MTD FOR LACK OF SMJ .............................................................................................................. 2
REMOVAL/REMAND ................................................................................................................... 8
MTD FOR LACK OF PJ ............................................................................................................... 11
MTD FOR IMPROPER VENUE ............................................................................................... 19
MOTION TO TRANSFER VENUE .......................................................................................... 22
MTD FOR IMPROPER SERVICE ............................................................................................ 25
MOTION TO STRIKE A DEFENSE ........................................................................................ 28
MTD FOR LACK OF A CLAIM ................................................................................................. 31
MTD FOR FAILURE TO JOIN A REQUIRED PARTY-Rule 19 ..................................... 34
CLAIM PRECLUSION ................................................................................................................. 36
ISSUE PRECLUSION................................................................................................................... 39
MOTION TO AMEND TO ADD A CLAIM ............................................................................ 43
MOTION TO AMEND TO ADD A DEFENSE ...................................................................... 46
MOTION TO COMPEL DISCOVERY ..................................................................................... 50
MOTION FOR SUMMARY JUDGMENT ............................................................................... 54
ERIE DOCTRINE.......................................................................................................................... 56
RULE BASIS FOR JOINDER OF PARTIES/CLAIMS/INTERVENTION .................... 60
RULE BASIS MASTER LIST ............................................................................................... 74
Article III Section II ................................................................................................................... 76
1
MTD FOR LACK OF SMJ
Issue: The issue is whether the motion to dismiss the ____ claim(s) for lack of SMJ was properly
granted/denied.
Rule 1: A motion to dismiss for lack of SMJ is properly GRANTED if it was PP AND there was
no proper federal SMJ over the _______ claim.
Rule 2: A motion to dismiss for lack of SMJ is properly DENIED if it was not PP OR there was
proper federal SMJ over the _______ claim.
Issue: The issue is whether the motion to dismiss the ____ claim(s) for lack of SMJ
was PP.
Rule: A motion to dismiss for lack of SMJ is PP if it is raised by any party OR the court
at any time during the case before all appeals have been exhausted.
A: Here, _____ filed the motion _____.
C: Therefore, ______’s MTD for lack of SMJ was PP/NOT PP
Issue: The issue is whether there is federal SMJ over the ______ claim.
Rule: There is federal SMJ over the _______ claim if there is 1331, 1332, OR 1367 SMJ
over the claim.
Issue: The issue is whether there is 1331 SMJ over the _______ claim.
Rule: There is 1331 over a claim if it arises under federal law; federal defenses
alone are not sufficient.
A: Here, _____ is [state/federal] law.
[Declaratory Judgment Case]
R: When a declaratory judgment claim is re-imagined as a coercive action
by either party, usually the defendant, and there is a federal question in
that claim, the case has 1331 SMJ.
A: In this case, if [_____]’s claim is re-imagined as a coercive action,
[_____], it [would/would not] arise under federal law.
C: Therefore, there is 1331 SMJ over [_______] claim.
C: Therefore, there is not 1331 SMJ over [_______] claim.
Issue: The issue is whether there is 1332 SMJ over the _______ claim.
Rule: There is 1332 SMJ over a claim if the AIC is satisfied AND there is
complete diversity of citizenship between opposing parties.
Issue: The issue is whether the AIC is met.
Rule: The AIC is met if the amount asserted in good faith exceeds
$75,000, unless there is a legal certainty the amount could not be
recovered.
A:
2
[Amount Met Without Aggregation]
A: Here, the facts tell us [_______] is seeking [__$__].[__$__] is
more than $75k and there is nothing in the facts that suggests, let
alone provides, legal certainty that [_______] could not recover
that amount.
[Aggregation of Claims]
Issue: The issue is whether separate claims can be aggregated
to meet the AIC.
Rule: State claims alleging damages of one P against one D can be
aggregated to meet the AIC, even if the claims are completely
irrelevant to each other.
C: Therefore, the aggregate claims meet the AIC.
C: Therefore, the aggregate claims do not meet the AIC and do
not have 1332 SMJ.
C: Therefore, the AIC is satisfied.
C: Therefore, the AIC is not satisfied and the claim does not have 1332
SMJ.
Issue: The issue is whether there is complete diversity between
parties.
[US Citizens Only]
R: There is complete diversity between parties where all plaintiffs are
citizens of US states that are different than all defendants from a US state
at the time of filing. An alien can join a party when there at least one US
party in the suit.
[US Citizens – Domiciles Given]
R: There is complete diversity between parties where all plaintiffs are
domiciled in US states that are different than all defendants at the time
of filing.
[US citizen(s) vs. Alien(s)]
R: There is complete diversity between parties where one side of the suit
are citizens of the U.S. and the opposing party is an alien at the time of
filing; however, even if this exists, 1332 SMJ is barred if the alien is a
permanent resident that is domiciled in the same state as the opposing
party.
Issue: US Individual Citizenship
Rule 1: An individual’s citizenship is the state of domicile, which
is where they physically reside and intend to stay indefinitely.
3
Rule 2: A US citizen is originally a citizen of the state where they
were born; this only changes when the person physically moves
to a new state and plans to stay there indefinitely.
Rule 3: A US citizen domiciled abroad cannot be sued under 1332
SMJ, but they could be sued in state court.
Issue: Aliens.
Rule: Individuals that are not US citizens are aliens for 1332
citizenship purposes.
 Aliens who are legally in US and permanent residents are
NOT US citizens, but if they are domiciled in the same
state as the other party in suit, the permanent residency
bar applies and 1332 SMJ is barred.
 Aliens who are illegally in US are NOT US citizens and
therefore are treated as such. It does not matter if they live
in the same state as an opposing party.
 Aliens who are not in US are aliens and NOT US citizens
and therefore remain citizens of their home country
Issue: Un-Incorporated Entity Citizenship
Rule: The citizenship for un-incorporated entities are the
citizenships of all of their individual members, including general
and limited partners; excluding headquarters and PPB
Issue: Corporate Citizenship
Rule: The citizenship of a corporation is its state of incorporation,
the place where the business is legally incorporated, AND its PPB,
which is commonly the state where officers direct and control the
corporation’s activities aka “nerve center” (HQ).
Issue: Legal Representatives
Rule: For diversity purposes, the citizenship of a legal
representative is the domicile of the individual they are
representing for this case. Examples include parents, incompetents,
and deceased
C: Therefore, the claim has 1332 SMJ because the AIC is met and complete
diversity is satisfied [and the permanent resident alien bar does not apply].
C: Therefore, because there is not complete diversity between the parties, there
cannot be 1332 SMJ.
Issue: The issue is whether there is 1367 SMJ over the ______ claim.
Rule: There is 1367 supplemental SMJ over a claim if there is a federal anchor
claim in the case, there is a CNOF between the anchor claim and the state claim,
AND it is not barred under the 1367(b) bar, the Exxon-bar, AND the court has not
declined to hear the case under 1367(c).
4
Issue: The issue is whether there is a federal anchor claim that
already exists within the case.
OR The issue is whether there is an anchor claim for [_______] claim in
the case.
Rule: There is a federal anchor claim that already exists within the case if
there is another claim in the suit that has 1331 OR 1332 SMJ over it. [If in
the same question you can reference back up]
[Insert SMJ analysis – pg. 2]
C: Therefore, because AIC is not satisfied OR there is not complete
diversity ([_______]), [_______] claim does not 1332 SMJ and cannot be
an anchor claim. Thus, [_______] claim does not have 1367 SMJ.
C: Therefore, because AIC is satisfied and there is complete diversity
([_______]),[_______] claim has 1332 SMJ and can be an anchor claim.
Issue: The issue is whether there is a CNOF between the anchor claim
and the state claim.
Rule: A CNOF exists when the federal claim and the state claim are so
related that they form part of the same case OR controversy.
A: Since [_______] claim involved [_______], but [_______] claim
involved [_______], there are not likely overlapping facts.
C: Therefore, [_______] claim does not share the same CNOF as [_(the
anchor claim)_].
A: Since both [_______] claim and [_______] claim involved [_______],
there are likely overlapping facts.
C: Therefore, [_______] claim shares the same CNOF as [_(the anchor
claim)_].
Issue: The issue is whether the 1367(b) bar applies.
Rule: For solely 1332 cases, 1367(b) bars supplemental SMJ over some
claims by original/invited plaintiffs against an added defendant joined by
Rule 20, 19, 24, or 14 OR by any claim by an uninvited plaintiff against
anyone AND the state claim lacks AIC or complete diversity.
[Analyze SMJ claims in the suit] (1331 vs. 1332)
[Analyze who made the claim being considered]
[Claim by a Defendant]
R: The 1367(b) Bar is never triggered when a D asserts a claim.
[Claim Against an Added Defendant]
R: If the claim by the original P or invited co-P is against any added
D, it is barred by the 1367(b) Bar.
5
[Claim by Uninvited Plaintiff]
R: Any claim by an uninvited P against anyone is barred by the
1367(b) Bar.
C: Therefore, the 1367(b) Bar applies and [_______] claim does not have
1367 SMJ.
C: Therefore, the 1367(b) Bar does not apply.
Issue: The issue is whether supplemental SMJ is barred by the Exxonbar.
Rule: For solely 1332 cases, the Exxon-bar bars supplemental SMJ over
claims by plaintiffs joined under Rule 20 against one defendant and the
state claim meets AIC but lacks complete diversity.
[Analyze SMJ claims in the suit] (1331 vs. 1332)
[Analyze who made the claim being considered]
[Analyze AIC and complete diversity]
C: Therefore, the Exxon bar does apply and [_______] claim does not
have 1367 SMJ.
C: Therefore, the Exxon bar does not apply.
Issue: The issue is whether the court should have declined to hear the
claim under the 1367(c) [discretionary bar].
Rule: The court can decline to exercise supplemental SMJ over a claim
under 1367(c) if the (1) claim raises a novel or complex issue of state law,
(2) the claim substantially predominates over the claim(s) over which the
district court has original jurisdiction, (3) the district court has dismissed
all claims over which it has original jurisdiction, OR (4) there are other
compelling reasons to decline supplemental SMJ.
Issue: The issue is whether the claim raises a novel or complex
issue of state law.
Rule: A claim raises a novel OR complex issue of law if the claim
has never been asserted in that state
Issue: The issue is whether the claim substantially
predominates over the claim or claims over which the district
court has original jurisdiction.
Rule: To determine, the court will look at how much of the parties
and court’s time will be spent on state claim compared to the
anchor claim [money is not a factor].
6
Issue: The issue is whether the district court has dismissed all
claims over which it has original jurisdiction.
Rule: If the federal anchor claim has been dismissed, the court
may decline supplemental SMJ over the state claim [this depends
on how far along the case is in progress
Issue: The issue is whether there are other compelling reasons
for declining supplemental SMJ.
A: NOTE— “catch all provision” There is no specific rule and this
provision grants wide discretion to the court and is often
interpreted broadly
C: Therefore, since [_______] claim is an anchor claim with a CNOF with
[_______] claim and the 1367(b) Bar and Exxon bar do not apply, [_______]
claim has 1367 SMJ.
C: Because there is 1367 SMJ over [_______] claim, there is federal SMJ over
[_______] claim.
C: Thus, the court properly DENIED [_______]’s motion to dismiss (MTD) the [_______]
claim(s) for lack of SMJ because [_it was not PP AND/OR there was SMJ over the claims_].
C: Thus, the court improperly DENIED [_______]’s motion to dismiss (MTD) the [_______]
claim(s) for lack of SMJ because it was PP and there was not SMJ over the claims.
C: Thus, the court properly GRANTED [_______]’s motion to dismiss (MTD) the [_______]
claim(s) for lack of SMJ because it was PP and there was not SMJ over the claims.
C: Thus, the court improperly GRANTED [_______]’s motion to dismiss (MTD) the [_______]
claim(s) for lack of SMJ because [_it was not PP AND/OR there was SMJ over the claims_].
7
REMOVAL/REMAND
Issue: The issue is whether the court properly granted/denied the motion to remand.
Rule 1: The court properly granted the motion to remand if the motion was PP AND there was
not SMJ over the claims OR removal was not PP.
Rule 2: The court properly denied the motion to remand if the motion was not PP OR there was
proper SMJ AND the removal was PP.
Issue: The issue is whether the motion to remand was PP.
Rule: A motion to remand is PP if it is filed within 30 days of the notice of removal for non-SMJ
issues OR at any time before final judgment for lack of SMJ.
[Within 30 Days]
A: [_______] filed a motion to remand [_______] days after receiving the notice
of removal, which is less than 30 days.
C: So, regardless of the grounds of the motion, they properly filed the motion to
remand because it was within the shortest time restriction.
[Lack of SMJ]  Do LAST if lacks SMJ
A: Because the motion to remand was filed due to lack of SMJ, and it was filed
before a final judgment, the timing was proper.
C: Therefore, the motion to remand was PP.
Issue: The issue is whether the removal was proper
Rule: Removal is proper if there is SMJ and removal was PP
Issue: The issue is whether there was proper federal SMJ over the case.
Rule: There is proper federal SMJ over a case if there is SMJ over all of the claims.
[Insert SMJ analysis, pg. 2]
C: Thus, the case does not have any claims with federal SMJ, so removal was
improper.
C: Thus, the case has [_______] claims with [_______] SMJ.
Issue: The issue is whether the removal was PP.
Rule: Removal is PP if it is timely, removed to the proper court, all defendants consented
to the removal, AND removal is not barred by the in-state defendant bar.
Issue: The issue is whether the removal was timely.
Rule: Removal is timely if notice of removal is filed within 30 days of the first
document that makes the case removable
 Removal is barred 1 year after the commencement of a case based solely
on 1332, unless the plaintiff acted in bad faith.
C: This exceeded the 30-day limit. Thus, [_______]’s removal of the case was
untimely, and the removal was not PP.
C: This is within the 30-day limit. Thus, [_______]’s removal of the case was
timely.
8
Issue: The issue is whether the case was removed to proper court.
Rule: A defendant can only remove to the district court embracing the district
AND division where the action was originally filed.
A: The case was removed to [_______] district court; the geographical reach of
this district court [encompasses/does not encompass] the [city/court] where the
case was originally filed.
C: Thus, the case was not removed to the correct court and removal was not PP.
C: Thus, the case was removed to the correct court.
Issue: The issue is whether all defendants consented to removal.
Rule: All defendants must consent to removal for removal to be proper
 If a defendant is later added then they can opt to remove (within the
parameters of 30 days and the one-year-bar) AND the earlier defendant
can join.
C: Therefore, all defendants did not consent to removal and removal was not PP.
C: Therefore, all defendants consented to removal.
Issue: The issue is whether there are any bars to removal procedures in this
case.
R: Both the in-state defendant bar and one-year bar independently bar removal,
if the case has solely 1332 (independent) claims.
[In-State Defendant Bar]
I: The issue is whether the in-state defendant bar applies to the
case.
R: The in-state defendant bar applies if the case is based solely in
1332 SMJ and if any defendant is a citizen of the forum state.
A: Here, the defendant [is/is not] a citizen of the forum state.
C: Therefore, the in-state defendant bar does apply to this case
and removal is not PP.
C: Therefore, the in-state defendant bar does not apply to this
case.
[One-Year Bar]
I: The issue is whether the one-year bar applies to the case.
R: If a case only becomes removable because of 1332 SMJ and it
has been more than one year since the original complaint was
filed, then the case cannot be removed unless the defendant can
show that the plaintiff acted in bad faith.
A: In this case, [_____].
C: Therefore, the one-year bar does apply to this case and
removal is not PP.
C: Therefore, the one-year bar does not apply to this case.
C: Thus, neither bar applies to the case.
9
Issue: The issue is whether or not the civil action includes a claim with SMJ and a claim
without SMJ
Rule: Upon removal of this type of action, the court MUST sever the claims and remand the
claim without SMJ to the state court from which the action was removed.
C: Therefore, the court properly DENIED [_______]’s motion to remand the case because [_the
motion was not PP AND/OR removal was proper_].
C: Therefore, the court improperly DENIED [_______]’s motion to remand because the motion
to remand was PP and the removal of the case was improper.
______________________________________________________________________________
C: Therefore, the court properly GRANTED [_______]’s motion to remand the case because the
motion to remand was PP and the removal of the case was improper.
C: Therefore, the court improperly GRANTED [_______]’s motion to remand because [_the
motion was not PP AND/OR removal was proper_].
