VIDEO LECTURES
CIVIL PROCEDURE
JURISDICTION AND VENUE
SUBJECT-MATTER JURISDICTION
Subject-Matter Jurisdiction:
1) Diversity of Citizenship
2) Federal Question
Amount in Controversy:
• Must be in excess of $75K
• Court must have “legal certainty”
Adding Claims:
• Plaintiff can ADD claims if one exceeds $75K
• Single Plaintiff can ADD claims against Single
Defendant to reach $75K
HYPO
1) Jon sues you. One of his claims is $76,000. He
has two or three little claims worth $10,000. Can
he add those claims?
2) Jon sues you. He has 3 claims worth $30,000.
Can he reach the $75,000 threshold?
Multiple Plaintiffs:
• If Single Plaintiff meets $75K then other
plaintiffs can join
• Cannot join if no Single Claim exceeds $75K
HYPO
Jon sues you. He has three other plaintiffs with him.
If Jon’s suit is more than $75,000 can Able, Baker,
and Charlie join him? What if no plaintiff has a single
claim worth $75,000?
NOTES
Class Action:
• One named member must meet $75K
Diversity Jurisdiction:
1) Case exceeds $75K
2) Complete Diversity of Citizenship
Definition – Diversity of Citizenship
No plaintiff may be a citizen of the same state as
any defendant
Citizenship – Domicile:
• Present location & Intent to stay
HYPO
Jon’s been living in Florida for many years. He
intends to go back to New York one day. Is he
domiciled in Florida?
Foreign Citizens:
• US Citizen + Foreign Citizen = Diversity
• Two Foreign Citizens = NO Diversity
Corporation – Domicile:
• State of incorporation AND
• Principal place of business
HYPO
Jon is suing ABC Inc. Jon is a resident of Florida
and ABC Inc. is incorporated in Nevada, but it also
has a principal place of business in Florida. Is there
diversity?
-2CIVIL PROCEDURE / JURISDICTION AND VENUE
Joining Parties:
• CANNOT join a party just to obtain Diversity
Federal Question:
1) Plaintiff’s claim must be based on federal law
2) Well-Pleaded Complaint Rule: Federal issue
must be obvious
AdaptiTip
Federal Issue as a defense is NOT a federal
question
Federal Question Cases:
1) Admiralty
2) Maritime
3) Intellectual Property
SUPPLEMENTAL JURISDICTION
Definition – Supplemental Jurisdiction
May add claims without subject-matter jurisdiction
if they arise from a “common nucleus of facts”
Diversity Cases:
• New party cannot destroy diversity of
citizenship
Supplemental Jurisdiction – Allowed:
1) Compulsory Counterclaim
2) Joinder in Compulsory Counterclaim
3) Cross-claim
4) Impleader of 3rd Party Defendants
Supplemental Jurisdiction – NOT Allowed:
1) Original Plaintiff vs. 3rd Party Defendant
2) Compulsory Joinder
3) Joinder of Defendants
4) Intervention
-3CIVIL PROCEDURE / JURISDICTION AND VENUE
AdaptiTip
• If defendant is trying to add, generally ok
• If the plaintiff is trying to add, generally not ok
Supplemental Jurisdiction & Discretion:
• Court has DISCRETION to apply
Supplemental Jurisdiction
PERSONAL JURISDICTION
Definition – Personal Jurisdiction:
• In personem
• Ability to bring the individual into court
General Rules:
1) Present/ Personally Served
2) Domiciled
3) Consent
AdaptiTip
If you are in the state for a different proceeding or
because of fraud, the court will not be able to get
personal jurisdiction
HYPO
A court in New York wants to get personal
jurisdiction over Jon, who is in Florida. When can
New York get personal jurisdiction over Jon?
Long-Arm Statute:
• Gives courts the power to reach out-of-state
persons
Minimum Contacts Standard:
1) Suit does not offend traditional notions of
Fair Play & Justice
2) Defendant could Reasonably Anticipate
litigation
-4CIVIL PROCEDURE / JURISDICTION AND VENUE
HYPO
1) Jon was born in Brooklyn. He lived in New York
for many years. His family is there. His Jets are
there. His bakery and deli are there. Does Jon
have minimum contacts with New York?
