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Civil Procedure Outline
Sanne Knudsen Autumn 2020 – The University of Washington
I.
II.
Generally:
1. To file a suit against a party in federal court, the court must have personal jurisdiction, subject matter
jurisdiction, and be in a proper venue.
Personal Jurisdiction – A court’s ability to hale a defendant into court exercised through power of court or
the consent of a defendant.
1. Constitutional Authority:
i. Article III, §2 authorizes Congress to create lower courts
ii. Article IV, §1 creates the Full Faith and Credit Clause, decisions are recognized across all
States of the Union
iii. Due Process Clause: 5th Amendment and 14th Amendments provide that neither Federal
government nor State governments shall withhold any person of life, liberty, or property
without Due Process of Law
2. General Jurisdiction
i. Individuals
1. Tag – served in the forum state in question (See: Burnham)
2. State of domicile – resident with intent to remain (See: Redner)
ii. Corporations
1. State of incorporation
2. Principal place of business (“Nerve Center Test”)
a. Alternatives: Tag (on executive), Foreign corporations (rare)
b. Ineligible: “Doing business jurisdiction” eliminated (See: Daimler)
iii. Caselaw
1. Burnham v. Superior Court (S.C. CA 1990)
a. “A non-resident is properly served if he is physically present in the forum
state, and the forum state may exercise personal jurisdiction over him without
violating due process.”
b. Opinion by Scalia, supplemented Pennoyer’s In personam jurisdiction
2. Goodyear Dunlop Tires Operations S.A. v. Brown (564 U.S. 2011)
a. “A state court may not exercise general jurisdiction over a foreign subsidiary
of a United States-based corporation unless it engages in such continuous and
systematic activities as to render it essentially at home in the forum state.”
b. Enforced Doing business jurisdiction but this is no longer eligible.
3. Daimler AG v. Bauman (571 U.S. 2014) – Touchstone for General Jurisdiction
a. “A court can assert general jurisdiction over a corporation only if the
corporation’s affiliations with the forum state are so continuous and
systematic as to render the corporation at home in the state.”
b. Look for purposeful availment by the defendant towards the forum state;
incredibly likely this won’t be enough for general jurisdiction, look for
specific next.
3. Specific Jurisdiction
i. Consent
1. Contracts
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a. Forum selection clause may be used unless it is fundamentally unfair (See
Carnival)
b. Consent to jurisdiction clause – appointing agents for service of process
who reside in certain state; waives jurisdictional objections (See National
Equipment Rental)
c. Choice of law clause (See Burger King)
2. Waiver:
a. Defendant can waive by beginning litigation
b. Rule 12(b)(2) – Personal Jurisdiction waived if not brought up (See Rule 12)
ii. Specific Contacts – (See International Shoe)
1. Minimum Contacts Test
a. Assess contacts between the defendant and the forum state, isolated contacts
will not support jurisdiction if the contacts do not pertain to the cause of
action. (See Bristol-Meyers Squibb)
b. Due Process requires that a defendant have “certain minimum contacts” with
the forum state that doesn’t offend traditional notions of fair play and
substantial justice.
c. Analyze contacts for fairness factors
i. Burden on the plaintiff
ii. Forum State’s policy interest
iii. Plaintiff’s interest in relief
iv. Judicial efficiency
iii. Cases
1. International Shoe Co. v. Washington (326 U.S. 310 1945)
a. “For a defendant not present within the territory of a forum to be subjected to
a court's in personam jurisdiction, due process requires that the defendant
have certain minimum contacts with the forum such that the maintenance of
the suit does not offend traditional notions of fair play and substantial justice.”
b. Touchstone for Specific Jurisdiction
2. McGee v. International Life Insurance Co. (355 U.S. 220 1957)
a. “A state court has jurisdiction over an out-of-state company if the company
has substantial connections with the state.”
3. Hanson v Denckla (57 U.S. 1958)
a. “A defendant is subject to personal jurisdiction only if the defendant
purposefully avails itself of the privilege of conducting activities in the
forum state.”
b. Unilateral activity on the part of the plaintiff is not sufficient to establish
personal jurisdiction is plaintiff’s preferred/new state
4. World-Wide Volkswagen Corp. v Woodson (444 U.S. 286 1980)
a. Foreseeability is not sufficient to authorize personal jurisdiction over a nonresident defendant with no other contacts to the forum state.
b. Stream of commerce arguments must depend then on structured conduct
and purposeful availment.
5. J. McIntyre Machinery v. Nicastro (564 U.S. 873 2011)**plurality rule
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6.
7.
8.
9.
III.
a. For a defendant to be subject to personal jurisdiction, it must purposefully
avail itself of the privilege of conduction business in the forum and thus
benefit from its protection and laws.
Abdouch v. Lopez (S.C. NE 2013)
a. Personal jurisdiction is proper if the defendant is engaged in purposeful
conduct directed at the forum state
b. Invokes internet advertising and the Zippo test
Bristol-Myers Squibb Co. v. Superior Ct. (137 S. Ct. 2017)
a. For a state to assert specific jurisdiction, there must be an affiliation between
the forum state and the specific claim at issue. It is not enough for some of the
plaintiffs to have been injured in forum state. All need to be.
b. Court held that there was no connection between forum and some of the
claims at bar for the action.
Zippo Manufacturing Co. v Zippo Dot Com (W.D. Pa. 1997)
a. Sliding scale test:
i. Doing business over the internet (Enough to support Specific
jurisdiction)
ii. Exchanging information with the host computer
iii. Posting information on the web (Not enough to support jurisdiction)
Calder v. Jones (465 U.S. 1984)
a. Tortious acts can create personal jurisdiction if a plaintiff shows that
defendant’s actions were:
i. Intentional
ii. Uniquely or expressly aimed at the forum state AND
iii. Caused harm in the forum state, which the defendant knew.