10
MTD FOR LACK OF PJ
Issue: The issue is whether the court properly GRANTED/DENIED [party]’s motion to
dismiss for lack of PJ.
Rule 1: The court properly granted [party]’s motion to dismiss for lack of PJ if it was PP and
there was no PJ over [party] in [forum state].
Rule 2: The court properly denied [party]’s motion to dismiss for lack of PJ if it was not PP or
there was PJ over [party] in the [forum state].
Issue: The issue is whether the motion to dismiss for lack of PJ was PP.
Rule: A motion to dismiss for lack of PJ is PP if it is brought in a pre-answer motion before
filing a timely answer which is 21 days.
Issue: The issue is whether there was PJ over [party] in the [forum state].
Rule: There is PJ over a party if there is traditional OR specific PJ.
Issue: The issue is whether there is traditional PJ over [party] in [forum state]
Rule: There is traditional PJ over a party if there is consent to PJ, tag PJ (n/a if
corporation), or general PJ.
Issue: The issue is whether [party] consented to PJ in [forum state].
Rule: A party consents to PJ in the forum state expressly if they signed a contract
with a choice of forum clause or by failing to raise the lack of PJ in a pre-answer
motion, their answer or an answer amended as a matter of course.
Potential Issue: Because lack of PJ was not raised in their pre-answer
motion or their answer, the issue is whether [party] amended their
answer as a matter of course.
Rule: A party can amend as a matter of course at any time within 21 days
of filing a pleading, or if the pleading is one to which a response is
required, within 21 days of the opposing party’s responsive pleading or
rule 12 motion, whichever is earlier.
C: Therefore, [_______] consented to PJ in [_(forum state)_] and there was
traditional PJ.
C: Therefore, [_______] did not consent to PJ in [_(forum state)_].
Issue: The issue is whether there is tag PJ over [party] in [forum state].
Individuals: Tag PJ is established if the party is personally served in the forum
state, unless the party is fraudulently lured to the forum state OR is there to attend
legal proceedings.
C: Therefore, PJ was established over [_______] in [_(forum state)_] by tag and
there was traditional PJ.
C: Therefore, PJ was not established over [_______] in [_(forum state)_] because
[_______].
11
Issue: The issue is whether there is general PJ over [party] in [forum state].
Individuals: A state has general PJ over an individual if they have continuous
and systematic contacts with the forum state such that they are essentially at
home, and can be expected to be sued for any COA there; for an individual this is
their domicile.
Corporations: A state has general PJ over a corporation if they are incorporated
in that state, their PPB is located in that state, OR if they have continuous and
systematic contacts with the forum state such that they are essentially at home,
and they can be expected to be sued for any COA there.
Entities: A state has general PJ over an unincorporated entity if the entity has a
limited OR general member domiciled in that state.
C: Therefore, [_______] is subject to general/at-home PJ in the forum state as that is
where they are domiciled.
C: Therefore, [_______] is not subject to general/at-home PJ in the forum state.
C: Since [_______] did not consent to PJ in [_(forum state)_], tag PJ [did not occur/is not
applicable], and there is not general/at-home PJ over [_______] in [_(forum state)_],
there is not traditional PJ over [_______] in [_(forum state)_].
Issue: The issue is whether there is specific PJ over [party] in [forum state]
Rule: There is specific PJ over a party if they fall within the forum state long arm
provision AND the application of the long arm is constitutional.
If enumerated:
1A. Issue: The issue is whether the [party] falls within the forum state long
arm provision.
Rule: [Insert state long arm & Remember to go through all Long Arms]
Analysis: pick all sections that may work (reference interpretation of where
tortious act was committed: where the injury occurred OR where the act/omission
which led to the injury occurred – conclude referencing that there’s a difference in
interpretation, pick one that works an continue analysis)
I: The issue is whether [_______] falls under [_(forum state)_]’s 1st long
arm provision.
1st Long Arm Provision: (A) A court may exercise personal jurisdiction
over a person who acts directly or by an agent, as to a cause of action
arising from the person's: (1) Transacting any business in this state
R: “Conducting business” would require the product to be sold within
the state.
A: [_______] falls under this long arm provision if they transact any
business within the state, which gives rise to the claim.
12
[_______] does [_activity_] and this [does/does not] give rise to
the claim.
C: Therefore, likely the 1st long arm provision [is/is not] satisfied.
____________________________________________________________
I: The issue is whether [_______] falls under [_(forum state)_]’s 2nd long
arm provision.
2nd Long Arm Provision: (A) A court may exercise personal jurisdiction
over a person who acts directly or by an agent, as to a cause of action
arising from the person's: (2) Contracting to supply services or goods in
this state
R: “Conducting business” would require the product to be sold
within the state.
A: [_______] falls under this long arm provision if they contract anywhere
to supply goods or service in the state
[_______] does [_activity_] and this [does/does not] give rise to
the claim.
C: Therefore, likely the 2nd long arm provision [is/is not] satisfied.
____________________________________________________________
I: The issue is whether [_______] falls under [_(forum state)_]’s 3rd long
arm provision.
3rd Long Arm Provision: (A) A court may exercise personal jurisdiction
over a person who acts directly or by an agent, as to a cause of action
arising from the person's: (3) Causing tortious injury by an act or
omission in this state
R: Some states interpret the phrase “tortious conduct within the state”
to be the state where the injury occurred, whereas others interpret it
as only the state where the tortious act or omission occurred.
A: In this case, the act/omission [_describe act (e.g., negligent
manufacturing)_] occurred in [_______], and the actual injury occurred in
[_______].
1. If the provision is interpreted as where the tortious act
happened, [_______] [would/would not] fall under this provision.
2. If the provision is interpreted as where the injury occurred,
[_______]
[would/would not] fall under this provision.
C: Therefore, likely the 3rd long arm provision [is/is not] satisfied if it is
interpreted as [1/2/either].
___________________________________________________________
13
I: The issue is whether [_______] falls under [_(forum state)_]’s 4th long
arm provision.
4th Long Arm Provision: (A) A court may exercise personal jurisdiction
over a person who acts directly or by an agent, as to a cause of action
arising from the person's: (4) Causing tortious injury in this state by an
act or omission outside this state if he regularly does or solicits
business, or engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services rendered
in this state
a. D regularly does or solicits business in the state, OR
b. D engages in any other persistent course of conduct in the
state, OR
R: A website qualifies as a “persistent course of
conduct.”
c. D derives substantial revenue from goods used or consumed
or services rendered in the state
R: [_______] falls under provision 3 if they commit a tortious act
without the state causing injury to person or property within the
state, if they regularly do or solicits business, or engage in any other
persistent course of conduct in the state.
A: In this case, [_______] caused a tortious injury in the state by
[_______] outside the state.
A: Because the defendant does [_______], which need not be related to
the original cause of action itself, the defendant falls under the long arm
provision.
C: Therefore, likely the 4th long arm provision [is/is not] satisfied.
____________________________________________________________
I: The issue is whether [_______] falls under [_(forum state)_]’s 5th long
arm provision.
5th Long Arm Provision: (A) A court may exercise personal jurisdiction
over a person who acts directly or by an agent, as to a cause of action
arising from the person's: (5) Causing injury in this state to any person
by breach of warranty expressly or impliedly made in the sale of goods
outside this state when he might reasonably have expected such person
to use, consume, or be affected by the goods in this state, provided that
he also regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods
used or consumed or services rendered in this state
R: “Conducting business” would require the product to be sold
within the state.
R: A website qualifies as a “persistent course of conduct.”
A: [_______] [does/does not] fall under this provision because [_______].
C: Therefore, likely the 3rd long arm provision [is/is not] satisfied.
___________________________________________________________
14
If non-enumerated:
1A. Issue: Because the state long arm provides the constitutional max, the
issue is whether the application of the long arm is constitutional.
Rule: The application of a long arm is constitutional if the party has minimum
contacts within the forum state AND traditional notions of FPSJ are not violated.
Issue: The issue is whether [party] has minimum contacts related to
the COA within [forum state].
Standard Minimum Contacts Rule: A party has minimum contacts
within the forum state if they purposefully avail themselves to the state
such that they could foresee being hauled into court for any COA related
to those contacts.
Issue: The issue is whether [party] satisfies the SOC test.
Rule: Under the SOC test a defendant will have minimum contacts
in the forum state as a result of regular and anticipated flow of
products in the forum state such that they can foresee their product
in the forum state and can expect legal action in the forum state
Issue: The issue is whether [party] satisfies the SOC+ test.
Rule: Under the SOC+ test a defendant will have minimum
contacts in the forum state if they target the forum state, by placing
their products into the SOC through an intermediary plus the
defendant purposefully availed themselves in the forum state with
methods such as; (1)specifically marketing, (2) advertising to the
state, (3) designing their product specifically for the state, or (4)
marketing through a distributor in the state.
A: In this case, [_______] can be considered a contact because
[_______].
In-State Intentional Contact Rule: To determine whether an
intentional tortfeasor has minimum contacts with the forum,
the court must examine the Ds intentional conduct and
whether that intentional conduct was purposefully directed
toward the forum state.
A: In this case,
≠ P’s unilateral actions toward D
≠ mere foreseeability that D’s actions will
affect/injure P in the forum
A: In this case, [_______] can be considered a contact
because [_______].
15
Contracts Rule: In examining minimum contacts related to a
contract, the Burger King test applies and the court must consider
the defendant’s contact in the forum state, prior negotiations in the
forum state, contemplated future consequences, contractual terms
such as a choice of law provision, AND the actual course of
dealings.
Issue: The issue is whether the defendant had contact
within the forum state.
Rule: The defendant had contact with forum if he carried
on a continuous course of direct communications by mail
AND telephone with the plaintiff in the forum state.
Issue: The issue is whether the defendant had prior
negotiations within the forum state.
Rule: Prior negotiations means the defendant deliberately
reached out AND negotiated with the plaintiff in the forum
state.
Issue: The issue is whether the defendant contemplated
future consequences.
Rule: If the D enters into continuing and wide-reaching
contacts with the plaintiff in the forum state, he
contemplates future consequences.
Issue: The issue is the contractual terms of the contract.
Rule: The court will consider if defendant signed a contract
with a choice of law provision stating that should any
litigation related to the contract arise, the forum state’s law
would govern.
Issue: The issue is the actual course of dealings with the
plaintiff in the forum state.
Rule: The court will consider whether the defendant would
deal directly with plaintiff in the forum state whenever an
issue related to their contract arose.
C: Therefore, [_______] does NOT have minimum contacts with [_(forum
state)_] related to [_______]’s claim.
C: Therefore, [_______] has minimum contacts with [_(forum state)_]
related to [_______]’s claim.
16
2. Issue: The issue is whether the application of the long arm will violate the
traditional notions of FPSJ.
Rule: FPSJ is determined by the Ashai balancing test that weighs the following
factors: (1) whether exercising PJ would result in undue burden to the defendant,
(2) the interest of the forum state in adjudicating the case, and (3) the plaintiff’s
interest in adjudicating the case
I: The issue is whether exercising PJ over D would result in undue
burden on the defendant.
R: In Asahi, there was a burden to the foreign defendant because they had
to litigate their dispute in a foreign nation’s legal system.
I: The issue is whether the forum state had an interest in adjudicating
the case.
R: In Asahi, the US party was no longer in the suit such that the forum
state’s interest in continuing litigation was minimal. A forum state may
have interest in continuing litigation if they want to protect its citizens and
their interests
I: The issue is whether the plaintiff has interest in adjudicating the
case.
R: In Asahi, the US plaintiff was no longer in the suit so the plaintiff
interest was nonexistent. A plaintiff has a strong interest in the location of
the case depending on the convenience to the plaintiff as well as the access
to evidence, witnesses, and other related aspects to the case
C: Therefore, given enormous defendant burden and lack or forum state or
plaintiff interests, FPSJ has been violated.
C: Therefore, given (virtually) no defendant burden in addition to (strong) forum
state and plaintiff interests, FPSJ has not been violated
C: Although [_______] has minimum contacts, because FPSJ is violated, the exercise of
PJ would NOT be Constitutional.
C: Therefore, since [_______] has minimum contacts and FPSJ is not violated, the
exercise of PJ would be Constitutional.
C: Thus, there is NOT PJ over [_______] in [_(forum state)_] for the [_______] claim.
OR
C: Therefore, since the [_(forum state)_] long arm statute is likely met and the exercise of PJ is
Constitutional, there is specific PJ over [_______] in [_(forum state)_] for the [_______] claim.
OR
C: Therefore, since the [_(forum state)_] long arm statute goes to the Constitutional maximum,
and the exercise of PJ is Constitutional, there is specific PJ over [_______] in [_______] for the
[_______] claim.
17
C: Thus, the court properly GRANTED [_______]’s MTD for lack of PJ because it was PP and
there was no PJ over [_______] in [_(forum state)_].
C: Thus, the court improperly GRANTED [_______]’s MTD for lack of PJ because [_it was not
PP AND/OR there was PJ over the defendant in the forum state_].
C: Thus, the court properly DENIED [_______]’s MTD for lack of PJ because [_it was not PP
AND/OR there was PJ over the defendant in the forum state_].
C: Thus, the court improperly DENIED [_______]’s MTD for lack of PJ because it was PP and
there was no PJ over [_______] in [_(forum state)_].
18
MTD FOR IMPROPER VENUE
Issue: The issue is whether the court properly granted/denied the motion to dismiss for
improper venue.
Rule 1: A motion to dismiss for improper venue is properly granted if the motion is PP AND
venue is improper.
Rule 2: A motion to dismiss for improper venue is properly denied if the motion is not PP OR
venue is proper.
Issue: The issue is whether the motion to dismiss was PP
Rule: A MTD for improper venue is PP if it is filed within 21 days of being served, but before a
timely answer.
A: Here, [_____] filed the MTD [_____] days after being served.
C: Therefore, the motion was NOT PP.
C: Therefore, the motion was PP.
Issue: The issue is whether the venue is proper.
Rule: Venue is proper if it is brought under (1) the residency provision or (2) the substantial acts
provision. If there is no district in which either of these two apply, then it must be proper under
(3) the fallback provision.
Issue: The issue is whether the original venue is proper under the residency
provision.
Rule: Original venue is proper under the residency provision if it is brought in a district
where any defendant resides, if all defendants reside in the same state in which the
district is located.
Issue: The issue is whether all defendants reside in the same state.
Issue: The issue is [party]’s residency
US Individual Rule: For venue purposes, an individual, including an alien
lawfully admitted for permanent residence in the US resides in the judicial
district in which they are domiciled.
Non-US Resident & Resident domiciled abroad Rule: For venue
purposes, residency for a non-US resident, including those US citizens
domiciled abroad, venue would be proper in any judicial district and
should be disregarded for analyzing proper venue (if there are multiple
defendants).
C: Therefore, [______] is not a resident of any US state, so venue
is proper in [any district OR wherever venue is proper for all other
defendants] for [______]. (as long as there is still SMJ and PJ over
them).
19
SINGLE DISTRICT Entity/Incorporation Rule: For venue purposes,
an entity, whether or not incorporated, resides in any judicial district
where it is subject to PJ which exists when the complaint is filed (excludes
tag PJ).
MULTI DISTRICT Corporation Rule: If an entity D resides in a state
which has multiple districts, then the D is considered a resident in any
district in that state where they have sufficient minimum contacts for PJ.
NO Sufficient District: If the entity does not have sufficient contacts in
any one district in a multi-district State, then D is subject to venue in
whichever district they have the most contacts.
C: Therefore, all defendants are residents of the forum state, so venue is proper
under the residency provision in [_(forum state)_]. (Proceed to Analysis A)
C: Thus, because not all defendants reside in the same state, venue is not proper
in [_(forum state)_].
Issue: The issue is whether original venue is proper under the substantial acts
provision.
Rule: Original venue is proper under the substantial acts provision if it is brought in a
district in which a substantial part of the events OR omissions giving rise to the claims
occurred OR a substantial part of property that is the subject of the action is located.
[Negligence]
A: The defective product was made in [_(district/state)_].
A: The [accident/injury] occurred in [_(district/state)_].
C: Thus, a substantial part of the events/omissions giving rise to the claim
[did/did not] occur in [_(forum state)_] because [______].
__________________________________________________________________
[K Breach]
A: The K was formed in [_district/state_] because [______].
A: The K was performed in [_district/state_] because [______].
A: The K was breached in [_district/state_] because [______].
