Civil Procedure Outline
Topic 1: Personal Jurisdiction
Question: Does the court have power over the parties to adjudicate the dispute?
Three Types of Personal Jurisdiction
1. In Personam Jurisdiction - In personam jurisdiction exists when the forum has power
over the person of a particular defendant.
a. General jurisdiction—in personam jurisdiction for any cause of action against
the defendant, regardless of where the cause of action arose—requires that a
defendant be “at home” in the jurisdiction. A person is “at home” in the state in
which he is domiciled, and a corporation is “at home” in the state in which it was
incorporated and the state in which it has its principal place of business.
[Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011);
Daimler AG v. Bauman, 134 S. Ct. 746 (2014)]
b. Specific Jurisdiction- If the defendant’s in-state activity is less than systematic or
continuous (e.g., isolated acts), in personam jurisdiction over the defendant will
be proper only for causes of action arising from that in-state activity; i.e., the
court will have “specific jurisdiction.”
1. Purposeful Availment (To get contact)
2. Connection to the claim
3. Reasonableness
2. In Rem Jurisdiction - In rem jurisdiction exists when the court has power to adjudicate
the rights of all persons in the world with respect to a particular item of property. This
jurisdiction is limited to situations where the property is located within the physical
borders of the state and where it is necessary for the state to be able to bind all persons
regarding the property’s ownership and use. (Suit is about who owns this property)
3. Quasi in Rem Jurisdiction - One type of quasi in rem jurisdiction exists when the court
has power to determine whether particular individuals own specific property within the
court’s control. Unlike in rem jurisdiction, however, it does not permit the court to
determine the rights of all persons in the world with respect to the property. A second
type of quasi in rem jurisdiction permits the court to adjudicate disputes other than
ownership based on the presence of the defendant’s property in the forum. (Suit is about
any claim using the property for jurisdictional purposes. However, court must seize land
first in order to enter judgement using that land).
In Rem Jurisdiction Analysis
1. Does attachment statute allow it?
2. Is international shoe satisfied? (Shaffer)
Purposeful Availment
 Defendant’s contact with the forum must result from her purposeful availment
with that forum. The contacts cannot be accidental. Defendant must reach out
to the forum in some way, such as to make money there or to use the roads
there. The court must find that through these contacts the defendant purposefully
availed herself “of the privilege of conducting activities within the
forum state, thus invoking the benefits and protections of its laws.”
Contact (Can’t be unilateral)
 International Shoe requires that the defendant have “such minimum contacts” with
the forum that the exercise of jurisdiction would be fair and reasonable. In considering
whether there are such contacts, a court will look to two factors: purposeful
availment and foreseeability
Steps in Determining Personal Jurisdiction
1. Is it permitted by the State Statute?
2. Is it permitted by the Constitution?
State Statute Analysis of Personal Jurisdiction
Long Arm Statutes (Does state allow it)
 Most states also grant their courts in personam jurisdiction over nonresidents who
perform or cause to be performed certain acts within the state or who cause results within
the state by acts performed out of the state. In personam jurisdiction is granted regardless
of whether the defendant is served within or outside the forum, but is limited to causes of
action arising from the acts performed or results caused within the state.
Personal Jurisdiction Case Law (Constitutional Analysis)
Pennoyer v. Neff
1. A court has general jurisdiction over defendant when they are served with process within
the forum state.
2. A court has general jurisdiction over a defendant when their agent was served with
process within the forum state (Corporations)
3. A court has general jurisdiction over a defendant if they are domiciled within the forum
state
4. A court has general jurisdiction over a defendant if the defendant consents to jurisdiction
in the forum state.
International Shoe Co. v. Washington
1. The court has specific jurisdiction over a defendant if the defendant has such minimum
contacts with the forum so that jurisdiction does not offend traditional notions of fair
play and substantial justice.
International Shoe Test
 Is there a relevant contact in the forum state?
1. Is there purposeful availment
2. Is it foreseeable that the defendant can be sued there?
 Is there relatedness?
1. Does the plaintiffs claim arise from defendant’s contact within
the forum? Connection to the Claim
 Would it be fair? Reasonable
1. Burden on the defendant (is it unconstitutional)
2. Forums interest
3. Plaintiffs interest
4. Legal systems interest in efficiency
5. Shared substantive policies of the state
McGee v. International Life Insurance Co.
1. A state court has jurisdiction over an out of state company if the company has substantial
connections with the state
 Satisfied rules of (International Shoe) because the defendant reached out to the
plaintiff satisfying minimum contacts and the court had an interest in
adjudicating the case since the plaintiff was one of their citizens satisfying fair
play and substantial justice.
World-Wide Volkswagen Corp. v. Woodson
1. Foreseeability alone is not sufficient to authorize a state court’s assertion of personal
jurisdiction over a non-resident defendant that has no contacts, ties, or relations with the
forum state. (Was a unilateral act done by the plaintiff getting his car to Oklahoma)
Asahi Metal Industry Co. v. Superior Court
1. Under the due process clause, a foreign business’s awareness that its product will reach a
state within the United States in the stream of commerce does not satisfy the minimum
contacts needed for the forum state to exercise personal jurisdiction over that business.
 O’Connor Theory – If the plaintiff wasn’t targeted by the defendant in any way
then there is no jurisdiction (advertisement/customer service) (addition to
Brennan theory)
 Brennan Theory – When a defendant knows their product will enter the forum
state through the stream of commerce, the forum state has jurisdiction.
Burnham v. Superior Court
1. 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.
 Scalia Theory – Traditional basis (pennoyer v. neff) is enough to grant
jurisdiction
 Brennan Theory – Traditional basis isn’t enough, international shoe always must
be applied.