2) Jon has never been to Oklahoma. He has no
family or relationships there. Does Jon have
minimum contacts in Oklahoma?
Minimum Contacts – Corporations:
• Purposeful Availment
• Systematic & Continuous Activities
IN REM JURISDICTION
In rem Jurisdiction:
• Jurisdiction over an object/property
QUASI IN REM JURISDICTION
Quasi in rem Jurisdiction:
• Going after property to satisfy a judgment
against an individual
Example:
o Trying to get judgement from Jon by getting his boat
SERVICE OF PROCESS
Service of Process:
1) Only in the state where district court sits OR
2) Anywhere allowed by long-arm statute
100 Mile Bulge Rule:
1) Out-of-state service allowed within 100
mile radius
2) Only for out-of-state 3rd party
defendants/indispensable parties
-5CIVIL PROCEDURE / JURISDICTION AND VENUE
Service of Process & Notice:
• Method must give adequate NOTICE
Proper Ways to Serve Process:
1) Personal Service by non-party over 18
2) At Home with person of suitable age
3) First Class Mail
4) Authorized Agent
5) State Law Methods
AdaptiTip
Remember, don’t get stung by A WASP
A - Abode
W - Waiver
A - Agent
S - State method
P - Personal service
Out-of-State Service of Process:
1) Mail
2) Newspaper if no other reasonable way
Service of Process – Corporations:
1) Officer or Designated Agent
2) Anyone of sufficiently high placement
Examples:
Not high placement
o Intern
o Guy in mail room
Sufficiently high placement
o Vice President
o Registered Agent
o CEO Emeritus
REMOVAL & REMAND
Definition – Removal
When a State Court case could have
originally been brought in Federal Court
AdaptiTip
Removal is not allowed for state agencies
-6CIVIL PROCEDURE / JURISDICTION AND VENUE
Who Can Remove:
1) Only DEFENDANT may remove
2) ALL defendants must agree
Removal – Timing:
• Filed within 30 DAYS of service of Complaint
Diversity Cases:
1) Case cannot be removed more than 1 year
after start
2) Defendant cannot remove if he is a citizen of
forum state
Multiple Claims:
• If one claim is removable, then the entire case
can be removed
Definition – Remand
Plaintiff wants to bring case back to State Court
after improper Removal
Remand – Timing:
• Within 30 DAYS of filing of Notice of Removal
• Defendant has burden to show Removal was
proper
VENUE
Definition – Venue
The proper Federal District Court for the case
Proper Venue:
1) Where any defendant resides, if all
defendants reside in same state
2) Where substantial part of events took place
ONLY IF 1 & 2 DON’T APPLY:
3) Where there is Personal Jurisdiction over
defendant
-7CIVIL PROCEDURE / JURISDICTION AND VENUE
Venue – Corporations:
1) Principal place of business
2) Any district in state of incorporation
AdaptiTip
Venue is based on where DEFENDANT resides
Transfer of Venue – Proper Venue:
1) Court may TRANSFER to another district
2) For the convenience of parties & interest of
justice
3) Law of original venue will apply
Transfer of Venue – Improper Venue:
1) Judge must dismiss OR transfer in the
interest of justice
2) Transfer to any district where the case could
have originally been brought
Transfer by Consent:
• Both parties must consent
Dismissal for Improper Venue:
• If the more convenient forum is a foreign
country
-8CIVIL PROCEDURE / JURISDICTION AND VENUE
VIDEO LECTURES
CIVIL PROCEDURE
PRETRIAL PROCEDURES
PLEADINGS, ANSWERS, & COMPLAINTS
Complaint:
• Filing of Complaint commences Statute of
Limitations
• Service of the Complaint within 90 days
Elements of the Complaint:
1) Statement of Jurisdiction
2) Statement of Facts (not theory)
3) Demand for Relief
Specific Complaint:
• Fraud & Special Damages
Answer:
1) Signed by lawyer
2) Whatever is not denied is admitted
3) Served within 21 days of service of
Complaint
Affirmative Defenses – Pled in Answer:
• Contributory Negligence
• Statute of Frauds
• Statute of Limitations
• Illegality
• Duress
AMENDMENT
Amendment as of Right:
• Once within 21 days of service of pleading
After 21 Days:
• Need Court’s permission
• “When justice so requires”
Relation Back:
• “Arose out of the same conduct, transaction,
or occurrence”
NOTES
Relation Back (for PARTIES):
1) Same conduct, transaction, or occurrence
