanding the Verdict (JNOV)
1. Asserts the jury is irrational
2. Purpose if the judge can just grant the DV? Appealing. Granting the DV would allow the loser to
appeal and then if the appeal’s court reverses the DV, a new trial would have to take place. If the
judge’s JNOV is granted and appealed, no new trial needs to take place. They’ll just uphold the jury’s
decision, UNLESS the judge also granted a motion for new trial.
3. Timing
(a) MUST BE FILED WITHIN 28 DAYS OF THE ENTRY OF JUDGMENT ON THE
JURY’S VERDICT.
4. Must have made the same motion before the verdict. MUST BE RENEWED.
C. New Trial Motion (RULE 59)
1. The judge may deprive a party of a verdict by granting a new trial.
2. Two types of NTM
(a) Ones from error
(i) Improper admission or exclusion of evidence, improper instructions, juror contact with
witnesses.
(ii) DE NOVO REVIEW
(b) Ones from a clearly wrong result
(i) A judge may grant a new trial if the jury’s verdict tis against the clear weight of the evidence.
(ii) Judge may consider the credibility of the witnesses, WHERE HE IS NOT ALLOWED TO
DO IN JMOL unless they are so incredible.
(iii) ABUSE OF DISCRETION/CLEAR WEIGHT OF EVIDENCE
3. May not appeal a judges NTM grant until case is over (FJR).
4. May order new trials on certain claims not on whole case.
5. Don’t need prior motion (renewal) like JNOV.
6. WITHIN 28 DAYS. SO FILE JOINTLY WITH JNOV IF YOU DON’T WANNA GO OVER
LIMIT WAITING FOR JUDGES DECISION.
7. JUDGES MAY ENTER ONE OF THESE SUA SPONTE WITHIN 28 DAYS OF JUDGMENT.
XVII. CLAIM PRECLUSION (RES JUDICATA)
A. Four prerequisites to res judicata
1. There must be a final judgment
2. On the merits
3. Claims must be the same in the first and second suit
4. The parties in the second action must be the same as those in the first (OR IN PRIVITY)
B. Same Claim Requirement
1. A party’s claim for res judicata purposes with the transaction or occurrence test of the federal joinder
rules.
2. A party who has asserted a right to relief arising out of a particular transaction or occurrence must
join all claims she has arising from it, or the omitted claims will be barred by res judicata.
3. Claims need not have actually been litigated to be barred. They only need be available to the π in the
first suit.
C. Judgment on the merits requirement
1. On the merit
(a) MSJ, 12(b)(6), unless otherwise specified by ct, Jury Trial, DV, Dismissal on sanctions
2. Not on merits
(a) Jx, Venue, Rule 19, Insufficient SOP, Insufficient Service
3. Bars in every state (FF&C)
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D. Rule 60(b): Allows you to undue final judgment on res judicata. Reverses it.
E. If you sue in st court and can’t join a claim because it is exclusively federal, res judicata will not bar it
from litigation in a separate suit in fed ct.
XVIII. ISSUE PRECLUSION (COLLATERAL ESTOPPEL)
A. Bars parties from re-litigating specific issues decided in the first action, such as the validity of an
easement.
B. Applies when there are two different T/O (cases). You would apply collateral estoppel to the second case
so that you don’t have to fight over an issue all over again. RJ would bar you from re-litigating the first
case all over again as a whole. BASED ON SEPARATE EVENTS.
C. Requisites: (IIFFAN: Issue Identity, Fully and Fairly, Actually Decided, Necessary for Judgment)
1. The issue in the second case must be the same as the issue in the first.
2. The issue must have been actually litigated
(a) Raising the issue does not mean that it was actually litigated
3. Even if an issue was litigated in a prior action, CE will not bar relitigation unless the issue was
actually decided in that action.
4. IT is usually said that CE will not apply unless the decision on the issue in the prior action was
necessary to the court’s judgment.
(a) If the ct finds for two issues it could be impossible to tell which was necessary for the courts
judgment.
(b) Not universally accepted.
D. Must be used against a party from a prior suit. For an old party to use it against a new party would deny
the new party the chance to beard on the issue.
E. Non-Mutual Estoppel: Allows a NEW PARTY to invoke CE against a party who litigated and
LOST on an issue in a prior action
1. Preclusion is only appropriate if the precluded party had a full and fair opportunity to litigate the first
action.
2. Defensive Nonmutual Estoppel
(a) Defensive is when a ∆ wants to prevent a π from asserting a claim the π has previously litigated
and lost against another ∆.
(b) The defensive assertion of NME is more easily justified than the offensive use of estoppel in
Parklane.
(c) The party being estopped was usually the π in the origin suit and chose the forum and the ∆
against whome to litigate the issue.
3. Offensive Nonmutual Estoppel
(a) Offensive use of CE involves a NEW ∏ who seeks to borrow a finding from a prior action to
impose liability on a party who was a ∆ in the prior action.
(b) Trial courts have discretion and should consider:
(i) Taking advantage of another π’s victory to wait and see so that they don’t have to join
(ii) Whether the issue was litigated effectively (Full bite at the apple)
(iii) Unfair?
XIX. JOINDER
A. Rule 20(a): Initial Joinder of Parties
1. Πs can sue together if they assert claims: (π IS NOT REQURIED TO)
(a) Arising out of same T/O, AND
(b) The claim involves common Q of law or fact
2. Any one π need not be interested in obtaining all the relief demanded. It only requires that the
underlying T/O be the same.