Notice
1. Intimately connected to Due Process of Law, which may be satisfied through proper notice,
reasonably calculated under all the circumstances to inform the intended party. This can be
through:
i. First Class mail
ii. Certified Mail with Return Receipt
iii. Publication (constructive notice)
iv. Email** in extreme cases under discretion of court (See: RIO)
2. To solve a notice problem, first look to who should be given notice – an individual or corporation,
then go from there.
3. Cases:
i. Mullane v. Central Hanover Bank (339 U.S. 1950)
1. Notice must be reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to
present their objections.
2. All cases require a form of notice that is sensible under the circumstances and
reasonably likely to actually inform interested parties.
3. Actual notice is not always required. Constructive notice might suffice in some cases.
4. Satisfying Mullane does not satisfy Rule 4 requirements alone.
ii. Rio Properties Inc. v. Rio International Interlink (284 9th Cir. 2002)
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1. A party in federal court does NOT need to exhaust every method of service listed in
IV.
FRCP 4(f) for serving an individual in a foreign country before requesting court
authorization to use alternative methods.
2. Plaintiffs must demonstrate the need for a court order.
3. Actual notice does not inherently satisfy Rule 4 and Due Process Clause.
iii. National Equipment Rental Ltd. v. Szhukhent (S.C.U.S. 1964)
1. Contracts designating an agent to complete service of process, through an agent of a
party, stand when consent is proper. Rule 4(e)(2)(c).
2. Contracts can designate a waiver of personal jurisdiction if the agent lives in a forum
state.
iv. Jones v. Flowers (2006).
1. Complying with a statute might not be enough to properly provide notice, when the
sender has confirmation and knows (Certified mail) that recipient did not get mail.
v. Covey v. Town of Somers (1956)
1. Mailing notice may be insufficient if a defendant recipient is known to be in a
hospital for mental health reasons and was without a protection of a guardian. In this
case, a sender should take additional steps to properly qualify service.
vi. Green v. Lindsay (1982)
1. If sender knows, or even should know, that notice is improper, it could be
unconstitutional and those improper.
4. Rule 4 (See Below)
Subject Matter Jurisdiction
1. This cannot be waived and is required for federal courts to hear a case.
2. Constitutional Origins: Article 3, Section 2 grants “arising under jurisdiction” to federal questions.
i. Osborn v. Bank of the United States gives broad interpretation to claims that “might raise”
federal questions.
3. Statutory Origins: Congress created outer limits of power given to federal courts and created lower
courts also:
i. 28 U.S.C. 1331 – Arising Under
1. Well-pleaded Complaint Rule interpreting 1331 requires a plaintiff’s claim to arise
from federal law, otherwise there is no Arising Under Jurisdiction.
2. Courts should look only at affirmative case, contract disputes are under purview
of state law.
3. Counter arguments are not enough for Federal Subject Matter, even if the issue is
significant and controlling. (See Mottley)
ii. 28 U.S.C. 1332 – Diversity Jurisdiction
iii. 28 U.S.C. 1367 – Supplemental Jurisdiction
iv. 28 U.S.C. 1257 – Supreme Court may hear cases from State Law claims through Certiorari
4. Diversity Jurisdiction – Complete Diversity with amount in controversy exceeding $75,000.00
i. Diversity is established on the date the law suit commences.
ii. 1332(a)(1) – (2)
1. Citizens of different states
a. MI v. WA
2. Citizen of US state v. Foreign defendant
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a. Diversity exists in cases where multiple citizens (or just one citizen) exists so
long as there are foreigners on the other side
b. MI. v. Cit. of Japan
c. Exceptions: clauses that can destroy diversity to limit state law claims.
3. Citizens of US State and Foreign plaintiff v. Citizen of US State plus foreign
defendant
a. MI + Denmark v. WA + Japan
4. Foreign state plaintiff v. Citizen of state
5. Patterns must fit exactly, must meet these examples.
iii. 1332(c) – Corporate citizenship
1. Corporations can have two states of citizenship:
a. Incorporation and principal place of business (Nerve center)
iv. Trick questions in diversity:
1. You do not subtract the value of counter-claims for amount in controversy ($75,000),
just evaluate the plaintiff’s valuation
2. A plaintiff can aggregate unrelated claims under diversity jurisdiction to reach
amount in controversy
3. Two plaintiffs cannot aggregate unrelated claims against one defendant and
aggregation does not exist for separate plaintiffs against one defendant even if they
arise from the same transaction
4. Two plaintiffs can satisfy the amount in controversy, but only through supplemental
jurisdiction as in Exxon Mobil v. Allapattah (SCOTUS 2005)
v. Cases:
1. Hertz v. Friend (SCOTUS 2010)
a. A corporation's PPB is identified as the "nerve center" where the high level
officers direct, control, and coordinate company's activities
2. Render v. Sanders (SDNY 2000)
a. Redner, a citizen of U.S. but residing in France sued corporate defendant at
PPB in NY. Redner alleged he was a resident of France and had contacts with
CA. Court held that citizenship is distinguished from residency and a plaintiff
was not able to establish domicile in CA. Need to be physically present in
state with an intent to remain.
3. Strawbridge v. Curtiss – Standard for Complete Diversity
a. Complete diversity is required; no plaintiff may be from the same state as any
defendant.
b. Analysis of 28 U.S.C. 1332 derived from Article III of constitution.