C: Thus, the original venue was proper in [_(forum state)_] under the substantial acts
provision. (Proceed to Analysis A)
C: Thus, the original venue was not proper in [_(forum state)_] under the substantial
acts provision.
Issue: The issue is whether original venue is proper under the fallback provision.
Rule: If there is no district in the US which an action may otherwise be brought, venue is
proper in any district in which a defendant is subject to the court's personal jurisdiction.
[Multiple Defendants]
R: If there are multiple defendants, venue is proper for all where there is PJ over
at least one of them.
20
C: Therefore, [_defendant(s)_] [is/are] subject to venue in [_(forum state)_] because
they are subject to PJ there. So, original venue was proper in [_(forum state)_].
C: Therefore, [_defendant(s)_] [is/are] not subject to venue in [_(forum state)_] because
[they/none] are not subject to PJ there. So, original venue was improper in [_(forum
state)_].
________________________________________________________________________
C: Therefore, the original venue of [_____] was NOT proper.
C: Therefore, the original venue of [_____] was proper.
____________________________________________________________________________________
C: Thus, the court properly GRANTED [_____]’s MTD for improper venue because the motion
was PP and the original venue was improper.
C: Thus, the court improperly GRANTED [_____]’s MTD for improper venue because [_the
motion was not PP AND/OR the original venue was proper_].
______________________________________________________________________________
C: Thus, the court properly DENIED [_____]’s MTD for improper venue because [_the motion
was not PP AND/OR the original venue was proper_].
C: Thus, the court improperly DENIED [_____]’s MTD for improper venue because the motion
was PP and the original venue was improper.
21
MOTION TO TRANSFER VENUE
Issue: The issue is whether the court properly granted ______’s motion to transfer venue.
Rule: A court properly grants a motion to transfer if the motion to transfer is procedurally
proper AND if transfer of venue is proper under 1404 or 1406.
-ORIssue: The issue is whether the court properly denied _____’s motion to transfer venue.
Rule: A court properly denies a motion to transfer if the motion to transfer is not procedurally
proper OR if transfer of venue is improper under 1404 AND 1406.
Issue: The issue is whether motion to transfer venue was PP.
Rule: Motion to transfer is PP if timely filed such that is does not delay trial.
Issue: The issue is whether transfer of venue was proper.
Rule: Transfer of venue is proper under 1404 if original venue was proper, OR under 1406 if
original venue was improper.
Issue: The issue is whether original venue is proper.
[INSERT VENUE ANALYSIS HERE]
If original venue was proper, proceed to Analysis A.
If original venue was improper, proceed to Analysis B.
Analysis A: (Original Venue Proper, Issue and Rule for 1404)
Issue: Since the original venue was proper, the issue is whether transfer of venue is proper under
1404.
Rule: Under 1404, transfer of venue is proper if 1) it is in the interest of justice AND 2) it is
either transferred to a division in the same district where all parties have consented OR where it
could have originally been brought.
Issue: The issue is whether the transfer of venue is in the interest of justice
Rule: Transfer of venue is in the interest of justice based on several factors such as the
convenience of the parties and witnesses, location of evidence, relative means of the
parties, and original selection of forum state. If original venue is proper, plaintiff’s choice
is given greater weight.
A: In this case, [_(analyze factors)_].
C: Thus, the court will [likely/not likely] conclude that the transfer of venue is in the
interest of justice because [______].
Issue: The issue is whether all parties have consented to the proposed venue.
R: A party can consent to venue expressly (K – forum selection clause) or if a defendant
waives his opportunity to challenge venue by failing to timely object.
C: Therefore, although the transfer of venue would likely be found in the interest of
justice by the court, the case could not have been brought in [_proposed venue_]
because not all parties have consented, [______], so the transfer of venue is not proper
under 1404.
22
C: Thus, the transfer would likely be found in the interest of justice by the court and all
the parties consented to the [_proposed venue_], so the transfer of venue is proper
under 1404.
Issue: The issue is whether the proposed district is a proper venue in which the
action could have been brought.
Rule: An action can be properly brought in any judicial district that would have SMJ
over all claims, PJ over all defendants and the venue is proper for the whole case at the
time of filing the original complaint
[Contingent analysis of SMJ over claims, PJ over all defendants , and proper venue]
C: Therefore, although the transfer of venue would likely be found in the interest of
justice by the court, the case could not have been brought in [_proposed venue_]
because [______], so the transfer of venue is not proper under 1404.
C: Thus, the transfer would likely be found in the interest of justice by the court and the
case might have been brought in [_proposed venue_], so the transfer of venue is proper
under 1404.
Analysis B: (Original Venue Improper, Issue and Rule for 1406)
Issue: Since original venue was improper, the issue is whether transfer of venue is proper under
1406.
Rule: Under 1406, if original venue was improper the district court shall dismiss OR, if it be in
the interest of justice, transfer such case to any district or division in which it could have been
brought.
Issue: The issue is whether the transfer of venue is in the interest of justice
Rule: Transfer of venue is in the interest of justice based on several factors such as the
convenience of the parties and witnesses, location of evidence, relative means of the
parties, and original selection of forum state. If original venue is proper, π’s choice is
given greater weight.
A: In this case, [_(analyze factors)_].
C: Thus, the court will [likely/not likely] conclude that the transfer of venue is in the
interest of justice because [______].
Issue: The issue is whether there is another district in which the action could have
been brought such that the court could transfer the case.
-ORIssue: The issue is whether the case could have been brought in __District___
Rule: An action can be properly be brought in any judicial district that would have SMJ
over all claims, PJ over all defendants, and proper venue over the case.
[Contingent analysis of SMJ over claims, PJ over all ∆’s, and proper venue]
23
C: Thus, because [the transfer of venue would NOT likely be found in the interest of
justice by the court OR the case could not have been brought in [_proposed venue_]],
the transfer of venue is not proper under 1406.
C: Therefore, the transfer would likely be found in the interest of justice by the court
and the case might have been brought in [_proposed venue_], so the transfer of venue
is proper under 1406.
C: Therefore, the court properly GRANTED the motion to transfer venue because the motion
was PP and the transfer of venue was proper under [1404/1406].
C: Therefore, the court improperly GRANTED the motion to transfer venue because [the motion
was not PP AND/OR the transfer of venue was improper under 1404 or 1406].
______________________________________________________________________________
C: Therefore, the court properly DENIED the motion to transfer venue because [the motion was
not PP AND/OR the transfer of venue was improper under 1404 or 1406].
C: Therefore, the court improperly DENIED the motion to transfer venue because the motion
was PP and the transfer of venue was proper under [1404/1406].
24
MTD FOR IMPROPER SERVICE
Issue: The issue is whether the court properly granted the motion to dismiss (MTD) for
improper service.
Rule: A motion to dismiss for improper service is properly granted if 1) the MTD was PP AND
2) service was improper.
-ORIssue: The issue is whether the court properly denied the motion to dismiss (MTD) for
improper service.
Rule: A motion to dismiss for improper service is properly denied if 1) the MTD was not PP OR
2) service was proper.
Issue: The issue is whether the MTD for improper service was procedurally proper (PP).
Rule: A MTD for improper service is PP if it is filed within 21 days of being served, but before a
timely answer.
Issue: The issue is whether service was proper.
Rule: Service is proper where a copy of the complaint and summons are timely served to the D
by a non-party over the age of 18, via a method in accordance with federal law, forum state law,
or state of service law, AND notice is Constitutional.
Issue: The issue is whether service was timely.
Rule: Service is timely if the D is served within 90 days of P’s filing of the complaint,
[unless there is a good faith reason why P could not be served, in which case the time can
be extended].
Issue: The issue is whether service was made by (1) a non-party AND (2) they were
over the age of 18.
A: ANALYSIS
**only if applicable
[Waiver of Service – Individuals & Entities]
I: The issue is whether formal service has been waived.
R: A defendant may waive the usual service requirements (summons and
complaint to the right person by the right method) by the exchange of a
formal request to waive from the plaintiff. Included in the formal request
from the plaintiff must be the complaint, notification of consequences of
not complying with the request, two copies of the waiver form, and a
pre-paid method of compliance
A: In this case, [______] served the [______]. This [is/is not] proper
because [______].
[Defendant Refuses to Waive]
R: If the defendant refuses to waive, then they must pay for the
cost of service (if they lose the suit).
[Defendant Agrees to Waive]
R: If the defendant agrees to waive formal service, they will have
60 days to file an answer, rather than 21 days.
25
C: Therefore, the defendant agreed to waive formal service, so service
was proper.
C: Therefore, the defendant did not agree to waive formal service.
C: Therefore, service is improper because service was [_(not timely AND/OR by a nonappropriate process server)_].
C: Therefore, service was timely and done by an appropriate process server.
Issue: The issue is whether the method of service was proper under federal law.
Individual Rule: Service on an individual is proper under federal rule 4 if the
documents are (1) personally delivered to the individual, OR (2) left at the
individual’s abode, with someone of substantial age and discretion who
permanently resides there (can have more than one abode), OR (3) a copy is left
with an authorized agent of the individual.
[IF NEEDED Process laws of forum state]
[IF NEEDED Process laws of state of service]
Corporation/Unincorporated Entity Rule: Method of service on a corporation
always complies with the federal rules if a copy of the complaint and summons
are personally delivered to an officer, general or managing agent, or appointed
agent (by company appointment or statute) authorized to receive service of
process.
I: The issue is whether an officer or authorized agent was personally
served.
A: ANALYSIS.
[IF NEEDED Process Laws of the Forum State]
IF NEEDED Process Laws of State of Service]
State Service Rules (State bonus law): A defendant may be served according to
state law of either the forum state or the state in which the defendant is served
(i.e., service state).
A: [Forum State] OR [Service State]
C: Thus, method of service was proper under [forum/service] state service rules.
C: Thus, method of service was not proper under forum state or service state
service rules.
OR
26
[If facts do not state what the state service of process rules are and they are needed (per
JVD)]
Statement: The facts do not give the state service of process rules, so without
further information, I will assume the service of process rules go to the
Constitutional max. Thus, the next issue is whether notice was constitutional.
C: Thus, method of service was proper under default federal service rules.
C: Thus, method of service was not proper under default federal service rules
-----------------------------STOP HERE IF ONLY ANALYZING METHOD OF SERVICE--------------------------Issue: The next issue is whether notice was Constitutional.
Rule: Notice is Constitutional if it gives adequate time for parties to appear, AND
method of notice is reasonably certain to inform them such that due process is satisfied,
OR at least is not worse than any other method.
Analysis: [Apply facts about how notice occurred)
*Personal service is always constitutional.
*Methods of service which are always reasonably likely to inform include
personal service and service by 1st class mail (unless the 1st class mail is returned
to sender). Emails may be considered reliable, but if it is an email to a general
corporate email, it may be lost among the inbox (depending on the amount of
email received).
C: Thus, the method of service was constitutional because [_it is reasonably likely to
inform the defendant(s) OR it is not substantially less likely to provide notice than any
other feasible and customary substitutes_]
C: Thus, the method of service was not constitutional because [_it was not reasonably
likely to inform the defendant(s) OR there was a more appropriate method which would
have been more likely to inform the defendant(s)_]
CONCLUSION
C: Therefore, the court properly DENIED the MTD based on improper service because [the
motion was not PP AND/OR service was proper].
C: Therefore, the court improperly DENIED the MTD based on improper service because the
motion was PP and service was improper.
C: Therefore, the court properly GRANTED the MTD based on improper service because the
motion was PP and service was improper.
C: Therefore, the court improperly GRANTED the MTD based on improper service because [the
motion was not PP AND/OR service was proper].
27
MOTION TO STRIKE A DEFENSE
Issue: The issue is whether the court properly granted (or denied) the motion to strike the
[______] defense. (ANALYZE PER DEFENSE)
R: The court properly GRANTED the MTS if it was PP and the defense(s) [was/were] insufficient.
R: The court properly DENIED the MTS if the motion was not PP or the defense(s) [was/were]
sufficient.
Issue: The issue is whether the MTS was procedurally proper.
Rule: A MTS is procedurally proper if it is made by a party before responding to a pleading that
requires a response OR within 21 days after service of a pleading that does not require a
response.
Issue: The issue is whether a responsive pleading is required.
Rule: A responsive pleading is required when the opposing party asserts a claim against
them in a pleading.
C: Therefore, the MTS was procedurally proper.
Issue: The issue is whether the [____] defense is insufficient.
Rule: A defense is insufficient if it has been previously waived OR is substantively inadequate.
Issue: The issue is whether the [____] defense has been waived.
Look to see if…
lack of SMJ,
Rule 12(b)(2-5),
12(b)(6-7), or
Rule 8(c) affirmative defense
Issue: The issue is whether the lack of SMJ defense has been waived.
Rule: A defense of lack of SMJ is never waived. It can be raised at any time
before judgment.
Issue: The issue is whether the Rule 12(b)(2-5) defense of [______] has been
waived.
Rule: A Rule 12(b)(2-5) defense, such as ______ is waived if not asserted in a
pre-answer motion, OR if no pre-answer motion was made, if it was not asserted
in an original answer OR an amended answer as a matter of course.
Rule 12(b)(2-5),

2. Lack of PJ

3. Improper Venue

4. Insufficient process (n/a)

5. Insufficient service of process
28
Issue: The issue is whether the answer was amended as a matter of
course.
Rule: One can amend as a matter of course at any time within 21 days
after filing a pleading OR, if the pleading is one to which a response is
required, within 21 days of the opposing party’s responsive pleading OR
Rule 12 motion, whichever is earlier.
[Responsive Pleading Required]
I: The issue is whether [_____]’s answer was a pleading that required a
response.
R: A pleading requires a response if it contains a claim.
C: Therefore, [_____]’s answer was NOT a pleading that required a
response.
C: Therefore, [_____]’s answer was a pleading that required a response.
C: Thus, because [_____]’s amendment was NOT filed within 21 days of
service of [_____], the amendment was NOT made as a matter of course.
C: Thus, because [_____]’s amendment was filed within 21 days of service
of [_____], the amendment was made as a matter of course.
C: Therefore, because the [_____] defense was NOT included in [_(original
answer OR pre-answer motion OR answer amended as a matter of course)_], it
was waived.
C: Therefore, because the [_____] defense was included in [_(original answer OR
pre-answer motion OR answer amended as a matter of course)_], it was not
waived.
Issue: The issue is whether the Rule 12(b)(6-7) defense of [_____] has been
waived.
-
12(b)(6): failure to state a claim upon which relief can be granted
12(b)(7): failure to join a party under Rule 19
Rule: A Rule 12(b)(6-7) defense, such as _____ is waived if it is not raised in a
pre-answer motion OR responsive pleading OR 12(c) motion OR at trial.
C: Therefore, the [_____] defense was waived.
C: Therefore, the [_____] defense was not waived.
Issue: The issue is whether the 8(c) affirmative defense of [_____] has been
waived.
Rule: An 8(c) affirmative defense, such as _____ is waived if it is never raised in
an original pleading OR in one properly amended before trial.
C: Therefore, the [_____] defense was waived.
C: Therefore, the [_____] defense was not waived.
29
If waived: Therefore, since the defense of [_______] has been waived, it is insufficient.
The court should grant the MTS the [______] defense.
If not waived: Continue on in this template.
Issue: The issue is whether the [_______] defense is substantively inadequate.
Rule: A defense is substantively inadequate if ________
MTS lack of SMJ defense – “inadequate if there is federal SMJ over ____ claim”
MTS lack of PJ defense – “inadequate if there is PJ over the defendant in the
forum state.”
MTS improper venue defense – “inadequate if venue is proper in [original
forum]”
MTS insufficient process defense – “inadequate if defendant properly receive the
complaint and summons”
MTS insufficient service of process defense – “inadequate if service is proper”
MTS failure to state a claim defense – “inadequate if it is substantively untrue”
MTS failure to join a party under Rule 19 defense – “inadequate if if the nonparty is not a Rule 19 party or if they are not indispensable, such that the court
may permit the case to proceed without them
MTS affirmative defense – “inadequate if it is precluded”
C: Therefore, the defense(s) of [_____] [is/are] substantively inadequate.
C: Therefore, the defense(s) of [_____] [is/are] substantively adequate.
C: Thus, the defense(s) of [_____] [was/were] insufficient because [_waived AND/OR
substantively inadequate_].
C: Thus, the defense(s) of [_____] [was/were] sufficient.
Therefore, the court properly GRANTED [_____]’s MTS the defense(s) of [_____] because the
motion was PP and the defense(s) [was/were] insufficient.