2) Within 90 days of filing the party had notice
3) Knew/should have known but for mistake
of ID
RULE 11
Definition – Rule 11
Attorney signs to best of “knowledge, information,
and belief” there is a basis for the claim
Key Words:
• Warranted by existing law
• Evidentiary support
• No improper purpose
ADDING OR CHANGING PARTIES & CLAIMS
Counterclaim:
• Defendant raises a claim back at the plaintiff
Compulsory Counterclaim:
1) Same transaction or occurrence
2) Supplemental jurisdiction
Permissive Counterclaim:
1) NOT same transaction or occurrence
2) Needs independent jurisdiction
Permissive Joinder:
1) Single transaction or occurrence
2) Common questions of law/fact
-2CIVIL PROCEDURE / PRETRIAL PROCEDURES
Compulsory Joinder:
• Party needs to be joined or unfair
1) Necessary Party = Impair Interest
• If cannot join due to jurisdiction –
Case may STILL PROCEED
2) Indispensable Party = Prejudice
• If cannot join due to jurisdiction –
Case must be DISMISSED
Class Certification:
1) Size
2) Common Question
3) Typical
4) Representation/Conflict
Types of Class Actions:
• B1 = Impairment of Interests
• B2 = Injunctive Relief
• B3 = Common Question (the superior method)
Opting Out:
• B1 & B2 = Members MAY NOT OPT OUT
vs.
• B3 = Member MAY OPT OUT
Notice & Class Actions:
• B1 & B2 = Notice NOT required, in discretion
of Court
vs.
• B3 = Notice to ALL members
Diversity in Class Actions:
1) Citizenship of the named representatives
2) One member must meet $75K+
OR the sum of claims is $5 million
-3CIVIL PROCEDURE / PRETRIAL PROCEDURES
Appealability of Class Actions:
• If Certification of Class is denied –
May be appealed
Intervention as of Right:
1) Interest in property/transaction
2) Interest is impaired
3) NO Court permission required
Permissive Intervention:
1) Claim/defense has common question of
law/fact
2) Court permission IS required
Interpleader:
• 1 party owes something to 2 or more people
Statutory Interpleader:
1) Nationwide Service
2) ANY 2 claimants can be diverse
3) $500 or more at stake
4) Deposit money/property in Court/bond
Rule Interpleader:
1) NO Nationwide Service
2) Complete Diversity between claimant & ALL
opponents
3) $75K+ requirement
4) NOT required to deposit money
Impleader:
• Adding a 3rd party defendant who owes part
or all of claim
Cross Claim:
1) Co-party
2) Same transaction or occurrence
3) Actual damage
-4CIVIL PROCEDURE / PRETRIAL PROCEDURES
DISCOVERY
Discoverable:
1) Not privileged
2) Relevant
3) “Proportional to needs of the case”
Work Product:
• Generally immune from discovery
• Documents prepared in anticipation of trial
Work Product – Discoverable:
1) Substantial need
2) Cannot obtain without UNDUE HARDSHIP
Absolute Immunity:
• Mental impressions
• Conclusions
• Legal opinions/theories
EXPERT – Testifying:
1) MUST provide ID
2) Expert must prepare report
EXPERT – NOT Testifying:
• Discoverable only in “EXCEPTIONAL
CIRCUMSTANCES”
Duty to Supplement:
• Duty to supplement incomplete or wrong
information
• Must be done in a timely manner
Depositions:
• Party or non-party
• Written or oral
• Non-party by subpoena
• Limit = 10
-5CIVIL PROCEDURE / PRETRIAL PROCEDURES
AdaptiTip
You cannot depose the same person more than
once without the court’s permission
Interrogatories:
• Only to a PARTY
• Written/Answered in writing
• Limit = 25
Request to Admit:
• Written request
• Conclusively established
Request to Produce:
• Documents in the other side’s possession,
control, custody
Physical/Mental Exam:
1) Must be at issue
2) Court Order
3) Good Cause
Object to a Request:
• Information not relevant
Protective Order:
• Stop Discovery for embarrassment,
harassment, undue burden
Order to Compel:
• Party not complying with Discovery
AdaptiTip
Court may order sanctions if one party has acted
unreasonably. Start with minimal sanctions of
fees/costs and work up to larger sanctions
-6CIVIL PROCEDURE / PRETRIAL PROCEDURES
Admissibility at Trial:
• Discoverable information is admissible at trial
PARTY CONFERENCES
Conference of Parties:
1) Court MUST have conference
2) Parties MUST submit Discovery plan
Scheduling Conference:
1) Court MUST have conference to limit time
