CIVIL PROCEDURE
OUTLINE
FALL 2019
1
Basics
Remember:
- ALWAYS put counter argument first, THEN put your argument second
- Use new paragraphs – THESE ARE IMPORTANT
- Label EVERYTHING (headers)
- Quote fact pattern
o You can quote assumptions
Rule 1 – Scope and Purpose
 These rules govern the procedure in all civil actions and proceedings in the united states district courts, except
as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to
secure the just, speedy, and inexpensive determination of every action and proceeding
Rule 3 – Commencing an Action
 A civil action is commenced by filing a complaint with the court
12(b)(1) - COA by COA
 Each and every person needs own analysis
 Each and every COA for each and every defendant
12(b)(2) - Defendant by Defendant
 Separate for each defendant
12(b)(3) - Primary anchored claim
12(b)(4) or (5) - Defendant by Defendant
 Worry about each defendant on their own
12(b)(6) - each and every COA
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SERVICE OF PROCESS
—process= summons and copy of complaint 12(b)(4)- insufficient process, 12(b)(5)- insufficient service of process
 Contents of summons laid out in 4(a)(1)- failure to comply makes summon deficient under 12(b)(4)
Notice
 Entitled to the best notice practicable under the circumstances
 Notice by US mail as the constitutional minimum for defendants whose addresses can be ascertained by reasonably
diligent efforts
 Defendant's whereabouts are unknown, publication notice may be permitted
 Where defendant deliberately evades service of process, and his present location is unknown, the court may order
service by publication
Due process requires a reasonably calculated attempt to provide actual notice, not actual notice itself
12(b)(4) or (5) - Tests the compliance of Rule 4
 If summons does NOT have proper contents laid out in 4(a)(1) then defective move to dismiss under 12(b)(4) - pg. 1
has the list