Daimler AG v. Bauman
1. A court may assert general jurisdiction over a corporation when the corporation’s
affiliations with the forum state are so continuous and systematic as to render the
corporation essentially at home in the state (Incorporated or Principle place of business:
Headquartered)
Brown v. Lockheed Martin
1. A contract to do business in a state does not count as consent to general jurisdiction
within that state.
Bristol Myers Squibb
1. Plaintiffs cannot aggregate claims in an attempt to satisfy personal jurisdiction
requirement.
 California case where 500+ plaintiffs filed suit in California when only roughly
85 of them had personal jurisdiction there due to the fact that their claims arose
out of the activities the defendant had in CA.
Jackson v. The California Newspapers Partnership
1. A website may give rise to specific jurisdiction over a defendant in a distant state, but
only if the site is sufficiently interactive to satisfy due process. (Zippo Test =
Interactivity)
Andra v. Left Gate
1. Personal jurisdiction may be established when a company has the ability to deny business
somewhere and decides not to.
Illinois v. Hemi Group
1. Case similar to Andra v. Left Gate, denied the sale of cigarettes to New York but allowed
them in Illinois.
Topic 2: Subject Matter Jurisdiction
Does the court have power to adjudicate the case?
State Courts: Have general subject matter jurisdiction over cases (can hear any case)
Federal Courts: Have limited subject matter jurisdiction, based upon constitutional limitations.
(Article 3)
A. Diversity of Citizenship Jurisdiction
Rules
1332 – Diversity of Citizenship: Federal Courts will have original jurisdiction of all civil actions
that exceed an amount in controversy of $75,000 and are between1332(a)(1) – Citizens of different states (citizenship based upon domicile)
1332(c)(1) – A corporation shall be a citizen of every state in which they are incorporated in and
in the state where it has its principle place of business (headquarters, “nerve center”)
(Incorporated: Can be multiple places, Principle place of business: Can only be one)
1332(d)(2) – The district court shall have original jurisdiction over any civil class action that
exceeds 5,000,000.
Complete Diversity Rule
 Diversity jurisdiction requires “complete diversity,” meaning that no plaintiff may
be a citizen of the same state as any defendant. If one defendant and one plaintiff
are co-citizens of the same state, complete diversity is lacking and there is no
diversity jurisdiction. (Strawbridge vs. Curtiss)
Defining Citizenship
Citizenship of a Person
Domicile
 Most states grant their courts in personam jurisdiction over persons who are
domiciliary of the state, even when the defendant is not physically within the state
when served with process.
1. Defined - The determination of the state of citizenship of a natural
person depends on the permanent home to which he intends to return.
The concept is the same, except in name, as domicile. A new state
citizenship may be established by (i) physical presence in a new place
and (ii) the intention to remain there, i.e., no present intent to go
elsewhere. The citizenship of a child is that of her parents. In most
cases, the citizenship of a party will be determined by the court, but it
may be left to the jury.
i. Physical Presence
ii. Intent to remain indefinitely
2. Citizenship - A United States citizen, even though domiciled abroad,
is subject to personal jurisdiction in the United States. The scope of
this basis for jurisdiction is unclear, because states have never
attempted to enact laws or rules enabling their courts to obtain
jurisdiction solely on the basis of citizenship.
Citizenship of a Corporation
1. Principle Place of Business - The Supreme Court has held that a corporation’s “principal
place of business” is the state from which the corporation’s high-level officers direct,
control, and coordinate the corporation’s activities (i.e., its “nerve center,” which will
usually be the corporation’s headquarters). (Hertz Corp. v. Friend)
2. States of Incorporation – States in which they are incorporated in (1332(c)(1))
Unincorporated Businesses (Ex. Partnership)
1. Citizenship of where all its members are domiciled
Amount in Controversy Rules
1. The amount in controversy must exceed $75,000 for diversity of citizenship purposes
2. Will be governed by the plaintiffs’ claims (must be made in good faith)
3. A plaintiff can aggregate claims to exceed amount in controversy requirement (Can only
aggregate if its 1 plaintiff vs 1 defendant)
4. Cannot aggregate claims with multiple defendants or plaintiffs (unless joint claim)
5. With Joint claims, the number of defendants are irrelevant. (Ex. 1 plaintiff attacked by 3
defendants. These claims can be aggregated because they’re joint tortfeasors.) (Big
difference is that it is a single claim)
B. Federal Question Jurisdiction
Rules
1331 – Federal Question Jurisdiction: The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United States. (Arises under
federal law)
Well-Pleaded Complaint Rule
1. The federal question must appear as part of the plaintiff’s cause of action as set out in a
well pleaded complaint. It is therefore sometimes necessary to determine whether certain
allegations are proper in pleading the cause of action, and whether the federal element is
essential to the plaintiff’s case. (Is the plaintiff enforcing a federal right?) (Mottley)
DIVERSITY OF CITIZENSHIP BASICS
1) COMPLETENESS: Diversity must be complete. There cannot be anyone on the left of the “v” and the right. All π’s
must be different from all ’s.
2) DATE: Diversity is calculated as of the date the action was instituted.
3) CITIZENSHIP (Domicile)
a) PERSONS: Where you were born and continues through your life unless:
i) You physically change your state; and
ii) You have the intention of remaining in the new state for the indefinite future.
iii) If person has multiple homes in different states, look of that person’s center of gravity by looking at:
(1) Where does the person live?
(2) Where is the family?
(3) Where does the person pay taxes?
(4) Where does that person work?
(5) Where are the cars licensed?
(6) Where does the person vote?
b) CORPORATIONS:: Every corporation has two domiciles:
i) state of incorporation; and
ii) its principle place of business (usually where the corporate headquarters is located. Two tests for principle
place of business:
(1) Nerve Center Test – place where corporate decisions are made; or
c) UNINCORPORATED Associations (e.g., labor unions, partnerships): Cumulate domiciliary state of each member.
So, a national labor union like the Teamsters could never pass the federal diversity test because it has members
in all 50 states.