3. Different theories doesn’t mean that joinder will be improper if the two reqs are still met. (pg. 264 in
the E&E)
4. Π can sue multiple ∆s if the claim:
(a) Arises out of same T/O, AND
(b) The claim involves common Q of law or fact
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B. Rule 13: Counterclaims & Cross-claims
1. Counterclaim: Allows ∆ party to assert claims back against a party who has claimed against him.
2. Is the counterclaim compulsory or permissive?
(a) Compulsory (13(a)): Stems from the same T/O
(i) If compulsory, then the ∆ must counterclaim within the π’s original action. If not, ∆ loses
chance to bring it up later.
(b) Permissive (13(b)): Completely unrelated to original claim
(i) Allows ∆ to settle all claims vs. the π in one claim.
(ii) Can use Rule 42(b) to order a separate trial on the claims.
(iii) ∆ could alternatively file this claim in court separately.
(c) RULE 13(h): ∆ can bring in an additional party on the counter claim so long as his claims
arise against the added party and the original π met the reqs (same T/O and common Q of
law or fact).
3. Cross-claim: Gives ∆ the option to file a claim against a co-∆ if arising out of same T/O.
(a) The person who is being cross-claimed can file a counterclaim against the person who filed the
cross-claim.
C. Rule 18: Joinder of Claims
1. A party seeking relief from the opposing party may join with his claim any additional claims he has
against that opposing party regardless of there being a common T/O.
2. Even works for cross claims. Once a pleader uses 13(g), which requires same T/O, pleader can use
18(a) to tack on more claims even if unrelated
3. Does not confer SMJ on those claims.
D. Rule 14: Impleaders
1. Allows ∆ to implead (bring into suit) new parties against whom she has claims related to the main
action.
(a) Contribution: 3P liable to pay the ∆’s damages for π’s claim
(b) Indemnity: Usually against a liability insurer to cover for damages
2. Does not allow ∆ to bring new targets for π (ex. Impleading a party b/c ∆ believes there is a mistaken
identity). It’s meant to pass on liability.
3. Impleaded party may make defenses to π and 3Pπ’s claim because either defense, if valid, waives
3P∆’s liability.
4. Must follow all pleading and service rules.
5. 3P∆ may counterclaim against 3Pπ in accordance with Rule 13.
6. Allows π and 3P∆ to assert claims against each other if same T/O.
7. 3P∆ may implead other parties
8. ∆ must implead within 14 days of answering complaint as of right. If not, need courts permission.
(Leave of court)
9. Court can refuse to hear impleader with their discretion.
10. Impleader does NOT affect courts Jx over original claim. IT DOES NOT BREAK DIVERSITY.
11. There must still be SMJ.
(a) If 3Pπ and 3P∆ are different states, then they are diverse as long as AIC is met.
(b) If 3Pπ and 3P∆ are same states, then there will most likely be supplemental Jx.
12. 3P∆ is disregarded in determining whether venue is proper.
13. 3Pπ can tack on claims even if irrelevant under rule 18(a) if the impleader claim is valid.
14. Impleaded party also needs PJ. So if π is from CA and ∆ is from TX and the court is in TX, if ∆
impleads 3P∆ from AZ, then 3P∆ needs to have PJ with TX since that’s where the ct is. (Due Process
for every party)
E. Rule 19: Essentials
1. A person who was not joined in an original action should be made a party:
2. If in the absence of that person, the court cannot accord complete relief
(a) K to buy a business from two people and something goes wrong. Need both there.
(b) Non-consent between leasers and sub-leasers.
3. If the absentee has an interest and her ability to protect that interest will be impaired
(a) Stock that two people buy but are in the name of one of them.
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(b) Treaty with multiple tribes about a quota in using a river. If one treaty wants a bigger allotment,
other tribes need to be included as well.
4. If the absentee has an interest in the subject matter and adjudicating without her might leave one of
the existing parties exposed to multiple or inconsistent obligations.
(a) Same as tribe case above
(b) Bank holding money in escrow and giving it to one person when the other was unsatisfactory
with the work. Might lead to double suits.
5. What if the absentee should be joined but cannot be? (RULE 19(b))
(a) Court can go on
(b) Court can dismiss
(c) Court can provide appropriate relief to the parties before the court despite the inability to join the
absentee.
(d) Courts can use their equitable powers
F. Rule 24: Intervention/Interveners
1. Rule 24 authorizes an absent party who learns of an action to become a party to the litigation.
2. Rule 24(a): When the absentee has a RIGHT to become party to a case:
(a) If a statute allows a party to
(b) If the following three conditions are met
(i) The person claims an interest relating to the property or transaction that is the subject matter
of the action
(ii) That interest, may as a practical matter, be impaired if the person is not allowed to participate,
AND
(iii) The absentee’s interest is not adequately represented by those already parties to the action.
(c) Must be timely. Court has discretion to deny if not timely.
3. Rule 24(b): When the absentee may, in the courts discretion, be allowed as a party:
(a) Authorizes intervention of any person who has a claim or defense that shares with the main action
a common question of law or fact.
(b) It’s a liberal standard
(c) MUST BE TIMELY
(d) Court may limit how that party can participate
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