12(b)(5) - What do I need to to serve defendant?
o Look at 4(e) - 4(j)
 Policy choices – uses as a way to inform defendants
o Pick which one that the defendant is and follow the rule
4(c) - Service
 4(c)(2) - Process may be served by any non-party who is at least 18
4(d) - Waiver of service by mail
1. 4(d)(1)—D has a duty to avoid expenses of service- Request for waiver must be in writing and
conform to other requirements of 4(d)(1).
2. 4(d)(2)—If D doesn’t waive, D will be liable for expenses of service under 4(d)(2). (must be on the first filing)
3. 4(d)(3)—more time to respond for waiving service- 60 days from the date the request for waiver
was sent. Compared to 21 days from the date of service under 12a.
4. 4(d)(5)—waiving or not waiving service doesn’t impact personal jurisdiction or venue objections
4(e) - Individual
 4(e)(2) - How to Serve Process
a. 4(e)(2)(a)- personal service—delivering personally to defendant anywhere within forum state
b. 4(e)(2)(b)-substituted service—serve somebody who resides there in the defendant’s usual dwelling or abode
(where D is hanging out these days) of suitable age and discretion
c. 4(e)(2)(c)- serve the defendant’s agent
d. 4(e)(1) is a great rule. It allows you to use any method for serving process that is permitted by state law and it's
either the forum state or the state in which service is affected.
State service rules are often in state statutes rather than in state procedural rules
4(h) - Corporation
 How to serve process on a business, all businesses, not just corporations—(4)(h)(1)(A)—must serve in the manner
prescribed by 4(e)(1) for serving an individual and 4(h)(1)(B)- must serve an officer, managing agent, or general agent
of the business. But 4(e)(1) still applies.
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
Even if we follow 4(e)(1), does it pass the Mullane test?
MULLANE TEST
 use when the state law of service is dubious (ex: post on Instagram)
o Test Tip: if dubious, argue if you met state standard THEN argue that it does not meet Mullane standard
o which is the constitutional standard for notice.
o Was it reasonably calculated to “apprise defendant of pendency of action.”
Rule 4(m) - tells us that we're going to serve process within 90 days after the complaint is filed (6 to count), and if we're
late, then the court must dismiss without prejudice or order that service will be done within a specified time. If the
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plaintiff shows good cause for a delay, for a failure to make the 90-day rule, then the court will give you extra time in
which to serve process.
Test Tip: usually will be in 4(e) or 4(h) for exam
**If you have complied with notice obligation then you have fulfilled Notice
Notice does NOT mean actual notice
 Ex: given to wife at home – wife throws it away – you can NOT bring 12(b)(5)
 Actual notice is NOT subsequent to fulfill obligation – CANNOT be a substitute
o 12(b)(5) can be filed and dismissed w/o prejudice
Summons – what you MUST attach to the complaint
 Tells the defendant why they are being sued
o W/ directions as to what they need to do
 Policy choice --> each state sets how service will be made
 Need separate summons for each defendant
Service
 Some service rules are consistent w/ state rule but still are not adequate for Due Process (constitutional)
 **NEW: 4(d) get defendant to waive service if summons = additional time to answer
 Evaluating state statute in context of Rule 4 that looks dubious
o The standard must be reasonably calculated to apprise defendant of pendency of action
 If outrageous state service rule?
o Use Mullane standard – state service is subject to due process problem
Test Tip: on exam – if state service law is dubious argue it will not meet Mullane standard
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Personal Jurisdiction
FRCP 12(b)(2)- Motion to dismiss for lack of personal jurisdiction
 Motion must be in defendant's first filing or it is waived
Test Tip: if 2 people challenge personal jurisdiction, treat them SEPARATELY
o Analyze one and then start over for the next – they are separate entities
 Exception: if corporation only sees as 1 entity, so will court
Test Tip: throughout question use different facts through fact pattern – cite case ("I think Burger King is the closest fit...)
Pennoyer: this case constitutionalizes personal jurisdiction mechanics that satisfy the 14th amendment
Ways states can satisfy 14th Amendment due process clause:
1. In rem- litigation about title to property
2. In personam - defendant must be served in hand and in forum state
o 2 part test (argue both)
o Exceptions: force, fraud, witness in an unrelated proceeding
3. Consent – if defendant consents to jurisdiction (doesn’t work for corporations)
4. Status - "divorce" if all your trying to get is status determination
1 through 4 is the original analysis – any ONE is sufficient to satisfy the 14th amendment due process problem
5. Quasi in rem (conjunctive test)
o Defendant must have property in forum state +
o However, you must attach property at outset of litigation +
o AND only judgement on the value of property (no more)
 Don’t care about litigation
Test Tip: notice and personal jurisdiction are separate – DO NOT CONFUSE
Pennoyer's traditional framework does not address modern circumstances: people and states got creative
Hess (increase of travel amongst people) : couldn’t fit into one of the boxes, so state of MA created statute (on roadway
sign) that people driving were consenting – keeps framework intact but helps make a small change
Harris v. Balk (attached debt as property): states wanted to find ways to create forum for the citizens in that state –
claim did NOT fit into the Pennoyer framework – lawyer was creative and attached debt as the property outside of
litigation
International Shoe: new framework is created for personal jurisdiction
 General Jurisdiction (all-purpose jurisdiction)
o Systematic and continuous
o Fair play and substantial justice
 Specific Jurisdiction (case specific/related) - conjunctive test
o COA arise out of defendant's contacts in forum state – elements? Where did they accrue?
o Long-arm statutes – COA must arise out of the defendant doing something that is in the state statute
o Minimum contacts with the forum state
o Fair play and substantial justice
World-wide Volkswagen:
 Not general jurisdiction
 Focuses on minimum contacts –
o it needs to be reasonably foreseeable that defendant would be hauled into court there
o Purposeful availment - if trying to "MC" and defendant purposely
o Unilateral act – distinguished away from "MC"
Calder v. Walden – effects test: intending to effect someone in forum state
 Conjunctive test of PJ --> 1 prong cannot compensate for another (they must all pull their own weight equally)
Shaffer
-Case about shareholder derivative suit – shareholder can trigger suit and act on behalf of the corporation and sue
directors and officers/ officers and corporations caused company a ton of money based on bad decisions
 ALL assertions of personal jurisdiction MUST go through I. Shoe framework
o But we are NOT dramatically changing the outcome
Burnham – differing opinions by Brennan and Scalia
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Scalia: don’t need to run through I. shoe framework. BUT in hand in state (Pennoyer) is alive and traditional
framework is still there – satisfied
o iH/iS (its own basis in establishing SJ) + Shaffer
Burnham: Satisfied through I. Shoe framework
7 Basis of Personal Jurisdiction
Siegfried and Roy Analysis - federal only - **rare**
1. S and R Do Fed court statutes or rules apply?
o If in fed court, can use a federal statute to gain jurisdiction under 4(k)(C)—has to be a statute that grants
jurisdiction for those types of cases (or defendants)-- or reach some foreign defendants (in rare circumstances)
under 4(k)(2). Also, if in fed court, may be able to apply 100 mile bulge rule under 4(k)(1)(B). (see service). CAN’T
USE THESE RULES IF NOT IN FED COURT.
o “There is a nationwide jurisdiction over all defendants”
o Rule 14 defendant? Foreign defendant?
o 100 mile bulge rule - 4(k)(2) – if not Rule 14 defendant – 4(k)(2) = irrelevant
o Rule mentions statute
Sir Winston Churchill Analysis – state or federal
1. In-hand service? Where were they served?
o Was there service in-hand, in the forum state? If yes, PJ, per Burnham. As long as not induced there in bad faith.
Only applies to individuals because corporations do not have hands.
2. Waiver? 12(g) & 12(h)
o Must include personal jurisdiction 12(b)(2) objection in first filing or it’s waived (answers included)
o Discrete inquiry
3. Status? Is this a divorce case?
4. Consent?
o Generally established through a forum selection clause. If a party signs an agreement where a cause of action
can be heard, he has consented to personal jurisdiction in that state.
 Forum selection clause: NOT the same as choice of law clause – trying to bind the parties
o Usually K w/ clause about jurisdiction
 Carnival Cruise Lines established that forum selection clauses are constitutional and generally upheld even if
there is a disparity in power and party didn’t read contract. Forum selection clauses are presumed to be
exclusive unless it explicitly says “non-exclusive.” Exception: If forum is remote alien forum and/or bad
faith
General Jurisdiction- federal or state
Is D at home in the foreign state? Where is D “systematically and continuously” present?
International Shoe: framework said "systematic and continuous"
NOW: new framework is "at home" in forum state
o Individual person
o Domicile – not the same as home and/or resident – it is an individual person
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For corporations look at: (1) where they are incorporated and (2) their principal place of business--Goodyear
For individuals look at: (1) where they’re domiciled—last state where they resided and intended to live indefinitely
(where’s your butt and your gut? Your booty and your brain?)
Very narrow exceptions for corporations in extraordinary cases. Less than a decade ago general jurisdiction known as
“doing business” jurisdiction. If enough business done in forum, can make argument corporation is at home there.
Exam: Under principal place of business - Bowing hypo… (everything of the business is everywhere else BUT not
incorporation or place of business)
Can jurisdiction problems be solved by just filing in federal court? No, because 4(k)(1)(A).
 Service creates personal jurisdiction if a, b, & c are satisfied
 Personal jurisdiction in Fed. Ct. Just piggy backs on state court in which Fed. Ct. Sits – if jurisdiction in state ct. Then
there is jurisdiction in Fed. Ct. (ex: fed. Ct. In Wisconsin = state ct. In Wisconsin)
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Specific Jurisdiction – federal or state (4 steps)
1. Did cause of action arise out of or is it related to defendant’s contact with the forum state? Does state in question
have more to do with the cause of action (focus on D’s contact) then the states.
Bristol-Meyers Squibb- If the defendant’s conduct giving rise to the claim and the plaintiff’s injury both occur outside of
the state, the court likely cannot assert specific jurisdiction.
2. Long arm statute- Would granting PJ conform to the requirements set forth in the state’s long arm statute? Look for
easy ways to meet requirements of the long arm statute.
3. Minimum Contacts- Does the defendant have minimum contacts with the forum state? Still must have minimum
contacts for in rem or quasi in rem (Shaffer). If questionable, ask for jurisdictional discovery
Examples of Minimum Contact PICK ONE!!!
a. Through targeting the forum state (INT T Calder and Walden[no mc])=MC
Calder v. Jones- National Enquirer accused Shirley Jones of drinking problem. Even though defendants never entered
forum state, writer relied on sources from California, and P’s life and career were centered in California. D knew she
would be negatively impacted in forum state.
- the defendants had made calls to people in California, wrote about events that took place in California, and had
their names (as editor/reporter) printed in newspapers that were sold in record numbers throughout California
- The Calder defendants knew that Jones would suffer injury in Hollywood. other words, it’s not just where she
happened to be or to live at the moment they defamed/libeled her.
Walden v. Fiore- P’s were professional gamblers from NV and CA. D was DEA agent who seized money from P in ATL. Suit
filed in NV. No MC, not targeting the forum state, and not trying to negatively impact them in the forum state.
- the defendant knew that the injured party was from Nevada, but that wasn’t enough
- defendants must have targeted the forum state—not just the plaintiff who happened to be in the state.
b. Through purposeful availment (McGee)=MC
McGee v. International Life Insurance Co.- Purposeful availment established MC because even though TX company had
no offices or agents located in CA, the life insurance contract was delivered to a CA resident. D purposefully availed of the
privilege of conducting activities within the forum state.
- the insurance company defendant was said to have purposefully availed itself to California by having just one
customer there