4) AMOUNT IN CONTROVERSY: must be over $75,000, exclusive of interest and costs but inclusive of punitive damages.
5) AGGREGATION RULES:
a) Single Parties can aggregate all claims, even if unrelated.
b) Multiple Parties: no aggregation unless the claims are joint, such as undivided interest claims (i.e., ’s jointly
liable); π’s allegation of amount suffices unless disproved as a legal certainty, injunctions should be quantified
in $ value to meet the jurisdictional requirement.
C. Supplemental Jurisdiction
 Does not get a case into federal court. Has the ability to get additional claims that
are already in federal court without using federal question jurisdiction (1331) or
diversity of citizenship jurisdiction (1332).
Supplemental Jurisdiction Analysis
1. Does 1367(a) grant supplemental jurisdiction? (Gibbs)
2. Does it violate 1367(b) if it is a diversity of citizenship case?
Rules
1367 – Supplemental Jurisdiction
1367(a) – Federal Courts will have supplemental jurisdiction over an additional state claim if it
is derived from a common nucleus of operative fact
1367(b) – APPLIES ONLY IN 1332 CASES: will take away supplemental jurisdiction over
claims made by PLAINTIFFS over parties joined through rules 14, 19, 20, and 24 or over claims
by persons being made plaintiffs through rules 19 and 24
D. Removal Jurisdiction
 When a defendant is sued in state court when the federal courts have original
jurisdiction. (Power to defendant, allowed to just do it)
 If plaintiff thinks that was wrong, plaintiff may move to remand to go back to
state court.
Rules
1441 – Removal of civil actions
1446 – Procedure for removal of civil actions
1447 – Procedure after removal generally
General Rules
1. Defendant can remove if the case could have been brought in Federal Court. (Exception:
Cannot remove a diversity case if any defendant is a citizen of the forum)
2. Must remove within 30 days of process.
3. All defendants who have been served with process must agree to removal.
4. The 30-day removal period starts over with each newly added defendant.
5. You can remove only to the federal district court that encompasses the location of the
state court.
Subject Matter Jurisdiction Case Law
Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing
1. Necessity, deals with a federal issue
2. Actually disputed/substantial
3. Important to the federal system as a whole
4. Balance of power between state and federal system
Hertz Corp v. Friend
1. A corporation’s principal place of business, for federal diversity jurisdiction purposes,
refers to the place where the corporation’s high-level officers direct, control, and
coordinate the company’s activities. (Established “Nerve Center” Test) (Diversity)
Louisville & Nashville Railroad v. Mottley
1. For a suit to arise under the constitution and laws of the U.S, giving federal courts SMJ
though 1331, a plaintiff must allege a cause of action based upon those laws or that
Constitution. (Federal Question)
United Mine Workers v. Gibbs
1. A federal court can exercise supplemental jurisdiction over state and federal claims if the
federal and state claims are the type that would be expected to be heard at a single
hearing and are “derive[d] from a common nucleus of operative fact.” (Supplemental
Jurisdiction)
Gordon v. Steele
1. For purposes of diversity citizenship, a college student’s new state of residence will be
considered his or her domicile upon a factual determination that the student has sufficient
connection with the state and an intent to remain indefinitely.
Mas v. Perry
1. A party is domiciled in the state where her true, fixed, and permanent home is located.
Diefenthal v. C.A.B.
1. Although the damage amount claimed by the plaintiff in good faith will generally control
in a diversity jurisdiction assessment, the amount in controversy requirement will not be
satisfied by an unsupported claim for damages.
Gunn v. Minton
1. A state court’s resolution of a hypothetical question of patent law is not substantial
enough to mandate federal review.
Avitts v. Amoco Production Co.
1. A lawsuit may only be removed from state court to federal court if the federal court
would have had original jurisdiction over the claim.
Exxon Mobil Corp. v. Allapattah
1. 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.
Topic 3: Service of Process
A. Service of Process
Rules
Rule 4: Summons
1. Process consists of a summons and a copy of the complaint.
2. Service can be made by any non-party who is at least age 18 (4(c)(2))
3. Rule 4(e)(2) gives 3 ways in which service of process and be done
a. Delivering copy of summons and complaint to the individual personally
b. Leaving a copy of each at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there
c. Delivering a copy of each to an agent authorized by appointment or by law to
receive service of process
d. 4(e)(1) allows service of process based upon state law
4. 4(h)(1) serving a business – Can serve an officer or an agent
5. 4(d) – Waiving Service (Certified mail) (respond within 60 days instead of 21) (if refuses
must pay cost of process server)
6. 4(k)(1)(A) Can serve process within the state of the federal court and can serve process
outside of the state if the state permits it (look to long arm statute)
7. 4(m) – Service must be done within 90 days of filing complaint.
Service of Process Case Law
Gaeth v. Deacon
1. Publication can be used to serve someone if the state allows it. However, they must have
some connection to where this publication was to be constitutional.
Topic 4: Venue
Explains which Federal Court one can go to
These Rules only apply when a plaintiff files in federal court originally (not removal)
1391 – Venue Generally
1391(b) – Venue in General – A civil action may be brought in  1391(b)(1) – A judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located
 1391(b)(2) – A judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property that is
the subject of the action is situated
 1391(b)(3) – If there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant is subject to
the court’s personal jurisdiction with respect to such action.
1391(c) – Residency – For all venue purposes –
 1391(c)(1) – A natural person, including an alien lawfully admitted for permanent
residence in the United States, shall be deemed to reside in the judicial district in
which that person is domiciled.
 1391(c)(2) – An entity with the capacity to sue and be sued in its common name
under applicable law, whether or not incorporated, shall be deemed to reside, if a
defendant, in any judicial district in which such defendant is subject to the court’s
personal jurisdiction with respect to the civil action in question and, if a plaintiff
only in the judicial district in which it maintains its principle place of business.
