Civil Procedure Outline
1) Introductory Rules to Civ. Pro.
a) Rule 4(a) – summons signed by clerk and sealed, directed to , including time  must appear.
b) Rule 4(d) – waiver of service – a  who waives service does not thereby waive objections to venue or
jurisdiction.
i) If  does not waive, must pay cost of service
ii) If  does waive, gives 60 days to respond
c) Rule 4(c)(2) – personal service may be made by any person who is over 18 yrs of age and not a party
d) Rule 4(h) – service to corporations and out of US 
e) Rule 8(a) – a pleading which sets forth a claim for relief shall contain…
i) A short, plain statement of the grounds upon which the courts jurisdiction depends.
ii) A short plain statement of the claim showing that the pleader is entitled to relief.
iii) A demand for judgment for the relief that the pleader seeks.
f) Rule 11(a) – every pleading, written motion, and other paper shall be signed by at least one attorney of record, or
by the party itself.
g) Rule 11(b) – by presenting to the court a pleading, an attorney is certifying that to the best of his knowledge…
i) It is not being presented for any improper purposes (harassment, needless delay)
ii) The claims or defenses contained therein are warranted by law (non-frivolous)
iii) The allegations have evidentiary support, or are likely to have evidentiary support upon further investigation
and discovery
iv) The denials of factual contentions are warranted on the evidence or are reasonably based on a lack of
information or belief.
h) Rule 11(c) – sanctions – if Rule 11b is violated, the court may impose appropriate sanctions.
i) Rule 12 – pre-answer motions: defenses and objections
i) Rule 12(a) – when presented…
(1) Rule 12(a)(1)(a) -  shall serve answer within 20 days after being served with summons and complaint.
(except under Rule 4d)
ii) Rule 12(b) – how presented – the following defenses may be made by motion:
(1) Rule 12(b)(1) – lack of SMJ
(2) Rule 12(b)(2) – lack of PJ
(a) Other Rule 12 objections may be made at the same time
(b) Must be done immediately, or lost.
(c) At common law, may be done by special appearance (so that physical presence does not give PJ)
(i) Cannot address merits; if done, court may find objection to PJ waived
(d) At common law, one may wait to make a collateral attack later
(i) Not allowed to do so if already raised PJ in original trial
(ii) May appeal trial decision in the same jurisdiction to reclaim lack of PJ
(3) Rule 12(b)(3) – improper venue
(4) Rule 12(b)(4) – insufficiency of process
(5) Rule 12(b)(5) – insufficiency of service of process
(6) Rule 12(b)(6) – failure to state a claim upon which relief can be granted
(7) Rule 12(b)(7) – failure to join a party under Rule 19
j) Rule 19 – joinder of parties needed for just adjudication
k) Rule 50(a) – directed verdict, Rule 50(b) – JNOV
l) Rule 41 – Dismissal of actions
i) Rule 41(a) – Voluntary Dismissal
ii) Rule 41(b) – Involuntary Dismissal
2) Personal Jurisdiction
a) Minimum Contacts
i) International Shoe (minimum contacts) – Shoe company with salesman in Washington is subject to
Washington’s jurisdiction when the state tried to collect unemployment taxes, because the company had
“minimum contacts” with the state.
(1) A corporation that does business within a certain state enjoys the benefits and protections of that state’s
laws
(2) The nature and extent of a corporation’s contacts must be evaluated under traditional concepts of fairness
and justice to determine whether it would be reasonable to require a corp. to  the claim in that state.
(3) Int’l Shoe had continuous and systematic sales activities within the state. Together with the volume of
sales in Washington and the fact that the claim arose from those contacts allowed the court to grant
Washington jurisdiction over Int’l Shoe.
(4) Look at quality and nature of contacts; must not be casual or isolated
ii) McGee (related claim) – the beneficiary of a life insurance policy brought suit in California when the Texas
insurance company refused to pay. (Most Expansive interpretation of Int’l Shoe)
(1) A state can exercise jurisdiction over a  whose contacts with that state consist solely of a single act or a
contract, provided that that act is what gave rise to the claim, and was purposefully undertaken.
iii) Hanson v Denckla (no related claim) – Various claimants to a Delaware trust filed suit against the trustee in
Florida, claiming that the trust was invalid under Florida law (narrowest reading of Int’l Shoe).
(1) A state may not exercise jurisdiction over a non-resident  with only sporadic and inadvertent contacts
with the state, when those contacts do not give rise to the claim for which jurisdiction is being sought.