4. In re Ameriquest
a. A loose factual connection may be sufficient to confer supplemental
jurisdiction if the facts are common and operative for all claims
i. i.e. a federal question is directly tied into a state law question
ii. Federal court accepts case as there is otherwise no way for relief of
plaintiff
iii. Analysis of 28 U.S.C. 1367(c) for reasons to withhold supplemental
jurisdiction
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5. Szendrey-Ramos v. First Bancorp (D.P.R. 2007)
a. Federal court declined to extend supplemental jurisdiction here over state law
claims but takes federal claims forward.
b. Cites 1367(c)(1) and (2) regarding complex or novel issues in state law and
PR ethics.
6. Caterpillar, Inc. v. Lewis (SCOTUS 1996)
a. Ginsburg opinion for federal district court’s failure to remand case does not
mean the trial must be held again
b. Substantial considerations once a trial has concluded to not duplicate efforts;
Error carried forward.
7. Exxon Mobil v. Allapattah (SCOTUS 2005)- broad reading of 1367.
a. Where other elements of diversity jurisdiction are present and at least one
named plaintiff satisfies the amount-in-controversy requirement, the court
may exercise jurisdiction over other plaintiffs who might otherwise be
properly joined but who do not allege damages which reach the jurisdictional
amount.
b. Complete diversity must still be satisfied.
5. Removal Jurisdiction – When may a defendant remove to federal court.
i. 28 U.S.C. 1441(a)
1. Must have arising under jurisdiction under original claim, it cannot be raised as a
defense.
2. If successful the case is removed to the proper district court in the same state.
a. Could then use 1404 to transfer to another federal district.
ii. 28 U.S.C. 1441(b) – Diversity
1. 1441(b)(2)You can remove to federal court under diversity jurisdiction, if it is proper.
2. Exception: “Hometown defendant rule” does not allow removal IF ANY of the
defendants are citizens in the state where the action is brought. This deals with a
potential lack of bias; there is no concern for the defendant but only applies to
Diversity Cases.
3. This constitutes an automatic removal unless there is a challenge by plaintiff or
the new court remands the case to state court.
4. Potential problems for removal:
a. Rule 11 sanctions if pleadings aren’t truthful or are meant to harass
b. Must remove within 30 days - 1446(b)
c. Cannot be in bad faith 1446(c)
iii. Diversity Removal from State to Federal Court is allowed under:
1. 28 U.S.C. 1442, 1442(a), 1443
2. 1445 specifies what cases are not allowed to be removed
3. 1446, 1447 – procedures for removal or after removal
a. Defendant must file notice within 30 days
6. Supplemental Jurisdiction
i. 28 U.S.C. 1367
1. Allows court of hear “anchor claims” as they are tied to questions of federal
jurisdiction
2. 1367(a) Can bring claims that are related under the “same case or controversy”
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V.
3. 1367(b) If you have an anchor claim based on diversity, then you must structure the
law suit to maintain it. Excluding joinder.
4. 1367(c) A court has discretion to decline supplemental jurisdiction:
a. The claim raises novel or complex issues of state law.
b. The claim substantially predominates over the claim or claims over which the
district court has original jurisdiction
c. District court has dismissed all claims over which it has original jurisdiction,
OR
d. In exceptional circumstances, there are compelling reasons for declining
jurisdiction
Self-Imposed Restraint
i. Long-Arm Statutes allow for courts to obtain personal jurisdiction over an out of state
defendant on the basis of certain acts committed by the defendant.
ii. There are both federal and state long-arm statutes.
iii. FRCP Rule 4(k)(1)(a) – Federal reach is the same as the state reach
1. Look to state long-arm statute
2. Look for 14th Amendment for minimum contacts with state
3. Exceptions:
a. 100 Mi. Bulge under Rule 14 and 19
b. When authorized by federal statute
c. When a case arises under federal law, and defendant doesn’t have minimum
contacts with forum, and defendant does have minimum contacts with US.
iv. To satisfy Personal Jurisdiction:
1. What does the U.S. Constitution allow?
2. What does the Long-Arm Statute Allow?
2. Cases:
i. Gibbons v. Brown (Dist. Ct. FL 1998)
1. States may limit long-arm statutes that is more restrictive than constitutional limits,
like FL. Other states, like CA might identify personal jurisdiction to the full extent of
the Constitution.
2. Courts check the Long arm statute then check for Constitutional Due Process
violations.
ii. Atlantic Marine Construction Co. v. U.S. District Ct. (571 U.S. 2013)
1. When parties have entered into a valid forum-selection clause that designates a
specific federal venue, then the case should be transferred to the designated district
unless extraordinary circumstances exist that are unrelated to the convenience of the
parties.
iii. Piper Aircraft v. Reno (454 U.S. 1981)
1. A plaintiff may not defeat a motion to dismiss on the grounds of forum nonconveniens merely by showing that the substantive law that would be applied in an
alternative forum is less favorable to the plaintiffs that the present forum.
iv. Thompson v. Greyhound Lines (S.D. AL 2012)
1. In a federal diversity suit, venue is proper where a substantial portion of the events
giving rise to the action occurred. 1391(b)(2).
3. Federal Venue Statute: 28 U.S.C. Section 1391(b) – where is venue proper?
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i. Venue is a statutory creation that mandates exactly which court is proper in determining
where an action may be heard for administrative purposes. Each district is to be treated as its
own state.
ii. Judicial district where any defendant resides IF all defendants reside in the same state.
iii. Judicial district in which a substantial part of the events or omissions giving rise to a
claim occurred, or a substantial part of property that is the subject of the action is situated;
OR
iv. If there is no judicial district in which the action may be brought, then any judicial district in
which any defendant is subject to the court’s personal jurisdiction. (only viable option if
neither 1 nor 2 work).