1391(d) – Residency for Corporation in States with multiple districts
A. Transfer of Venue
Rules - Can only transfer to a venue that is proper and has personal jurisdiction (because it
is likely that a plaintiff won’t waive that right and give up its primary venue choice)
1404 – Change of Venue (when venue is proper)
1406 – Cure or Waver of Defects (when venue is improper)
Applicable Law When Transferred
1. When venue is proper, but transferred, the law of the original venue is applied.
2. When venue is improper, but transferred, the law of the new venue is applied.
All transfers must be made within the same judicial system otherwise be dismissed for
Forum Non Conveniens.
Transferor – Venue in which the case currently resides
Transferee – Venue in which case seeks to be transferred to (must be allowed by court)
 Court dismisses a case because there is another court with a center of gravity
o Ex: piper aircraft v reno (plane crash in Scotland)
 Court looks at the same 1404A factors (public and private)
 Other court must be adequate
 Courts can impose conditions in which they dismiss under FNC
1. Original Venue Proper
Section 1404(a) allows transfer to another district where the action “might have been brought” or
“to which all parties have consented,” even though venue has been properly laid in the court
before which the motion to transfer is made. The policy behind section 1404 is that while venue
may be correct, the parties or the witnesses might be greatly inconvenienced by the trial in the
original forum. By balancing the relative convenience offered by the alternative forums, the
original court has discretion to transfer the action to a court in which the action “might have been
brought” in conformity with the rules governing: (i) subject matter jurisdiction, (ii) in personam
jurisdiction over the defendant, and (iii) venue. Another alternative is transfer to a court to which
all parties have consented (even if venue ordinarily would not be proper there). If the superior
forum is in another judicial system, the court may dismiss or stay the action under the doctrine of
forum non conveniens.
2. Original Venue Improper
When a case is filed in an improper venue, a court must dismiss, or, in “the interests of justice,”
transfer the case to a venue in which it could have been brought (i.e., subject matter jurisdiction,
personal jurisdiction, and proper venue must exist). [28 U.S.C. §1406(a)] Transfer is more
appropriate than dismissal except in extraordinary circumstances. Some courts have held that
section 1406(a) applies when the original court is a proper venue but lacks personal jurisdiction
over the defendant. This view seems contrary to the language and purpose of the statute.
3. Effect of Forum Selection Clauses
A forum selection clause represents the parties’ agreement as to the most proper forum, and it
will be enforced by means of a motion to transfer “in the interests of justice” under section 1404
(if the venue selected by the plaintiff is proper under section 1391) or under section 1406 (if the
venue selected by the plaintiff is improper under section 1391) unless exceptional public interest
factors dictate otherwise. [Atlantic Marine Construction Co. v. United States District Court for
the Western District of Texas, 134 S. Ct. 568 (2013)]
4. Original Court Lacks Personal Jurisdiction
The Supreme Court has held that the original court’s lack of personal jurisdiction over the
defendant does not affect its power to transfer a case under section 1406(a). [Goldlawr, Inc. v.
Heiman, 369 U.S. 463 (1962)] There is also authority to support the conclusion that the same is
true in transfers under section 1404(a). [See, e.g., United States v. Berkowitz, 328 F.2d 358 (3d
Cir. 1964)]
Venue Case Law
Uffner v. La Reunion Francaise
1. Under 28 U.S.C. 1391, venue in federal court is proper in any district where a substantial
part of the events giving rise to the claim occurred.
MacMunn v. Eli Lilly Co.
1. under 28 U.S.C. 1404(a), a federal court has the discretion to transfer a civil action to any
district where the case could have originally been filed for the convenience of parties and
witnesses, in the interest of justice.
Piper Aircraft v. Reyno
1. A plaintiff may not defeat a motion to dismiss on grounds of forum non conveniens
merely by showing that the substantive law that would be applied in the alternative forum
is less favorable to the plaintiffs that that of the present forum. (doesn’t defeat the
adequate consideration)
Topic 5: Pleadings & Motions
Rule 1: Scope and Purpose
Rule 3: Commencing an Action – Civil action is commenced by filing complaint
Rule 7: Pleadings allowed; form of motions and other papers
Rule 10: Form of Pleadings – Caption, Paragraphs, Adoption by Reference
Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court;
Sanctions
General Notes Regarding Rule 11
 The signature of the attorney is a continuing certification
 Sanctions for violating rule 11 are discretionary (purpose is not to punish but to
deter)
 A motion for sanctions cannot be filed right away. An attorney must draft the
motion, serve it on opposing counsel, and give them 21 days to fix the issue. (safe
harbor)
A. The Complaint
Rule 8: General Rules of Pleading (8(a-d))
Rule 9(b): Fraud or Mistake, Conditions of Mind (Heightened Pleading Standard; must
state particulars)
Complaint Must Contain (Rule 8(a))
1. Statement of subject matter jurisdiction
2. Short and plain statement of the claim
3. A demand for relief
Short and Plain Statement of the Claim
 Notice Pleading no longer recognized after Twombly and Iqbal
 Established, the plaintiff must plead facts supporting a plausible claim (not contained in
8(a)(2)).
