Civil Procedure Outline
Learn: How to start and finish a lawsuit
 How to start a lawsuit
o Complaint
 How to finish a lawsuit
Finish 1  Discovery  Finish 2  Finish 3
o Finish 1: Rule Motions (Rule 12)
o Finish 2: Summary Judgement (Rule 56)
o Finish 3: Trial
Remember:
1331: Federal Question
1332: Diversity
The RoadMap:
Starting a Lawsuit- Civil Suit is commenced when the complaint is filed with court. Rule 3
 Must pay $ when filling
 Filing a complaint (Taken to courthouse and stamped with date and assigned to judge)
o Rule 7 – Types of pleadings
o Rule 7.1 – Disclosure Statement
o Rule 8(a) – Requirements of pleadings(puts parties on notice of what you are seeking)
 8(a)(1)- Jurisdictional statement
 8(a)(2)- Short and plaint statement showing entitlement to relief (General
unless Rule 9(b) applies)
 8(a)(3)- short and plain statement demanding relief
o Rule 9 – Pleading Special Claims (9(b) fraud claims)
o Rule 10- Form of Pleadings
o Rule 11- Signing by Attorney/Reasonable Investigation
o Rule 15- Amending the Complaint
o Form 11 & Rule 84 – Rule 84 states that form 11 is enough to file claim
 Serving the Complaint:
o Rule 4(a)—comes with a summons
o Rule 4(m)—have 90 days to serve a complaint
o Not sued until served with complaint AND summons
 Defendant Responds:
o File a Pre-Answer Motion of defense (PAM)
 Before a pleading
 Rule 12(b)(1)- lack of subject-matter jurisdiction
 Rule 12(b)(2) – lack of personal jurisdiction
 Rule 12(b)(3) – improper venue
 Rule 12(b)(4) – insufficient process
 Rule 12(b)(5) – insufficient service of process
 Rule 12(b)(6) – failure to state a claim upon which relief can be granted
 Rule 12(b)(7) – failure to join a party under Rule 19
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A party waive any defense under 12(b)(2)-(5) if they are not brought before
pleading
 If SOL has passed then 12(b)(6) me out (motion to dismiss)
 Don’t admit or deny anything here. That takes place in the answer
o File an Answer (Pleading Rule 7(a)(2)) Rules 8 & 12
 Rule 8(b): admit or deny all allegations (failing to deny an allegation has an
effect of an admission unless a responsive pleading is not required then it is
treated as a denied or avoided
 Rule 10(a)—Caption, names of parties and a rule 7(a) or types of pleading
 Rule 10(b) – numbered paragraphs
 Rule 12(b) – defense can be in the answer
 Rule 13 Counter Claim or cross claim
 Counterclaim is contained in the answer
 Not itself a pleading but part of the pleading
 Judgment on the Pleadings: Rule 12(c)
 It is obvious from the pleadings that here is no cause of action
 Usually when D admits everything in the answer
 When see the outcome just from the pleadings themselves
 Example: P alleges negligence in complaint, and D admits to all of the
elements of negligence and doesn’t offer any defense
If Defendant does not respond: Default Judgment Rule 55
Discovery: Rules 26-37,45
o Only issues that are denied are at issue
o Must develop facts and evidence to prove or disprove suit
Trial: Rule 50
Summary Judgment Rule 56
o Once add evidence to the action
o NOTE: 12(d)
 If matters outside of the pleadings (on a motion under 12(b)(6) or 12(c), are
presented and NOT excluded by the court then the motion MUST be treated as
one for SJ
 Per rule 10(c): a copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all puposes
Required Specificity and Alternative Pleading
 Rule 8(a)(2): Need a short and plain statement (general statement) showing pleader is entitled
to relief
o Exception: Generality requirement modified by Rule 9 when pleading certain special
matters
 Purpose of the complaint: to notify the defendants of the nature of the claims
 Alternative Pleadings: Rule 8(d)(2)-(3)
o Alternative Statements of a Claim or Defense Rule 8(d)(2)
 A party may set out 2 or more statements of a claim or defense alternatively or
hypothetically
o Inconsistent Claims or Defenses Rule 8(d)(3)
 Party may state as many separate claims or defenses as it has regardless of
consistency
 When two claims are inconsistent
 If win one cant win on ther
 Can have as may claims as you want but never get double recovery
 Policy:
o Rule 11(b) – requires certified to the best of the persons
knowledge
Rule 11
Rule 11 Sanctions – Notice must be given to plaintiff or defendant before motion field with the court.