4. Venue: Residence – 1391(c)
i. Individual
1. Residence, where place of domicile with an intent to remain.
ii. Corporation
1. Anywhere personal jurisdiction is proper – could be multiple places in U.S.
depending on where business is at home, incorporated, or with continuous contacts
under the Shoe regime.
iii. Foreign
1. Any judicial district.
2. Look for trick questions relying on 1391(b) suits against foreign citizens. You
must have personal jurisdiction as well as proper venue.
5. Transfer Statutes:
i. Forum Non Conveniens (common law doctrine)
1. This results in a dismissal of the case despite correct venue, balancing convenience
against the right of a plaintiff to structure lawsuit.
2. This requires a higher hurdle to clear and was a pre-cursor 1404.
3. Still available for state courts but only available to Federal courts when the proper
venue is out of the country.
ii. 28 U.S.C. §1406 – Cure or waiver of defects, for wrong venue
1. A court may dismiss or, if in the interest of justice, transfer a case to where it
might have been properly brought. See Greyhound.
2. Defendants can move to dismiss on improper venue under 12(b)(3); therefore it may
also be waived if not brought up.
iii. 28 U.S.C. §1404 – Change of Venue only between federal courts.
1. A defendant may ask for a transfer even when the venue is proper, in “the interest of
justice” 1404(a), to which a court may approve.
2. Private interest factors
a. Origination of the claim
b. Convenience of parties
c. Convenience of witnesses
d. Ease of access to sources of proof
3. Public interest factors
a. Court’s familiarity with laws
b. Relative efficiency for courts
c. Local policy interest in deciding case
4. General presumption in favor of a plaintiff’s choice of forum
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VI.
a. See Piper Aircraft v. Reyno
b. When foreign plaintiff courts may distinguish fairness rights
iv. 28 U.S.C. 1631 - Transfer to cure want of jurisdiction
1. If it is in the interest of justice to transfer for want of jurisdiction
Federal Rules of Civil Procedure (FRCP)
1. Rule 3 – Commences Civil Action by filing complaint with court
2. Rule 4 – Notice (Summons & Complaint)
i. After filing complaint and sealing summons with courthouse, serve process within 90 days
otherwise case is dismissed. The court can extend time with good cause cited for plaintiff.
1. 4(c)(1)  4(m) 90 day limit
ii. 4(c): Who can serve?
1. Anyone at least 18 and not a party to the lawsuit.
2. Plaintiff can request a court order service by U.S. Marshall.
iii. 4(e): Service of process on Individual
1. Request Service of waiver Rule 4(d)(1)
a. If returned and completed, defendant receives extended time to file an answer
until 60 days after request was sent, or 90 days if defendant is outside U.S.
2. Response Time for waiver: 4(d)(1)(F)
a. 30 days from date the waiver request is sent or 60 days if outside the U.S.
b. After this time has expired, plaintiff can choose another method of service and
seek costs.
3. Failure to Waive: 4(d)(2)
a. Absent good cause for refusal, defendant must pay future costs of service.
4. Without waiver: 4(e)(1) – Follow State Law
a. 4(e)(2)(A) – Personal delivery
b. 4(e)(2)(B) – Leave copy at dwelling with someone of suitable age and
discretion
i. Not a minor, not an incompetent person, etc. 4(g), follow state law.
c. 4(e)(2)(C) – Serve Agent
iv. 4(h): Service of process on Corporations
1. Request Service of waiver also, Rule 4(d)(1).
2. Could tag an officer of corp. or an agent
v. 4(f): Service of process on foreign individuals
1. Request Service of waiver Rule 4(d)(1).
3. Rule 7 – Pleadings including complaint and answer
4. Rule 8 – General pleading rules
i. (a)(1) - Jurisdictional statement
1. Citizenship statements for subject-matter
ii. (a)(3) - prayer for relief
1. State what plaintiff wants, be specific here but broad enough to caveat it for
maximum damages
iii. (a)(2) - "Plain and short statement of the claim"
1. Can only be so specific in a complaint, it's the first stab at framing argument
2. Might not have much information however, so you must tailor approach
iv. Claim or cause of action:
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1. Legally recognized grievance and issues of substantive law. Some recognized through
common law: torts, etc. and statutory causes of action (like civil rights claim), though
these may not explicitly state a cause of action
2. Need elements and legal recognition, otherwise risk factual insufficiency or legal
insufficiency through 12(b)(6)
v. What if the plaintiff doesn't have a legal claim?
1. Rule 12(b) Motions to Dismiss
a. Legal insufficiency - failure to state claim as a matter of law; no legally
recognized grievance
b. Factual insufficiency - failure to show that claim is possible, and now more
cases are being kicked
vi. 8(c)(1) - Affirmative Defenses responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense
vii. Cases:
1. Haddle v. Garrison (SCOTUS/Lower circuit/ 1998/1997)
a. A court will dismiss a complaint for failure to state a claim upon which relief
can be granted if taking all allegations as true, the plaintiff is still not entitled
to relief under the law.
b. However, a court should dismiss a claim for failure to state a claim upon
which relief can be granted if the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.
c. Haddle had a claim under the civil rights statute, regardless of his status as an
at-will employee.