 What Courts Look at in Complaint (from Tquibal)
1. The court ignores conclusions of law and focuses only on alleged facts.
2. The facts must support a plausible claim not just a possible claim.
3. To determine plausibility, the judge uses her own experience and common sense.
(subjective)
B. The Response
Rule 12: Defenses and Objections: When and How Presented; Motions for Judgement on
the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
Rule 12(b) Motions to Dismiss
1. Lack of Subject Matter Jurisdiction
2. Lack of Personal Jurisdiction
3. Improper Venue
4. Insufficient Process
5. Insufficient Service of Process
6. Failure to state a claim upon which relief can be granted
7. Failure to join a party under rule 19
Rule 12(g): Joining Motions & 12(h) Waiving and Preserving Certain Defenses
General Rules
1. 12(b) (2-5) must be put in your first Rule 12 Response or else they are waived
2. 12(b) (6-7) Can be raised at any time during trial (can’t on appeal)
3. 12(b)(1) Never waived (can on appeal)
Can Respond With: (Within 21 days of service) (unless waived service of process enabling
them to have 60 days from date plaintiff mailed waiver form)
1. Motion (not pleading, court order) (If denied 14 days to answer)
2. Answer
3. No Answer (Default Judgement)
Answer Must Contain (8(b))
1. Must respond to the complaint (admit, deny, or lack sufficient info (8(b)(5))
 8(b)(6) failure to deny constitutes an admission except on damages
2. Raise affirmative defenses (8(c)(1)) (must be pleaded or else waived)
Rule 55: Entering for Default Judgement (in the event there is no answer)
1. File Complaint (Rule 3)
2. Serve defendant within 90 days (Rule 4)
3. Wait 21 days for response (unless service is waived changing it to 60 days) (Rule
12(a)(1)(A)(1))
4. After enough time has elapsed submit certification to clerk (Rule 5)
5. If defendant has showed up at any time during waiting period, need 7 days notice before
hearing of default judgement (Rule 55)
6. During default judgement – to access damages rule 54(c) protects defendant from
plaintiff showing up and requesting more damages.
C. Amended & Supplemental Pleadings
Supplemental Pleadings – Pleadings of events that occurred after the file date (15(c)(1)(D))
Must get permission from court
Factors Looked at for Request to Amend Complaint
1. Bad faith
2. Undue delay
3. Futility
4. Prejudice
5. Dilatory Motive
3 Possibilities for Amendment Hypo
1. Does 15(a) apply?
 Plaintiff has a right to amend within 21 days of service of first response
 Defendant has a right to amend after 21 days of serving her answer
 If you no longer have a right, you must motion for a leave to amend
2. Does 15(b) apply? (Variance – evidence at trial doesn’t match pleading, creating a
need for amendment during trial)
3. Does 15(c) apply? (Relation back of Amendments; When statute of limitations has
run, and it is needed to amend complaint or change defendant)
 15(c)(1)(B) – Relation back is allowed when amendment arose out of the conduct,
transaction, or occurrence set out – or attempted to be set out – in the original
pleading (amending pleading)
 15(c)(1)(C) – (Changing defendant) (Only work if we sued the wrong defendant
first, but the right defendant knew about it)
Pleadings Case Law
Ashcroft v. Iqbal
 Under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint will only
survive a motion to dismiss if it alleges nonconclusory facts that, taken as true, state a
claim to relief that is plausible on its face.
Pam Webb v. Nashville Habitat for Humanity
 Plausibility Standard – When its difficult to make plausible claim based upon facts when
many scenarios require discovery to get the facts from the defendant
Dioguardi v. Durning
 A complaint must contain a short and plain statement of the claim showing that the
pleader is entitled to relief.
Doe v. Smith
 Under the FRCP, a plaintiff’s complaint is sufficient if it states a claim for relief.
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit
 The Federal Rules of Civil Procedure require only that the complaint contain short and
plain statement of the plaintiff’s claim, and a court may not require a heightened standard
for pleadings alleging certain causes of action.
Hays v. Sony Corp. of America
 An attorney who fails to make a reasonable inquiry into whether the claims asserted have
a basis in law and fact may be sanctioned under FRCP Rule 11.
Hunter v. Earthgrains Co. Bakery
 Under FRCP Rule 11, an attorney may not be sanctioned for asserting a claim that
contradicts precedent unless there is no basis for extending, modifying, or reversing the
existing law.
Virgin Records America, Inc. v. Lacey
 Under the Federal Rules of Civil Procedure (FRCP), entry of a default judgment is proper
where a defendant has failed to appear or defend a lawsuit after proper service.
Matos v. Nextran, Inc
 A defendant’s FRCP Rule 12(b)(6) motion to dismiss will only be granted if, when all
reasonable inferences are drawn in favor of the plaintiff, the complaint does not state a
claim upon which relief may be granted.
Hunter v. Serv-Tech, Inc.
 Under Rule 12(h)(1) of the Federal Rules of Civil Procedure (FRCP), a party must assert
any objection to personal jurisdiction, venue, or service of process in its first pre-answer
motion to dismiss or responsive pleading or the objection is waived.
Reis Robotics USA, Inc. v. Concept Industries, Inc.
 Under the Rule 12(f) of Federal Rules of Civil Procedure (FRCP), a district court has
discretion to strike an insufficient defense or any redundant, immaterial, impertinent or
scandalous matter.
Ingraham v. United States
 Under Rule 8(c), affirmative defenses must be pleaded in a timely fashion, or else the
defenses are waived.
State Farm Mut. Auto. Ins. Co. v. Riley
 Parties must comply with the Federal Rules of Civil Procedure (FRCP) in drafting
responsive pleadings.
Beeck v. Aquaslide ‘N’ Dive Corp.
 A party may amend his pleading only by leave of court or written consent of the adverse
party and leave shall be freely given when justice so requires.
Bonerb v. Richard J. Caron Foundation
 A claim relates back to the initial pleading when the claim asserted in the amended
pleading arose out of the same nucleus of operative facts set forth in the original
pleading.
Krupski v. Costa Crociere S.P.A.
 Relation back under Rule 15(c) does not depend on the amending party’s knowledge or
timeliness.
Topic 6: Joinder
How many parties and claims can be packaged in a single case?
A. Two Step Process
1. What is the joinder rule?
2. Is there SMJ
B. Proper Parties
1. Rule 20(a) Permissive Joinder of Parties (Same for plaintiffs and defendants)
i.