C: Therefore, the court improperly GRANTED [_____]’s MTS the defense(s) of [_____] because
[_the motion was not PP AND/OR the defense(s) [was/were] sufficient_].
______________________________________________________________________________
C: Therefore, the court properly DENIED [_____]’s MTS the defense(s) of [_____] because [_the
motion was not PP AND/OR the defense(s) [was/were] sufficient_].
C: Therefore, the court improperly DENIED [_____]’s MTS the defense(s) of [_____] because the
motion was PP and the defense(s) [was/were] insufficient.
30
MTD FOR LACK OF A CLAIM
Issue: The issue is whether the court properly GRANTED/DENIED the MTD [party’s]
[type of claim].
Rule: A MTD a claim is properly denied if the motion was not procedurally proper, OR the claim
has SMJ, the SOL is not expired, it is plausible, it is not precluded, AND if there is a rule
basis. (analyze in whatever order gets you most points)
OR
Rule: A MTD a claim is properly granted if the motion was PP AND the claim lacks SMJ, the
SOL has expired, it is not plausible, it is precluded, OR there is no rule basis.
Issue: The issue is whether the motion to dismiss was PP.
Rule: The motion to dismiss if it filed in the first pre-answer motion 21 days after receiving a
summons and complaint and before a responsive pleading is filed.
Issue: The issue is whether the claim has federal SMJ.
Rule: A claim has federal SMJ under 1331, 1332, OR 1367.
[SEE SMJ TEMPLATE, pg. 2]
Issue: The issue is whether the claim is within the SOL.
Analysis: The SOL sets the time within which a case may be brought, if not filed in time,
then the claim is barred. So, the SOL expires when you can no longer bring a claim under
the statute.
[If THERE IS AN SOL ISSUE]
Issue: The issue is whether the claim can relate back under rule 15(c).
Rule: The new claim may relate back to the date the party filed their original
pleading if the new claim is based on the same T/O as the claims stated in the
original pleading.
C: Thus, the claims do not arise from the same T/O such that the [_____] claim
cannot relate back to the original pleading.
C: Thus, the claims do arise from the same T/O (or series of T/O) such that
the [_____] claim can relate back to the original pleading.
C: Therefore, the SOL has expired.
C: Therefore, the SOL has not expired.
Issue: The issue is whether a claim is plausible.
Rule: A claim is plausible if the complaint alleges adequate facts for each element of the claim
in the COA. (not plausible if it is legally or factually insufficient)
[Failure to State a Claim]
[Legal insufficiency]
R: A claim is legally insufficient if there is no such claim recognized by law.
OR
R: A claim is legally insufficient if an element is missing from the claim.
31
[Factual Insufficiency]
R: A claim is factually insufficient if the facts that the claim alleges show there
is no possible recovery under that law. (e.g., When the facts are applied to the
law, the claim asserted must/will fail.)
C: Therefore, the [_____] claim is not plausible because [_____].
C: Therefore, the [_____] claim is plausible.
Issue: The issue is whether the claim is precluded.
[SEE PRECLUSION TEMPLATE]
Issue: The issue is whether the claim has a rule basis.
[SEE BELOW]
RULE 8: Pleadings
Issue: The issue is whether the claim has a rule basis under rule 8.
Rule: A claim has a rule basis under rule 8 if a proper claim for relief is made. A proper claim
for relief is a pleading that states a short and plain statement of the grounds for the court’s
jurisdiction, a short and plain statement of the claim showing that the pleader is entitled to relief,
AND a demand for relief.
C: There [was/was not] a proper rule basis under rule 8.
RULE 13: Counterclaim
Issue: The issue is whether the claim has a rule basis under rule 13(a) OR (b).
Rule: A claim has a rule basis under rule 13(a) OR 13(b) if it is a claim against an opposing
party. It is proper to dismiss a claim under rule 13(a) OR (b) if it is not procedurally proper or if
the claim asserted is not proper.
Issue: The issue is whether the claim was a 13(b) permissive counterclaim.
Rule: A counterclaim is permissive if it is not compulsory, which means that the claim
arises from an event unrelated to the T/O on which the plaintiff’s suit is based.
C: The claim is/is not a permissive counterclaim.
C: Therefore, there [was/was not] a proper rule basis under rule 13(a) or (b).
RULE 13: Crossclaims
Issue: The issue is whether the claim has a rule basis under rule 13(g).
Rule: A claim has a rule basis under rule 13(g) if it is a crossclaim. A claim may properly be
dismissed if the claim was not procedurally proper OR if the claim did not arise out of the same
T/O that is the subject matter of the original action OR of a counterclaim.
C: Therefore, there [was/was not] a proper rule basis under rule 13(g).
Rule 14: 3rd Party Claim
Issue: The issue is whether there was a proper rule basis to join the 3rd party claim under Rule
14.
Rule: A TPD may be impleaded under Rule 14 if the impleader was PP AND the TPD is OR
may be liable for the claim against the TPP.
C: Therefore, there [was/was not] a proper rule basis to join the 3rd party claim under Rule 14.
32
RULE 18: Joinder of Claims
Issue: The issue is whether the claim has a rule basis under rule 18.
Rule: A rule 18 claim allows any party to join multiple related AND unrelated claims, as long as
a party has made an original claim.
C: Therefore, there [was/was not] a proper rule basis under Rule 18.
C: Therefore, the [_____] claim does not have a proper rule basis.
C: Therefore, the [_____] claim does have a proper rule basis for joinder under [_X Rule_].
C: Thus, the court properly GRANTED [_____]’s MTD [_____] claim because it was PP and [_the
SOL had expired AND/OR the claim did not have a rule basis AND/OR the claim is not
plausible AND/OR the claim is precluded_]
C: Thus, the court improperly GRANTED [_____]’s MTD [_____] claim because [_the motion
was not PP AND/OR the SOL had not expired, the claim had a rule basis, it was plausible,
and it was not precluded_]
C: Thus, the court properly DENIED [_____]’s MTD [_____] claim because [_the motion was not
PP AND/OR the SOL had not expired, the claim had a rule basis, it was plausible, and it was
not precluded_].
C: Thus, the court improperly DENIED [_____]’s MTD [_____] claim because it was PP and
[_the SOL had expired AND/OR the claim did not have a rule basis AND/OR the claim is not
plausible AND/OR the claim is precluded_].
33
MTD FOR FAILURE TO JOIN A REQUIRED PARTY-Rule 19
Issue: The issue is whether the court properly granted/denied the MTD for failure to join
____ as a Rule 19 required party.
Rule: The court properly grants a MTD for failure to join a required party if the MTD is PP
AND _____ was an indispensable party (necessary party for which joinder is not feasible)
-ORRule: The court properly denies a MTD for failure to join a required party if the MTD is NOT
PP OR _____ was not an indispensable party.
Issue: The issue is whether the MTD for failure to join a required party was PP.
Rule: A MTD for failure to join a required party is PP if it filed in the first pre-answer motion 21
days after receiving a summons and complaint and before a responsive pleading is filed.
Issue: The issue is whether ____ is an indispensable party.
Rule: ______ is an indispensable party if he is a rule 19(a) required party AND EITHER his
joinder is feasible OR, if his joinder is not feasible, in equity and good conscience the action
cannot proceed without the absentee.
Issue: The issue is whether the non-party is a rule 19(a) required party.
Rule: A person is a required party if in the absence of that party, the court cannot accord
complete relief amongst existing parties, if the non-party has interests in the suit AND
failure to join them as a party would impair OR impede the interest, OR if the party is
not joined it would result in multiple or inconsistent obligations of an existing party.
Issue: The issue is whether the court can grant complete relief in the absence
of the non-party.
Rule: A court can grant complete relief among existing parties if without adding
the non-party, complete relief could still be achieved. Joint tortfeasors are never
required.
Issue: The issue is whether failure to join the non-party would practically or
legally impair or impede their ability to protect their interest.
Rule: A non-party’s interests are impeded if they have an interest in the case
AND no party accurately represents their interests.
Issue: The issue is whether an existing party would be subject to multiple or
inconsistent obligations in the absence of the non-party.
Rule: An existing party would be subject to multiple OR inconsistent obligations
if future judgment can enforce potentially varying results.
C: Therefore, [_____] is NOT a Rule 19(a) required party.
C: Therefore, [_____] is a Rule 19(a) required party [If required party, keep going]
34
Issue: The issue is whether the joinder of the necessary party was feasible.
Rule: Joinder of the necessary party is feasible when there is SMJ over the claim AND
complete diversity is not destroyed, there is PJ over the party, AND venue is proper.
[INSERT SMJ, PJ, VENUE ANALYSIS if needed]
If 1332 SMJ, check to see if joinder would destroy complete diversity.
C: Thus, joinder of the necessary party, [_____], is feasible.
C: Thus, joinder of the necessary party, [_____], is NOT feasible.
IF FEASIBLE, STOP HERE
Issue: Since the party is a necessary party but joinder is not feasible, the issue is
whether in equity and good conscience the court cannot proceed without_______.
Rule: The court considers the following factors when determining if they can proceed
without the absentee:
1) the extent to which a judgment rendered in the person’s absence might prejudice that
person or the existing parties,
2) the extent to which any prejudice against the absent could be lessened or avoided by
protective provisions in the judgment,
3) whether a judgment rendered in the person’s absence would be adequate,
4) whether the P would have an adequate remedy if the action is dismissed for nonjoinder.
[FOR EACH FACTOR]:
C: Thus, this factor weighs in favor of dismissal of the suit.
C: Thus, this factor does not weigh in favor of dismissal of the suit.
C: Therefore, [_____] is not an indispensable party, such that the court may permit the case to
proceed without them.
C: Therefore, [_____] is an indispensable party, such that the case should not proceed.
C: Thus, the court properly DENIED the MTD for failure to join [_____] as a Rule 19 necessary
party because the MTD was not PP AND/OR they were an indispensable party under Rule 19.
C: Thus, the court improperly DENIED the MTD for failure to join [_____] as a Rule 19 necessary
party because the MTD was PP and they were an indispensable party under Rule 19.
C: Thus, the court properly GRANTED the MTD for failure to join [_____] as a Rule 19 necessary
party because the MTD was PP and they were an indispensable party under Rule 19.
C: Thus, the court improperly GRANTED the MTD for failure to join [_____] as a Rule 19
necessary party because the MTD was not PP AND/OR they were not an indispensable party
under Rule 19.
35
CLAIM PRECLUSION
Issue: The issue is whether the claim is precluded.
Rule: A claim may be precluded under either claim preclusion OR as a previously un-asserted
13(a) compulsory counterclaim [do in whatever order is best for time/points].
Issue: The issue is whether the claim is precluded under claim preclusion.
Rule: A claim is precluded if the claim is 1) the “same” claim asserted in a prior suit 2) with the
“same” parties (and same claimant) OR an individual in privity in the same configuration AND
there was 3) a “valid” final judgment on the merits in the prior suit.
Issue: The issue is whether the claim in the case at bar is the same claim asserted in a
previous case.
Rule: The claim is the same if it arises from the same facts and the same T/O or series of T/O,
without regard to legal theory or relief.
[Same T/O]
The issue is whether the [_____] claim arises from the same T/O or series of T/O as the
[_____] claim in the first suit.
R: A claim arises out of the same T/O if the essential facts underlying the claims are
logically connected such that it is efficient to hear them together; for example, but for
one thing occurring, the other would not have happened.
C: Thus, the claims do not arise from the same T/O.
C: Thus, the claims do arise from the same T/O (or series of T/O).
[If a contract claim, use one of the following]
Issue: The issue is whether the contract claim is precluded.
Rule: A contract claim is precluded if it is from the same contract AND the breach could
have been previously litigated.
Issue: [Installment contract claim] the issue is whether the breach of contract claim could
have been previously litigated.
Rule: If it is an installment contract, one must file all of the claim that they have to date
when they file suit AND may file suit again if there are new breaches of contract after the
case was determined.
C: Therefore, the same claim is NOT asserted in both lawsuits.
C: Therefore, the same claim is asserted in both lawsuits.
Issue: The issue is if the claim involves the same parties (or in privity) in the same
configuration.
Rule: A claim involves the same parties, OR in privity in the same configuration, if the same
plaintiff AND defendants are litigating a claim. A party is in privity if they represented a party
for the previous claim OR if it arises from the same property.
36
C: Therefore, the [_____] claim is NOT [_between the same parties AND/OR by the same
claimant in both suits_].
C: Therefore, the [_____] claim is between the same parties and by the same claimant in both
suits.
Issue: The issue whether there was a valid final judgment on the merits in the previous
claim.
Rule: A judgment is valid when there is proper SMJ AND PJ AND the judgment is on the
merits, and the decision was not based on procedural reasons.
Issue: The issue is whether there was SMJ over the previous claim.
[SEE SMJ TEMPLATE]
R: [If First Suit Was in Federal Court] There is federal SMJ over a claim if it has
1331, 1332 or 1367 SMJ.
OR
R: [If First Suit Was in State Court] Because this is a state claim and each state
always has a court of general jurisdiction, this claim has SMJ
C: Thus, there was no SMJ in the first suit such that the judgment was not valid.
C: Thus, there was SMJ in the first suit.
Issue: The issue is whether there was PJ over the defendant in the prior case.
[SEE PJ TEMPLATE]
[If NO Default Judgment in 1st Case]
R: Because [_D_] litigated (e.g., actively contested) in the first suit and (1) never
raised the issue of lack of PJ OR (2) raised the issue of lack of PJ and lost, then
[_D_] impliedly consented to PJ in the first case.
_____________________________________________________
[IF Default Judgment in 1st Case]
R: There is PJ if traditional or specific PJ.
C: Thus, there was no PJ over [_D_] in the first suit, so the final judgment was not
valid.
C: Thus, there was PJ over [_D_] in the first suit.
Issue: The issue is whether the judgment was final.
Rule: A trial courts judgment is final unless it has been overturned.
Issue: The issue is whether the judgment was on the merits.
Rule: A judgment is made on the merits when it is based on the claim, not a
procedural reason (ex: lack of SMJ, PJ, venue, improper joinder of parties)
C: Thus, the judgment was NOT on the merits.
C: Thus, the judgment was on the merits.
37
C: Therefore, there was NOT a valid final judgment on the merits in the first suit.
C: Therefore, there was a valid final judgment on the merits in the first suit.
C: Thus, [_____]’s [_____] claim is precluded by claim preclusion because it was the same claim
with the same parties (and claimant) and there was a valid final judgment on the merits in
the first suit.
C: Thus, [_____]’s [_____] claim is NOT precluded by claim preclusion because it was [_not the
same claim AND/OR not with the same parties (and claimant) AND/OR there was not a valid
final judgment on the merits in the first suit_].
Issue: The issue is whether the claim is precluded because it is a compulsory counterclaim.
Rule: A claim is precluded based on being a previously unasserted compulsory counterclaim if it
was not asserted in a prior suit where the claim arose out of the same T/O that was the subject
matter of the opposing party’s claim AND did not require adding another party over whom the
court could not acquire PJ.
Issue: The issue is whether the claim arose out of the same T/O that was the subject
matter of the opposing party’s claim in a prior suit.
Rule: The claim arose out of the same T/O if there is a common question of law or fact.
Issue: The issue is whether bringing the counterclaim would have required adding a
party of whom the court could not acquire PJ.
Rule: The court could not acquire PJ over the additional party if it could not acquire
traditional or specific PJ.
[See PJ Analysis if adding a new party]
Analysis: Here asserting this counterclaim [would/would not] have required the
addition of another party.
C: Therefore, the counterclaim [would/would not] have required adding an
additional party over whom the court could acquire PJ.
C: Therefore, because the claims did not arise from the same T/O or series of T/O, [_____]’s
[_____] claim was NOT a Rule 13(a) compulsory counter claim in the prior suit. Because it was
not a 13(a) claim, [_____]’s [_____] claim is not precluded.
C: Therefore, because the claims did arise from the same T/O or series of T/O, [_____]’s [_____]
claim WAS a Rule 13(a) compulsory counter claim in the prior suit. Because it was a 13(a) claim
in the first suit, [_____]’s [_____] claim is precluded.
38
ISSUE PRECLUSION
Issue: The issue is whether or not the issue of [_______] is precluded.