2. Conley v. Gibson (1957)
a. Notice pleading, plaintiff doesn’t need to plead specific facts
b. Facts may be discovered later (in discovery)
c. Conclusory statements allowed
3. Bell Atlantic v. Twombly (2006) / Ashcroft v. Iqbal (2004)
a. Greater standard for fact specificity in pleadings
b. Does not require detailed factual allegations, but it demands more than
“unadorned” accusations of harm
c. Conclusory statements struck from pleading, as are legal conclusions, and
“formulaic” recitations of elements of wrong.
d. Two pronged test:
i. Courts disregard conclusory statements.
ii. Courts decide whether remaining allegations appear “plausible on its
face” in light of judicial experience.
e. Plausibility standard: There cannot be obvious alternative explanation to a
claim.
4. Ziglar v. Abbasi (2017)
a. Similar claims to Iqbal
b. Dismissed on grounds of legal insufficiency to state a claim 12(b)(6) under
Bivens as this was not a 4th amendment violation
5. Rule 11 Sanctions
i. Generally: Can only occur through written pleadings to the court
1. A client or a lawyer (or both) can be held liable for Rule 11 sanctions
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2. While good-faith mistakes are acceptable, lawyers cannot knowingly advance false
positions: 11(b)
3. If violated, party may seek sanctions by drafting a separate motion in writing
specifying conduct
a. Serve to opposing party under Rule 5 (for motions other than pleadings)
b. 21 days for opposing party to withdraw disputed paper
c. If accused party does not withdraw then file motion with the court
d. Court then holds hearing before imposing sanctions
4. A court may order sanctions
ii. Signatures
1. Required by attorney or party on every pleading, written motion, and other paper
iii. Representations to the Court
1. Certifies that the filing is proper and not to harass, burden, or needlessly increase
costs.
2. Factual and legal contentions are warranted by existing law or by a nonfrivolous
argument for changing the law.
3. Lawyers must make a good faith inquiry to fact find for themselves before
representing things to a court
iv. Sanctions – Must tell the bar about a violation
1. Can be monetary or non-monetary, anything the court deems appropriate to stop the
conduct from reoccurring
a. E.g. attorney’s fees, an apology, a payment to the court, an order to attend a
training seminar, or give a presentation
2. Factors consider whether conduct was willful or negligent
v. Limits:
1. Court cannot impose monetary sanctions against a represented party for legal
violations as they don’t know the law. If a court imposes Rule 11 there will be no
monetary sanctions following a voluntary dismissal or settlement.
2. Rule 11(c)(5)(a)
vi. Cases:
1. Walker v. Norwest Corp.
a. Plaintiff poorly pleaded diversity jurisdiction, doesn’t assert complete
diversity
b. Defendant sent letter to withdraw or face sanctions
c. District court chose to impose a sanction, a lawyer like this may present a
danger to Bar and society
d. Sanction later affirmed by 8th circuit.
2. Christian v. Mattel
a. Mattel doll copyright infringement case; court didn’t have to impose a
sanction but did anyway as the lawyer had a massive factual problem with
their case.
6. Rule 12 – Pre-answer Motions and Answer
i. How to answer a complaint:
1. Default Judgement (decline to dispute)
a. Rule 55 – judgement entered against a party that fails to appear and defend
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i. If relief is sum certain (e.g. a lease agreement) then court clerk enters
judgement that is enforceable.
ii. If no sum certain, plaintiff may seek a court order and hearing to
determine damages.
b. Option for defendants who have no money to defend themselves, may lose
anyway.
c. Collateral attack – concede case to then attack it in another forum if you are
sure you will win.
i. You cannot attack with an issue you raised in the first case.
2. Answer the complaint
a. Admit
b. Deny – don’t generally deny everything unless you want to open up Rule 11
sanctions (see Zielinkski)
3.
4.
5.
6.
7.
c. Qualified Denial – lack knowledge or admit/deny
i. Rule 8(b)(6) – lack of denial of allegation is admittance to allegation.
If a responsive pleading is not required, an allegation is considered
denied or avoided.
File pre-answer motion before answer (e.g. the Tool Kit)
Settlement
a. Always an option outside of formal litigation process; considered for less cost
potential in both money and time.
Generally: 12(a)(1) – defendant must serve answer within 21 days after being served
complaint, or 60 days with waived service, or 90 days if outside U.S.
a. A party must serve an answer to a counterclaim or crossclaim within 21 days
after being served with the pleading that states the counterclaim or crossclaim.
Defenses 12(b) – one bite at the apple here for 12(b) defenses in either pre-answer
motions or the answer itself, everything besides subject-matter and failure to state a
claim and joinder can be waived. Failure to state:
a. 1 - Subject Matter Jurisdiction (anytime and cannot be waived)
b. 2 - Personal Jurisdiction
c. 3 - Venue
d. 4 - Process
e. 5 - Service
f. 6 - State a Claim (any time before the trial, and cannot be waived)
i. Legal insufficiency (See Ziggler, Haddle)
ii. Factual insufficiency (See Iqbal)
g. 7 – party joinder
h. File these in pre-answer or state in answer and follow these up with 12(c)
motion in pleadings to let the court know
i. Otherwise, you have until the answer itself is due to file a pre-answer motion Rule 12(a)
Rule 12(c) – Motion for judgement on the pleadings
a. After pleading are closed, but early enough to not delay trial, a party may
move for judgement on the pleadings
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ii. Cases: Zielinkski v. Philadelphia Piers, Inc.
1. Forklift operator injury, action for personal injury.
2. All parties thought this was addressed to the proper defendants, it was not, but SOL
had run. The real defendant shared the same insurance company and therefore pay out
would be find regardless.
3. An answer that is technically correct may not be upheld by 8(b)(6)
iii. Jones v. Bock (SCOTUS 2007)
1. Prisoner sued for mistreatment in prison under 42 U.S.C. 1983, while statute held to
exhaust administrative remedies first – is this a pleading requirement or an
affirmative defense?