(2) The fact that the trustees client, the , moved to Florida does not that defendant purposely availed itself to
the privilege of conducting activities within the forum state, thus invoking the benefits and protections of
its laws.
iv) Shaffer (in rem) – Plaintiff brought a shareholder’s derivative suit against several officers and directors of
Greyhound, a Delaware corp., gaining in rem jurisdiction by attaching their stocks in Greyhound.
(1) All assertions of state-court jurisdiction, INCLUDING IN REM, must be evaluated according to the
standards set forth in Int’l Shoe.
(2) The officers’ and directors’ holdings in Greyhound do not provide contacts with Delaware sufficient to
support Delaware jurisdiction.
b) Specific Jurisdiction –  is subject only to claims arising out of his minimum contacts. (related)
i) World-wide VW – A New York family passing through Oklahoma was in a car accident, and tried to bring
suit there against the dealer who sold them the car in New York.
(1) In order to be subject to a state’s jurisdiction, a  must have purposefully availed himself to the laws of
that state.
(2) Putting a product into the stream of commerce, alone, is not sufficient for jurisdiction. (White)
(a) Important test – foreseeability that  might be haled into court in that state. (as opposed to merely
foreseeing the product going to that state)
(b) Brennan’s Dissent – purposeful contacts not necessary, stream of commerce is sufficient.
ii) Asahi – victim of motorcycle accident sued tire tube maker in CA. Taiwanese Tube maker cross-claimed
against Jap. Manufacturer of tire tube valve. Accident victim settles case, leaving Jap. vs Taiwan.
(1) Stream of commerce is not enough for minimum contacts, BUT if minimum contacts are met, the
requirement of substantial notions of justice and fair play must also be satisfied.
(a) This court was divided on minimum contacts, but agreed that fair play standard was not satisfied.
(i) Factors for fair play include: interest of forum state in providing redress to its citizens
(ii) Interest of plaintiff in convenient forum
(iii) Interest of states in enforcing substantive law or policy
(iv) Inconvenience to defendant
(b) Stream of commerce sufficient for minimum contacts???
(i) O’Connor says NO; also look to see if  purposefully availed himself to forum state; did he try to
cultivate market
(ii) Brennan says YES
iii) Burger King -  contracted with Burger King, a Florida corp., to operate a franchise in Michigan, then
defaulted on payments, so BK filed suit in Florida
(1) Once minimum contacts have been established and defendant has purposefully availed activities to forum
state,  has burden to prove that forum is unfair.
(2) Brennan finally gets his way – court says minimum contacts are met bc  voluntarily entered into a
contract with a Florida corp. in FL.
(a) Dissent – minimum contacts not met bc never went to Florida, sold no products there, maintained no
offices there.
(3) Had  filed a declaratory judgment in MI before BK’s suit, he wouldn’t have this problem bc BK had
sufficient contacts with MI.
iv) Pavlovich – CA court exercised PJ over  based on posting on website, but PJ deemed improper.
(1) ’s sole contact with the state was that his internet posting could be accessed by CA residents.
(2) Internet business transactions can lead to PJ in other states, however passive internet sites (Pavlovich) that
do little more than make info. Available is not grounds for PJ.
(3) Creating a website is much like putting a product into the stream of commerce. Without more, it is not an
act of purposeful availment.
c) General Jurisdiction – def.’s actions are so substantial that he would expect to be subject to suit there on any
claim and would suffer no inconvenience from defending there. (even in unrelated claim)
i) Coastal Video -  is a VA corp. that produces employee handbooks.  a Delaware corp. with PPB in CA
publishes patient education safety materials. There was some question as to ’s use of materials copyrighted
by , so  files declaratory suit that their product does not infringe. Court determines that ’s distribution of
product in VA is sufficient for general jurisdiction.
(1) Unrelated claim, but general jurisdiction allows PJ in VA.
(2) ’s website allows for product ordering (active website)
(3) NOTE – general jurisdiction exists despite not having any offices or employees in VA (internet site was
extensive enough).
(4) LLBEAN – similar to Coastal, and court says 6% of total sales in forum state was sufficient for general
jurisdiction.
ii) Burnham – While visiting CA for business and vacation,  was served with process for divorce proceeding.
He claims PJ in CA violates due process.
(1) Jurisdiction based on physical presence comports with due process regardless of ’s contacts with the
forum state.
(2) Transient Jurisdiction – (tag jurisdiction) jurisdiction over non-resident based on service of process while
 was in forum state.