- personal jurisdiction was granted in McGee, we have a solid foundation to argue upon.
c. Relationship with forum state is result of unilateral act (Hanson)= No MC
Hanson v. Denckla- P established trust in Delaware and then moved to FL. His unilateral act of moving meant that D did
not purposefully avail itself of the privilege of conducting activities with the forum state. Therefore, no MC.
- a woman in Florida was said to have created the only contact with the forum state and thus the defendant
[trustee] did not purposefully avail itself [even though the defendant was aware of its Florida business and
benefited from that Florida business]
- the defendant did not solicit any business there; one of its clients moved to Florida and the defendant continued
to do business with her/them, notwithstanding the move—the “unilateral act” of the plaintiff.
d. Reasonably foreseeable that you would be haled into court there (WWVW [no MC])=MC
World-Wide Volkswagen v. Woodson- P’s purchased car in NY, and on their way to move to AZ, they were struck by a car
in OK. Severe injuries and claimed defective design. Court ruled not sufficient that it was foreseeable that P would drive
car in OK, had to be foreseeable to D that they would be brought to court there to establish MC.
- Seaway rightfully was shocked to hear they were being haled into Oklahoma courts. They had no employees in
Oklahoma and owned no dealerships [and did no business there—not even to people from there, as far as they
knew].
e. Product that enters forum state through stream of commerce PLUS something (Asahi and Nicastro)= Maybe MC
Asahi (split decision!)- Asahi was foreign company that manufactured valve assemblies in Japan. Cheng Shin bought them
from Asahi, and incorporated them into their tires, which they sold worldwide, including in CA. Cheng Shin alleged that
informed Asahi of its US tire sales. Split decision. O’Connor- Even if foreseeable that product will enter state through
stream of commerce does not create personal jurisdiction. Must purposefully direct action to forum state to create
MC. Brennan- Stream of commerce is not unpredictable, so any party that knows its product is being marketed in a
forum should be aware of the possibility of being sued there.
Nicastro- P injured by metal-shearing machine manufactured in England by company incorporated in England. P sued in
home state of NJ. D never marketed its goods in NJ nor shipped them there. Court ruled that D did not engage in any
conduct purposefully directed at NJ.
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f. Extensive business relationship with someone in the forum state as evidenced by contract (Burger King)= MC
Burger King- D’s, who signed a franchise agreement to operate a BK, were from Michigan. Didn’t pay franchise fees to
BK. Florida granted jurisdiction because D finalized a deal with corporation he knew was located in FL. Course D attended
to get franchise was in FL. Any franchise fees sent to FL. Signed contract BK Headquarters in Miami regulated the
franchise.
- PJ was granted - here was a form of an employment contract where Burger King and franchisee owners in
Michigan got into a lawsuit and Burger King attained personal jurisdiction [in Florida].
 Rule: Once it has been decided that a defendant purposefully established minimum contacts within the forum State,
these contacts may be considered in light of other factors to determine whether the assertion of personal
jurisdiction would comport with fair play and substantial justice
4. Would granting jurisdiction offend traditional notions of fair play and substantial justice? (Asahi, Burger King)
a. What’s the burden on D? Asahi said too much of a burden on D because D was in Japan. Burger King said not too
much of a burden for Michigan D to travel to FL. Had already traveled there for course to get franchise.
b. What’s the forum state’s interest? Does forum have particular interest in the case? In McGee, CA had in interest
in providing justice for residents who were ripped off by out of state insurance companies.
c. What are plaintiff’s interests? Plaintiff always has an interest in suing at home, but how difficult would it be for
P to travel to another forum.
d. Efficiency- Maybe this forum is good because this is where most of the witnesses are. Easier to have trial there.
Federal Court, NOT State Court
4(k)(1)(A) - there may be personal jurisdiction in State Fed. Ct. Even if not personal jurisdiction in state ct.
4(k)(1)(B) - Rule 14 defendant --> within 100 miles of court house (even if it goes across state lines) - only in U.S.
 4(k)(1)(b) says that you can serve process outside the state where the federal court sits even though you do not have
a state law that allows it, but you can only do it within 100 miles of the federal courthouse. So even if there is no
state law that allows service of process outside the forum, you can do it if it's within 100 miles of the federal
courthouse. This is called the Bulge Rule. This does not apply to service of process on the original defendant, does
not apply to service of process on the original defendant. This is only for parties who are joined later in the case
under rules 14 or 19, This only applies when we are bringing in somebody new later in the case under rule 14 or 19.
4(k)(1)(C) - ex: Congress sets statute (nationwide) provision
 Don’t confuse this statute w/ Longarm statute
 Congressional statutes --> on test: will say "worldwide" or "nationwide" bluntly
4(k)(2) - Foreign defendant
 Federal Court's exercise jurisdiction over defendant as long as: (conjunctive test)
1. COA is federal law – eliminates ALL state law claims
2. NOT otherwise subject to personal jurisdiction anywhere in the U.S.
 Analyze jurisdiction w/ all 50 states
3. Minimum contacts w/ U.S. as a whole
(k)(1)(B), (k)(1)(C), (k)(2) - on test: weird, rare fact pattern
Collateral Attacks to Personal Jurisdiction
 Don’t show up in "TX"? - Fed. Or state to challenge
 Don’t answer? - default judgement (rule 55 = plaintiff wins)
o Brings up suit #2 then you make collateral attack (your preference)
 Enormous risk – if you use collateral attack then all your arguments depend and are personal jurisdiction ("strategic
eggs")
o Full Faith and Credit Clause
Direct Attacks to Personal Jurisdiction
 Means you show up in "TX" and file 12(b)(2) = direct challenge
o Argue that you shouldn’t have to show up
o State ct. will go through tests to decide
o Moves court to engage in personal jurisdiction
 If I lose on Personal jurisdiction, THEN I can argue other problems and/or defenses
 Safer approach
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Subject Matter Jurisdiction
State courts have unlimited power to hear a case. - State courts don’t have the same concern of subject matter
jurisdiction as Federal  General subject matter jurisdiction - broad discovery rules
Does fed. court have power to hear case? Why? - For fed rules, prestige
 Limited subject matter jurisdiction
 Point to Congressional statute
Almost all cases that can go to fed court can go to state court, but there are a very limited number of cases that can only
go to fed court (bankruptcy, patent infringement, very few antitrust cases)
How to get a case into fed court? Remember Plaintiff may generally sue in state court
1. Federal Question
Under Section 1331 of the Judicial Code, we can go to fed court if the case arises under federal law.
 Does Plaintiff's cause of action arise under federal law?
 Is Plaintiff enforcing a right given by federal law?
o Exceptions under Grabel
 If it says federal statute = federal court
 US code = federal statute
Test Tip: point to congressional statute – if you can, move on
OR
2. Diversity of Citizenship CONJUNCTIVE TEST (must satisfy both)
Under Section 1332(a)(1) of the Judicial Code, if you want to get a case into fed court, the case must meet two
requirements:
1. Complete Strawbridge Diversity
o Case must be between citizens of different states.
o No same states on opposite sides of the “v.”
 Ex: YES! NV
TX NO! IL
CA
IL
vs. FL
NV vs. NV
CA
MO
o Minimum diversity = NOT federal court (same state on both sides)
o For corporations: 1332(c)(1)
 Must put state of incorporation and headquarters ONLY
 Principal place of business - where the managers direct, control, and coordinate corporate activities.
 For non-incorporated business, use citizenships of all members of that business.
o For individuals: 1332(c)(2)
 Use persons domicile
 Determine domicile at the filing of the suit
 Every person has a domicile – only ONE
Test Tip: resident is NOT the same as domicile
How to determine domicile?
 Start w/ parents domicile
 Presence of being somewhere simultaneously w/ the intention to stay there indefinitely
o Mind/Behind or Butt/Gutt
 Fact contingent
2. The amount in controversy must exceed $75,000.
1332(a)(2)
o Take the plaintiff's word for it
o You CAN combine COA counts to satisfy the amounts in controversy
 Even unrelated claims (Rule 18)
o You CANNOT join parties to satisfy the amounts in controversy
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General:
1. You can only remove to the fed district that embraces the state court in which case was filed. Section 1441(a)
2. Exception- 1441(b)(2)- If basis for fed court jurisdiction would be diversity, won’t allow in-state D to remove.
3. D must file notice of removal in fed court (of state) within 30 days of service of first document that makes case
removable. Just complete removal process under 1446 (d). Don’t have to get permission first. If incorrect, motion to
remand by P.
4. When case that wasn’t removable becomes removable, window is open for 30 days again.
5. Newfound diversity must be found within one year, though
6. All D’s served in process must join in removal according to 1446 (b).
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Supplemental Jurisdiction
SUPPLEMENTAL JURISDICTION- case must already be in fed court
1. First, for each claim, ALWAYS ask if it satisfies federal question (1331) or diversity of citizenship (1332)?
a. If yes, GREAT! (move on)
b. If no, must satisfy Section 1367 of the Judicial Code:
1367 – Conjunctive test
1. Threshold Question?
o Is there something properly in Fed. Ct.? What is the anchor out of 1331 OR 1332?
 Test Tip: "The anchor is …. (quote it) out of 1331 or 1332. [either point to analysis already done OR do
analysis to satisfy 1331 or 1332]. Therefore, trying to use 1367 to supplement the claim (new COA or
new Defendant)
a. Same T & O? (nucleus of operative facts)
COA you are using this for arises out of same T & O as the anchor
b. IF anchor is 1332 Then you can't use 1367 if you are an original plaintiff from anchor
1. Takes away claims by a P against parties joined under FR 14, 19, 20, 0r 24
2. Takes away claims by Rule 19 P’s
3. Takes away claims by Rule 24 P’s
c. Discretion – 1367(c)
- Book has examples (pg. 301)
- court can decline supplemental jurisdiction if:
 Claim raises a novel or complex issue of State law
 The claim substantially predominates over the claim over which the district court has
original jurisdiction
 The district court has dismissed all claims over which it has original jurisdiction
 In exceptional circumstances, there are other compelling reasons for declining jurisdiction
COURT HAS DISCRETION- is it novel issue of state law?
o Case by case – count by count basis
REMOVAL- D has been sued in state court but could have been filed in fed court because of diversity of
citizenship or fed question
 Plaintiff who could go to Fed. Ct and decides to not go and stay in state court --> THEN defendant gets the chance to
removal to fed. Ct if they want
o Defendant gets the same opportunity as the plaintiff
Exception: Forum Defendant Rule
 Must be diversity NOT fed. Question
 If jurisdiction you are talking about refers to diversity rather than fed. question THEN defendant who is a resident of
that state canNOT move to fed. ("you don’t get out of state court that you reside in)
o However, if defendant is not a resident AND it is diversity then defendant can remove to fed. Ct.
 State substantive law follows to fed. Ct (eerie doctrine)
General about Removal
 Defendant has 30 days to remove
o File notice of removal in Fed. Ct. NOT state.
 It is a notice NOT a petition
 Can only remove it to a Fed. District court w/i state
o Ex: in CA, can only remove "straight up" to Fed. CA court
 Plaintiff can file motion of remand back down to state
 Changed circumstances can influence removal
o Action that wasn’t removable becomes removable --> that is when the 30 days starts
o EXCEPTION: if newfound claim is diversity jurisdiction, must happen within 1st year
*If odd entity (Rule 17) for diversity – ex: Association
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
Put every person a part of the association on list
o If overlap – minimum diversity NOT complete diversity
Venue
12(b)(3)- Must raise venue objection in first filing or waived
Venue- tells us which federal court a case can go to- which federal district do we go to
 If case was removed, must go to fed court in same district (refer to removal).
 For venue, unlike other 12b’s, we’re only worried about primary action (not impleaders or crossclaims.)
If P files in fed court, basic venue provisions are found in 1391(b)(1) and 1391(b)(2).(pg. 302 in FRCP book)