2) Must issue SCHEDULING ORDER within 90
days of filing complaint
3) CANNOT be modified unless “Good Cause”
Final Pretrial Conference:
1) Court MAY hold conference
2) IF there is a conference, Court MUST issue
Pretrial Order
3) ONLY modified to prevent
“Manifest Injustice”
TEMPORARY RESTRAINING ORDER &
PRELIMINARY INJUNCTION
Temporary Restraining Order:
1) No notice
2) IMMEDIATE IRREPARABLE HARM
3) Expires in no more than 14 days
Preliminary Injunction:
1) Notice & Hearing required
2) IRREPARABLE HARM
-7CIVIL PROCEDURE / PRETRIAL PROCEDURES
VIDEO LECTURES
CIVIL PROCEDURE
JURY TRIALS
RIGHT TO JURY TRIAL
7th Amendment:
• At least 6 jurors unless stipulated
• Unanimous verdict unless stipulated
Demand for a Jury:
• Made within 14 days after service of the
last pleading
Action in Equity:
• No right for actions based in equity
(injunction, etc.)
Law & Equity:
• Legal issue is tried by jury first
• Equitable claim is settled by judge
Withdrawing a Demand:
• Demand may be withdrawn IF all parties
consent
State Trials:
• No right to a jury in State trials
• Number of jurors varies by State
• Verdict does NOT need to be unanimous
Judge’s Role - No Jury:
• Acts as Finder of Fact
• States Findings & Conclusions
• Mini-trial to dispose of the case
JURY SELECTION
Juror Selection:
• 2 ways to dismiss a juror
Dismiss For Cause:
• Juror shows any bias/connection to case
• No limit
NOTES
Peremptory Challenge:
• Dismissal for any reason
• Each party has 3
• CANNOT dismiss for race/gender
Balanced Pool of Jurors:
• Jury pool must be representative of overall
community
DELIBERATIONS
Jury Instructions:
• Must object before jury retires
• Or waived for appeal
Jury Deliberation:
• Allowed: Papers, Exhibits, & Notes
• NOT Allowed: Anything not in evidence
HYPO
Jon is a juror. He brings in his file, his folder, his
binder, and an article from a newspaper that was
not introduced. Is that allowed?
Juror Conduct:
• Cannot conduct experiments or studies
outside jury room
• Cannot talk to non-jurors about trial
• Misconduct/Possible New Trial
Prejudicial Information:
• New trial can be ordered for outside
prejudicial information
• Verdict will NOT be set aside for inside juror
prejudice
-2CIVIL PROCEDURE / JURY TRIALS
HYPO
Jon is a juror. Jon is in the jury room and thinks
Bob and Fred are doing something wrong in the
jury room.
1) Will a new trial be granted?
2) What if Jon says Bob is getting paper slipped
under the door and getting outside information?
New Trial for Post-Trial Bias:
1) Juror failed to honestly answer a material
question
2) A correct answer would have led to a valid
challenge
-3CIVIL PROCEDURE / JURY TRIALS
VIDEO LECTURES
CIVIL PROCEDURE
MOTIONS
MOTIONS
12(b) Motion:
• Defendant is attacking the complaint
Lack of Subject Matter Jurisdiction:
• Can be raised ANYTIME
• Lack of Personal Jurisdiction
• Improper Venue
• Insufficient Service of Process
Failure to Join a Party:
• May be raised before or at trial
Failure to State a Claim:
• Even if the facts are true, there is no recovery
• Insufficient facts
• Dismissal with prejudice
• May be raised before or at trial
Motion to Strike:
• Before responding to a pleading
• Within 21 days of service
• For redundant, immaterial, or scandalous
material
Motion for a More Definitive Statement:
• Before responding to a pleading
• Pleading is vague or ambiguous
Motion for Summary Judgment:
• No genuine dispute of material fact
• Filed until 30 days after discovery close
• Denial not appealable
• Burden on moving party
• Partial judgment allowed
NOTES
Affidavits:
• Must be based on personal knowledge
Judgment as a Matter of Law – Directed
Verdict
• Raised by defendant after plaintiff’s case
• Raised by either party at the close of
evidence
JMOL Standard
• A reasonable jury would not have a legally
sufficient evidentiary basis to find for nonmoving party
• Evidence viewed in light most favorable to
non-moving party
Renewed Motion for Judgment as a Matter
of Law
• Must have filed a prior JMOL
• Filed within 28 days after verdict
• Judge may overturn verdict
HYPO
Jon loses at trial. Within 28 days, Jon makes a
Renewed Motion for JMOL. Is this proper?