Rules are amended by proposing to Congress and if Congress doesn’t reply it becomes law.
 Rule 11(a) – signing of all documents submitted to the court is required by an attorney on the
record and if attorney fails to sign the document, the ourt may strike the document unless the
attorney takes immediate actions once it is brought to his attention
 Rule 11(b)—coversthe type of conduct that typically forms the basis for santctions. An attorney
or unrepresented party certifies that tto the best of the persons knowledge, information, and
belief formed after an inquring reasonable under the circumstances
o Rule 11(b)(1) – it is not being presented for an improper purpose
o Rule 11(b)(2) – the claims are warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law or for establishing new law
o Rule 11(b)(3)—factual contentions have evidentiary support or, if specifically so
identified will likely have evidentiary support after a reasonable opportunity for further
investigation or discover; and
o Rule 11(b)(4) – denials of factual contentions are warranted on the evidence or if
specifically so identified, are reasonably based on belif or a lack of information
 Who may be sanctioned Rule 11(c)
o Rule 11(c)(1) –Parties & Firms
 What happens before Rule 11 issue filed or decided? Grant will be dismissed but rule 11 motion
still filed.
 Dismissal occurs 21 days after safe harbor
 Safe Harbor : giving other party time to fix issue ( Hypo: on a playground with 3 kids, and I say
I’m going to tell if you do not fix it)
Example:
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Zuk v Eastern Pennsylvania Psychiatric Institute of the medical college Courts found sanctions
cannot be imposed just for losing a case. Lipman should have realized that Zuk’s film were not
protected and that the statute of limitations which would have governed their copyright
protection had expired. For failing to make a reasonable inquiry into the facts, both the client
and attorney were sanctioned
Stating a Claim
Stating a Claim: The requirements of Rule 8 (a)(2) - a short and plain statement of the claim showing that
the pleader is entitled to relief;
 This is a general standard and Rule 84 states that the forms are enough to survive a 12(b)(6)
 Complaint must contain enough facts to make claim plausible on its face not speculative
o To survive a motion to dismiss (12(b)(6)), complaint must contain factual matter,
accepted as true, to “state a claim to relief that is plausible on its face
 Have enough facts to give notice (specific names, dates, places) that in discovery legal
conclusion will likely be found true
 Claim has facial plausibility when the plaintiff pleads factual content that allow the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged
 Pleadings (Facted Up): if plausible, survives Rule 8 (a)(2). To determine if plausible use three
prongs
o Ignore legal conclusions
o Assume factual allegations true
o No mere likely explanation than theory of relief alleged exists
o Fives notice of why I am coming at you
 Absolutes for Pleading
o Liberal Pleading Standard
o Supreme Court Can’t change standard
o Conceivability standard: if it is conceivable that theory you allege is reason event
happened; don’t have to have facts to link allegations to claim
 How can a judge at its pleading staged decide if more likely? Use judicial experience & common
sense
 All about the LEGAL CONCLUSIONs that come from alleged facts
 Notice Pleading Standard
Examples:
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Conley v. Gibson: Court found the railroad workers complaint adequately set forth a claim upon
which relief could be granted because there were facts which if proven would support the
railroad workers claims and entitle them to their requested relief.
Sienkiewicz v. Sorema: Courts found that an employment discrimination complaint need not
contain specific facts establishing a prima face case, but contain only a short and plain
statement of the claim showing that the pleader is entitled to relief. The claim gave fair notice
of the basis and detailed the events leading to his termination provided relevant dates and
included the ages and nationalities of at least some of the relevant persons involved with his
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termination. A reasonable person must be able to conclude (Rule 50). (i. e in trial plaintiff only
show A & D of negligence. Rule 50 me out)
Bell Atlantic Corp v. Twombly: Courts found to stat an allegation of parallel conduct you must
place in a factual context which raised a plausible suggestion of a preceding agreement rather
than identical independent actions. Simply arguing parallel conduct and that the big companies
didn’t compete was not enough. Lacked facts to prove. Failed because it didn’t say enough.