For state court, 1391 irrelevant. Would have to go to state statute. Just because we can establish venue, doesn’t
mean we have personal jurisdiction and vice versa.
Test Tip: B/c the fact pattern tells me I'm in fed. Ct. ("quote it") then I will be using the Fed. 1391 statute
Test Tip: B/c the I'm in state court ("quote it") then I need a state venue statute to apply
 If it is not given on test then you cannot do venue analysis
 Venue statute is not an applicable federal rule.
3 Ways in Establishing Venue (mainly 2)
1. 1391(b)(1) - Where to the defendants reside? (aka residential venue) (doesn’t care about the suit)
o You may lay venue in any district where:

At least 1 defendant resides
 ALL defendants reside in state
 If they don’t all reside in state, then you CAN'T use this way.
o If all defendants reside in forum state, you may lay venue were one of them resides.
Resident Analysis:
1391(c)(1)- For individual, resides=domiciled. (reside in the judicial district in which they are domiciled
1391(c)(2)- For business, resides anywhere it’s subject to personal jurisdiction for this case. (reside in the judicial district
in which they are domiciled)
1391(d)- Do personal jurisdiction analysis as if district was its own state.
2. 1391(b)(2) (aka transactional venue)- We may lay venue in any district where a substantial part of the claim arose.
OR substantial part of property is situated
o Doesn’t care about residents
3. 1391(b)(3)- If you CAN'T establish venue through 1 OR 2, THEN venue can be satisfied if there is personal jurisdiction
Test tip: If you get to this point on exam – second guess yourself
Venue Proper Through 1391(b)(1) or (2) THEN:
1. Proceed with litigation OR
2. Transfer (only use when transferring from one fed. district court to another fed. district court) OR
o Even though venue is proper a court can still transfer
 When and how? (1404) - convenience of parties and witnesses, in the interest of justice, may transfer by
invoking 1404(a)
o Transferor – decided that a case can be transferred to another district where the action could have been brought
--> must do PJ analysis and venue analysis
o Must look at the private and public interest factors BUT there must be adequate alternative forum
Test Tip: if transferred to fed. Ct. – state substantive law follows (eerie doctrine)
3. Dismissal – through forum non convenien
- If place you want to transfer to and can’t do it  then use this doctrine
- Same analysis as transfer (private and public interest factors)
- Make sure alternative court is adequate
o court has discretion to dismiss a lawsuit for inconvenience, even if that lawsuit was filed in a forum with proper
jurisdiction and venue.
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

In state court the judge may determine the action belongs in a different state. Because a state court judge
has no power to transfer an action to a different state, the remedy is dismissal for forum non conveniens.
Same goes if the federal court determines that the action belongs in a different country’s judicial system.
Presumption favors the plaintiff’s choice of a proper forum, and will only be overcome if the defendant can
show that public and private factors weigh in favor of dismissal.
Piper Aircraft Co. v. Reyno (p.857): airplane crash in Scotland / P sues two Ds / P wants American tort law to apply to
case (more favorable than Scottish law) / accident occurred overseas but plane manufactured in America / case filed in
CA / nothing to do with CA but wanted CA substantive law / case transferred / now an issue with conflict of laws and
each D held to different set of laws / now that venue proper, D’s in PA / CA law followed one D / Scottish law applied to
second D / case dismissed for forum non conveniens.
Venue Improper – not satisfied by 1391(b)(1)or(2) THEN:
1. Transfer (1406)
o Separate authority
o If it's in the interest of justice transfer to any district in which it could have been brought (Fed. DC to another
Fed. DC)
o Transferee must have proper venue and personal jurisdiction over the defendant.
2. Dismissal 12(b)(3)
o If dismissed rather than transferred, then case was decided on technicality due to SOL problem
 Interest of justice
 Can argue both ways (could have purposely filed in wrong district court)
If proper venue, 1404- Original federal court is a proper venue. In this case, court may transfer from one proper venue to
another. It’s discretionary and things like convenience of the parties and witnesses and the interests of justice. Forum
selection clauses may be enforced through a 1404(a) transfer. Atlantic Marine.
Test tip: "Interest of Justice" - weigh the public and private factors
BOTH (1404 or 1406)

If transferred, then case picks back up where it left off Test tip: "see attached the personal jurisdiction and venue
analysis"
o Party or judge can motion for transfer – better than starting over
Difference between 1404 and 1406 (transfer)
 1404 –
o the substantive law comes with transfer
o Must apply law from state that case came from – take the law with you
 1406 o The substantive law does NOT transfer with them
13
Amending a Complaint – 15(a)
FOR EVERY MOTION TO AMEND Always start with 15a!
FRCP15(A): AMENDMENTS BEFORE TRIAL
Must satisfy one of 3 prongs:
Explain the 3 prongs and why you are using the one chosen
1. The freebie (short paragraph)
a. 15(a)(1)(A): Amending an answer - Right to amend once within 21 days after serving pleading.
 Exam: “can’t use because we are after the 21 days after the complaint has been filed” (cite
rule and quotes from fact pattern”
b. 15(a)(1)(B): Amending a complaint Or within 21 days after service of responsive pleading or service of rule
12 motion, whichever is earlier. COMPLAINTS (usually here)
 Rule 7(a) - list of pleadings
 Rule 6 – how you count days properly
 explain how it does and doesn’t satisfy the 21-day rule
2.
Consent of opposing party. (short paragraph)
Consent = Deal or trade
Did the defendant consent? If yes, then satisfied. (What is the sentence in FACT PATTERN that shows defendant
consented?)
o If you have NOT used freebie and it is timely then, YES you can use it, otherwise NO.
o Exam: “There is nothing in this fact pattern that suggests either party is going to consent, however maybe I can
make a trade?
o
o
3. Justice So Requires.
Has there been undue delay (did you wait unnecessarily long)? Will other party be prejudiced in any way? Courts
generally pretty liberal about granting this.
o Delay? - How Long? Why? Be able to explain what you have been doing up to this point. EX: every day for last
10 months I have been vigorously trying to find his name.. Then explain what you did (hung up fliers, radio
station, newspaper, etc). Plaintiff's side
 Find exact date it was filed – Find exact date motion to amend was filed (QUOTE directly from fact pattern)
 2 paragraphs:
 (1) Delay of when they found about it
 (2) delay after they found out until they filed.
o Prejudice? - compare the defendant’s posture of if it was served timely vs. The plaintiff's posture on why it
wasn't Defendant's side
 Does it make any difference? Would they have done anything different? Would admissions and denials
have been the same? Would they have had an affirmative defense?
Exam: “Move to amend”
If 15A is satisfied.... Don't assume you're done!
MUST ask if there’s a statute of limitation issue? Quote exact SOL from fact pattern
If no, YOU'RE DONE!
o some relations back don't solve SOL problem = complaint fails
o RELATION BACK
 Example: Assault 2 year SoL, Breach 1 year SoL. We filed for assault during 8 months in. We can relation
back to add in breach . But if we file on year 2, we can relation back but it will never solve the statute of
limitations problem for breach.
If yes, and initiated new claim, would it be solved by relation back?
If no, YOU'RE DONE!
If yes, go to 15c.
14
15c1A- If state law claim, need state RCP on relation back. If state allows it, you’re good.
 In exam, this will be clearly stated in hypo
 If it IS a state law claim, "quote it" in exam
15c1B- If just adding a claim, we can add new claim if it arises out of the same transaction or occurrence as the
original claim.
15c1C If adding party, must meet these three requirements: 3 – part Conjunctive test
Ex: Singletary case: tried to add psychologist under "unknown corrections officers" OR Cruise ship (names are
similar)
1. Must say amended(new) complaint arises out of the same transaction or occurrence of original claim
Ask yourself what kind of facts drive things together?
Argue YES – give facts why? (directly from fact pattern)
Argue NO – give facts why? (directly from fact pattern)
*THEN pick side that is most compelling
2. NOTICE: Party to be added knew about case within 90 days after it was filed
o What? (the filing of the complaint) AND
o When? (within 90 days after filed)
 Are you sure? Make statement where argument can't be proved wrong. (Rule 4m – describe how to
count the days and insert fact pattern)
(timing according to 4m about when D must be served after complaint was filed)
3. Must be a mistake - why wasn’t included previously in complaint?
o Lack of knowledge is NOT a mistake.
 Argue both sides – LOK and a mistake (what are the differences?)
o Typo IS a mistake – easy to fix, no problem to change (ex: name spelt wrong)
15
Discovery
Discovery = FIND EVIDENCE FOR THE ELEMENTS OF EACH COA
 Use discovery to find FAVORABLE evidence
Advantages
Type of Discovery
Depositions (30)
 Oral
 Written (very rare)


Spontaneous answers
 Costly

party seeking discovery
serves other party a request

for production. Can use it to

gain access to things,
property, docs, and ESI. 