Motion for Relief from Judgment:
• Clerical error, oversight, or mistake
• Fraud or misconduct by the other party
Motion for a New Trial
• Error would have caused different outcome
• Judge erroneously admitted or excluded
evidence
• Improper conduct by party, witness, lawyer,
or jury
• Verdict is against clear weight of the
evidence
-2CIVIL PROCEDURE / MOTIONS
Remittitur:
• New trial for excessive damages
• Unless the party agrees to reduction of award
Additur
• No Additur in Federal Court
Newly Discovered Evidence
1) Evidence was discovered after trial
2) Party was reasonably diligent in searching
before/during trial
3) Evidence was material
Motion
Timing
• Lack of Subject
Matter Jurisdiction
Anytime
• Lack of Personal
Waived if not included in
Answer/12(b) Motion
• Failure to Join a Party
• Failure to State a Claim
May be raised before or
at trial
• Motion to Strike
Within 21 days of service
• Motion for a More
Before responding to a
pleading
Jurisdiction
• Improper Venue
• Insufficient Service of
Process
Definitive Statement
• Motion for Summary
Judgment
Filed until 30 days after
close of discovery
• JMOL
After opponent has
presented case but before
case submitted to jury
• Renewed JMOL
Within 28 days after the
verdict
-3CIVIL PROCEDURE / MOTIONS
VIDEO LECTURES
CIVIL PROCEDURE
VERDICTS AND JUDGMENTS
JUDGMENTS
Default Judgment:
• One party fails to plead or defend
• Court enters default judgment
Voluntary Dismissal:
• Plaintiff voluntarily dismisses
• Before Answer/Summary Judgment
• First time without prejudice
Involuntary Dismissal:
• COURT dismisses the case
Involuntary Dismissal – Usually with
Prejudice:
1) Failure to State a Claim
2) Failure to Obey Court Order
3) Failure to Prosecute
Involuntary Dismissal – Without Prejudice:
1) Lack of Jurisdiction
2) Venue
3) Failure to Join Indispensable Party
JUDICIAL BIAS
Challenge for Cause:
• The appearance of bias
• Parties can waive
Grounds for Recusal:
Judge MUST recuse himself and parties
CANNOT waive if:
1) Personal knowledge of facts
2) Acted as lawyer with one of the other
lawyers
3) Expressed an opinion on merits while in
government employment
4) Financial interest in subject matter/party
5) Violates Due Process Rights
NOTES
CLAIM & ISSUE PRECLUSION
Res Judicata/Claim Preclusion
1) Same parties or privity
2) Same transaction or occurrence
3) Judgment on the merits
Res Judicata – Merger:
• Plaintif wins case
• Claim merges into judgment
• Cannot sue on same cause of action
Res Judicata – Bar:
• Plaintif loses case
• Barred from suing on same cause of action
Claim Splitting:
• Plaintiff cannot SPLIT a claim
Res Judicata does not apply to:
1) Dismissal for lack of jurisdiction
2) Dismissal for improper venue
3) Settlement (unless after settlement,
case is dismissed with prejudice)
Change of Law:
• Once there is a final judgment, you cannot
bring suit again
Privity:
• Legal or special relationship
• Res Judicata applies
Collateral Estoppel/Issue Preclusion
1) Same issue
2) Final judgment
3) Issue necessary to judgment
Collateral Estoppel does not apply:
1) Settlement
2) Default Judgment
-2CIVIL PROCEDURE / VERDICTS AND JUDGMENTS
Necessary to Judgment:
• Party preclusion is asserted against must have
had full & fair opportunity to litigate
Collateral Estoppel typically has THREE people
Defendant CANNOT use Collateral Estoppel to
prevent NEW plaintiff from bringing suit
HYPO
Jon sues Bob. Jon loses. Now, Jon wants to sue
Fred. Can Fred use Collateral Estoppel to prevent
Jon from suing?