Failed because it said too much.
Ashcroft v. Iqbal:
Responding to the Complaint
Rule 12 Motions
Time to Serve Responsive Pleading Rule 12(a)
 Answer
o Rule 12(a)(1) – within 21 days after being served
 If waived serve under 4(d), within 60 days after request for waiver sent
o Rule 12(a)(4) – if D files pre-answer motion within 21 days period following service, the
deadline for filing an answer is extended
 If the court denies the 12(b) motion or postpones its disposition, the defendant
has until 14 days after notice of the courts action to file an answer
 IF the court grants 12(e), answer must be served within 14 days after motion for
a More Definite Statement
 Complaint is unintelligible (12)e
 How to Present Defenses – Every defense to a claim for relief must be asserted in the responsive
pleading if one is required. May (but don’t have to) bring the following defense in pre answer
motion:
o 12(b)(1) Lack of subject-matter jurisdiction o
 Must be brought under 1331 or 1332
 Not waived – can bring whenever under 12(h)(3) – Don’t think feel
o 12(b)(2) Lack of personal jurisdiction (waivable)
 Court must have minimum state contact
o 12(b)(3) Improper venue (waivable)
 Regarding which fed court you’re using
o 12(b)(4) Insufficient process (waivable)
 Summons violate 4(a)
 Maybe no summons at all
o 12(b)(5) Insufficient service of process (waivable)
 Service sucks violates 4(c)
 Maybe lacks complaint
o 12(b)(6) Failure to state a claim for relief
 Something went wrong with the claim in the complaint, i.e., fails to satisfy 8(2)
 SOL : There is no claim that relief can be granted because the SOL has made the
claim disappear
 SOL is an affirmative defense
o 12(b)(7) Failure to join party under Rule 19
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 Must join 2-5 under one motion or lose forever 12(g) and 12(h)
Plaintiff must dismiss before answer filed if done without a court order Rule 4
Motion for Judgement on the Pleadings Rule 12(c)
o After pleadings are closed but before any discovery can move for judgment on pleadings
alone
o Must have a complaint and an answer filed for this motion to be applicable
Result of Presenting Matters Outside of Pleadings Rule 12(d) – shunt to motion for SJ
o If on a motion to dismiss under 12(b)(6) or 12(c) matters outside the pleadings are
presented to and not excluded by the court the motion must be treated as a motion for
summary judgment
o Becomes judgment on the merits
Motion for More Definite Statement Rule 12(e)
o Granted when a pleading is so unintelligible (vague or ambiguous) that a party cannot
respond
o Must be made before a responsive pleading is filed
o If granted the amended complaint must be served within 14 days
Motion to Strike Rule 12(f)
o Court may on its own or on motion by a party, a pleading with an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter
o Fuck it its impossible
Joining Motions Rule 12(g)
o Rule 12(g)(1) – motion under this rule may be joined with any other motion allowed
 Most MUST be joined
o Rule 12(g)(2) – party makes a motion under Rule 12 must not make another motion
under Rule 12 (except as allowed by 12(h)(2) or (3)) raising a defense or objection that
was available from its earlier motion.
