Civil Procedure Outline
Fall 2006
I.
Subject Matter Jurisdiction
a. General
i. Definition: the power of a court to decide the type of controversy
involved in a particular case
ii. Cannot be waived or conferred on the courts by the consent of the
litigants
iii. Existence of SMJ generally must be demonstrated at the outset by
the part seeking to invoke it
b. Constitution – Article III
i. § 1: establishes federal courts
ii. § 2: federal courts have jurisdiction over
1. federal question
2. diversity of citizenship
c. Federal Question Jurisdiction: 28 USC §1331 and Article III
i. Claims arising under the Constitution, laws, or treaties of the
United States
1. A claim is arising under when the right or immunity in
question is created by federal law and is a basic element of
the ¶ cause of action
2. Well pleaded complaint rule says that federal question must
be part of the ¶ original cause of action, not raised by the Δ
or anticipated to be raised by the Δ
3. Federal question must be crux of cause of action, not just a
mere ingredient in the case
ii. District court has jurisdiction over
1. bankruptcy
2. commerce/antitrust
3. patents, copyrights, trademarks
4. US as ¶
5. US as Δ
6. admiralty/maritime
7. actions between states
d. Diversity of Citizenship Jurisdiction
i. Complete diversity
1. all ¶ must be citizens of different states than all Δ
2. citizenship is determined at the commencement of the
action (time of filing)
3. changes in citizenship after filing are not considered
4. Individuals: place of domicile
a. Determined by:
i. Physical presence
ii. Intent to remain
5. Corporations: two places of citizenship
a. Place of incorporation
b. Principle place of business
i. Nerve center: corporate headquarters or
home office
ii. Muscle center: main production or service
activities
iii. Hybrid test: combination of two
6. Unincorporated organizations: use citizenships of all
members
7. Estates/Minors/Incompetents: citizen of the represented,
not the representative
8. Legal aliens: citizen of state where domiciled
ii. Amount in controversy: must exceed $75,000
1. Aggregation of claims
a. Single ¶ may aggregate claims against single Δ
b. Multiple ¶s may aggregate only in the rare case
where there in an indivisible joint interest (ex:
partnership)
2. If amount is under $75,000:
a. If determined before trial, dismiss
b. If it is not a legal certainty that will be less than
$75,000 and claim made in good faith, allow
c. If recovery at end of trial is less than $75,000 and
claim was not in good faith, allow – impose costs
against ¶
3. In injuctive relief claims, the amount in controversy is
generally the cost to ¶ if injunction is denied. Could also be
cost to Δ.
e. Supplemental Jurisdiction
i. Power of court to hear a claim that they do not have jurisdiction to
hear but which is related to another claim over which the court
does have jurisdiction – Developed to allow entire claims to be
settled by one court
ii. Court must have jurisdiction over at least one claim
iii. Claim must pass 2 part test
1. entire case arises from same nucleus of common fact
2. circumstances do not dictate that justice would be better
served in state court
iv. Federal court may decline supplemental jurisdiction if:
1. claim raises complex or novel issues of state law
2. state law predominates over the jurisdictionally sufficient
claim
3. all federal claims have been dismissed before trial
4. other exceptional circumstances
v. Based only on diversity:
1. split decision as to whether claims can be aggregated to
reach amount in controversy
2. district court does not have supplemental jurisdiction over
parties brought in with FRCP unless they meet §1332
a. Rule 14: Impleader
b. Rule 19: Joinder of Persons Need for Just
Adjudication
c. Rule 20: Permissive Joinder of Parties
d. Rule 24: Intervention
vi. Counterclaim and Crossclaim
1. Compulsory counterclaims: Δ must make counterclaim at
pleadings if it arises out of the transaction of original claim
a. Use it or lose it!
b. Supplemental jurisdiction is automatic.
2. Permissive counterclaims: Δ may make counterclaim at
pleadings if it does not arise from transaction of original
claim. Because counterclaim is unrelated to original claim,
court does not have supplemental jurisdiction
3. Crossclaims and Co-party: pleading may state claim
between Δs – automatic supplemental jurisdiction
4. Other: supplemental jurisdiction between state courts
f. Removal Jurisdiction
i. Any civil actions brought in state court where federal court has
concurrent jurisdiction may be removed by the Δ to the district
court
ii. Requirements:
1. federal court must have original jurisdiction (federal
question or diversity)
2. Only Δ can remove
3. Must remove within 30 days
4. Foreign countries cannot remove
5. In diversity cases, cannot be removed if any Δ is a citizen
of the state in which the action is pending
6. Proper state court jurisdiction not necessary
iii. If all are met, removal is automatic
1. ¶ must then request federal court remand to state court
2. decision to remand is not appealable
3. writ of mandamus is only remedy
iv. Blocking removal
1. Join a non-diverse 3rd party
2. lower the amount in controversy
3. bring action in state of one of Δ
v. When a separate and independent claim within federal jurisdiction
is joined with non-removable claims, the entire case may be
removed and the district court may remand matters however state
law states
1. prevents ¶ from blocking removal by including
nonremovable claims
2. permissible only if Δ can show that claim exists that could
have been brought under federal question and that the claim
is separate and independent from the nonremovable claims
g. Challenging SMJ
i. If SMJ defect exists, it may be raised at any time and the court may
raise if parties do not - Rule 12(h)(3) of FRCP
ii. Direct attack: challenges SMJ before final judgment, allowed any
time
iii. Collateral attack: challenges SMJ after final judgment, not clear
but seems to not be allowed
h. Appellate Court Jurisdiction
i. Supreme Court will review
1. decisions of US Courts of Appeals
2. decisions of the highest state court if some implication of
federal law – cases can get to S. Ct. through writs of
certiorari or certification from lower court
ii. The US Court of Appeals will review
1. final decisions of district courts
2. “no reason for delay” questions
3. interlocutory decisions based on injunctive or other nonfinal specific performance questions
4. unsettled questions
II.