Rule: An issue is precluded because of issue preclusion if 1) it is the same issue from a previous
case, 2) it was actually litigated and decided in the previous case, 3) it was essential to the prior
judgment, 4) there was a valid final judgment on the merits, 5) it was against a party who was
actually in the case. (only if used non-mutually and offensively) AND 6) the court will consider
the Parklane factors to determine whether to preclude the issue (N/A if defense)
Issue: The issue is whether the issue is the same issue litigated in the first case.
Rule: An issue is the same when it is the same element of the claim or the same defense.
Analysis: The issue is [not] the same issue litigated in the first case because….
C: Thus, the issue is NOT the same in the first and second case.
C: Thus, the issue is the same in both lawsuits
Issue: The issue is whether the issue was actually litigated and decided.
Rule: An issue is actually litigated if the parties actively contested it in the prior suit (i.e. not
solely in the pleadings) and decided if the judge or jury made a decision on that issue.
(Default judgment and procedural reasons do not count, summary judgment does)
C: Thus, the issue of [_____] was NOT actually litigated [AND/OR] decided in another case.
C: Thus, the issue of [_____] was actually litigated and decided in another case.
Issue: The issue is whether the issue of [____] was essential to the judgment.
Rule: An issue is essential if the party could not have won without this issue being determined;
so, if the issue was decided the other way, the outcome would be different.
[Two successful defenses aren’t essential b/c no way to know which one the court decided
based on]
C: Thus, the issue of [_____] was NOT essential to the prior case.
C: Thus, the issue of [_____] was essential to the prior case.
Issue: The issue is whether there was a valid, final judgment on the merits.
Rule: There is a valid, final judgment on the merits when a trial court with proper SMJ and PJ
issues final judgment, that has not been overturned and was not decided by default judgment. On
the merits means decided for a reason that is not procedural in nature.
Issue: The issue is whether the previous claim had SMJ.
Rule: SEE SMJ TEMPLATE
R: [If First Suit Was in Federal Court] There is federal SMJ over a claim if it has 1331,
1332 or 1367 SMJ.
OR
R: [If First Suit Was in State Court] Because this is a state claim and each state always
has a court of general jurisdiction, this claim has SMJ
C: Thus, there was no SMJ in the first suit such that the judgment was not valid.
C: Thus, there was SMJ in the first suit.
39
Issue: The issue is whether the previous parties had PJ.
Rule: SEE PJ TEMPLATE
[If NO Default Judgment in 1st Case]
R: Because [_D_] litigated (e.g., actively contested) in the first suit and (1) never raised
the issue of lack of PJ OR (2) raised the issue of lack of PJ and lost, then [_D_] impliedly
consented to PJ in the first case.
____________________________________________________________
[IF Default Judgment in 1st Case]
R: There is PJ if traditional or specific PJ.
C: Thus, there was no PJ over [_D_] in the first suit, so the final judgment was not valid.
C: Thus, there was PJ over [_D_] in the first suit.
Issue: The issue is whether the action is asserted against a party to the first suit.
Analysis: See fact pattern.
R: Issue preclusion may be asserted by a new party but only AGAISNT someone who
litigated and likely lost the issue in the 1st case.
A:
[Mutual] (e.g., same parties as 1st suit)
A: [_____] [was/was not] a party to the prior suit as the [__P/D___], so [_____]
can assert preclusion against [him/her].
__________________________________________________________________
[Non-Mutual] (e.g., by a new party, but against a previous party)
R: When IP is used by a new party and when its used by a new D it is ALWAYS
allowed, but if used by a new P then it might be allowed
[Defensive Non-Mutual IP]
I: The issue is whether [_____] can assert preclusion against [_____].
R: Issue preclusion is always allowed if a new defendant asserts it against
a prior plaintiff (from 1st suit).
A: [_____] [was/was not] a party to the prior suit as the [__P/D___], so
[_____] can assert preclusion against [him/her].
[Offensive Non-Mutual IP]
I: The issue is whether [_(new P)_] can assert preclusion against
[__D___].
R: The court, by its discretion, may allow a new plaintiff assert offensive
non-mutual issue preclusion against a defendant who has litigated and
lost if it doesn’t lead to unfairness, as outlined by the Parklane factors
balancing-test (prior inconsistent judgments, inadequate incentive to
litigate vigorously previously, plaintiff elects to wait and see after the first
suit, or dramatically different procedures).
40
[PARKLANE FACTORS: Only evaluate in case of non-mutual offensive issue preclusion
in federal court. (i.e. where the second case is against the same defendant but brought by a
different plaintiff)]
Issue: The issue is whether the Parklane Factors weigh in favour of precluding the issue.
Rule: The plaintiff would be prevented from using non-mutual offensive issue preclusion if the
plaintiff could have 1) past judgments on the issue were inconsistent, 2) there was not proper
incentive for the party to litigate vigorously, 3) P elected to wait and see for judgement, or 4)
there was adequately different procedure in the first case such that the current suit is likely to
lead to a different result.
[Prior Inconsistent Judgments]
I: The issue is whether there were prior inconsistent judgments on the issue of [_____].
R: If a defendant has litigated as issue multiple times and the defendant always
won/loss, the judgments are consistent. If the defendant has litigated an issue multiple
times and both won and lost the issue previously, there are prior inconsistent
judgments.
A: Here, [_D_] [has/has not] had inconsistent judgments on the issue because [_____].
C: Thus, because there have not been previous inconsistent judgments prior to this, this factor
weighs in favor of preclusion.
C: Thus, because there have been previous inconsistent judgments prior to this, this factor does
not weigh in favor of preclusion.
[Inadequate Previous Incentive to Litigate]
I: The issue is whether [_D_] had adequate incentive in the first suit to litigate
vigorously.
R: If the potential loss in the first suit was low (e.g., low $$$ or small punishment), the
defendant may not have had an adequate incentive to litigate the suit vigorously.
A: Here, [_D_] [did/did not] likely have an adequate incentive to litigate vigorously in the
first suit because [_____].
C: Thus, because [_D_] had adequate previous incentive to litigate, this factor weighs in favor of
preclusion.
C: Thus, because [_D_] had inadequate previous incentive to litigate, this factor does not weigh
in favor of preclusion.
[P Elected to “wait and see”]
I: The issue is whether [__P__] elected to wait and see after the first suit.
R: If the plaintiff elected to “wait and see” (e.g., wait to see how the first suit turned out
in order to better gauge their own lawsuit), then the issue should NOT be precluded. If
they could have easily joined in the first case, this is looked upon unfavorably.
A: Here, [__P__] [did/did not] elect to wait and see because [_____].
*Compare to Parklane where shareholders could not join a suit with the government.
C: Thus, this factor weighs in favor of preclusion.
C: Thus, this factor does not weigh in favor of preclusion.
41
____________________________________________________________
[Dramatically Different Procedures]
I: The issue is whether there were dramatically different procedures in the first suit than
exist in the second suit.
R: If the first suit had a dramatically different court procedure than the second suit, then
the defendant should be allowed to re-litigate the issue.
(e.g., much more discovery occurred, etc.)
≠ judge vs. jury trial
A: In this case, there [was/was not] dramatically different procedures because
[_____].
C: Thus, this factor weighs in favor of preclusion.
C: Thus, this factor does not weigh in favor of preclusion.
______________________________________________________
C: Therefore, the court will not likely allow [_(new P)_] to assert preclusion against [__D___]
due to the Parklane factors.
C: Therefore, the court will likely allow [_(new P)_] to assert preclusion against [__D___] due to
the Parklane factors.
________________________________________________________________________
C: Therefore, the issue preclusion is not asserted against a prior party and is NOT permitted.
C: Therefore, the issue preclusion is asserted against a prior party and is permitted.
C: Thus, the issue of [_____] IS precluded because it was the same issue, asserted against a
party to the prior suit, it was actually litigated and decided, and essential to a valid final
judgment on the merits.
C: Thus, the issue of [_____] is NOT precluded because it [_was not asserted against a party to
the prior suit AND/OR it was not litigated AND/OR decided AND/OR essential to the prior
judgment AND/OR there was not a valid final judgment on the merits_].
42
MOTION TO AMEND TO ADD A CLAIM
Issue: The issue is whether the court properly granted the movant’s MTA to add a new
claim.
Rule: The court properly grants a MTA if it is procedurally proper AND the Foman factors
suggest that leave to amend should be granted [in the interest of justice].
Issue: The issue is whether the court properly denied the movant’s MTA to add a new claim.
Rule: The court properly denies a MTA if it is not procedurally proper OR the Foman factors
suggest that leave to amend should not be granted [in the interest of justice].
Issue: The issue is whether the MTA was PP.
Rule: A MTA is PP if it is timely filed any time before trial.
Issue: The issue is whether the MTA would be in the interest of justice according to the
Foman factors.
Rule: The Foman factors include: futility, undue prejudice on either the movant or nonmovant,
bad faith, undue delay, and repeated failures to fix deficiencies.
Issue: The issue is the futility of the claim.
Rule: A claim is futile if there is 1) no basis for fed SMJ, 2) if the SOL has expired, if 3)
there was no rule basis, if 4) it did not satisfy the 8(a) plausibility requirements, OR 5) if
it was barred from prior litigation either due to claim preclusion OR 6) because it was an
unasserted 13(a) compulsory counterclaim.
Issue: The issue is whether there was a basis for fed SMJ over the claim.
[See SMJ Template]
Issue: The issue is whether the SOL for the claim had expired at the time it
was filed.
Rule: The SOL for this claim is ___ years
[Analyze fact pattern directly]
Issue: The issue is whether amendment relates back
Rule: The new claim may relate back to the date the party filed their
original pleading if the new claim is based on the same T/O as the claims
stated in the original pleading.
Issue: The issue is whether there was a rule basis for the claim.
[See Rule Basis Template]
Issue: The issue is whether the claim is precluded.
Rule: A claim may be barred after a previous case between the two parties has
been litigated either due to claim preclusion OR because it was a previously
unasserted 13(a) compulsory counterclaim.
[Look at Claim Preclusion Template]
43
Issue: The issue is whether the claim was plausible.
Rule: A claim is plausible if there are facts alleged to support each element of the
COA, if it is one in which relief can be legally granted, and there are no legal
alternatives that are more plausible.
C: Therefore, because the [_____] claim lacks [_____], it is futile.
C: Therefore, because the [_____] claim has a [_____] rule basis for being joined, it has
[_____] SMJ, the claim is not barred by claim preclusion [_____], the claim is outside the
SOL [_____], and the claim is plausible [_____] the claim is not futile.
Issue: The issue is whether the amendment, if denied, would cause undue prejudice
to the movant in the future.
Rule: Undue prejudice to the movant results if the movant would lose the ability to assert
the claim in subsequent litigation if not allowed to amend to bring it in the present action.
C: Therefore, denying [_____]’s MTA would not bring undue prejudice to the movant
([_____]).
C: Therefore, denying [_____]’s MTA would bring undue prejudice to the movant
([_____]).
Issue: The issue is whether the amendment, if granted, would cause undue prejudice
to the non-movant.
Rule: Undue prejudice on the non-movant occurs if he would not have ample time to
prepare for trial.
C: Therefore, there is undue prejudice to the non-movant ([_____]).
C: Therefore, there is no undue prejudice to the non-movant ([_____]).
Issue: The issue is whether [movant’s] amendment would cause undue delay.
Rule: An amendment to a pleading would cause undue delay if the party could have
reasonably brought the claim before and is bringing the motion to amend so close to trial
that it would delay proceedings or the other party could not reasonably prepare.
C: So, there was undue delay by the movant ([_____]).
C: So, there was no undue delay by the movant ([_____]).
Issue: The issue is whether the amendment is being done in bad faith.
Rule: When amending a pleading, a party acts in bad faith if its attempt to amend is done
with malicious intent in order to catch the opposing party off guard OR disallow proper
preparation time before trial.
C: Therefore, [_____] showed [_(dilatory motive/bad faith)_].
C: Therefore, there was no bad faith or dilatory motive by either party.
Issue: The issue is whether movant has had multiple failed attempts at properly
amending his pleading.
Rule: A party repeatedly fails to fix deficiencies when it has not fixed its mistakes in
previous pleadings after being given ample notice and opportunity by the court.
44
C: Therefore, since [__(futile/undue prejudice against non-movant and none against
movant/bad faith/etc.)___], [_____]’s MTA was not in the interest of justice.
C: Therefore, since the claim was not futile, there was not undue prejudice to the non-movant,
and denying the amendment would be unduly prejudicial against the movant with no other
factors weighing against the motion, [_____]’s MTA was in the interest of justice.
C: Thus, the court properly DENIED [_____]’s MTA [his/her] answer to add a [_____] claim
because [it was not PP AND/OR the Foman factors did not suggest that leave to amend should
be granted in the interest of justice].
C: Thus, the court improperly DENIED [_____]’s MTA [his/her] answer to add a [_____] claim
because it was PP and the Foman factors did suggest that leave to amend should be granted in
the interest of justice.
______________________________________________________________________________
C: Thus, the court properly GRANTED [_____]’s MTA [his/her] answer to add a [_____] claim
because it was PP and the Foman factors did suggest that leave to amend should be granted in
the interest of justice.
C: Thus, the court improperly GRANTED [_____]’s MTA [his/her] answer to add a [_____] claim
because [it was not PP AND/OR the Foman factors did not suggest that leave to amend should
be granted in the interest of justice].
45
MOTION TO AMEND TO ADD A DEFENSE
Issue: The issue is whether the court properly granted/denied the motion to amend to add
the [_______] defense.
Rule: The court properly granted the motion to amend to add the [_______] defense if the
motion was PP and the Foman factors suggest that leave to amend should be granted [in the
interest of justice].
-ORRule: The court properly denied the motion to amend to add the [________] defense if the
motion was not PP, or the Foman factors suggest that leave to amend should not be granted [in
the interest of justice].
Procedurally Proper
Issue: The issue is whether the motion to amend was procedurally proper.
Rule: A motion to amend is PP if it is filed before trial.
C: Therefore, the motion to amend [was/was not] PP.
Interest of Justice
Issue: The issue is whether the amendment to add the [_______] defense was in the interest
of justice under the Foman factors.
Rule: Under Foman, the Court considers the following factors to determine if the amendment is
in the interest of justice: 1) undue delay, 2) bad faith by the movant, 3) repeated failures to cure
deficiencies in past amendments, 4) undue prejudice to either party, 5) futility of the amendment.
[Futility is the most important/ only dispositive factor. Organize factors according to relevance &
time]
Issue: The issue is whether the [________] defense was futile.
Rule: A defense is futile if it is waived OR substantively inadequate.
Issue: The issue is whether the [_______] defense was waived.
Rule: A Rule 12(b)(2)-(5) defense, such as [______], is waived if there is a preanswer motion and the defense is not asserted within it, or if no pre-answer
motion was filed, if the defense is not in the original answer or the amended
answer as a matter of course.
[Amended as a Matter of Course]
I: The issue is whether [_____]’s answer was properly amended as a
matter of course.
R: A pleading is amended as a matter of course if the amendment is filed
within 21 days after the pleading was served, or if the pleading is one to
which a responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after a service of a motion, whichever is
earlier.
[Responsive Pleading Required]
I: The issue is whether [_____]’s answer was a pleading that
required a response.
R: A pleading requires a response if it contains a claim.
46
A: [_____]’s answer [did/did not] contain a claim.
C: Therefore, [_____]’s answer was NOT a pleading that required
a response.
C: Therefore, [_____]’s answer was a pleading that required a
response.
C: Thus, because [_____]’s amendment was NOT filed within 21 days of
service of [_____], the amendment was NOT made as a matter of course.
C: Thus, because [_____]’s amendment was filed within 21 days of service
of [_____], the amendment was made as a matter of course.
________________________________________________
C: Therefore, because the [_____] defense was NOT included in [_(original
answer OR answer amended as a matter of course)_], it was waived.
C: Therefore, because the [_____] defense was included in [_(original answer OR
answer amended as a matter of course)_], it was not waived.
Rule: A Rule 12(b)(6), or (7) defense, such as ________________, is waived if it
is not raised in a pre-answer motion, or raised in a pleading, by a motion for
judgment on the pleadings under 12(c), or at trial.
C: Therefore, the [_____] defense was waived.
C: Therefore, the [_____] defense was not waived.
Rule: An affirmative defense is waived if it is not brought up in an original or
properly amended pleading before trial
[If a pre-answer motion was made and defense was not included → waived
If not, move on to analysis of whether amended as a matter of course.]
C: Therefore, the [_____] defense was waived.
C: Therefore, the [_____] defense was not waived.
If waived → end futility analysis.