Do the parties claims arise from the same transaction or occurrence?
ii. Do their claims raise at least one common question
C. Necessary and Indispensable Parties
1. Rule 19: Required Joinder of Parties
i.
Is the absentee necessary? (Rule: 19(a)(1) gives 3 tests) (Joint
tortfeasors not always necessary)
1) 19(a)(1)(A): Without the absentee, the court cannot accord
complete relief (focuses on efficiency, since the absentee can sue
later)
2) 19(a)(1)(B): The absentee’s interest may be harmed if not joined
3) 19(a)(1)(B)(2): If the defendant can be hurt my
multiple/inconsistent obligations.
ii. Is Joinder Feasible?
1) Does the court have personal jurisdiction over the party?
2) If bringing the party in, will there still be diversity?
iii. If not feasible? (Rule 19(b))
1) Court can proceed without the absentee
2) Dismiss the case (Is there another court where all parties can be
joined?)
D. Claim Joinder by Plaintiff
1. Rule 18(a): A party can assert as many claims as it has against a party (Need
SMJ)
Starts with I (impleader/intervention = joining someone new)
Starts with C (counter/crossclaim = already party)
E. Claim Joinder by Defendant (Need SMJ)
1. Counterclaim – 13(a-b): claim against a party that has sued you (filed with
answer)
i.
Rule 13(a)(1): Compulsory Counterclaim: arises from the same
transaction/occurrence (if not asserted, claim is waived)
ii. Rule 13(b): Permissive Counterclaim: Does not arise from the same
transaction/occurrence
2. Crossclaim – Rule 13(g): Claim against a co-party, that arose out of the same
transaction/occurrence (not compulsory) (arises when plaintiff uses rule 20 to join
multiple parties) (Supplemental Jurisdiction: ALWAYS MET FOR
CROSSCLAIMS UNLESS TAKEN AWAY BY 1367(b))
F. Impleader – Third Party Practice
1. Rule 14: Defending party joins a new party because they are liable to you for the
plaintiff’s claim. (Contribution – partial liability or Indemnity – entire liability)
2. Rule 14(a)(3): Plaintiff may assert claims against third party defendant if it arises
from the same transaction/occurrence
3. Rule 14(a)(2)(D): Third party defendant can assert claim against plaintiff
G. Intervention
1. Rule 24: When an absent party wants to be part of the case (two kinds)
i.
Rule 24(a)(2): Intervention of right if your interest may be harmed if
you’re not joined and your interests are not already represented (same test
as 19(a)(1)(B))
ii. Rule 24(b)(2): Permissive Intervention if your claim has one common
question (up to discretion of court)
Joinder Case law
Hohlbein v. Heritage Mutual Insurance Co.
 Under the FRCP Rule 20(a), multiple plaintiffs may join their claims against a single
defendant in one lawsuit so long as the claims arise out of the same transaction or
occurrence or series of transactions or occurrences and involve common questions of law
or fact.
King v. Blanton
 Failure to assert a compulsory counterclaim constitutes waiver, and the party will be
estopped from later asserting the claim if she was aware of the claim and had an
opportunity to file before settlement.
Erkins v. Case Power & Equipment Co.
 Under Rule 14(a) of the Federal Rules of Civil Procedure (FRCP), a defendant may
implead any third party who may be liable to the defendant for part or all of the plaintiff’s
claim, even if the parties’ liability arises under different legal theories.
Torrington Company v. Yost
 Under FRCP Rule 19, failure to join an indispensable party will result in dismissal if the
nonjoinder results in prejudice to that party or an existing party and prevents the court
from issuing a full and fair judgment.
Grutter v. Bollinger
 Consideration of race as a factor in admissions by a state law school does not violate the
Fourteenth Amendment because supporting student body diversity is a compelling state
interest; however, the school must demonstrate it previously made a serious, good faith
consideration of workable, race-neutral alternatives to achieve the sought-after racial
diversity.
Topic 7: Discovery/Settlement
Rule 11 does not apply to discovery documents, rule 26(g) does.
A. Required Disclosures
1. Rule 26(a) – Parties must produce required information without a request
2. Rule 26(a)(1) – Required initial disclosures (identify discoverable people you
may use to support your case, give copies or descriptions of things you may use to
support your case) (not stuff that will hurt your case)
3. Rule 26(a)(2) – Expert Testimony
4. Rule 26(a)(3) – Pretrial required disclosures
B. Discovery Tools
1. Deposition (can be used for non-party with subpoena) – deponent testifies oral
under oath while recorded
2. Interrogatories (only to parties) – Written questions answers in writing under
oath (30 days to answer)
3. Request to Produce (can be used for non-party with subpoena) – Written
request for access to things (documents etc.)
4. Medical Exam (need court order can only be used for party or someone in
party’s legal control/custody) – must show it is in involved in the controversy
and for good cause
5. Request for Admission (only to parties) – asks to admit or deny any
discoverable matter (within 30 days, if not denied, admitted
C. Electronic Discovery
3 Analysis in Discovery of Electronic Data
1. Know the party’s computer system, accessible data should be paid for by the
responding party. However, inaccessible data could be up for dispute.
2. In determining if a cost shifting analysis should occur the responding party must
produce a sample size of inaccessible data.
3. Once the sample size of data is produced the following factors should be
considered
- The extent to which the request is specifically tailored to discover relevant
information
- The availability of such information from other sources
- Total cost of production vs. amount in controversy
- Total cost of production vs. the resources available to each party
- The relative ability of each party to control costs and its incentive to do so
- The importance of the issues at stake in the litigation
- The relative benefits to the parties of obtaining information
D. Scope of Discovery
1. Rule 26(b)(1) – can discover material that is relevant to a claim or defense and
are proportional to the needs of the case (burden outweigh benefit?)