Waiving and Preserving Certain Defenses Rule 12(h) –
o party waives any defense listed under Rule 12(b)(2)-(5) two ways:
 Omitting it from a pre-answer motion; or
 Failing to include it in a responsive pleading or in an amendment allowed by
Rule 12(a)(1) as a matter of course
o Rule 12(h)(2) – cant bring in another pre answer motion but can bring Rule 12(b)(6) and
(7) in pleading 12(c) motion or at trial
o Rule 12(h)(3) – can bring 12(b)(1) lack of SMJ anytime
Default & Answer
Default & Answer - Enter a Default Rule 55 (court doesn’t necessarily want this; could make you lose
your “day in court”)
 Rule 55(a) Step 1: Have an entry of default; Clerk MUST enter default of a party failing to plead
or otherwise defend
 Default can be set aside for good cause
 Rule 55(b) Step 2: Entering a Default judgment;
o Default Judgment entered by cleark:
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Can only be issued if the amount is sum certain or can be certain by
computation
 Defendant is neither a minor nor incompetent
 Defendant has defaulted for not appearing AND
 Plaintiff requests and provides affidavit with amount due
o Default Judgment entered by the Court:
 Party must apply to the court for a DJ
 If has appeared the party must be served with written notice of the application
at least 7 days before the hearing
Rule 55(c) Default judgment can be set aside considering:
 Whether the plaintiff will be prejudiced
 Whether the defendant has a meritorious defense; and
 Whether culpable conduct of the defendant led to the default
Answer Rule 8(b)
Effect of an admission: allegation is taken as true for the purpose of litigation. Allegations that are
admitted are not included in discovery, only complete discovery on allegations denied
 Rule 8(b)(1) – in responding to a pleading, a party must:
o State in a short and plain terms its defense to each claim; and
o Admit or deny the allegations asserted against it
 Rule 8(b)(2) – A denial must fairly respond to the substance of the allegation
 Rule 8(b)(3) – A party who intends to deny all allegations of a pleading may do so
 Rule 8(b)(4) --- party may only deny part of an allegation by admitting part and denying the rest
 Rule 8(b)(5) – party that lacks knowledge or information sufficient to form a belief must so state
and the statement will be treated as denial
o Statement claiming no knowledge that is provably false may be treated as an admission
by court
 Rule 8(b)(6) – An allegation that is not denied is treated as admitted unless it relates to the
amount of damaged.
o If responsive pleading is not required, an allegation is considered denied or avoided.
 i.e allegations in a counterclaim listed in an answer are considered denied or
avoided unless the court orders a reply to the answer
 Rule 8(c) – Affirmative Defenses = confessions and avoidance
Counterclaims & Voluntary Dismissal Rule 13
Defendants with claims bring against plaintiffs; Co parties fair game
§1331 Federal Question – District courts shall have an original jurisdiction of all civil actions arising
under the con law or treaties of the US
§1367 Supplemental Jurisdiction – (Ice Cream Cone) IF you have an ice cream cone and sprinkles so
similar they are part of ice cream
Counterclaim: a claim for relief in answer by defendant against plaintiff Rule 13(a)-(e)
 Rule 13(a) Compulsory Counterclaims – party must include in its pleading any claim against the
opposing party that
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Arises out of the same transaction or occurrence that is the subject matter of the
opposing party’s claim and
o Does not require adding another party over whom the court cannot acquire jurisdiction
o Covered by 1367; when party wants to counterclaim, bringing in another party and the
court does not have federal jurisdiction over the other party
o Failure to bring counterclaim before final judgement barred from ever bringing that
claim; You can’t use that shit
o Compulsory counterclaims are deemed to have been brought at the tie of the filing of
the original complaint. If P file a complaint before the SOL and D later files a
counterclaim after the SOL has run, the counterclaim is allowed because it is deemed to
have been filed at the time of the original complaint
 Rule 13(b) Permissive Counterclaim – Counterclaims that do not arise out of the same
transaction or occurrence that is the same subject matter of the opposing party’s claim
o Not covered by supplemental jurisdiction (1367) and require their own jurisdictional
basis to be brought
o permits any two parties in existing action bring any and all claims against one another
even if unrelated
 If leads to new party Rule 19 and 20 govern
 Exceptions : 13(a)(2)
o 13(a)(2)(A) – if already pending in another suit
o 13(a)(2)(A) – when have an in rem or quasi in rem
Rule 13(g) Crossclaim: claim between two co plaintiffs or two co defendants
 Not compulsory because there must be liability before third party kicks in
 Adversarial thing
Difference in Compulsory and Permissive
 Compulsory –
o Is regarding the same transaction or occurrence as complaint
o Same Evidence Rule
o If not brought at this point, gets barred forever
o Uses date of filing of complaint for SOL
o Under supplemental jurisdiction of 28 USC 1367
 Permissive anything not compulsory
o Two weeks later A punches B and sues for batter as counterclaim- separate trials but
don’t have to be; can use later to make A look bad
Amendment is needed, one freebie under Rule 15
 Any others need permission from court
 Relation back under 15(c)
 4(m) for change/addition of party
Rule 41 Voluntarily Dismissal
When to
o Plaintiff realizes they don’t have a winning case
o Plaintiff realizes will cost too much and time and money
o Plaintiff wants the freedom to file case in another court
Policy – voluntary dismissal should be limited to the early stages of litigation
Doesn’t apply to class actions
Rule 41(a)(1): Voluntary Dismissal by the plaintiff
o Two ways to dismiss:
o Filed by notice
o Stipulation
Rule 41(a)(2): Voluntary Dismissal by Court Order
Except as stated in 41(a)(1), an action may be dismissed at the Plaintiff’s request only by court order
Courts usually will grant unless doing so will prejudice the other party
Amendment of Pleadings
General Rule: a party is free to amend unless doing so would cause
Discovery
General shit -Disclosure-shit you have to tell
 Initial disclosure
o Who you know and what you know, sorta
o Some specific cases don’t require
o 14 days after conference
 Expert disclosures
o Was he specifically employed to give testimony?