If not waived → analyze whether defense was substantively inadequate.
Issue: The issue is whether the [_________] defense was substantively
inadequate.
Rule: The [_________] defense was substantively inadequate if it is not true or
if movant is precluded from asserting this defense.
Issue: The issue is whether the defense of ____ is false.
Rule: [Analyze the defense]
C: Therefore, the defense of [_____] is false.
C: Therefore, the defense of [_____] is true.
Issue: The issue is whether the movant is precluded from litigating
this defense.
Rule: Movant is precluded from litigating this defense if…
[See Preclusion Template]
47
C: Thus, the defense of [_____] is precluded by issue preclusion.
C: Thus, the defense of [_____] is NOT precluded by issue preclusion.
C: Therefore, the defense is substantively inadequate because [_(false AND/OR
precluded)_].
C: Therefore, the defense is not substantively inadequate.
C: Therefore, the defense of [_____] is futile because [_____].
C: Therefore, the defense of [_____] is NOT futile.
If futile → the MTA should be denied. Stop here OR add add’tl factors based on time,etc.
Undue Delay
Issue: The issue is whether the amendment to add the [________] defense would
cause undue delay.
Rule: There is undue delay if the party could have brought the amendment earlier AND
are now asserting the defense so close to trial that it would delay the proceedings.
A: Unless made obvious in facts, not likely to cause undue delay
C: So, there was undue delay by the movant ([_____]).
C: So, there was no undue delay by the movant ([_____]).
Undue Prejudice
Issue: The issue is whether the amendment to add the [_______] defense would
cause undue prejudice to the non-movant or movant.
Issue: The issue is whether there would be undue prejudice to the nonmovant if the defense is asserted.
Rule: The non-movant would be unduly prejudiced if allowing the defense would
not give the party enough time to properly prepare for trial
A: Analyze if there is reasonable time for opposing party to prepare for trial with
new defense.
Issue: The issue is whether there would be undue prejudice to the movant if
the defense is denied.
Rule: A movant would be unduly prejudiced if they were unable to assert a
defense or affirmative defense in subsequent litigation that could absolve them of
liability to the opposing party.
[Affirmative defenses: waiver, SOL, preclusion, negligence]
A: Analyze whether defense would absolve liability. Consider if the defense is
futile and thus would not absolve
Bad Faith
Issue: The issue is whether the amendment is made in bad faith by the movant.
Rule: A party has bad faith when they have not exercised diligence in preparing their
pleading OR if the party has malicious intent.
A- Facts should make bad faith very obvious.
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Repeated Deficiencies
Issue: The issue is whether the movant has demonstrated repeated failures to cure
deficiencies.
Rule: A party repeatedly fails to fix deficiencies when it has not fixed its mistakes in
previous pleadings after being given ample notice AND opportunity by the court.
A: Facts should make repeated deficiencies very obvious.
C: Therefore, since [__(futile/undue prejudice against non-movant and none against
movant/bad faith/etc.)___], [_____]’s MTA was not in the interest of justice.
C: Therefore, since the defense of [_____] was not futile and showed no undue prejudice
against movant/non-movant or any bad faith/etc., [_____]’s MTA was in the interest of justice.
C: Thus, the court properly DENIED [_____]’s MTA [his/her] answer to add a defense of [_____]
because [it was not PP AND/OR the Foman factors did not suggest that leave to amend should
be granted in the interest of justice].
C: Thus, the court improperly DENIED [_____]’s MTA [his/her] answer to add a defense of
[_____] because it was PP and the Foman factors did suggest that leave to amend should be
granted in the interest of justice.
C: Thus, the court properly GRANTED [_____]’s MTA [his/her] answer to add a defense of
[_____] because it was PP and the Foman factors did suggest that leave to amend should be
granted in the interest of justice.
C: Thus, the court improperly GRANTED [_____]’s MTA [his/her] answer to add a defense of
[_____] because [it was not PP AND/OR the Foman factors did not suggest that leave to amend
should be granted in the interest of justice].
49
MOTION TO COMPEL DISCOVERY
Issue: The issue is whether the court properly granted the motion to compel discovery.
Rule: The court properly granted the motion to compel discovery if the motion was PP, the
method of discovery was proper, and the information was within the scope of discovery.
OR
Issue: The issue is whether the court properly denied the motion to compel discovery.
Rule: The court properly denied the motion to compel discovery if the motion was not PP, the
method of discovery was not proper, or the information was within the scope of discovery.
Issue: The issue is whether the motion to compel discovery was PP.
Rule: A motion to compel discovery is PP if the motion is filed with movant’s certification that a
good-faith attempt was made to obtain the information from the other party without court action
and notice was given to all parties.
Issue: The issue is whether the method of discovery was proper.
Rule: The method of discovery is proper when the movant used an appropriate discovery rule to
obtain information from a party or non-party [subpoena required for a non-party only].
Parties: Through a motion to compel, a party may request from another party…
30 - Deposition
33 - Interrogatories
34 - Documents or enter land
35 - physical or mental examination
Non-Parties*: Through subpoena, a party may request from a non-party…
30- Depositions
34- Documents
*Subpoena must be from the court that has PJ over the non-party
C: Therefore, [______] the method of discovery was not proper.
C: Therefore, [______] the method of discovery was proper.
Issue: The issue is whether the information was within the scope of discovery.
Rule: Information is within the scope of discovery if it is relevant to any party’s claims or
defenses and it is not privileged communication in a protected relationship or opinion WP
Issue: The issue is whether ___is relevant to any party’s claim or defense in the case.
Rule: The information is relevant to a party’s claim OR defense if it has any tendency to
make the existence of any fact that is of consequence to the determination of the action
more OR less probable than it would be without the evidence or is likely to lead to such
evidence. This could include non-admissible evidence.
C: Therefore, [______] [is/are] not relevant [to any of the claims or defenses of
any party].
C: Therefore, [______] [is/are] relevant [to any of the claims or defenses of any
party].
50
Issue: The issue is whether the information is a privileged communication.
Rule: The information is a privileged communication if it is a private, confidential
communication within a special relationship or it is work product.
[Absolute Privilege – A/C Only]
I: The issue is whether [______] [is/are] absolutely privileged from discovery as
privileged communication between A/C.
R: A/C privilege exists when there is an A/C relationship, the communication is in
confidence and the communication is for the purposes of obtaining/providing
legal advice.
C: Therefore, [______] [is/are] not immune from discovery under attorney/client
privilege.
C: Therefore, [______] [is/are] immune from discovery under attorney/client
privilege
_______________________________________________________________
[Absolute Privilege – Other Type of Relationship]
I: The issue is whether [______] [is/are] absolutely privileged from discovery as
privileged communication between two people in a protected relationship.
R: Information is privileged if it is a confidential communication between parties
in a privileged relationship (attorney/client, doctor/patient, priest/penitent, or
spousal) and the communication was made within the scope of that relationship.
C: Therefore, [______] [is/are] immune from discovery under a [protected
relationship] privilege.
C: Therefore, [______] [is/are] not immune from discovery under a protected
relationship privilege.
Issue: The issue is whether the information is work product.
Rule: Work product is any document or tangible thing prepared in anticipation of
litigation or for trial by a party or its representative.
In anticipation Rule: Information is prepared in anticipated of trial OR for trial
if it is prepared before litigation, AND its preparation falls outside of normal
behaviour OR business practices.
By party Rule: Information is prepared by a party’s representative if it is
prepared at the request of the party. [Note: could be someone other than an
attorney]
C: Therefore, [______] [is/are] work product.
C: Therefore, [______] [is/are] not work product.
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[Discoverable WP]
Issue: The issue is whether the WP is discoverable as factual, rather than opinion WP.
Rule: Documents that contain mental impressions, conclusions, thoughts or legal
theories of the party’s attorney or representative concerning litigation are considered
opinion WP and are NOT discoverable. [*Factual WP which contains objective facts may
be discoverable.]
C: Therefore, the WP is opinion WP and not discoverable.
C: Therefore, the WP is factual WP and may be discoverable.
[Discoverable Factual WP]
I: The issue is whether the factual WP is discoverable.
R: The information in factual WP is discoverable if the requesting party
established the material is otherwise discoverable (e.g., relevant to a claim or
defense in the case) and the party shows it has a substantial need of the
materials to prepare its case AND cannot, without undue hardship, obtain their
substantial equivalent by other means.
A:
[Otherwise Discoverable]
I: The issue is whether the material is otherwise discoverable (e.g.,
relevant to a claim or defense in the case).
R: An item is relevant when it has the tendency to make the
existence of any fact that is of consequence to the determination
of the action more or less probable than it would be without the
evidence.
A: As discussed above, [______] is relevant because [______].
C: Therefore, [______] [is/are] not relevant to [any of the claims
or defenses] of [any party].
C: Therefore, [______] [is/are] relevant to [any of the claims or
defenses] of [any party].
[Substantial Need]
I: The issue is whether the requesting party can show it has a
substantial need of the materials.
R: A substantial need exists when the movant would be unable to
support their claim or defense without the information.
C: Therefore, the requesting party does not have a substantial
need for the information.
C: Therefore, the requesting party does have a substantial need
for the information.
______________________________________________________
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[Substantial Equivalent w/out Undue Hardship]
I: The issue is whether the requesting party can get the substantial
equivalent of the information without undue hardship.
R: There is a substantial equivalent if the party can obtain the
same information by using a different discovery tool.
A: In this case, [______] [could/could not] use [_(discovery tool)_]
to obtain this information.
*It [would/would not] be the substantial equivalent
because [______].
C: Therefore, the factual WP is not discoverable because the requesting party
could use an alternative discovery tool to obtain the same information.
C: Therefore, the factual WP is discoverable because the requesting party [could
not use an alternative discovery tool tool to obtain the same information OR
could not obtain the same information as the (item) may be modified between
that time].
C: Therefore, the [______] [is/are] not within the scope of discovery because
[_(between privileged parties OR opinion WP)_].
C: Therefore, the [______] [is/are] within the scope of discovery because it is relevant
information and not a privileged communication because [_(not between privileged
parties OR discoverable WP)_].
C: Thus, the court properly GRANTED the MTC discovery of [______] because the MTC was PP,
the discovery method sought was proper, and [______] [is/are] within the scope of discovery.
C: Thus, the court improperly GRANTED the motion to compel (MTC) discovery of [______]
because [the MTC was not PP AND/OR the discovery method sought was not proper AND/OR
[______] [is/are] NOT within the scope of discovery].
C: Thus, the court properly DENIED the MTC discovery of [______] because [the MTC was not
PP AND/OR the discovery method sought was not proper AND/OR [______] [is/are] NOT within
the scope of discovery].
C: Thus, the court improperly DENIED the MTC discovery of [______] because the MTC was PP,
the discovery method sought was proper, and [______] [is/are] within the scope of discovery.
53
MOTION FOR SUMMARY JUDGMENT
Issue: The issue is whether the court properly DENIED/GRANTED the motion for
summary judgment.
Rule: A court properly denies a motion for summary judgment when the motion is not PP OR if
the movant was not entitled to judgement as a matter of law
Rule: A motion for summary judgment is properly granted when the motion is PP AND there is
not a genuine dispute of material fact.
Issue: The issue is whether the motion for summary judgment was PP.
Rule: Unless a different time is set by local rule or court order, any party may file a motion for
summary judgment at any time until 30 days after the close of discovery
Analysis: the facts [do/do not] indicate that discovery had been closed for more than 30 days
when the motion was brought before the court.
Conclusion: Therefore, the motion for summary judgment [was/was not] PP.
Issue: The issue is whether there is any genuine dispute to material fact regarding ____,
such that the movant is entitled to judgment as a matter of law.
Rule: There is no genuine issue of material fact, such that the movant is entitled to judgment as a
matter of law, if there has been no factual evidence presented that could allow a jury to decide
against the movant. – however, if the issue is one solely of law, such as preclusion, there is never
a genuine dispute of law.
Analysis: In analysis, include the facts that either shows there has been factual evidence
presented (affidavit or not=ex)
[If there is claim preclusion – add the following to the above rule  “OR if issue or
claim preclusion applies”]
Issue: The issue is whether the claim is precluded.
[SEE CLAIM PRECLUSION TEMPLATE]
Issue: The issue is whether the issue is precluded.
[SEE ISSUE PRECLUSION TEMPLATE]
Conclusion if issue/claim preclusion EXISTS: Therefore, issue/claim preclusion exists,
so the motion for summary judgment should be granted because there is no genuine
dispute of material fact such that the movant is entitled the judgment as a matter of law.
Conclusion if issue/claim preclusion DOES NOT EXIST: Therefore, issue/claim
preclusion does not exist, so the motion for summary judgment should be denied because
there is a genuine dispute of material fact and such that the movant is not entitled to the
judgment as a matter of law.
C: Thus, there is a genuine dispute of a material fact in the case, so the case must go to the jury,
as they decide credibility and weigh evidence.
C: Thus, there is no genuine dispute of material fact in this case.
54
C: Therefore, the court properly DENIED [______]’s motion for summary judgment (MSJ)
regarding [______] because [it was not PP AND/OR if the movant was not entitled to judgement
as a matter of law.
C: Therefore, the court improperly DENIED [______]’s motion for summary judgment (MSJ)
regarding [______] because it was PP and there the movant was entitled to judgement as a
matter of law.
C: Therefore, the court properly GRANTED [______]’s motion for summary judgment (MSJ)
regarding [______] because it was PP and there there the movant was entitled to judgement as
a matter of law.
C: Therefore, the court improperly GRANTED [______]’s motion for summary judgment (MSJ)
regarding [______] because [it was not PP AND/OR if the movant was not entitled to judgement
as a matter of law.
NOTE: Once the movant for SJ establishes the basics of its case, the non movant has a burden to
convince the court that there is adequate evidence that a reasonable jury would find in its favor.
This is best done by showing relevant discovery evidence or affidavits that dispute the issue
movant has raised.
55
ERIE DOCTRINE
Issue: The issue is whether the court should apply _____ according to federal law or bar it
according to state law
Rule: The court should follow the federal practice if there is no arguable conflict or an arguable
conflict exists, but the relevant Erie test determines it should be permitted.
Issue: The issue is whether there is an arguable conflict between federal and state
law/custom.
Rule: A conflict exists when the state law AND the federal law cannot be applied
simultaneously.
C: Thus, there is a conflict between the state law and federal law because each would
lead to a different outcome.
C: Thus, there is no conflict between the state law and federal law because both laws
can be obeyed simultaneously, so the court should permit the [_federal law/practice_]
to be followed.
Issue: The issue is what type of federal law is in conflict with the state law.
Rule: The source of federal law can be a federal rule OR a federal custom OR practice.
[The type of federal law is a federal statute if it is a statute passed by Congress; a federal rule if
it is formally created by the Supreme Court under the REA, such as the FRCP rules; a federal
practice/custom if it refers to a law or practice announced or made by federal courts.]
Federal Statute Test
R: Under the federal statute test, the federal statute must be applied (over the
conflicting state law) if the federal statute is valid.
I: The issue is whether the federal statute is valid.
R: A federal statute is valid (e.g., within the Congress’ Article III of the US
Constitution limits to regulate the federal courts) if it is arguably procedural.
A:
I: The issue is whether the federal statute is arguably procedural.
R: A federal statute is arguably procedural if it can be rationally classified
as governing the practices and procedures of the federal courts.
A: In this case, the statute, [_________], does not have an arguably
procedural goal, to do/accomplish [_________].
C: Thus, the statute is not arguably procedural and the statute is not
valid.
A: In this case, the statute, [_________], has an arguably procedural goal,
to do/accomplish [_________].
56
C: So, even though it may have a significant substantive impact, as
[_________] occurs under the statute, it is rationally capable of being
labeled procedural.
C2: Therefore, the statute is arguably procedural.
C: Because the statute is arguably procedural, the federal court must apply the
federal statute over conflicting state law.
C: Because the statute is not arguably procedural, the federal court must apply
the state law.
________________________________________________________________________
Federal Rule (REA) Test
R: Under the Federal Rules (REA) Test, the federal rule will be applied over state law if
the rule is arguably procedural and the rule is valid.
I: The issue is whether the rule is arguably procedural and valid.
R: A federal rule, like the FRCP, is valid if it is a rule of procedure and is not
directed at abridging (limiting) any substantive right.
A:
I: The issue is whether the federal rule is a rule of procedure.