2. Court rules that it’s an affirmative defense for asymmetric knowledge with
institutions
3. Pleadings can be wrong or even redundant before trial until they can be amended to
correspond with facts learned in discovery or before.
iv. Peralta v. Heights Medical Center (SCOTUS 1988)
1. A requirement of due process in any proceeding is notice reasonably calculated
to apprise interested parties of the pendency of the action and afford them the
opportunity to present their objections.
2. Property sold at auction after wrong default judgement against defendant.
7. Rule 13 – Counterclaims and crossclaims
i. (a) Compulsory counterclaims must be brought or they will be waived permanently.
1. Must arise out of same transaction or occurrence, doesn’t require parties that court
cannot join, AND
2. Not being litigated elsewhere presently.
3. Must exist at the time of service.
ii. (b) Permissive Counterclaims:
1. A party may bring a counterclaim even if it is unrequired. Defendant can raise it now
or start an additional lawsuit.
a. Watch out for jurisdictional bars!
iii. 13(g) – Crossclaims
1. Only allowed if it arises out of the same transaction or occurrence as the original
action. These are never mandatory.
2. For diversity jurisdiction crossclaims under 13(g): Section 1367(b) can be used to
defeat crossclaims between co-plaintiffs but not crossclaims between co-defendants.
3. 1367(b): In any civil action founded solely on diversity, district courts shall not have
supplemental jurisdiction over claims by plaintiffs against parties created under Rule
14, 19, 20, or 24 if doing so destroys complete diversity.
iv. Cases:
1. Cordero v. Voltaire, LLC (W.D. of TX, 2013)
a. A counterclaim must arise out of the same transaction or occurrence AND
form part of the same case or controversy 1367(a) to create supplemental
jurisdiction.
8. Rule 14 – Third-party claim, or a Defendant’s joinder tool
i. This allows a defendant to implead another defendant on the grounds that they are liable for
all or part of the claim that was asserted against original defendant
1. A plaintiff could also implead a third party usually because of a counterclaim.
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ii. This allows defendant to serve a complaint and summons against a new plaintiff
1. And successive impleader is proper: 14(a)(5), but you still need a source of
substantive law providing derivative liability for each impleading.
iii. Must have derivative liability (by law) to implead
1. Indemnity clause in a contract, see Price v. CTB
2. Indemnity as provided by statute
3. Right to contribution as recognized by common law
iv. Must implead within 14 days of serving answer, and outside of those 14 days, the defendant
must obtain leave of the court by motion.
v. Cases:
1. Price v. CTB, Inc. (M.D. of AL, 2001)
a. Plaintiff famer sued chicken coop builder, but they then impleaded ITW
alleging nails were defectively manufactured.
b. Must there be substantive law to implead? No, derivative liability may be
taken from contracts, statute, or common law.
9. Rule 15 – Amendments
i. As of right: Rule 15(a)(1)
1. A party may amend its pleading once as a matter of course within:
a. 21 days after serving it, or (for answers to amend)
b. If the pleading is one to which a responsive pleading is required, 21 days after
service of responsive pleading or 21 days after service of a motion under Rule
12(b),(e), or (f), whichever is earlier (For amendments to complaint or to
counterclaims)
ii. With leave of the Court: Rule 15(a)(2)
1. Other Amendments: In all other cases, a party may amend its pleading only with
the opposing party's written consent or the court's leave. The court should freely
give leave when justice so requires.
2. Case standard: Foman v. Davis (U.S. 1962)
a. The decision to grant leave is within the discretion of the district court.
Generally, leave should be granted unless:
i. There is undue delay, bad faith, or dilatory motive on the part of the
movant, OR
ii. There would be undue prejudice to the opposing party if the
amendment is allowed.
iii. 15(c) – SOL
1. This pretends that the amendment is filed on the date of the original pleading so no
SOL issues, only when:
a. The substantive law allows it, e.g. a statute expressly states it.
b. For new claims, the amendment asserts a new claim or defense that arose out
of the “conduct, transaction, or occurrence set out” in the original pleading,
OR
c. For new parties, requirements are met for amendments seeking to change the
named defendants. This will be very difficult for fairness concerns.
2. (1)(B) – Adding new claims or defenses in relation back problems
iv. Cases:
1. Beeck v. Aquaslide ‘N’ Dive Corp.
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a. Personal injury suit over water slide. Three investigations with insurance
companies all agree that it has the correct defendant. SOL runs. Discover that
it isn’t the right defendant. They seek leave of court to change answer to a
denial.
b. Is defendant entitled to amend answer it gave, admitting it was the
manufacturer when the SOL has run?
c. Good excuse for the delay here, prejudice to plaintiff for SOL but almost no
chance of getting right defendant.
2. Moore v. Baker (1993)
a. Amended complaint did not relate back to the same circumstance – therefore a
malpractice suit cannot be asserted as a matter of law. Narrow complaint
specified timing here. A broad one might have helped.
3. Bonerb v. Richard J. Caron Foundation (1994)
a. Plaintiff could amend complaint for personal injury when the foundation itself
was negligent in counseling generally. This came from a broad complaint
before first counsel was dismissed.
v. Tension between waiver and amendment proceedings:
1. Defendant didn’t claim affirmative defense under 8(c) so can they amend under 15(a)
(2)? Yes, waiver of affirmative defenses are possible. The longer a party waits to
amend the pleading, the more difficult it will be to get court’s leave. But if the
discovery influences fact finding then it may be allowed.