Amount (#)
Advance
Permission
from court
required?

Thorough
 Lawyer usually

drafts answer
Not expensive
Useful for background
information
Parties ONLY

Includes actual  Expensive for
things
responding party
Emails
 Get buried in
papers
Other lawsuits
 Other side
Inexpensive
makes it a
Inspecting documents
game
and things
Parties (don’t need subpoena)
 unlimited
AND
Nonparties (need subpoena
under Rule 45)

no
Parties only
Only for party or person in
legal custody of a party (ex: a
child, because parent has to
sue on behalf of child)

Yes – must
have court
approval


No
30 days to
respond


Only if medical condition of
person is in controversy and
must show good cause.
Request for Admissions (36)

Party vs. Nonparty
Parties
AND
Nonparties (must be
subpoenaed)
Physical & Mental
Examinations (35)



Interrogatories (33)

 Written questions 
answered in writing 
under oath
Document Request (34)
Disadvantages
Direct



Already had this
 Parties ONLY
“Admit you were drinking alcohol
 Useful because they opportunity
when driving.” “Admit that was
force you to admit or
your yearbook."

7 hours (unless court
 no
order or party
agreement to go
longer)
Only 10 total
(10 letters in
deposition)
25 only (5th letteris
doubled)
 Including subparty
Rule 33(a)
Unlimited
no
deny any discoverable
matter.
Use COA elements when talking about discovery
*mention rules – limitations – etc. (everything in matrix above)
Formal discovery is only done of the other side
 Ex: person might die (get own client's testimony)
Rule 26(g)- Rule 11 regarding discovery. Discovery rules are very liberal. We want to allow litigants to find out what the
other side knows. We want to avoid surprises and trial by ambush. Also, want to try to prove our case. Don’t do discovery
on your own clients.
MANDATORY DISCLOSURES
RULE 26(a)- Required disclosures – requires that lawyers, at an early stage of litigation, exchange certain core
information as part of a regime of mandatory initial disclosures.
Mandatory initial disclosures 26(a)(1)- We must identify people who have discoverable information that we may use to
support our case. We have to disclose documents (any things or ESI) that we may use to support our case. P must provide
calculation of damages. D must say how much insurance she has to cover all or part of claim.
Mandatory disclosure about expert testimony (later in case) 26(a)(2)- If relying on expert testimony, must provide a
written report by expert.
Very late in litigation-Pre-trial required disclosures 26(a)(3)- Must tell the other parties everything we’re going to rely on
and every contention we’re going to make if case goes to trial. About a month before actual trial date.
16
Scope of Discovery Standards RULE 26(b)(1) - 3 part test
 Relevant – looking at the COA – look for the things that help prove or disprove the COA (look @ elements)
o Relevant to complaint OR defense
+
 Not Privileged – policy matter (either satisfied or not satisfied)
o Test Tip: On exam, it will say whether it is privileged or not
+
 Proportionate – unreasonably burdensome
o Proportional – importance is to a bunch of people (I.e. Human safety, national security, children's welfare)
o Not proportional – no importance to state of country (I.e. Bullshit fight about lease agreement)
1. Responding party, person from whom discovery is requested, under 20(6)(c), can seek a protective order because
request is overly burdensome, too expensive or violates privilege. Court has enormous discretion
2. If party objects to some discovery (partial failure) (either questions or requests), party seeking discovery may file a
motion to compel under 37(a). Under 37(b), court can say you must answer those motions. If party fails to comply
with motion to compel, very serious sanctions under 37(b)(2).
3. If responding party, completely fails to respond (don’t show up to depo or return interrogatories), party seeking
discovery can ask for very serious sanctions under 37(d).
After receiving discovery Request that is Beyond the Scope: (objectionable)
1. Always an option to just produce the information for the other side, not worth the fight
o … ethical rules do not compel one answer to another: may give opposing party exactly what they want or bury
them in boxes of discovery / discovery a tool like anything else…
2. Motion for protective order and go to court – Rule 26(c)
o No sanctions – not attractive – can look bad to judge
3. Object – beyond the scope (responding party)
Requesting party can then:
 Motion to compel is granted it can lead to sanctions Rule 37 - not very attractive
OR
 Surrender – give up – abandon (won't receive information they were looking for)
If discovery is within the Scope:
 2 ways to produce:
o Order in which the discovery is kept OR
o Order in which they requested it
**Judges do not like discovery fights – forces them to get deep into the case to know if the discovery is relevant – most
of the time they cannot resolve b/c the judge doesn’t know the case
TEST TIP: benefits of discovery… (1) elimination of surprise (cases decided on merits and less of who can play the better
game / no more “sporting theory of justice”); (2) increased rate of settlement (once have all evidence, can assess
likelihood of success at trial); (3) narrowing issues for trail.
TEST TIP: goals of discovery… (1) accumulate evidentiary support for COA as P or affirmative defense as D; (2) to know
everything other side will/can say (“control the narrative”); (3) leverage/posture/intimidate (who is in a better position
to settle / act like you intend to go to trial).
**Attorney must take responsibility of client when it comes to discovery – make sure client did discovery properly (courts
do not like discovery on discovery)

What evidence counts in summary judgement? - must be in an admissible form at trial
17
Ex: SJ = title for truck – inadmissible I Trial = title for truck is notarized for truck – admissible
18
Pleading Standards
FRCP8(a)(2): Claim for Relief / a short and plain statement of claim showing that pleader is entitled to relief.
FRCP8(e): Construing Pleadings / pleadings must be construed to do justice.
FRCP9(b): Fraud or Mistake / conditions of mind / fraud or mistake, must state with particularity the circumstances
constituting fraud or mistake / malice, intent, knowledge and other conditions of mind may be alleged generally / (issue
came up in Iqbal with allegations of fraud / more information was needed to be able to claim it)
 ASHCROFT v. IQBAL: pleading was insufficient / narrow question: did respondent plead factual matter that, if taken
true, states a claim that petitioners deprived him of constitutional rights?
TEST TIP: narrow pleading standard, harder to get on facts to remedies line / broader pleading standard, possibility of
more frivolous claims / must weigh pros and cons of changing pleading standards.
FIRST PARAGRAPH
Conley –
Rule 8(a)(2): A short and plain statement of the claim showing that the pleader is entitled to relief
In exam, talk about how the court could've constructed the rule to be so much more concise. Example:
Short – could've been "comprehensive"
Plain – could've been "exacting"
Statement – could've been "expert presentation"
*These 3 do not have legal requirements, an ordinary person understands - don’t need lawyer to make complaint
Of The
Claim (story of what happened) – could've been "cause of action and elements"
Showing (requiring something) – could've been "Proving"
Exception to 8(a)(2) is Rule 9(b) - if alleging fraud or mistake – you must be more specific
o Give a little more information
o Whatever the general standard is, 9(b) is just 1 step higher.
o Case to case basis – pled with particularity
2ND PARAGRAPH -** can combine 1st 2 paragraphs
This constructed rule was seen as a liberal pleading standard.
 Explain reasons for a liberal pleading standard
o Less efficient
 Claims that aren't legal (cognizable claim) can make it to the facts to remedy line
3RD PARAGRAPH
 Explain why courts would want to adopt a heightened pleading standard over the liberal pleading standard.
o More difficult to plead
 Weed out cases for the justice system, narrowing dispute resolution, focuses your claim
o In complaint a person must address the elements of each COA, with evidence for each one
 Prevents errors, cheaper for defense and litigation, they must do legal research, lessens the access to courts
and judgement – In all of these reasons a person would pretty much need a lawyer
 This is a problem for underprivileged and disadvantaged person who cannot afford a lawyer