R: A federal rule is a rule of procedure if it regulates the judicial process
for enforcing rights and duties recognized by substantive law. [If there is
a procedural purpose to a federal rule, any “incidental” impact on
litigants’ substantive rights is ignored, even if the accidental consequence
is dismissal.]
A: [____ (Federal Rule) _____] is a rule of [___(doing X)______]. It has a
procedural goal of [_________].
Substantive rights: e.g., A party’s ability to recover punitive
damages; A party’s right to bodily privacy and freedom from
physical examination.
C: Therefore, the federal rule will be applied over the state law.
C: Therefore, the state law will be applied
________________________________________________________________________
57
IF RDA
Rule: The state law should be applied if the federal custom/practice stet either of the twin
aims of Erie: (1) to prevent forum shopping by the plaintiff OR (2) prevent unfairness to
those who could not file in federal court.
Issue: The issue is whether applying the federal custom encourages forum shopping.
Rule: Forum shopping exists if applying federal custom would encourage P to file in
federal rather than state court for a potential advantage. (substantial difference in the
result)
Issue: The issue is whether applying the federal custom would unfairly discriminate
against citizens of the forum state.
Rule: Unfair discrimination exists if there were be an inequitable administration of law
against parties in state court.
Federal Practice (RDA “Twin Aims”) Test
I: The issue is whether the federal practice/custom passes the RDA (“Twin Aims”) Test.
R: Federal law may be applied when the application of federal law would not undermine
either of the twin aims of Erie by discouraging forum shopping to federal court or
avoiding inequitable administration of the law
A:
I: The issue is whether applying the federal practice/custom will cause plaintiffs
to forum shop to federal court.
R: There is forum shopping when the federal practice would generally encourage
plaintiffs in general to file in federal court to take advantage of the difference in
the law.
A: If the federal court applies the federal practice/custom, likely every plaintiff
would be advantaged because [____(describe advantage)_____].
C: Thus, applying the federal practice/custom will cause plaintiffs to forum shop
to federal court.
A: If the federal court applies the federal practice/custom, it is unlikely plaintiffs
would gain a significant advantage because [____(describe nonadvantage)_____].
C: Thus, failure to apply [_________] state law will not cause systematic forum
shopping to federal court in similar cases.
__________________________________________________________________
I: The issue is whether applying the federal practice/custom will lead to the
inequitable administration of the law.
R: There is inequitable administration of the law if the custom would be unfair to
those who lacked federal SMJ.
58
A: In this case, the plaintiffs with federal jurisdiction over their case who can file
in federal court will [____(describe advantage)_____]. Alternatively, plaintiffs
without federal jurisdiction over their case who must file in state court will not
get this advantage.
C: It is fundamentally inequitable that the ability to [____(advantage)_____]
turns on the luck of diversity.
A: In this case, the fact that plaintiffs with federal jurisdiction over their case are
able to [_________], while plaintiffs without federal jurisdiction over their case
must file in state court and do not get to [_________], will not significantly affect
the outcome of the case because [_________].
C: Thus, even though the application of the federal practice would lead to a
different outcome in this case, this is not enough to require the application of
state law.
________________________________________________________________________
C: Because applying the federal practice/custom will cause forum shopping to federal court
[AND/OR] lead to the inequitable administration of the law, the federal court must apply the
state law.
C: Therefore, although there is a conflict between the federal practice/custom and [_____]
state law, because the federal practice/custom will not promote forum shopping OR lead to
the inequitable administration of the law, the court should permit [_federal law/practice_].
59
RULE BASIS FOR JOINDER OF PARTIES/CLAIMS/INTERVENTION
Issue: The issue is whether there is a rule basis for the joinder/intervention of a
party/claim.
Rule: There is proper rule basis for the joinder of a party [select appropriate] *under 20 or 14, or
*intervention of a party under 24 or *joinder of a claim under Rule 13,
Rule basis for joinder/intervention of a party is proper under Rule 14, 19, 20, and 24.
Rule basis for a claim may be established under Rule 8, 13(a), 13(b), 13(g), 14 or 18
RULE BASIS FOR JOINDER OF CLAIMS (13,14,18)
RULE 13: Counterclaim
Issue: The issue is whether the claim has a rule basis under rule 13(a) OR (b).
Rule: A claim has a rule basis under rule 13(a) OR 13(b) if it is a claim against an opposing
party. It is proper to dismiss a claim under rule 13(a) OR (b) if it is not procedurally proper or if
the claim asserted is not proper.
Issue: The issue is whether the compulsory/permissive counterclaim was
procedurally proper.
Rule: A counterclaim is procedurally proper if it is stated in a pleading at time of service
OR in an amended pleading.
Issue: The issue is whether the claim is a 13(a) compulsory counterclaim.
Rule: A Rule 13(a) claim exists if it is a claim asserted in a pleading against an opposing
party which arises out of the same T/O as the opposing party’s claim, such that it is
required to be asserted or will be waived.
[Opposing Parties]
R: An opposing party is a party who has asserted a claim against the other.
A: Here, [_____] asserted a claim against [_____], so they [are/are not] opposing
parties.
____________________________________________________________________________________
[In a Pleading]
A: [_____] is asserting this claim in [_____], such that it [is/is not] in a pleading
against the opposing party.
____________________________________________________________________________________
[Same T/O]
I: The issue is whether [_____]’s [_____] claim arose from the same T/O or
series of T/O as the original claim in the suit.
R: A claim arises out of the same T/O if the essential facts underlying the claims
are logically connected such that it is efficient to hear them together; for
example, but for one thing occurring, the other would not have happened.
A: Here, the [_____] claim arises from [_____]. The [_____] claim arises from
[_____].
C: Thus, the claims do not arise from the same T/O.
60
C: Thus, the claims do arise from the same T/O (or series of T/O).
Issue: The issue is whether the compulsory counterclaim was waived
Rule: A compulsory counterclaim is waived if it was not asserted in a prior case when it
was required.
C: The compulsory counterclaim [was/was not] waived.
RULE 13: Crossclaims
Issue: The issue is whether the claim has a rule basis under rule 13(g).
Rule: A claim has a rule basis under rule 13(g) if it is a cross claim, a claim in a pleading
asserted by a party against a co-party, that is procedurally proper and arises out of the same T/O
as the subject matter of the original action or of a counterclaim.
Issue: The issue is whether the cross claim was procedurally proper.
Rule: A cross claim is procedurally proper if it is asserted in a pleading or amended
pleading and is asserted against a co-party.
Issue: The issue is whether [P1] and [P2] are co-parties.
Rule: Co-parties are on the same side of the suit, such that both are defendants of
a claim by an opposing party.
Issue: The issue is whether the cross claim is asserted in a pleading or
amended pleading.
A: [Which pleading is it in?]
Issue: The issue is whether the cross claim is related to the T/O of the original
action.
Rule: : A claim arises out of the same T/O if the essential facts underlying the claims are
logically connected such that it is efficient to hear them together
C: Thus, the claims do not arise from the same T/O.
C: Thus, the claims do arise from the same T/O (or series of T/O).
C: Therefore, there is NOT a rule basis for the [_____] claim under Rule 13(g) as a crossclaim.
C: Therefore, there is a rule basis for the [_____] claim under Rule 13(g) as a crossclaim.
61
Rule 14
Issue: The issue is whether there is a rule basis for the ____ claim under Rule 14.
Rule: A TPD may be impleaded under rule 14 if the TPD is or may be liable for all or part of the
claim against the TPP.
[Original D  3D]
R: A defending party may serve a third-party complaint to a nonparty who is or may be
liable to the defending party for all or part of the claim against it and the impleader claim
was timely asserted.
[May or may not be liable]
Issue: The issue is whether (TPD) is or may be liable to the (defending party) for
all or part of (claim against defending party).
Rule: A TPD is or may be liable to the defending party for all or part of the claim
against it if state law recognizes a contribution claim at some point.
[Timely asserted]
Issue: The issue is whether the ___ claim was asserted in a timely third party
complaint and summons.
Rule: Impleading under Rule 14 is timely within 14 days of the TPP’s original
answer, after that the TPP needs court permission.
[3D  Original D]
R: The third-party defendant (3D) can and MUST assert any compulsory
counterclaims against the original defendant that arise(s) out of the same T/O (or
series of T/O) as the original P’s claim and be asserted in a pleading.
A: Here, [_____] was impleaded by [_____], such that [he/she] is a 3D. The original
plaintiff’s claim was [_____].
[In a Pleading]
A: [_____] is asserting this claim in [_____], such that it [is/is not] asserted in a
pleading.
______________________________________________________________________________
[Same T/O]
I: The issue is whether [_____]’s [_____] claim arose from the same T/O or
series of T/O as the original plaintiff’s claim.
R: A claim arises out of the same T/O if the essential facts underlying the claims
are logically connected such that it is efficient to hear them together; for
example, but for one thing occurring, the other would not have happened.
A: Here, the [_____] claim arises from [_____]. The original plaintiff’s [_____]
claim arises from [_____].
C: Thus, the claims do not arise from the same T/O.
C: Thus, the claims do arise from the same T/O (or series of T/O).
______________________________________________________________________________
C: Therefore, there is NOT a rule basis for the [_____] claim under Rule 14.
C: Therefore, there is a rule basis for the [_____] claim under Rule 14.
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____________________________________________________________________________________
[3D  Original P]
R: The third-party defendant (3D) may assert a claim against the original P only if it
arises from the same T/O as the original claim in the case and it is asserted in a
pleading.
A: Here, [_____] was impleaded by [_____], such that [he/she] is a 3D. The original P’s
claim was [_____].
[In a Pleading]
A: [_____] is asserting this claim in [_____], such that it [is/is not] asserted in a
pleading.
______________________________________________________________________________
[Same T/O]
I: The issue is whether [_____]’s [_____] claim arose from the same T/O or
series of T/O as the original plaintiff’s claim in the case.
R: A claim arises out of the same T/O if the essential facts underlying the claims
are logically connected such that it is efficient to hear them together; for
example, but for one thing occurring, the other would not have happened.
A: Here, the [_____] claim arises from [_____]. The original plaintiff’s [_____]
claim arises from [_____].
C: Thus, the claims do not arise from the same T/O.
C: Thus, the claims do arise from the same T/O (or series of T/O).
______________________________________________________________________________
C: Therefore, there is NOT a rule basis for the [_____] claim under Rule 14.
C: Therefore, there is a rule basis for the [_____] claim under Rule 14.
____________________________________________________________________________________
[Original P  3D]
R: Original P MAY assert any claims against third-party defendant (3D) arising out of
the same T/O as P’s original claim and they are asserted in a pleading.
*(BUT be wary that this claim by original P is likely blocked by the B bar if it
needs 1367).
A: The original P’s claim was [_____]. Here, [_____] was impleaded by [_____], such that
[he/she] is a 3D.
[In a Pleading]
A: [_____] is asserting this claim in [_____], such that it [is/is not] asserted in a
pleading.
__________________________________________________________________
[Same T/O]
I: The issue is whether [_____]’s [_____] claim arose from the same T/O or
series of T/O as the original plaintiff’s claim.
63
R: A claim arises out of the same T/O if the essential facts underlying the claims
are logically connected such that it is efficient to hear them together; for
example, but for one thing occurring, the other would not have happened.
A: Here, the [_____] claim arises from [_____]. The original plaintiff’s [_____]
claim arises from [_____].
C: Thus, the claims do not arise from the same T/O.
C: Thus, the claims do arise from the same T/O (or series of T/O).
______________________________________________________________________________
C: Therefore, there is NOT a rule basis for the [_____] claim under Rule 14.
C: Therefore, there is a rule basis for the [_____] claim under Rule 14.
RULE 18: Joinder of Claims
Issue: The issue is whether the claim has a rule basis under rule 18.
Rule: A claim is a proper rule 18 claim if made against an opposing party by a party asserting a
claim, counterclaim, cross claim, or third-party claim.
*Can join as many claims as it has against an opposing party in that pleading.
* still need SMJ for each claim
Issue: The issue is whether the party has already asserted a valid claim against a party.
*Analysis from facts*
Issue: The issue is whether the claim has SMJ.
[Insert SMJ Analysis here]
C: Therefore, the [_____] claim does NOT have a rule basis under Rule 18.
C: Therefore, the [_____] claim has a rule basis under Rule 18.
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RULE BASIS FOR JOINDER OF PARTIES (14,19,20,24)
Rule 14
Issue: The issue is whether there is a proper rule basis for the joinder of [_____] as a Rule 14
party.
Rule: A defending party may implead a third-party defendant (3D) under Rule 14 if that thirdparty was a non-party who is or may be liable to that defending party for all or part of the claim
of the original plaintiff against the defending party.
[PP]
I: The issue is whether [_____]’s Rule 14 claim to implead [_____] as a Rule 14 party is
PP.
R: A defendant may implead a 3D within 14 days from when the defendant served their
original answer, or may receive permission from the court to do so after this period.
A: Here, [_(original D)_] implead [_____] [_X days_] after serving [his/her] original
answer.
C: Thus, [_____]’s Rule 14 claim to implead [_____] as a Rule 14 party is NOT PP.
C: Thus, [_____]’s Rule 14 claim to implead [_____] as a Rule 14 party is PP.
________________________________________________________________________
[Is or May Be Liable]
I: The issue is whether the non-party [_____] is or may be liable to [_____] for all or part
of the claim of the original plaintiff.
R: A defending party may implead a non-party even if they might lose their
indemnification or contribution claim against that party, as long as state law will
recognize it in the future/at some point.
A:
[Contribution Claim] (joint tortfeasors)
R: Original D is asserting/claiming that if he is found liable, then the non-party
joint tortfeasor is also at fault and liable to D for all or part of P’s claim against D.
__________________________________________________________________
[Indemnification Claim] (K clause or reimbursement)
R: Original D is claiming that the non-party is legally required to indemnify the D
for any judgment that D has to pay to P on her claim (non-party is or will be
liable to D if that D has to pay P on her claim)
C: Therefore, the non-party [_____] is NOT and may NOT be liable to [_____] for all or
part of the claim of the original plaintiff.
C: Therefore, the non-party [_____] is or may be liable to [_____] for all or part of the
claim of the original plaintiff.
________________________________________________________________________
C: Thus, whether there is NOT a proper rule basis for the joinder of [_____] as a Rule 14 party.
C: Thus, whether there is a proper rule basis for the joinder of [_____] as a Rule 14 party.
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Rule 19
Issue: The issue is whether there is a proper rule basis for joinder of [_____] as a Rule 19
party.
Rule There is a rule basis for joinder of [_____] as a Rule 19 party if they are necessary under
19(a).
A:
[Necessary Party]
I: The issue is whether [_____] is a necessary party under Rule 19(a).
R:
[Joint Tortfeasors]
R: Under Rule 19(a), in a negligence action for money damages against one joint
tortfeasor, other joint tortfeasors (who have joint and several liability) are never
“required” parties who must be joined.
A: [_____] [is/is not] a joint tortfeasor in this case because [_____]. Also, [_P_]
[is/is not] only suing for monetary damages based on negligence against one
joint tortfeasor.
C: Thus, [_____] is NOT a Rule 19 necessary party.
C: Thus, [_____] is a Rule 19 necessary party.
__________________________________________________________________
[General Analysis]
R: Under Rule 19, a non-party is a necessary party if [he/she] is a Rule 19(a)
required party.
[Rule 19(a)]
R: A non-party is a Rule 19(a) required party if, in the absence of that
non-party, (1) the court cannot accord complete relief among existing
parties, (2) if the non-party has interests in the suit and failure to join
them would impair or impede their interest, or (3) it would result in
multiple or inconsistent legal obligations for an existing party.
A:
[Incomplete Relief]
I: The issue is whether, in the absence of [_____], the court
cannot accord complete relief among the existing parties.
R: A NP is a Rule 19(a) party if the P wants a remedy that requires
binding the NP (such as invalidation of the K).
[K]
R: The court will not rescind a sale/void a K (or reformation
of a K) involving a non-party. Thus, P cannot get complete
relief without all parties of a K in a lawsuit.
A: In this case, the court [can/cannot] grant complete
relief among existing parties because [_____].
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C: Therefore, the court cannot grant complete relief to the
existing parties in the absence of [_____].
C: Therefore, the court cannot grant complete relief to the
existing parties in the absence of [_____].
____________________________________________________________
[Prejudice/Harm to Non-Party Interest]
I: The issue is whether failure to join [_____] would practically or
legally impair or impede their ability to protect their interest.
R: A non-party’s interests are impeded if they have an interest in
the case AND no party accurately represents their interests.