 Yes, give a report
 No, no report needed
 Courts can order less discovery if need be or limit other shit
Rule 26: Control panel for discovery devices
Distinction between Disclosure and Discovery:
26(a) – party must give the information without a request from opposing counsel
26(b) – must request to get information
Rule (d) doesn’t apply to discovery
Rule 26 and Experts (Required Disclosures)
Special rule for experts because experts are huge in litigation and effect the outcome and case.
You can hire an expert for trial prep and that is different then expert witness
Expert Witness 26(A)(2)(b) – Witness is a witness whose job is to be an expert witness and not directly
involved in case just provide information on subject (detailed report)
Expert Witness 26(A)(2)(c) – witness who was involved in case pertaining to subject matter
Trial prep materials 26(B)(3)
 Work product rule
 Keep in mind client privilege
Protective Orders
 On motion, includes certification of talky shit
Discovery planning is required
Some sanctions for improperly certifying shit, probs pay some mooooooneyyyy
DEVICES
Rule 27-36: Discovery Devices
 Rule 27: Depositions to Perpetuate Testimony
o Person who ants to perpetuate testimony may file a petition w/ court. Petition must ask
for an order authorizing dep and other things
o Must serve each party with a copy and notice stating time/place at least 21 days before
hearing date
 Rule 28: Persons before Whom Depositions can be Taken
o Within US -- An officer authorized to administer oaths either by federal law or law in the
place of examination or a person appointed by the court.
o Foreign Country – may be taken because of treaty, request, notice, person
commissioned by court
 Rule 29: Stipulations about Discovery Procedure
o Parties may stipulate that a deposition may be taken before any person or at any time
or place, on any notice, and in the manner specified; and other procedures governing or
limiting discovery be modified.
 Stipulations extending time that would affect completion of discovery must
have court approval.
 Rule 30: Depositions by Oral Examination
o Can be done on leave or no leave unless 30(a)(2) states otherwise
o Give reasonable notice stating time/place and name of the deponent if known
o May be taken by remote means (via telephone)
o Yo ass better show up or pay attorney fees 30(g)
 Rule 31: Depositions by Written Questions
o Leave issues with or without it
o Better serve to everyone
 Rule 32: Using Depositions in Court Proceedings
o All or party may be used if
 Party was present
 Used to certain extent it would be admissible
 Allowed by:
 Impeachment 32(a)(2)
 Unavailable Witness 32(a)(4)
 Limitations 32(a)(5)
 Using Part of it 32(a)(6)
 Substituting Party 32(a)(7)
 Depo taken in earlier action 32(a)(8)
o Waiver of Objections 32(d)(1)-(4)
 Rule 33: Interrogatories to Parties
o Can only be served to parties; not to witnesses
o Rules limit parties to 25 interrogatories bitches
 Each question is an interrogatory and if a question includes a subpart, each
subpart is considered an interrogatory.