2. Rule 26(b)(2) Privileged matter is not discoverable
3. Rule 26(b)(3) Work Product – If it is prepared in an anticipation of litigation not
discoverable (Don’t want other parties benefitting from your resources/payments)
(can be overridden if:)
a. Substantial need
b. Information is not otherwise easily available
- Mental impressions, conclusions, opinions, legal theories – always
protected
- Work product can be generated by the party or any representative
of the party.
E. Enforcement of Discovery (court intervention)
1. Rule 26(c) - Responding party asks for a protective order
2. Motion to Compel - When a responding party answers incompletely, motion to
make them answer completely
3. Rule 37(d)(1)(A) Motion for Sanctions – When responding party fails entirely
F. Conferences & Judicial Management
1. Rule 16(b) – The court must enter a scheduling order (roadmap of how case will
be carried out)
2. Rule 26(f) – Requirement to meet and confer (make discovery plan, produce
initial disclosures no more than 14 days before meeting
3. Pretrial Conference – discuss what will be litigated at trial
Filing  Service  26(f) Meet & Confer  26(a)(1) Required Disclosures  16(b) Scheduling
26(f) Proposed Plan
conference/order




16(b) Scheduling conference/order due within 90 days after appearance of defendant or
120 days after complaint has been served
26(f) requires meet and confer take place 21 days before 16(b) takes place
Required disclosures due within 14 days of meet and confer
MEANS REQUIRED DISCLOSURES DUE WITHIN 83 DAYS AFTER
APPEARANCE OF DEFENDANT OR 113 DAYS AFTER COMPLAINT HAS
BEEN SERVED
Discovery Case Law
Flores v. Southern Peru Copper Corp.
 Under FRCP Rule 26(a)(1), the required initial disclosures may be delayed by agreement
of the parties or by order of the court.
Hickman v. Taylor
 Opposing counsel must demonstrate necessity, justification, or undue prejudice for access
to counsel’s written statements, private memoranda, and personal recollections.
Chudasama v. Mazda Motor Corp.
 FRCP Rule 26 requires federal district courts to actively manage the cases before them,
including ruling on parties’ pretrial motions and objections to discovery requests.
Zubulake v. UBS Warburg LLC
 A trial judge can, at his discretion, sanction a party for the destruction and significant
alteration of evidence or the failure to preserve property for another’s use as evidence in
pending or reasonably foreseeable litigation.
Topic 8: Adjudication
A. Pretrial Adjudication
1. 12(b)(6) – Failure to state a claim (does not look at evidence, only face of
complaint)
a. Ignores conclusions of law and looks only at allegations of fact.
b. The facts alleged must support plausible claim
c. To determine plausibility, the judge uses her own experience/common
sense
2. Rule 56 – Motion for Summary Judgement (does look at evidence) (pleadings are
not evidence, but admissions are) (up to court discretion)
a. No genuine dispute on a material fact
b. She is entitled to judgement as a matter of law
B. Adjudication at Trial
1. Right to a jury trial in civil cases in federal court (7th Amendment)
a. Preserves right to jury trial
1) is the claim asserted analogous to a claim that existed in 1791,
usually yes
b. Only in cases at law not equity
1) Focus on the remedy sought (remedies at law(jury)/remedies at
equity (no jury))
2. Jury Selection
a. Venire – People chosen to come to court to become jury
b. Voire Dire – process to eliminate jurors
1) Challenge for Cause (unlimited challenges for bias)
2) Peremptory Challenge (only 3 challenges for no reason) (can’t be
because race or gender)
3. Special Motions
a. Rule 50(a) – Judgement as a matter of law (Discretionary)
1) Rule 50(a)(1) – grant JMOL if reasonable people could not
disagree on the result
2) Rule 50(a)(2) – Can only move for JMOL if other party has been
fully heard on the issue
3) Reasons for Denial/Making 50(a) Motion
 Denial – Judge would like to preserve public acceptance of
jury trials and the outcome is likely to be in favor of
moving party regardless.
 Notice Defendant
 Need it to make a 50(b) motion
 Gets around 7th amendment
 Granted - if the evidence is already in a party’s favor and
continuing trial would be time consuming/costly
b. Rule 50(b) – Renewed Judgement as a matter of law
1) Must be made within 28 days of entry of judgement
2) Must’ve made JMOL motion at a proper time to make RJMOL
c. Rule 59(a)(1) – Must move for new trial within 28 days after entry of
judgement (trial judge must be convinced there was a mistake that affected
the outcome)
Adjudication Case Law
J.F. Edwards Construction Co. v. Anderson Safeway Guard Rail Corp.
 Rule 16 of the Federal Rules of Civil Procedure (FRCP) does not authorize a district
court to compel parties to make stipulations of fact.
Davey v. Lockheed Martin Corp.
 Rule 16 of the Federal Rules of Civil Procedure (FRCP), permits amendment of a final
pretrial order, but only to prevent manifest injustice.
In re Bath and Kitchen Fixtures Antitrust Litigation
 FRCP Rule 41 allows a plaintiff to voluntarily dismiss a lawsuit without prejudice any
time before the defendant has filed an answer or a motion for summary judgment.
Slaven v. City of Salem
 Under Rule 56(c) of the Massachusetts Rules of Civil Procedure (MRCP), a defendant’s
motion for summary judgment will be granted if the plaintiff cannot provide evidence of
a genuine issue for trial.
Celotex Corp. v. Catrett
 A party making a motion for summary judgment does not need to provide affirmative
evidence in the form of affidavits to support its motion.
Pennsylvania Railroad v. Chamberlain
 When evidence tends equally to sustain either of two inconsistent propositions, a verdict
in favor of the party bound to maintain one of those propositions against the other is
necessarily wrong.
Lane v. Hardee’s Food Systems, Inc.
 Rule 50 of the Federal Rules of Civil Procedure (FRCP) permits a judge to grant a JMOL
when a party, after being fully heard on an issue, has not offered sufficient evidence to
sustain a jury verdict in her favor.