A: In this case, [_____] [does/does not] have an interest in [_____]
because [_____]. There [is/is not] an existing party which
accurately represents this interest.
C: Therefore, the failure to join [_____] would NOT practically or
legally impair [_____]’s ability to protect their interest(s).
C: Therefore, the failure to join [_____] would practically or legally
impair [_____]’s ability to protect their interest(s).
______________________________________________________
[Inconsistent Obligations]
I: The issue is whether, in the absence of [_____], there could be
multiple or inconsistent legal obligations for an existing party.
R: An existing party would be subject to multiple or inconsistent
obligations if future judgment can enforce potentially varying
results.
*There will only be inconsistent obligations if the D loses
and is sued by the nonparty and loses again.
A: In this case, if [_____] there [is/is not] a possibility of double,
multiple or otherwise inconsistent legal obligations.
*e.g., P wins, gets “Judgment X”; NP sues D; D loses; may
face a contradictory/inconsistent judgment – ex:
“Judgment Double X” (both binding)
C: Thus, an existing party could NOT be subject to multiple or
inconsistent legal obligations in the absence of [_(non-party)_].
C: Thus, an existing party could be subject to multiple or
inconsistent legal obligations in the absence of [_(non-party)_].
______________________________________________________
C: Therefore, [_____] is NOT a Rule 19(a) required party.
C: Therefore, [_____] is a Rule 19(a) required party.
________________________________________________________________________
[Joinder – If Non-Party is feasible]
I: The issue is whether the joinder of the necessary party, [_____], is feasible.
67
R: Joinder of a necessary party is feasible when there is SMJ over the claim and
complete diversity is not destroyed and there is PJ over the party in the forum.
A:
[SMJ]
I: The issue is whether there is federal SMJ over the [_____] claim.
R: There is federal SMJ over a claim if it has 1331, 1332 or 1367 SMJ.
A: [Insert SMJ Analysis]
C: Therefore, there is no federal SMJ over the [_____] claim.
C: Therefore, there is [_____] SMJ over the [_____] claim.
__________________________________________________________________
[PJ]
I: The issue is whether there is PJ over [_____] in the forum.
R: There is PJ if traditional or specific PJ.
A: [Insert PJ Analysis]
C: Therefore, there is no PJ over [_____] in the forum.
C: Therefore, there is no PJ over [_____] in the forum.
__________________________________________________________________
C: Thus, joinder of the necessary party, [_____], is feasible.
C: Thus, joinder of the necessary party, [_____], is NOT feasible.
________________________________________________________________________
[Indispensable Analysis]
I: The issue is whether the necessary party, [_____], is indispensable.
R: A non-party is indispensable when their interest in the lawsuit is so strong, that the
suit cannot proceed without them and the court must dismiss the case because their
joinder is not feasible.
A: In this case, joinder of [_____] is not feasible because [_no SMJ AND/OR no PJ_].
[Court Balancing Test]
R: If a person who is required to be joined if feasible cannot be joined, the court
must determine whether, in equity and good conscience, the action should
proceed among the existing parties or should be dismissed.
R: The court considers the following factors when determining if they can
proceed without the absentee: (1) the extent to which a judgment rendered in
the person’s absence might prejudice that person or the existing parties, (2) the
extent to which any prejudice against the absent could be lessened or avoided
by protective provisions in the judgment, (3) whether a judgment rendered in
the person’s absence would be adequate, and (4) whether the P would have an
adequate remedy if the action is dismissed for non-joinder.
[Prejudice to Person/Existing Parties]
I: The issue is whether a judgment rendered in [_____]’s absence might
prejudice them or the existing parties.
R: If there is a showing under this factor of severe prejudice to the
person and existing parties if the suit proceeds without the required
party, that favors dismissal of the lawsuit.
68
A: In this case, [_____] [will/will not] be prejudiced because [_____].
C: Thus, this factor weighs in favor of dismissal of the suit.
C: Thus, this factor does not weigh in favor of dismissal of the suit.
____________________________________________________________
[Prejudice Could Be Lessened by the Court]
I: The issue is whether the court could lessen or avoid the prejudice in the
judgment due to the absence of [_____].
R: If there is a showing under this factor that the court can shape the
judgment and grant relief that avoids prejudice to the person and
existing parties if they proceed without the required party, that favors
proceeding without the required party (just among the original parties).
A: In this case, the court [could/could not] shape the judgment
[by/because] [_____].
C: Thus, this factor weighs in favor of dismissal of the suit.
C: Thus, this factor does not weigh in favor of dismissal of the suit.
____________________________________________________________
[Judgment Adequate Without Non-Party]
I: The issue is whether the judgment rendered in the absence of [_____]
would be adequate.
R: If more litigation seems inevitable, this is highly inefficient and leans
towards dismissal, e.g., inadequate.
A: In this case, the judgment rendered without [_____] [would/would
not] be adequate because more litigation [would/would not] be likely.
C: Thus, this factor weighs in favor of dismissal of the suit.
C: Thus, this factor does not weigh in favor of dismissal of the suit.
________________________________________________________
[Adequate Remedy for P if Case Dismissed]
I: The issue is whether the plaintiff would be able to file elsewhere to
receive an adequate remedy for the action if it is dismissed.
R: If required party was not able to be joined because of lack of SMJ or PJ
and P can file their case in state court somewhere to satisfy SMJ/PJ then
there is an adequate remedy and the case should be dismissed and filed
in state court.
A: In this case, [__P___] [would/would not] be able to file elsewhere, so
there [is/is not] an adequate remedy if the case is dismissed.
C: Thus, this factor weighs in favor of dismissal of the suit.
C: Thus, this factor does not weigh in favor of dismissal of the suit.
____________________________________________________________
C: Therefore, [_____] is not an indispensable party, such that the court may permit the case to
proceed without them.
C: Therefore, [_____] is an indispensable party, such that the case should not proceed without
them.
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Rule 20
Issue: The issue is whether the party was properly joined under rule 20.
Rule: A P may join multiple parties when a claim asserted by/against her arises out of the same
T/O or series of T/O AND a question of law or fact common to all Ps/Ds will arise in the action.
[Same T/O]
I: The issue is whether [_____]’s [_____] claim arises from the same T/O or series of T/O
as the [_____] claim(s) in the suit.
R: A claim arises out of the same T/O if the essential facts underlying the claims are
logically connected such that it is efficient to hear them together; for example, but for
one thing occurring, the other would not have happened.
A: Here, the [_____] claim arises from [_____]. The [_____] claim arises from [_____].
C: Thus, the claims do not arise from the same T/O.
C: Thus, the claims do arise from the same T/O (or series of T/O).
________________________________________________________________________
[Common Q]
I: The issue is whether [_____] has a claim/defense that shares a common question of
law or fact to all Ps/Ds which will arise in the action/suit.
R: There must be a common contention (of law or fact) that all parties share such that at
least one common question of law OR fact is central to all the claims.
(e.g., the resolution of all the claims or defenses turns on this common
contention)
A: In this case, [_____] [does/does not] have a claim/defense which shares a common
question of law or fact with the action/lawsuit because [_____].
C: Thus, [_____] does NOT have a claim/defense that shares a common question of law
or fact to all Ps/Ds which will arise in the action/suit.
C: Thus, [_____] does have a claim/defense that shares a common question of law or
fact to all Ps/Ds which will arise in the action/suit.
________________________________________________________________________
C: Therefore, there is NOT a proper rule basis for the joinder of [_____] as a Rule 20 party
because [_their claim does not arise out of the same T/O or series of T/O AND/OR their claim
does not share a common question of law or fact to the suit_].
C: Therefore, there is a proper rule basis for the joinder of [_____] as a Rule 20 party because
their claim arises out of the same T/O or series of T/O and shares a common question of law or
fact to the suit.
70
Rule 24
Issue: The issue is whether the party was properly joined under rule 24.
Rule: The court should allow the intervener to intervene if the motion to intervene was PP, the
court had SMJ over intervener’s claim [this will likely have already been covered if the party
who wants to block intervention filed a 12(b)(6) MTD], AND if the intervener has a right to
intervene OR the court should permit them to intervene.
Issue: The issue is whether the motion to intervene was PP.
Rule: A motion to intervene is PP when it is timely, AND was filed with your proposed
pleading.
C: Thus, the court will not likely find [_____]’s motion to be PP.
C: Thus, the court will likely find [_____]’s motion to be PP.
Issue: The issue is whether the court has SMJ over the claim.
[Insert SMJ analysis here]
Issue: The issue is whether the party has an intervention of right (Rule 24a)
Rule: A party has an intervention of right if 1) a federal statute provides an unconditional
right to intervene or 2) the person claims an interest the property or transaction relating to
the main action and not allowing their intervention substantially interferes with their
ability to protect the interest, unless a party adequately represents that interest.
[Statute]
I: The issue is whether [_____] has a right to intervene because a federal statute
requires him/her to join the lawsuit.
R: A federal statute gives an unconditional right to a nonparty to
intervene when the decision to grant is not decided by the court.
____________________________________________________________
[Interests and Not Represented]
I: The issue is whether [_____] has a right to intervene in the lawsuit because
[he/she] has an interest in the lawsuit and a decision would cause prejudice to
[him/her] AND no existing party will adequately represent that interest.
[Interest]
I: The issue is whether [_____] has an interest in the lawsuit that will be
practically impaired if not joined in the lawsuit.
R: A nonparty has an interest that will be practically impaired if it affects
the non-party’s property interest or a K involving the party
C: Thus, ____ has an interest in the lawsuit that will be practically
impaired if not joined in the lawsuit.
C: Thus, ____ does not have an interest in the lawsuit that will be
practically impaired if not joined in the lawsuit.
___________________________________________________________
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[Interest Represented by Existing Party]
I: The issue is whether any existing party will adequately represent
[_____]’s interest
R: If the existing party’s interests MATCH the non-party’s interest (e.g.,
they both have the same stake in the litigation, want the same result in
the lawsuit and are likely to make the same arguments), then the nonparty’s interest is adequately represented and the non-party has no right
to intervene.
A: In this case, [_____] [does/does not] have an existing party
representing [his/her] interest because [_____].
C: Thus, there is an existing party who will adequately represent [_____]’s
interest.
C: Thus, there is NOT an existing party who will adequately represent
[_____]’s interest.
______________________________________________________
C: Therefore, [_____] likely does NOT meet the test to be a 24(a) intervening
party.
C: Therefore, [_____] likely meets the test to be a 24(a) intervening party.
________________________________________________________________________
C: Thus, there is NOT a proper rule basis for the intervention of [_____] as a Rule 24(a)
party.
C: Thus, there is a proper rule basis for the intervention of [_____] as a Rule 24(a) party.
Issue: The issue is whether the party has permissive intervention (Rule 24b)
Rule: Permissive intervention is allowed IF a federal statute gives them an absolute
right to join the lawsuit OR the non-party has a claim/defense that shares a common
question of law or fact with the pending lawsuit AND allowing intervention will not
cause undue delay or prejudice to the existing parties.
[Statute]
I: The issue is whether [_____] has a right to intervene because a federal statute
exists which gives [him/her] the right to join the lawsuit.
R: A party is given the conditional right to intervene by federal statute if
the statute explicitly allows nonparty intervention (or gives court
discretion)
____________________________________________________________
[Common Q]
I: The issue is whether [_____] has a claim/defense that shares a common
question of law or fact with the pending lawsuit.
R: A claim or defense shares a common question of law or fact if there is
a fact or element central to both claims.
A: In this case, [_____] [does/does not] have a claim/defense which shares a
common question of law or fact with the pending lawsuit because [_____].
72
C: Therefore, [_____] likely does NOT meet the test to be a 24(b) intervening
party.
C: Therefore, [_____] likely meets the test to be a 24(b) intervening party.
Delay or Prejudice
Issue: The issue is whether the court may deny the nonparty’s attempted permissive
intervention.
Rule: The court must consider whether allowing the nonparty to intervene would cause
undue delay (prolonged litigation) or prejudice to the existing party
__________________________________________________________________
C: Thus, there is NOT a proper rule basis for the intervention of [_____] as a Rule 24(b)
party.
C: Thus, there is a proper rule basis for the intervention of [_____] as a Rule 24(b) party.
73
RULE BASIS MASTER LIST
RULE 8 CLAIM:
Rule 8 states each claim must contain:
(1) a statement demonstrating the court’s jurisdiction over the claim;
(2) a statement demonstrating the facts giving rise to the COA; AND
(3) a statement of the type and amount of relief being sought. Iqbal further refined these
requirements, creating the necessity to include enough facts to not only make recovery
possible, but plausible
RULE 18 CLAIM:
Rule 18 states once a party brings a valid claim against an opposing party, they can bring any
additional claims they wish, regardless of whether they are related.
RULE 19 CLAIM:
Rule 19 requires joinder when the party is necessary and their joinder is feasible OR [if the party
is necessary and their joinder is not feasible, if the party is indispensable.]
RULE 24 CLAIM:
Rule 24 allows a non-party to join themselves when they have a legal interest in the case that is
not already adequately represented by the existing parties
RULE 20 CLAIM:
Rule 20 allows original plaintiff to join additional plaintiffs with claims arising out of the same
t/o or series of t/o as plaintiff’s original claim OR any defendants with claims asserted against
them arising out of the same t/o or series of t/o as the plaintiff’s original claim ***SEE SAME
T/O***
RULE 13(a) CLAIM:
A counterclaim is a claim made against an opposing party in a responsive pleading. Rule 13
states defending party must raise counterclaims against opposing parties arising from same t/o as
the original claim. ***SEE SAME T/O***
RULE 13(b) CLAIM:
A counterclaim is a claim made against an opposing party in a responsive pleading. Defending
party may raise all counterclaims against opposing party not arising from same t.o as the orig.
claim. *SEE SAME T/O*
RULE 13(g) CLAIM:
Rule 13 states co-parties may assert any cross-claim against each other only if they arise from the
same t/o as the original claim. Once there is a cross-claim, the co-parties become opposing
parties and must assert any compulsory. ***SEE SAME T/O***
74
RULE 14 (IMPLEADER) CLAIM:
Rule 14 allows a third-party plaintiff to make a claim against a non-party when (1) it is
procedurally proper; AND (2) the non-party is or may be liable to the TPP for the claim against
them.
ISSUE: The issue is whether the Rule 14 impleader claim was procedurally proper.
RULE: Rule 14 impleader claim is PP when (1) it is timely and (2) service is proper.
ISSUE: The issue is whether the Rule 14 impleader was timely
RULE: A rule 14 impleader is timely proper when TPP is properly served with summons
and complaint within 14 days of the TPP’s original answer OR [if outside 14 days, with
leave of the court]
APPLICATION: Here TPD was served with summons and complaint ___ days after
TPP’s original answer was filed.
Conclusion:
ISSUE: The issue is whether service is proper
RULE: **SEE SERVICE TEMPLATE**
ISSUE: The next issue is whether the TPD is or may be liable to the TPP for
the claim against the TPP.
RULE: A TPD “is or may be liable” to the TPP if the state laws allow them at
any time to be held liable for the claim asserted against the TPP.
APPLICATION: Here, the facts state that (state) allows contribution claims…
RULE 14 (UP-SLOPING) CLAIM: Third-party defendant can assert any claim against the
original plaintiff that arises out of the same t/o as the plaintiff’s claim against the third-party
plaintiff. ***SEE SAME T/O***
RULE 14 (DOWN-SLOPING) CLAIM: Plaintiff can assert any claim against the third-party
defendant that arises out of the same t/o as the plaintiff’s claim against the third-party plaintiff.
***SEE SAME T/O***
DEFINITION OF SAME T/O:
ISSUE: The issue is whether the claims arise out of the same t/o
RULE: Two claims are part of the same t/o when there is a logical relationship between the two
such that one would not have occurred without the other.
APPLICATION: Here, but for ______ then ______.
CONCLUSION: Therefore, there is (not) a logical relationship b/w the two claims such that
they arise out of the same t/o
75
Article III Section II
“The Judicial power shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, ad Treaties made, or which shall be made, under their Authority; to
all Cases affecting Ambassadors, other Public Ministers and Consuls; to all cases of the
admiralty and maritime Jurisdiction – to controversies to which the United States shall be a party
to controversies between 
a. two or more states
b. between a state and citizen of another state
c. between citizens of different states
d. between citizens of the same state claiming lands under grants of different states
e. and between a state, or the citizens thereof, and foreign state, citizens or subjects
76