1970'S – All federal courts formally adopted heightened pleading standards for civil rights cases
 They also used 12(e) motions to heighten the pleading standards
Supreme Court unanimously rejected these pleading standards moved toward Twombly
TEST TIP: narrow pleading standard, harder to get on facts to remedies line / broader pleading standard, possibility of
more frivolous claims / must weigh pros and cons of changing pleading standards.
8(a)(2) - this makes it that a claim MUST have a legal and factual sufficiency
 If defendant felt the claim does not meet this requirement – file 12(b)(6) motion
19
12(b)(6)
1st Paragraph
Mention Rule 8(a)(2) again (tests the compliance of 8(a)(2)) – this makes it that a claim MUST have a legal and factual
sufficiency
If the claim does not meet this requirement – file 12(b)(6) motion
FRCP12(b)(6): Motion for Judgement on the Pleadings
- failure to state a claim upon which relief can be granted: These motions fall into 3 categories:
TEST TIP: consider COA by COA, element by element…
Paragraphs 2-4 (explain all 3 categories)
Paragraph 5 (directly quote fact pattern explaining how it fits into one of the 3 categories)
**Just looking for sufficiency of ink on paper NOT “evidence” or “proof”
Use “allegations” NOT evidence or facts (when talking about COA)
Category 1: Claim is not cognizable – quote what the COA is
i.
ii.
iii.
iv.
v.
No legal claim
Nothing that substantive law is trying to get rid of or recognizes as legal
Law doesn’t have a COA for what is described
Person files a complaint that is an interesting story but not much else / not a cognizable claim.
Ex: "I am bored" --> no COA
Category 2: Insufficient facts TRANSITION SENTENCE FOR TEST: In order to get on facts to remedy line, the case must be accepted first. Due to the
heightened pleading standard being rejected by the Supreme Court – out came the plausibility test from Twombly.
i.
ii.
"defendant is liable to me for negligence" --> insufficient – need more facts
Do 2 part plausibility test
2 part plausibility test: allows for courts to have some resistance
1.
In the claim – cross out anything that is conclusory
Conclusory is: Unstated factual premises/details, that I'm unwilling to accept as true

How to tell if something is conclusory?

If person uses actual element of COA and just drops it in the claim - Copying and pasting the
element

Ex: I was abused in prison – conclusory & subjective.
NOT conclusory – has detail (who, what, where, when, time, how many times)
 MORE detail, MORE context = less conclusory
2.
Now look at what information is left in the claim – is it lawful or unlawful?
 Is it plausible that the allegations that are NOT conclusory, prove there needs to be relief?
 Don’t jump to unlawful – It is plausible to draw unlawful conduct inference

Ex: Iqbal
NOTE: if a court doesn’t go down the Twyqbal path (heightened pleading standard), THEN they are using the notice
pleading standard.
Notice pleading standard – bending over backwards to get the complaint on the facts to remedy line
[***12(e) motion for more definite statement – this motion might arise under this category.]
Category 3: Plaintiff's own allegations and details – negated an essential element of the COA
i.
Only matters what you can see from the face of the case
Ex: Bower v. Weisman
[***12(e) motion could be used here as well – the detail that is then given by plaintiff could help file a 12(b)(6) category
3]
20
Exam: “the motion to amend the complaint should be granted. OR the motion to amend the complaint should be
allowed.”
***Separate paragraphs for motions filed - these are preliminary motions
FRCP12(c): Judgement on the pleadings after pleadings are closed – but early enough not to delay trial – a party
may move for judgement on the pleadings
 Ex: Statute of limitations (affirmative defense) or debt collection
 Once 12(c) has been asserted, the court uses the complaint and the substantive law to decide – nothing else
FRCP12(e): Motion for a More Definite Statement / party moves for more definite statement of a pleading
because previous pleading is too vague or ambiguous / party cannot prepare a response (made prior to response) / must
point out defects complained of and details desired.
States that the plaintiff's claim is so vague and ambiguous that the defendant can't respond
FRCP12(f): Motion to Strike / court may strike from pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter / court may act on own or on motion.
 ***Can be used to help claim then fall under a category 1
TEST TIP: Discuss if there are any judgement on the pleadings OR preliminary motions – if NOT, explain why that wasn’t
necessary or allowed in this fact pattern
TEST TIP: DO NOT mention evidence or “questions of proof” / wrong inquiry / focus only on allegations in complaint
and reasonable inferences from it / no info from outside complaint.
TEST TIP: answer must not be conclusory either / judges will not take your word on anything / must persuade.
21
Answers/Defenses
Answers – if the claim has not been thrown out yet (could be modified) then the DEFENSE MUST ANSWER THE CLAIM
OR FILE A MOTION
If they don’t answer – FRCP55: Default Judgment Defendant must respond within 21 days... if NOT, a default
judgment is entered.
FRCP6: Computing and Extending Time / to determine days served, see rule... deadlines very important in law!
TEST TIP: within 21 days, D can file FRCP8(b), FRCP12(b)(6), FRCP12(e), or FRCP12(f)…
FRCP8(b)(5): Lacking Knowledge or Information / a party that lacks knowledge or information sufficient to form a
belief about the truth of an allegation must state this, and the statement has the effect of a denial (useful for getting out
of accepting everything if there is wiggle room to claim you “don’t know”)
TEST TIP: useful for bonus points if you don’t want to fully accept a fact / don’t admit more than you have to.
Answers contain at least 4 types of material:
1. FRCP8(b): Defenses; Admissions and Denials / P numbers each allegation / D responds to each allegation /
admit, deny, deny in part, or state lack of knowledge to form a belief…/ was it reasonable?
NOTE: it can be a tactical strategy for plaintiff's to claim more than they need to because the defendant must reply.
o This allows plaintiff to see where they and the defendant agree and disagree – and where the defendant stands on
each claim
TEST TIP: be wary of the way an allegation is worded / if admit, set in concrete / allegation will later be used in trial or
with jury instructions / when reviewing, look at each word and be alert for any discrepancies.
2. FRCP8(c): Affirmative Defenses

in answer, must affirmatively state any avoidance or affirmative defense including: assumption of risk, contributory
negligence, duress, estoppel, fraud, illegality, license, release, statute of frauds, statute of limitations, waiver,
(others)…
 even if everything that the plaintiff says is true and (defendant could agree), I (the defendant) can still win -->
ex: statute of limitations
 These MUST be in the answer – if not asserted it will be waived
 FRCP12(h): Waiving Certain Defenses / if do not assert FRCP12(b)(2),(3),(4),(5) in the initial answer,
waived.
TEST TIP: affirmative defenses about avoiding responsibility / “even if all true, Defendant cannot be found liable.” (SOL)
3. FRCP12(b): How to present defenses
12(b)(1) – (7) defense (pg. 22)
**DIFFERENT ATTACK SHEET
4. Counter Claims and Cross Claims
**DIFFERENT ATTACK SHEET
o Rule 13
Ask yourself if the defendant answered or filed a motion in the set amount of time – Rule 12(a)
 If you need more time to answer – file a motion to meet the obligation and that will give more time
FRCP10: Form of Pleadings / complaint must name all the parties…
TEST TIP: may allow anonymous plaintiffs by generality of the word “name” / anonymous Ps allow additional access to
facts to remedies line by shielding ID of P from public / procedural rules balanced against substantive rights (privacy).
FRCP17: Real Party in Interest / two part question: (1) whom does substantive law give this COA?; (2) does
individual (or group of individuals) have capacity to sue? (are they the “real party in interest” + possess capacity to sue)
TEST TIP: watch for juveniles or churches (other groups who may not necessarily be a competent party) / may not be
able to answer on exam, but raise the question…
22
Rule 11
FRCP11:
RULE 11 AND RELATED PLEADING AND MOTION ISSUES
 Purpose is to discourage frivolous lawsuits.
 11(a): requires a signature on “every pleading, written motion, and other paper…”
 Signed by counsel or an unrepresented party. The court will notify the party if a paper is unsigned, and if fixed
promptly, may consider it.
 11(b): concerns four things that an attorney must certify “to the best of their knowledge, information, and belief”
are true with respect to his or her representations to the court. Objective standard - what a reasonable attorney
would do.
 (1) Improper Purpose:
 Can’t file suit to embarrass, harass, or delay.
 (2) Warranted by Existing Law:
 An attorney must be sure that her representations are warranted by
 (1) existing law or
 (2) by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing a
new law.
 (3) Factual Contentions have Evidentiary Support:
 Evidentiary support can be found through pre-filing investigation; or
 Types of evidentiary support:
 If an attorney cannot get to the information because of the particular circumstances of the case, she an file
the case and admit that she does not yet have the necessary evidentiary support, but hopes to find it
through discovery.
 (4) Denials of Factual Contentions:
 When answering allegations in the complaint, the party must admit, deny, or state that he lacks the
necessary knowledge or information to respond to the specific allegations. The party cannot fake ignorance
about or otherwise deny an allegation that he knows to be true.
*Court can file sua spante (on their own)
*Certifies to court that attorney did HW and obtained the "homework"
23
Cross Claims/ Counter Claims/ Third parties
TEST TIP: any joinder or additional claim must start with FRCP15a (R18, R__, R15a [amend]).
FRCP18: Joinder of Claims