10. Rule 18 – Joinder, “Yes to all,” bring all claims possible; no limits to the below claims
i. A single plaintiff can join any and all claims he has against a single defendant here.
ii. This does not compel joinder of claims, but incentivizes joinder of all related claims as soon
as possible.
iii. (a) In General: A party may assert a claim, counterclaim, crossclaim, or third-party claim
may join, as independent or alternative claims, as many claims as it has against an opposing
party.
1. Claims: plaintiff makes a cause of action.
2. Counterclaims: A designated response, an answer, that is itself against the plaintiff of
a lawsuit.
3. Crossclaim: A claim brought by one defendant against another defendant in the same
proceeding.
iv. (b) Joinder of Contingent Claims: A party may join two claims even though one of them is
contingent on the disposition of the other; but the court may grant relief only in accordance
with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for
money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without
first obtaining a judgement for money.
v. Jurisdiction requirements for Joinder
1. Reminder: personal jurisdiction and subject matter jurisdiction both required for
additionally joined claims.
2. Supplemental jurisdiction: 28 U.S.C. 1367
a. Crossclaims between defendants, even under diversity will not be barred.
However, this would be a bar to plaintiffs 1367(b).
11. Rule 19 – Required Joinder of Parties
i. Absent parties will be required when: 19(a)
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1. When complete relief cannot be met unless the missing party is joined OR
2. (1)(B)(i) When the absent party has an interest in the case and is so situated that
disposing of the claim in their absence may hurt them, OR
3. 1(B)(ii) Absent party has an interest and is so situated that disposing of the claim in
the person's absence may leave existing party exposed to multiple or inconsistent
obligations.
ii. When is joinder not feasible?
1. Lack of pj, sm j, lack of venue, and sovereign immunity.
iii. What options does a court have?
1. Let the case proceed without the party
2. Dismiss the case
3. Go forward but shape the relief to avoid prejudice to absent parties.
iv. Factors to consider, 19(b):
1. How much prejudice?
2. How can prejudice be avoided or mitigated?
3. Would judgement in the party’s absence be adequate?
4. Would the plaintiff have a remedy if the action were dismissed?
v. This is based on “equity and good conscience,” and oozes discretion. Courts will be creative
here as it is a fact/context specific inquiry.
vi. Cases:
1. Temple v. Synthes (U.S. 1990)
a. Joint tortfeasors are not necessarily required parties. The fact that the lawsuit
would be more efficient if all parties were joined does not mean that the
doctor and hospital must be joined.
2. Clinton v. Babbitt (9th Cir. 1999)
a. Sovereign immunity may make it impossible to join required parties.
3. Helzberg Diamond
a. Court chose not to dismiss the case when a required party could have been
joined for a contract dispute as the defendant was being scummy with their
business practices and admitting the other party would have destroyed
diversity.
12. Rule 20 – Permissive Joinder of Parties
i. Same transaction or occurrence, this is a procedural place for advocacy as to why the party
belongs in the trial, and is discretionary for the judge to decide.
ii. Adding more parties complicates case so there are limits to what is allowed
iii. Cases:
1. Mosley v. General Motors Corp. (8th Cir., 1974)
a. A “perfect overlap” or issues is not necessary between all defendants and all
plaintiffs. Instead, all plaintiffs can join into one action if they assert a right to
relief arising out of the same transaction or occurrence and a question of
law or fact is common to all parties in the action.
i. E.g. discrimination was common to all here.
2. U.S. v. Mississippi (SCOTUS 1965)
a. A state-wide system designed to disenfranchise black people was held to
involve the same series of transactions or occurrences, i.e. a common question
of fact or law existed.
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3. Walmart v. Duke (SCOTUS 2011)
a. Regarding class certification, but similarly shows how a different animating
philosophy on civil rights claims may lead to a different view of “common
question of law or fact.”
13. Rule 26 – Discovery
i. 26(b)(1): Material sought must be both relevant and not privileged to be discoverable, and
proportional to the needs of the case
1. The court has discretion to limit discovery by order as well as the type of information
ii. Information does not need to be admissible as evidence to be discoverable.
iii. Can motion for a protective order under Rule 26(c)
iv. Discovery dance:
1. Plaintiff requests, defendant objects, plaintiff moves to compel, court then decides
what to allow:
a. Is it relevant?
b. Is it privileged?
c. Is it proportional to the needs of the case?
v. Duties in discovery
1. Parties typically have a duty to preserve documents when they know or have reason
to know of a pending action. See Zubulake.
2. Electronically stored information can be asked for, including: Metadata, excel
spreadsheets, etc. See Rule 37(e).
vi. Discovery sanctions:
1. Sanctions for failure to comply with a court order, Rule 37:
a. See Security National Bank v. Abbott Labs
2. Sanctions for failing to preserve ESI: Rule 37(e), see Mueller v. Swift.
a. Party seeking sanctions must show duty to preserve and that the information
cannot be restored or replaced (there is prejudice)
b. Intentionality matters
3. Rule 26(g) applies to discovery, requires signatures on disclosures, discovery
requests, and responses (like Rule 11). Available on motion or sua sponte by the
court.
a. Complete and timely with respect to disclosures
b. Consistent with rules and existing law
c. Not meant to harass, delay, or needlessly increase costs
d. Not unreasonable or unduly burdensome in light of the needs of the case.
e. Sanctions on counsel and party permitted
vii. Cases
1. Favale v. Roman Catholic Diocese of Bridgeport (D. Conn. 2005) – Protective Order
Granted
a. The plaintiff v. defendant dance: confer with counsel, then motion to compel
with Rule 37(a).
b. Courts will issue a protective order if the substantive claim is not related
to information. (here, woman’s anger management wasn’t seen as related to
sexual harassment).
c. Relevance is not a high bar, but it does not equal admissibility, it comes down
to advocacy as to why information is needed.