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o Better serve and answer within 30 days after being served hoe 33(b)(2)
Rule 34: Documents and Property Discovery (Request of tangible things)
o May serve on any other party a request within the scope of Rule 26(b)- 34(a)
o Nonparties may be compelled to produce documents and tangible things or to permit
an inspection in Rule 45
Rule 35: Physical and Mental Examinations
o The fucker is crazy 35(a)
Rule 36: Requests for Admissions
o Admit this mothafucka
o Party to party
o Matter admitted unless within 30 days after being served
SCOPE AND E DISCOVERY
EXEMPTIONS FROM DISCOVERY
ENFORCMENT
ENDGAMES
Summary Judgment – Rule 56
Ultimate reason – court decides if we need to go to trial (trial standard)
Rule 56(c) – provides party granted SJ if pleadings, depositions, answers, to interrogatories, and
admissions on file together w/ affidavits, if any show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law
Two elements to SJ
1. No genuine issue as a material of fact
2. Entitled to judgment as a matter of law
Party may file a motion of SJ at any time until 30 days after the close of all discovery
Burdens
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Burden of Production – what a party must produce to get to a jury trial
o This burden can shift between parties
Burden of Persuasion – what the party must do to convince the jury they are right
o This burden is always on the plaintiff
Moving Parties Burden
o When a moving party does not have the burden of production, they can satisfy the
initial burden of SJ by showing that the nonmoving party is lacking evidence for one
essential element of their claim
Evidence – if question about evidence is one of credibility, the judge should let it go to the jury to make
that determination
Judgment as a Matter of Law – Rule 50
You can move against person who has shown off
Rule 50(a) – after a case has been heard and before submitted to jury
Rule 50(b) – 28 days after entry of judgment
Easily overturned because its suspicious for judge to declare winner
Have to make a 50(a) to make a 50(b)
TOO FEW AND TOO MANY
Compulsory Joinder of Parties – Rule 19
Rule 19 is used to determine if a party is one that is required to be joined and if so, whether it is feasible
to join and if not whether the action should be dismissed
 Required when a party make a 12(b)(7) motion to dismiss for failure to join an indispensable
party under Rule 19
When motion is made, must satisfy one of the three baskets if none met 12(b)(6) denied
 19(a)(1)(A)—cannot accord complete relief in the party- protect me hoe
 19(a)(1)(B)(i) –disposing the action in the persons absence may impair or impede the person’s
ability to protect interest – protect joiner
 19(a)(1)(b)(ii) – disposing the action in the persons absence may leave an existing party subject
to a substantial risk of incurring inconsistent obligations -- protect ∆
If you don’t want to be joined but is feasible must do so by court order Rule 19(a)(2)
Joinder is not feasible if:
 They cant be served
 Joinder will deprive of subject matter jurisdiction
 Venue is improper & they object to venue
If the party is one that is required to be joinder and the joinder of that party is not feasible, then court
must do a 19(b) analysis to decide if the case should be dismissed or continue without the required
party
Class Action Certification – Rule 23
Class Action Lawsuit – must satisfy several stringent requirements before a court will certify and thus
approve
Rule 23(c) – governs whether judge should certify a class; Brought by a class rep 23(c)(3)
Rule 23(e) – voluntary dismissal, settlement/compromise were strict about this because we want it to
benefit all of the class
To successfully certify a class an individual must satisfy 4 prerequisites under Rule 23(a)(4)
 Numerosity Rule 23(a)(1) – has to be a good number more than 30 similarly same situation
 Commonality Rule 23(a)(2) -- whether class has stuff in common
 Typicality Rule 23(a)(3) -- claim is typical amongst class
 Adequacy of representation Rule 23(a)(4) – credibility and enthusiasm of rep
Plaintiff must prove, not simply plead, each requirement and have to satisfy either 23(b) 1-4
Courts may only conduct inquires to determine if the certification requirements satisfied not merits
Rule 23(f)—now you MAY appeal
Rule 23(g) – Class Counsel
 23(g)(1)(a)(ii) – have to have experience doing class action to be a class counsel
CONSTITUTIONAL CONSTRAINTS ON THE POWER OF THE FEDERAL COURTS
Subject Matter Jurisdiction
SMJ -- Power over a case/ constitutional power to hear claims
Determine in what court (State v Federal)
State courts have general subject matter jurisdiction
Federal courts have limited SMJ because the constitution says so hoe
 Under Article III