a party asserting a claim, counterclaim, cross claim or third-party claim may join, as independent or alternative
claims, as many claims as it has against an opposing party (anything goes).
Provides that a plaintiff can include as many claims against a defendant as she wants, even if they are totally
unrelated
o A court can decide to separate if they want
FRCP42: Consolidation; Separate Trials
o
court may consolidate or separate any claim for the sake of convenience, to avoid prejudice, or expediate and
economize the trial
 if separate, must preserve the federal right to jury.
* FRCP13(a): Compulsory Counterclaims




between D+P
must arise out of the same T+O
must assert immediately.
If D does not bring counterclaim – the counterclaim is then restricted by a period of time
o Then it will be waived and not permitted in the future
* FRCP13(b): Permissive Counterclaims




between D+P
same T+O is unnecessary
anything goes but R42.
Strategic decision of when to file
* FRCP13(g): Crossclaim against a Coparty




claim between Defendants'
Defendant may join additional Defendant for crossclaim
must arise out of the same T+O
never have to assert crossclaim (“not compulsory”).
TEST TIP: MUST join related claims (or lose ability to assert later / res judicata) / MAY join unrelated claims.
TEST TIP: FRCP very concerned about original T+O and Defendant cannot bog down original complaint.
* FRCP14: Third Party Claims
D or P asserts third-party claim against another party…
Narrow constraints of who can be brought in as a third party IMPORTANT
(1) make sure not already a party;
(2) timing and gain court’s permission; and
(3) COA is likely an indemnification COA (cannot simply point a finger / blame not a COA) and determined by
(a) contracts (insurance carrier or other contract that states “if I get sued, you are promising to pay”); or
(b) laws (contribution statutes that bring in additional tortfeasors.
TEST TIP: once satisfy indemnification COA, MAY join additional claims (met “keyhole burden”).
FRCP19: Required Joinder of Parties / in their absence, the court cannot complete claim among existing parties.
* FRCP20: Permissive Joinder of Parties
Two part test to join parties (EVERY analysis)
(1) same T+O (same COA, exact same damages, simultaneous injury, relationship between the parties, proximity of
parties, proximity of time, space and logical reasoning); AND
(2) there must be a common question of law or fact (questions would be the same if two separate court rooms / there
must be NO way different answers would come out, i.e. policy decisions or training / items that are the same before
event occurred likely “common quest of fact”).
Ask self: if the question and facts are needed and answered the same in each case separately

FRCP21: Misjoinder
o
NOT a reason to dismiss / COAs will be severed.
24

The most you'll get is a severance (both cases go about separately)
TEST TIP: court interested in creating the most efficient trial package possible / significant freedom to do so / R42.
25
Summary Judgement/ JNOV/ Directed Verdict
Standards of Review:


De novo – would we have done the same thing?
Deferential – abuse of discretion OR clearly erroneous - court is only looking for abuse
Summary Judgement

Consider 7th amendment right to jury trial before removing case from facts to remedies line. Be careful before
denying a right, but all rights have constraints. And through SJ, DV, and JNOV, we can reduce frivolous claims and
make the system more efficient.
 Generally, summary judgment is after discovery, but it doesn’t have to be.
 No weighing of evidence at summary judgment stage. Could a reasonable jury conclude x? Simply ask if there’s
evidence for each element. Can peek at opposing side. State that’s unorthodox and not weighing evidence
How to answer in exam: Judge should grant summary judgement because they believe a reasonable jury could find the
plaintiff did not prove all elements of the COA (vice versa)
**ADD DISCOVERY IN ANSWER HERE**
FRCP56(a): Motion for Summary Judgment / the court will grant SJ if moving party can show that
(1) there is no genuine issue of material fact; and
(2) the moving party is entitled to judgment as a matter of law.
TEST TIP: judge drawn from the “universe of discovery,” all potential admissible evidence gathered, and construes the
facts in the light most favorable to the non-moving party.
TEST TIP: non-moving party may not rest upon mere allegations from the pleadings / must set forth specific facts that
could be admissible at trial showing there’s something for the jury to consider.
TEST TIP: about anticipating what is going to happen at trial / could a reasonable jury hear “this” (evidence)
and conclude “that” (that the evidence satisfies the COA)?
** Not what the judge can find – it is what a reasonable jury could find
Plaintiff wins SJ if defendant's boxes are all empty – Defendant wins if one of plaintiff's boxes is empty
FRCP56(b): Time to File / SJ can be filed at any time until 30 days after the close of discovery.
FRCP56(d): When Facts Are Unavailable / if nonmoving party states it cannot present facts essential to survive a
motion for summary judgment, the court may…
(1) defer considering the motion or deny it;
(2) allow time to obtain further discovery; or
(3) issue any other appropriate order.
**Can be brought early on F ---
R line (even before answer –standard matters)
Request for additional time --> court's discretion
If SJ is premature – ask yourself if it is a tactical advantage and what it is?
TEST TIP: judge should not grant SJ for subjective reasons / SJ should be what a reasonable jury could conclude and not
weigh the strength of evidence or peak at non-moving party’s evidence.
TEST TIP: “purists” will only view at what the P has presented (traditional); but in reality, we peak at D’s evidence.
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
Adickes: (1976)
Defendant must point to empty box AND has the affirmative obligation to prove the standard.
 Conley of summary judgment ruling/ Liberal standard.
 More cases kept on facts to remedies line.
 Must foreclose the possibility and show box will be empty at trial to get SJ.
 We like trials – SJ is an extraordinary remedy.
1976 – Trilogy of Summary Judgement Cases
Celotex: "easy chair"
moving party must only point to empty box in SJ analysis
 burden rests with non-moving party to prove case
 not about comparing evidence
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
don’t have to “prove the negative” as in Adickes / if D points to P’s empty box, P should provide evidence (not just
repeat what was in the complaint).
Matsushita:
expert testimony dismissed by court because “no reasonable person could accept” that opinion.
 Courts can cross out evidence --> evidence is NOT credible
o Expert testimony
 Once crossed out, now there is not disputed issue of material fact
Liberty Lobby:
some elements need to be satisfied by “clear and convincing evidence” (heightened standard)
 At trial standard of proof might be different preponderance of the evidence
 higher standard than a “preponderance of the evidence”
 as a result, P must present heightened level of evidence to survive SJ.
o Argue this is for jury to decide
Likely that the court does peek at defendant's evidence during SJ motion
FRCP50(a): Judgment as a Matter of Law (DV)



one party has been fully heard on issue during trial and court finds that a reasonable jury would not have enough
evidentiary support to find for the party on that issue / draws upon facts admitted into trial (not the “universe of
discovery” as in SJ)
moving party may raise between non-moving and moving party’s arguments or after moving party has presented his
case.
Can only defeat a DV with evidence that was presented at trial (trial is its own entity)
FRCP50(b): Renewed Judgment as a Matter of Law (JNOV)
if the court does not grant a 50(a), may reconsider a renewed motion now court may :
(1) direct a verdict, even if the jury returned one;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law (dismissal).