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d. Depends on issues and defenses in the pleadings to prove up objections or
complaint.
2. Cerrato v. Nutribullet (M.D. Fla. 2017) – Motion to compel granted
a. Negligence and strict liability action with a broad document production
request, which defendant objected to. Plaintiff moved to compel, court grants
motion in part, but the request is trimmed to limit the scope of information.
3. Rengifo v. Erevos Enterprises (S.D.N.Y 2007) – Protective order granted
a. Defendant sought tax documents and immigration status that was possibly
relevant to the claim, but it was really intended to harass and chill litigation.
b. Courts may grant protective order even if the material sought is relevant.
4. Zubulake (2004) – Duty to preserve documents
a. A duty to preserve documents stems from the notice of evidence of litigation,
so the party after receiving notice, has a duty to preserve relevant information.
b. This applies to pending or reasonably foreseeable litigation.
5. Mueller v. Swift (D. Colo. 2017) – Rule 37(e)
a. Courts will allow a jury to draw an adverse inference in cases where party
fails to produce evidence that it should have had.
6. Security National Bank v. Abbott Labs – Rule 37
a. Court may sanction sua sponte when a lawyer is intentionally difficult and
fails to comply with court order.
14. Rule 42 – Judicial discretion
i. Courts can sever claims into smaller cases to stop cases from becoming overly complicated
ii. Courts can also join and/or consolidate multiple cases
15. Rule 55 – Default judgement for plaintiff, see Rule 12
16. Rule 56 – Summary Judgement
i. A party may move for summary judgement after identifying each claim or defense to dismiss
when there is no genuine dispute as to any material fact and the movant is entitled to
judgement as a matter of law.
1. No genuine dispute means that no reasonable jury could find for either side, therefore
a jury is not needed. See Anderson Liberty Lobby.
2. No issue of material fact usually means here that both the defendant’s and plaintiff’s
stories do not exclude each other in cases, ask if both could be true then the party with
the burden of proof will likely lose.
3. Entitled to judgement as a matter of law means to attach legal arguments, evidence,
and documents to show the court why you should win. Usually the moving party must
meet the burden of production first, while the defendant must only poke holes and
sow doubt.
4. The court must state for the record why they are granting or denying motions of
summary judgement.
5. View in the light most favorable to the non-moving party.
ii. Watch out for circumstantial evidence that isn’t mutually exclusive.
iii. When the moving party bears the burden of proof (most cases):
1. Moving party lays out claim and argues with evidence, photos, documents, and
interrogatory responses to show there is no genuine issue of material fact using the
preponderance standard.
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a. The burden of production now shifts to the nonmoving party to respond and
attack the credibility of the argument and create doubt about facts. See Jones
v. Block, where defendant wanted to shift burden of proof to prisoner.
b. The goal of the non-moving party needs to show more than a “metaphysical
doubt,” See Matsushita.
iv. Cases
1. Anderson Liberty Lobby (U.S. 1986)
a. The mere “existence of a scintilla of evidence” in support is not sufficient to
defeat a motion of summary judgement.
2. Celotex v. Catrett (SCOTUS 1986)
a. No naked motions (56(c)) are allowed for summary judgement, there must be
good evidence and argumentation to convince a court to grant motion. This
usually benefits the defendant. A non-moving party doesn’t need to prove
anything, they must poke holes in the argument to show an issue of fact.
3. Tolan v. Cotton (S. Ct. 2014)
a. Courts must consider facts in a light most favorable to the non-moving party.
4. Bias v. Advantage International, Inc. (D.C., Cir. 1990)
a. Failure to dispute or contradict testimony and other evidence will inevitably
sink challenges to a motion for summary judgement.
5. Matsushita (U.S. 1986)
a. A non-moving party has to show more than mere metaphysical doubt in order
to defeat the motion for summary judgement.
17. Rule 50 – Post-trial Motions / JMOL
i. Rule 50(a): this is a motion for a judgement as a matter of law or a “directed verdict.” This
must be motioned after a party has been fully heard but before the case is submitted to the
jury for deliberations.
1. Standard: appropriate if a reasonable jury would not have a legally sufficient basis to
find for the nonmoving party, meaning that no reasonable jury would find for the
nonmoving party.
2. Qualifications: this applies to jury trials and the review on appeal is de novo.
ii. Rule 50(b): You must first motion for a judgement as a matter of law using 50(a); after this,
you use 50(b) after the jury returns the verdict and 28 days before the judgement is entered.
This has the same standard as Rule 50(a). See Unitherm Food Systems.
1. Standard of review on appeal: De novo.
iii. The judge will almost always deny the Rule 50(a) motion because they want to have a verdict
if it goes to appeal and then gets remanded. The last thing a court wants to do in this case is
make a decision and then have to try the case again.
iv. You can bring a Rule 59 – Motion for a new trial alongside a Rule 50(b) motion, otherwise
appeals won’t consider it. You can also bring it separately. Review of Rule 59 is abuse of
discretion so it’s actually easier to get a new trial than it is to direct a verdict.
v. Cases:
1. Unitherm Food Systems (2006).
a. You must first bring a 50(a) motion before you bring a 50(b) motion; an
appellate court cannot entertain arguments about a new trial if the movant did
not bring a motion under Rule 59, you’ve waived that issue.
2. Lind v. Schenley Industries (1960)
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a. Appellate courts rarely find abuse of discretion in cases where there is no
flawed procedure, e.g. jury was given proper evidence, and there was not a
flawed verdict, e.g. a reasonable jury could have found for both sides.
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