 Two main cases
o Diversity of citizenship 1332
o Federal Question 1331
Must be case of controversy - Have to have shit going down
Examples –
 A citizen of KS sues a citizen of Mo for harm caused by actions which constitute breach of K
under KS law – yes because there is SMJ
 A citizen of KS sues a citizen of KS for harm caused by actions which constitute breach of K under
KS law – no b/c there is no SMJ
*Congress can give all or less but can’t give more
*Check for constitutional grant or congressional Act
Diversity Jurisdiction
§1332
A1) Two Requirements
1. Case between citizens of different states
 Citizenship of humnabeing – US citizen and citizen of US State where she is domiciled
o To change domicile – must have physical presence and form intin to make permanent (
ie take a job, buy a house, register to vote)
o Attain domicile until you change it
 Citizen of cooperation
1. Of all states where incorporated
2. Citizen of one state where principal place of busness
a. Nerve Center Test- where the decisions made
b. Muscle Center Test – where activity takes place
 Partnership – non incorporated business use citizenship of all members
2. Amount in controversy exceeds 75,000
 Whatever π claims will govern unless clear to legal certainty she can’t
 Aggregation – must add multiple claims to get over 75,000
o π claims of 1 π + 1 ∆
o can’t aggregate claims involving multiple people
o joint tort feasor okay/ joint liability okay (will say joint claim)
Complete diversity rule – no diversity if any π is citizen of same state as ∆
Federal Question Jurisdiction
§1331 – Second way to get case in
For there to be jurisdiction, π’s claim must arise out of the laws, treaties, or Constitution of the
US
CITIZENSHIP OF PARTIES IRRELEVANT & NO AMOUNT OF COUNTROVERSY REQUIRED
Arises under Constitutional law
 To satisfy – federal law must be potential ingredient (constitutional grant = satisfied)
o Is π enforcing a federal right, if yes federal question bitch
Well Pleaded Complaint Rule – we look only at complaint & in complaint ignore everything but
claim (Courts will actually examine yo shit)
Exclusively Federal – automatic federal question because it destroys everything that exists i.e.
drops bomb on state law bitch
 Patent Law (Ex. Dude selling pumps they bomb. Buy them. Another dude says stop b/c
you fucking up my shit and my patent. I’m going to sue you. First dude files suit for
liable. Dude counterclaim with patent suit. Not federal jurisdiction because ∆
counterclaim of federal law isn’t enough.
 Labor Management Relations Act (29 U.S.C §185)
 Employee Retirement Income Security Act (29 U.S.C §1132(a))
 National Bank Act (29 U.S.C §85-86)
Supplemental Jurisdiction
THIS DOES NOT GET A CASE INTO FED COURT
Supplemental Jurisdiction gets claims into a case in federal court
§1367 – two step shorty
 Step 1: does 1367(a)(giveth) grant supplemental jurisdiction; yes if it meets Gibbs
o Gibbs- one claim is federal law and one claim is state law but arose from same
circumstance or chares common nucleus of operative facts
 Step 2: does 1367(b)(taketh away) take away supplemental jurisdiction; applies only in
diversity of citizenship claims
o Kills only certain claims by π not claims by ∆ (Rules 14,19,20,24)
Federal courts could hear state law claims which there was neither federal question nor
diversity jurisdiction so long as they were sufficiently related to other claims as to which there
were proper jurisdiction
 Relationship must be such that there is a common nucleus of operative facts between
claims
Removal
Nike Just Do It – no need for permission
One way street – state to federal and π can never remove only ∆
Three statutes relevant to removal
1. 1441
2. 1446
3. 1447
Five basic rules of removal
1. General Rule - ∆ can remove if case could have been brought in federal court
2.
3.
4.
5.
a. Diversity
b. Federal question
Exception: Cant remove diversity case if any ∆ is a citizen of forum(in-state ∆ rule)
Ex. π citizen of South Carolina sues two ∆’s (∆1 =NY, ∆2= Ga) arising under state law for
a billion dollars in GA state court. Can ∆ remove? NO because of instate ∆ rule blocks
removal
o Suppose same facts federal question claim. Can ∆s remove? Yes because invokes
federal question.
Must remove within 30 days of service of process
a. Runs from when served with process
All ∆s who have been served with process must join in removal
a. 3 ∆s all served with process all have to be on board (unanimous)
30 days for removal start a fresh/over with each newly served ∆
a. Filed on July 1 sued 2 ∆s serve process only on ∆1. If ∆1 wants to remove can do
it alone
b. 30 days comes and goes ∆1 doesn’t remove then file notice on ∆2 window starts
over
Remove only to federal district that embraces the state court where case is filed