(3) Brennan – disagrees with traditional service of process rules, and thinks court should have examined
contacts (and he thought there were minimum contacts).
d) Jurisdiction by Consent (Forum selection Clauses)
i) Reasonable forum selection clauses are effective in imposing jurisdiction.
(1) Carnival Cruise Lines –  fell on cruise ship and filed suit in WA. Cruise line argued that forum
selection clause on the ticket limits jurisdiction to FL. Court agrees with cruise line.
e) Notice
i) Notice by publication fails to comply with due process when the names and addresses of the parties are
known.
(1) Mullane -  petitions for judicial settlement of trust, and provided notice to beneficiaries by publication.
Court says this violates due process.
(a) Not all parties must be actually notified (some can get lost in mail), bc all parties have the same
interest.
(b) Such notice by pub. In this case was not reasonably calculated to provide notice to the parties whose
names and addresses were known.
(c) Publication is sufficient where addresses were unknown.
f) Long-Arm Statutes
i) Statutory limitations that States place on their courts’ jurisdiction over out-of-state s. (limits the power
granted by Constitution and interpreted by Shoe).
ii) Gibbons v Brown – Passenger v Passenger lawsuit where personal jurisdiction was asserted based upon nonresident  having filed a lawsuit in the state two years prior against a non-party driver.
(1) Jurisdiction in this case was not proper. (too isolated and not substantial)
(a) Court relied upon the length of time between the two actions and the fact that a nonparty to the instant
action was named as a  in the prior action.
(b) Under FL long-arm statute a  must be “engaged in substantial and non isolated activity” within the
state.
g) Venue
i) While personal jurisdiction places litigation in a specific state, venue statutes place litigation within a federal
judicial district in that state.
(1) 28 USC § 1391-1392 – § 1391(a) Governs Venue in Diversity Cases – Venue will lie in…
(a) a judicial district where any  resides if all ’s reside in the same state
(b) a judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred or a substantial part of property that is the subject of the action is situated
(c) a judicial district in which any  is subject to PJ at the time action is commenced if there is no district
where the action may otherwise be brought.
(2) § 1391(b) All other cases (Jurisdiction not founded solely on Diversity) – Venue will lie in…
(a) same as 1391a
(b) same as 1391a
(c) a judicial district in which any  may be found, if there is no other district in which action may be
brought.
(3) § 1391(c) A corporation shall be deemed to reside in any district in which it is subject to PJ at the time the
action is commenced
(4) § 1391(d) An alien may be sued in any district
(5) Dee-K Enterprises – Foreign manufacturers of rubber thread claim lack of jurisdiction and improper
venue when being sued in fed. Dist. Ct. for price fixing.
(a) General federal venue statutes subjecting alien corporations to suit in any judicial district overrides
other federal statutes that may contain specific venue provisions. (§1391)
(b) Anti-trust statute says foreign ’s can be sued anywhere they can be found or do business.
(c) Federal statute (1391) overrules this anti-trust statute and allows venue for aliens in any district.
h) Transfer and Forum Non Conveniens
i) There will be circumstances in which a court has the power to hear a case but, for reasons of justice or
efficiency, should not do so.
ii) 28 USC 1404, 1406, 1631 –
(1) Piper Aircraft – The Scottish heirs of plane crash victims in Scotland try to sue for wrongful death in a
US court bc US courts recognize wrongful death as a cause of action and are known generally to be more
favorable to ’s than the courts in Scotland.
(a) The fact of substantive law being less favorable to ’s in an alternative forum should not be given
conclusive or even substantial weight in applying the doctrine of forum non conveniens.
(b) Substantial weight may be given to the disadvantaging law of an alternative forum if the remedy
would be so clearly inadequate that dismissal would not be in the interest of justice.
(c) Procedural Path – case initially brought in CA state court. Removed to Fed. Court. Transferred to
Penn. (Piper used §1404a, Hartzell used §1631). Dismissed for forum non conveniens.