Defensive Use of Collateral Estoppel:
• Same Plaintif, New Defendant
• New Defendant can use Collateral Estoppel as
defense
HYPO
Jon sues Bob. Jon loses. Now, Fred sues Bob. Can
Bob use Collateral Estoppel to prevent Fred from
suing him?
Ofensive Use of Collateral Estoppel:
• New Plaintif, Same Defendant
• New Plaintif cannot use Collateral Estoppel
against Same Defendant
-3CIVIL PROCEDURE / VERDICTS AND JUDGMENTS
HYPO
Jon sues Bob. Jon wins. Now, Fred wants to sue
Bob. Can Fred use Collateral Estoppel?
Applicable Preclusion Rule – Diversity Cases:
• First case in Federal Court, apply federal
preclusion rule
• First case in State Court, apply the first
jurisdiction’s preclusion rule
FULL FAITH & CREDIT
Full Faith & Credit:
• One state must respect the other’s judgments
-4CIVIL PROCEDURE / VERDICTS AND JUDGMENTS
VIDEO LECTURES
CIVIL PROCEDURE
APPEALABILITY AND REVIEW & LAW APPLIED BY
FEDERAL COURTS (ERIE)
APPEALS
Notice of Appeal:
• Filed within 30 days of judgment
Grounds for Appeal:
1) Objections made at trial
2) Must state grounds
3) Waived if not preserved
HYPO
Jon sues Bob. The trial is over. Now, Jon wants to
appeal, and it is done timely. Can Jon appeal?
Appellate Court:
• Generally reviews issues of LAW
• Deference to trial court for FACTS
Appealing Errors:
• Outcome would have been DIFFERENT
• No appeal if error was HARMLESS
Final Judgments:
• Only FINAL JUDGMENTS may be appealed
Interlocutory Order:
• Order given before final judgment
• Generally, NOT appealable
Collateral Order Exception:
1) Conclusively determines disputed
question
2) Resolves important issue separate from
merits
3) Delay would cause irreparable damage
NOTES
Not Appealable:
• Lack of Jurisdiction
• Improper Venue
• Failure to Join an Indispensable Party
Multiple Claims:
• One resolved claim is NOT a final judgment
• Unless the court finds “no reason to delay”
Denial of Summary Judgment:
• Not appealable until after trial
Order for New Trial:
• Not appealable
Partial Final Judgment:
• Not preferred to avoid piecemeal appeals
Appealable:
• Grant/Denial Injunctions
• Certification/Denial of Class Action
STANDARDS OF REVIEW
De Novo:
• Issues of Law
Abuse of Discretion:
• Court Errors
• Relevancy
• Prejudice
• Admissibility
Clearly Erroneous:
• Issues of Fact
-2CIVIL PROCEDURE / APPEALABILITY AND REVIEW & LAW APPLIED BY FEDERAL COURTS (ERIE)
ERIE DOCTRINE
Erie Doctrine:
• Choice of Law
• Applies to DIVERSITY cases
Federal vs. State Law:
• Apply State Substantive Law
• Apply Federal Procedural Law
Venue:
• PROCEDURAL Issue
• Federal Law
Statute of Limitations:
• SUBSTANTIVE Issue
• State Law
State A vs. State B:
• Apply the law of the state where the
Federal Court sits
TEMPORARY RESTRAINING ORDER &
PRELIMINARY INJUNCTION
Temporary Restraining Order:
1) No Prior Notice
2) Immediate Irreparable Harm
3) No longer than 14 days
Preliminary Injunction:
1) Requires Notice & Hearing
2) Irreparable Injury
3) Likely to succeed on the Merits
4) Harm to moving party outweighs harm to
other party
-3CIVIL PROCEDURE / APPEALABILITY AND REVIEW & LAW APPLIED BY FEDERAL COURTS (ERIE)