This is a judgement for defendant's favor
Revisiting the trial AND only the trial
TEST TIP: failure to bring a 50(a) motion will preclude brining a 50(b) motion.
TEST TIP: if it’s a close call, more reasonable to deny DV and later grant JNOV / why? (1) since almost through facts to
remedies line, efficiency is critical; (2) let the jury decide if it’s a close call; (3) if judge grants the DV and the case is
appealed, a new trial will be granted if decision overturned (however, if judge grants the JNOV and the case is appealed,
higher court only has to reinstate the original jury verdict / more efficient).
TEST TIP: if not a close call and case clearly lacks sufficient evidence to warrant a verdict, DV appropriate.
Scott v. Harris: several conclusions could be drawn from same evidence based upon viewer’s age, background, etc. /
majority + dissent disagree about not allowing jury to view evidence + determine verdict themselves / suspicion: more of
a public policy issue than about taking case away from the jury.
Galloway: P difficulties in demonstrating “total and permanent” disability / if a box of P’s COA is left conspicuously
absent, no reasonable jury will be able to conclude the elements were met.
 Rule: directed verdicts do NOT deprive litigants of their Seventh Amendment constitutional right to a jury trial
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
Takeaways
Obsessive attention to the elements
Conspicuously absent fact? (no evidence in the one of the boxes) - cant reasonably think that jury would decide on this
TEST TIP: more or less careless ways to describe elements / if a key word (like “intentional” or “severe,” look how the
evidence supports the specific language of the COA.
TEST TIP: motions to dismiss, SJ, DV, JNOV affect settlement position of parties.
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Alternative Dispute Resolution (ADR)
What extent to use ADR? Helps enforce.
1. Negotiation
o Problem solves
o Just talking to other lawyers
2. Mediation
o Professionals who will facilitate meetings
o Expanding range of options
o Someone else can tell my client things that may be weird for me to tell them
o Voluntary on the front end, voluntary on the back end (classic position)
3. Arbitration
o Neutral
o Mini court cases – discovery, motions, witnesses, evidence, etc.
o Arbitrator is NOT district/ federal court judge
 Makes the decision
o Streamlined
o NEVER juries and usually NO appeals
 No escape hatch – loser cannot take decision to court
 Exception – Manifest of law: must be on record disregarding the law
o Greater flexibility
o Referred to as "trials"
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TRIAL, JURY INSTRUCTIONS, VERDICT
Trial = Unicorn (very rare)
FRCP41: Dismissal - two types…
(1) voluntary dismissal (may be done for any reason and w/o prejudice the first time); and
(2) involuntary dismissal (a FRCP12b motion to dismiss for lack of personal jurisdiction, lack of subject matter jurisdiction,
improper venue, etc.)
TEST TIP: Bifurcation; Trifurcation (usually suggested by D) / separating case into multiple parts / must balance narrative
vs. precision (is it better to solve the case all at once or separate into states and decide damages later?) / may separate
down into elements and party must pass each state to move onto next stage.
TEST TIP: Jury Instructions / P and D must request judge to use specific instructions and judges add to patterend jury
instructions (standard issue) / counsel requests that certain definitions of COA be explained.
TEST TIP: General Verdict / jury states “who wins” / jury applies law to facts and finds legal result of each claim / does
not state how resolved specific facts (like a special verdict) / w/ multiple claims or parties, jury may have
to delver multiple general verdicts
FRCP49(a): Special Verdict / special verdict asks jury to answer specific questions / may include mixed questions of
fact or law / court must supply jury with legal instructions to answer questions / must request a special verdict.
FRCP49(b): General Verdict w/ Written Questions / combines ultimate legal conclusions of general verdict with
specific questions of special verdict.
FRCP59: Motion for a New Trial / if JNOV fails, counsel may seek new trial for two reasons…
(1) verdict is against the weight of the evidence (controversial / JNOV shows evidence doesn’t exist / motion for a new
trial is complete do over);
(2) because the verdict is clearly wrong…
TEST TIP: if motion for a new trial granted, goes back to pretrial phase and can do additional discovery, amend complaint
and will start with brand new jury.
TEST TIP: balancing finality with accuracy / can’t reopen cases for trivial accuracy issues / inaccuracy must be substantial
to redo on finality of a jury verdict.
FRCP60: Motion to Dismiss:
TEST TIP: Additur / not all states permit / those that do restrict the use of Additur to punitive damages only / judge offers
this an alternative to a new trial / when a judge grants a request for additur, does so by adding additional damages to the
amount granted by jury, increasing amount of money P can recover from D / if D disagrees, may face new trial.
TEST TIP: Remittitur / all fifty states grant remitter to reduce the amount of damages awarded by the jury / usually,
judge grants remitter because the amount of damages awarded is much higher than the amount of damages the P asked
for / if P disagrees, may face new trial.
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Due Process
FIRST PARAGRAPH
How to know something is a due process claim?
How does this claim fit into it?
14th Amendment No state shall deprive any person of life, liberty, or property, without Due Process of law
SECOND PARAGRAPH
Elements of Due Process: State and Federal – treat as the same in Due Process
 STATE – Explain what a state agency is OR what a federal agency is.
14th - State – a state government agency (ex: Clark County school district, NV Forestry and Fire Protection
agency, anything w/ a state put into title. Ask yourself who does this pertain to – just a specific state or people in
all states)
5th - Federal – a state government agency (ex: Department of Homeland security, welfare benefits, anything
dealing with the federal government, ask yourself if it applies to all people in the United States)
In exam QUOTE who the state or federal actor is – FROM THE FACT PATTERN
THIRD PARAGRAPH
 DEPRIVE – Explain how the person in the claim is being deprived.
What is being taken away? What should they be given in this claim?
In exam QUOTE the exact instance in which plaintiff is being deprived
FOURTH PARAGRAPH
 PERSON – Who is the person? Is it a group of people? (class action)
This paragraph most likely will be short because it is not really hard to prove that a person is involved.
Test Tip- In exam QUOTE specifically form fact pattern
FIFTH PARAGRAPH
LIFE, LIBERTY, PROPERTY – this will have sub-sections explaining:
o What a Liberty interest is? A liberty interest is a right that a U.S. citizen has that is laid out in the constitution.
(freedom of speech, right to counsel,
o What a Life interest is? A life interest is a right to kill someone (capital punishment). Physical life.
o What a Property interest is? A property interest is someone's physical property and assets. (money, physical items,
etc.)
In exam describe what each one is and then insert what one relates to the claim. Then explain why this is the correct
category to put it claim under.
6th PARAGRAPH (could be later paragraph depending on how many used for life, liberty, & property)
WITHOUT DUE PROCESS – Use the 3 prong test structure that came out of Mathews v. Eldridge
1. Private Interest  Are mistakes even being made? If so, why are they being made?
 Discuss the mistake and QUOTE the fact pattern of it.
 How big of a deal is it to lose benefits?
 Talk about the details of how this deprivation is hurting someone or their family. How they aren't able to
provide or their family is struggling.
 ALSO, talk about the counterargument of why losing the benefits is not that serious and why the plaintiff is
overreacting – then counteract those arguments with more facts
 This is where you can throw in personal dignity that came from Goldberg structure (foundational structure for
due process)
 The right to be heard. --> this is just something that government does.
o Personal dignity
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NEXT PARAGRAPH
2. Risk of Erroneous Deprivation
 *Remember to focus away from dignity and toward error correction
 Correct the error THEN talk about how the dignity invasions need to be corrected
 What is the additional procedure they are asking for? QUOTE fact pattern
o Does that addition correct the error that is being made?
o Compare and contrast the current procedure with the proposed procedure – are their major positives
that come out of this?
o Argue the other side of why these "positives" could be negative for the other party – and vice versa
 What is the standard? And what should the standard be, why?
NEXT PARAGRAPH
3. Government Interest (cost)
 Cost? Time? Inconvenience?
 If procedure is adopted – is it so significant that there will be a positive change/impact? OR not enough will
be corrected? (cost goes up)
 Tricks to make government $ seem smaller o Doesn't need to be a trial – less expensive
o There aren't a lot of people that this deal with – less expensive
Argue the other side of these - why the government will say this is costly and what it will entail
(think as multiplication problem – private interest x Risk of Erroneous Deprivation weighed against the cost for the
government)
NEXT PARAGRAPH
 Wrap up argument, why this claim is or is not a claim for due process and whether the modification/ addition to the
procedure will help or not help what the plaintiff is asking for.
Cases Goldberg v. Kelly: welfare benefits being terminated before pre-termination hearing
Rule: Due process clause requires that the recipient be afforded an evidentiary hearing before the termination of
benefits
Mathews v. Eldridge: Disability benefits terminated – procedure argument
Rule: No single model is readily and consistently applicable to all administrative functions
Hamdi v. Rumsfeld: Combatant enemy with no due process
Rule: Due Process demands that a citizen held as an enemy combatant must be given opportunity to contest before a
neutral decisionmaker
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