Scott v. Harris
 If the video tells us there is no dispute of fact, summary judgment can be granted
regardless of opposing party’s evidence
Beacon Theatres & Dairy Queen Established
 The court determines the jury right issue by issue
 If an issue of fact underlies both law and equity, you get a jury
 Generally, jury issues are tried first
Topic 9: Appellate Review
A. Final Judgement Rule
1) 1291 – Right to appeal final decisions (judgements) from district court to
appellate court
2) File Notice of Appeal in district court within 30 days of entry of final judgement
3) Final Judgement Test: After making this order, does the district court have
anything left to do on the merits of the case?
B. Interlocutory Review – any order that is not a final judgement (allows you to go to ct. of
appeals even though there is not a final judgement
1) Statutory
a. 1292(a) – allows interlocutory reviews for various orders (ex. Injunctions)
b. 1292(b) – allows agreement between district court and ct. of appeals
 Trial judge finds that this issue is a controlling question of law and
 That there are substantial grounds for difference of opinion
c. Rule 54(b) – When there are cases with multiple claims or multiple
parties, district judge can expressly enter final judgement as to one or
more of those parties or claims (no just reason for delay of appeal)
2) Common Law
a. Collateral Order Rule (Requirements) (Don’t need court’s
permission)
 This is an important issue and it is separate from the merits of the
case
 Courts order completely resolves that issue
 Issue is unreviewable if we wait for final judgement (ct. of app.
discretion)
3) Extraordinary Writ – new independent action at the court of appeals
a. District judge is doing something he is not supposed to be doing
Appellate Review Case Law
In re Recticel Foam Corp.
 Under the finality principle, circuit courts may not exercise jurisdiction to review a matter
before a district court has issued a final decision, unless it falls within the collateral order
exception
Topic 10: Preclusion
Does the judgement in case 1 preclude us from something in case 2?
A. What Law Applies – the court in case 2 applies the preclusion law of the judicial system
that decided case 1
B. Claim Preclusion (Res Judicata) – If you have a claim, you only have one case in
which to vindicate that claim
1) Both cases must be brought by the same claimant against the same defendant
2) Case 1 ended in a valid final judgement on the merits
 Rule 41(b) – all judgement is on the merits unless they were based on
jurisdiction, venue, or indispensable parties.
3) The claimant asserted the same claim in case 1 and in case 2
 Majority View (federal law) – the claim is the transaction/occurrence
C. Issue Preclusion (Collateral Estoppel) – Cannot relitigate the same issue twice
1) Case 1 ended in valid final judgement on the merits
2) Same issue was actually litigated and determined in case 1
3) The issue was essential to the decision in case 1
4) Issue preclusion can only be used against someone who was a party or in privity
to a party in case 1 (due process)
5) Non-mutual preclusion (Majority View)
 Non-mutual defensive preclusion – when defendant in case 2 was not a
party of case 1 – allowed if plaintiff had full chance to litigate the issue
 Non-mutual offensive preclusion – When plaintiff in case 2 was not a
party in case 1 (generally rejected, unless fair)
1) Full chance to litigate
2) Foresee multiple suits
3) Could not have joined easily in case 1
4) No inconsistent judgements
Preclusion Case Law
River Park, Inc. v. City of Highland Park
 Under Illinois law, res judicata prohibits the same parties from asserting a claim arising
out of the same transaction or set of operative facts after there has been a final judgment
on the merits.
Semtek
 If case one was in federal court based on diversity, the judge uses federal preclusion law,
however, federal law on that issue will presumably adopt the state law of the state in
which the federal court sat.
Taylor v. Sturgell
 A claim cannot be precluded if the previous litigant is a different party and there is no
legal relationship between the current and past litigants.
Felger v. Nichols
 Under Maryland law, the doctrines of direct estoppel by judgment and collateral estoppel
bar parties from relitigating issues or claims that were fully heard in a previous lawsuit.
Panniel v. Diaz
 Under New Jersey law, the doctrine of collateral estoppel may be used to bar relitigation
of an issue fully litigated and decided in an earlier binding arbitration, provided it is fair
to do so.
Cambria v. Jeffery
 Issue preclusion only prohibits the litigation of a fact that was a basis of the relief, denial
of relief, or other ultimate right established by the judgment.
Parklane Hosiery Co. v. Shore
 A litigant who was not a party to a prior judgment may nonetheless use that judgment
offensively to prevent a defendant from relitigating issues resolved in the earlier
proceeding, provided that (1) the plaintiff could not easily have joined in the earlier
action and (2) use of the judgment will not result in unfairness to the defendant.
Topic 11: Erie Doctrine
Erie Doctrine Case Law
Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.
 The Rules of Decision Act (RDA), 28 U.S. Code § 1652, requires federal courts sitting in
diversity to apply state statutes and constitutions, but not state courts’ common law
rulings.
Erie Railroad Co. v. Tompkins
 A federal court sitting in diversity must apply state substantive law, whether statutory or
common law.
Klaxon Co. v. Stentor Electric Manufacturing Co.
 Where its jurisdiction is founded on diversity, a federal court must apply the conflict-oflaws rules of the state in which it sits.
Byrd v. Blue Ridge Rural Electric Cooperative
 The federal policy of having the jury answer questions of fact prevails over state rules
that would interrupt the judge-jury relationship in federal court.
Hanna v. Plumer
 For service of process in federal diversity actions, Federal Rule of Civil Procedure
4(e)(2)(B) is the appropriate standard of process because the rule does not exceed
congressional authority or constitutional boundaries of jurisdiction.
Shady Grove Orthopedic Assoc. v. Allstate Ins. Co.
 Federal Rule of Civil Procedure 23 provides that a class action may be maintained
provided that all of the rule’s criteria are satisfied.