(d) Determining Forum Non Conveniens
(i) Private interest factors
1. Relative ease of access to proof
2. Availability of compulsory process for attendance of the unwilling witnesses
3. The cost of attaining attendance of willing witnesses
4. Possibility of view of premises, if view would be appropriate to the action
5. All other practical problems that make a trial case easy, expeditious, and inexpensive
(ii) Public interest factors
1. Administrative difficulties flowing from court congestion
2. Local interest in having local controversies decided at home
3. The interest in having the trial of a diversity case in a forum that is at home with the law that
must govern the action
4. The avoidance of unnecessary problems in conflict of laws or in the application of foreign
law
5. The unfairness of burdening citizens in an unrelated forum.
3) Subject Matter Jurisdiction
a) The Federal courts are authorized to hear cases…(Article III)
i) between states,
ii) between citizens of different states,
iii) between citizens and aliens,
iv) cases involving foreign ministers and consuls,
v) admiralty and maritime cases,
vi) cases arising under the federal Constitution and federal law
vii) bankruptcy cases
viii)
antitrusts
ix) copyrights
b) Arising Under Federal law or the Constitution
i) 28 USC § 1331 – grants federal district courts jurisdiction over cases “arising under” the Constitution,
statutes, or treaties of the federal government.
ii) Three Questions to determine whether a case satisfies the “Federal Question” requirement for subject matter
jurisdiction:
(1) Is there a federal question at all?
(2) Does the federal issue “give rise to” the plaintiff’s claim? (as opposed to being a defense)
(3) Is the federal issue sufficiently important to “federalize” the case?
iii) Louisville & Nashville RR v. Mottley – Injured RR customers sought to enforce the use of their free passes in
the wrong court.
(1) ’s federal question must appear in the allegations of the complaint
(2) Anticipated defenses involving federal law are inadequate for federal jurisdiction.
(3) The court can assert or dismiss on SMJ without motion of the parties.
iv) 28 USC § 1331(c)(1) says that corporations are citizens of their place of incorporation and principal place of
business
c) Diversity
i) Federal diversity of citizenship jurisdiction is made possible by Article III which was drafted to permit, but
not mandate, Federal court jurisdiction based on controversies between citizens of different states.
ii) Policy reason: based on a fear that State courts would be biased or prejudiced against those from out of state.
iii) 28 USC § 1332 – grants federal district courts jurisdiction where:
(1) Matter in controversy exceeds $75,000
(a) ’s good faith claim must be more than $75k unless it appears from a legal certainty that the claim is
really for less
(b)  may aggregate any claims against single  to reach amount.
(i) Cannot reach amount by aggregating claims against different 
(ii) Cannot reach amount by joining  except in rare cases where there is common undivided interest
(like joint owners of property)
(2) There is complete diversity between plaintiffs and ’s
iv) Redner v. Sanders -  claims complete diversity, but was a US citizen residing in France. ’s from NY.
Claim states that  is a resident of a foreign state, invokes 1332(a)(2) but court rejects claim –  is not a
citizen of a foreign state.
(1) Residence is not synonymous with citizenship.
(2)  Eventually shifts to demonstrate diversity under §1332(a)(1) by establishing domicile in CA, but fails
to produce sufficient evidence.
v) Saadeh v. Farouki - , a Greek citizen, sues , a Jordanian residing in Maryland, on a defaulted loan in fed.
Ct.
(1) There is no fed. Diversity jurisdiction over an action between an alien and another alien who has achieved
permanent resident immigration status.
(2) Citizenship at the time suit was filed is the determining time.
d) Supplemental Jurisdiction
i) Stretches federal jurisdiction to cover parts of cases that, if brought independently, would not have fit within
the district courts’ subject matter jurisdiction.
ii) 28 USC § 1367 – In cases where fed ct has original jurisdiction the ct shall have supp jurisdiction over all
other claims that are so related to claims in the action that they form part of the same case or controversy
(including joinder or intervention of additional parties).
iii) § 1367(b) – when original jurisdiction is based strictly on diversity the fed ct shall not have supp jurisdiction
over claims made under rules 14 (third party claims), 19 (Compulsory Joinder), 20 (Permissive Joinder), and
24 (intervention) if they destroy independent grounds of diversity.
iv) § 1367(c) – the district ct can decline to exercise supp jurisdiction if
(1) the claim raises a novel or complex issue of state law
(2) the state claim predominates over the fed claim
(3) the district ct has dismissed all fed claims
(4) any other compelling reason the ct finds
v) § 1367(d) – Period of limitation – 30 days
vi) Jin v. Ministry of State Security –  had a RICO action (fed statute), so Ct. had SMJ over ’s defamation
claim despite defamation being a state law.
(1) Two part test for Supp jurisdiction
(a) Does the ’s claim share a common nucleus of operative facts with the other claims?
(b) Do the interests of judicial economy, convenience, and fairness support the exercise of supp
jurisdiction?
e) Removal
i) The ’s power to second-guess plaintiffs who choose a state court.
ii) 28 USC § 1441 –
(1) § 1441(a) – any civil action brought in state ct. which the district courts have original jurisdiction, may be
removed by the ’s to the district court.
(2) § 1441(b) – any action in which the district courts have original jurisdiction, that is founded on a claim
arising under the constitution or fed. Laws, shall be removable regardless of citizenship or residence of
parties.
(a) If  is citizen of state, cannot remove.
(3) § 1441(c) – if any claim in the suit can be removed, joined claims that otherwise could not be removed
may be removed with the original claim.
(4) § 1441(d) – any action against a foreign state can be removed to fed. Ct. by the foreign state.
(5) § 1441(e)(6) – nothing in this subsection shall restrict the authority of the district ct. to transfer or dismiss
an action on the ground of inconvenient forum.
(6) § 1441 (f) – if state ct. did not have jurisdiction, and claim is removed to fed. Ct. the fed. Ct. is not
precluded from hearing the case.
(7) A case removed under § 1441 is no longer subject to § 1391 venue rules.
iii) Caterpillar - ’s state case was improperly removed to fed ct., bc there was not complete diversity. Diversity
did exist by the time of judgment.
(1) District courts error in failing to remand a case improperly removed is not fatal to the ensuing judgment if
fed. Jurisdictional requirements are met at the time judgment is entered.
(2) Judicial economy is a factor considered in determining whether to retry a case that has already been
decided (finality, efficiency, economy).
f) Joinder
i) Joinder of Claims
(1) By any Party
(a) Rule 18 – authorize parties, once they are properly joined in a law suit, to assert any additional claims
against opposing parties.
(b) Rule 42(b) – permits the judge to sever claims for trial convenience.
(2) By Def.
(a) Rule 13 – permits ’s to assert counterclaims against .
(3) Plant v. Blazer Financial Services -  borrowed $2520 from , made no payments for 8 months, then
sued  under Truth In Lending Act (federal).  counterclaims on the loan for the unpaid balance (State).
(a) Is an action on an underlying debt in default a compulsory counterclaim?
(i) Yes. A compulsory counterclaim that MUST be asserted in a suit by the debtor on a TILA cause
of action.
1. Compulsory counterclaim – arises out of the same transaction or occurrence as the present
claim. (Rule 13a)
2. Permissive counterclaim – does not arise out of the present claim. (Rule 13b)
3. Cross-Claim – arising out of same transaction or occurrence (Rule 13g)
4. Ancillary Jurisdiction – Fed. Ct. acquires jurisdiction over the entire case, even though
some of the matters would not be subject to federal jurisdiction.
ii) Joinder of Parties
(1) By Plaintiff
(a) Rule 20(a) – May join ’s or ’s if:
(i) they assert any right to relief rising out of the same transaction, occurrence, or series of
transactions or occurrences and
(ii) if any question of law or fact is in common with the original claim.
(b) Rule 20(b) and 42(b) – vest in the district court the discretion to separate trials or make such other
orders as will prevent delay or prejudice.
(c) Mosley v. General Motors Corp. -  and 9 others, joined together to bring suit against GM () for
discrimination against blacks and women.
(i) The difficulties in ultimately adjudicating damages to various ’s in a class are not so
overwhelming as to require severance of the ’s causes of actions.
(ii) Permissive Joinder is not always permitted:
1. Must satisfy requirements of Rule 20 (above).
(2) By Def.’s (Third-Party Claims)
(a) Rule 14 – a  may assert a claim against anyone not a party to the original action, if that third party’s
liability is in some way dependent upon the outcome of the original action. (a third party may be
impleaded only when the original  is trying to pass all or part of the liability onto that third party).
(b) Price v. CTB, Inc. -  hires  to build chicken house. Chicken house is faulty.  sues  for bad
coop.  joins third party  for providing faulty nails (indemnified). ITW, 3rd party , argues that they
are improperly impleaded under Rule 14.
(i) Court holds that ITW was properly impleaded under Rule 14.
(c) Third party must be impleaded within 10 days
(d) Impleading a third party does not affect PJ, but court must still have distinct SMJ over impleader
claim – if diverse, must be over $75k.
(e) Third party disregarded to determine if venue is proper.
(f) Rule 13(h) -  may bring in an additional party on a counterclaim, as long as the claim against the
added party and the original plaintiff meet Rule 20(a)