Personal Jurisdiction
a. General
i. Definition: Jurisdiction to decide a case between the particular
parties or concerning the property before it
ii. Three types of jurisdiction
1. In personam: jurisdiction over Δ’s person, gives court the
power to issue a judgment against Δ personally
2. In rem: jurisdiction over a thing, gives the court the power
to issue a judgment concerning a piece of property
3. Quasi in rem: jurisdiction obtained by seizing property or
debt owed to Δ within forum state – action is not related to
property seized and is limited to the value of the seized
item
iii. Old rule: Pennoyer v. Neff: in a case where Δ is non-resident, is not
personally served, does not appear, default judgment is void –
based on idea of sovereignty of state – state’s powers are limited to
its boundaries
b. Traditional basis of jurisdiction
i. Physical presence
1. Under Pennoyer, physical presence within state was only
way to obtain in personam jurisdiction
2. In Burnam, presence in state is always a valid method of
obtaining personal jurisdiction
a. Case of father who visited children in CA and was
served – reasoning split court but both halves said
PJ was valid
3. Exceptions
a. Duress
b. Fraud
c. Immunity
d. Incompetancy
ii. Domicile
1. Jurisdiction may be exercised over an individual who is
domiciled within the forum state, even if he is not present
in the state – state has power over domiciliaries
2. Same as for SMJ – physical presence and intent to remain
iii. Consent: PJ may be exercised over a party by virtue of consent
even if he has no contacts within state
1. Ways to consent
a. By filing action: ¶ gives PJ by choosing forum
b. By express consent: Δ may agree to submit to PJ
before suit is filed – usually done by K or state
requirements to appoint in-state agent or license to
do business in state.
c. Forum selection clause: requires all suits to be held
in certain forum
i. Carnival Cruise Lines: forum selection
clauses are valid if “fundamentally fair”
d. Cognovit: waive right to PJ and right of choice
i. Appearance
ii. Implied consent
c. Long Arm Statutes: statutes which allow valid service outside borders of
state – requires that cause of action arises out of contacts with state
i. Two types
1. some states say that state may assert PJ to fullest extent
given by Constitution
2. Other give lists of contacts with state or activities within
state that are enough to give PJ – most common
ii. MS long arm statute
1. 13-3-57: Lists contacts with state
a. Contract with resident to be performed in whole or
in part in the state
b. Tort committed in whole or in part within state
c. Any business or character of work or service
performed within state
2. 13-3-63: nonresident motorist statute
3. If corporation has qualified to do business in state, it is
required to appoint an in-state agent – no need for long arm
statute
iii. Federal long arm statutes
1. Federal Rule 4(e): in absence of federal legislation, federal
courts must refer back to the statutes and rules governing
out of state service that exist in the state in which the
federal court is sitting
2. Specific actions (antitrust, securities, interpleader) have
specific long arm statutes
3. Federal Rule 4(f): authorizes service within 100 mile radius
of federal courthouse for certain additional parties
iv. Analysis of long arm statutes: always analyze both parts
1. Statutory: is there PJ under the state long arm statute
2. Constitutional: does the exercise of PJ comport with due
process based on Supreme Court decisions?
d. Due Process Requirements
i. General: to exert PJ over a nonresident, the long arm statute must
meet the due process requirement of the 14th Amendment
ii. International Shoe: established 2 part test of (1) minimum contacts
and (2) reasonableness to test for due process
1. “minimum contacts with the forum such that the exercise of
personal jurisdiction does not offend the traditional notions
of fair play and substantial justice.”
iii. Minimum contacts
1. McGee v. Int’l Life Ins.: minimum contacts between TX
insurance company and CA deceased man – CA had strong
interest in protecting man’s claim
2. Hanson v. Denckla: no minimum contacts between trust
company in DE and resident of PA who moved to FL
a. For minimum contacts to exist, Δ must
i. Purposefully avail itself to the privilege of
conducting business within forum state
ii. Benefit from state’s laws
iv. Product Liability/Stream of Commerce
1. Worldwide Volkswagen:
a. Δ did not reasonably anticipate being brought into
court of forum state
b. Δ not responsible for unilateral actions of ¶
c. Balancing test to determine reasonableness
i. Burden on Δ
ii. ¶ interest
iii. Interstate judicial system interest in
obtaining most efficient resolution
iv. State’s interest
2. Asahi: divided court on stream of commerce question
a. Half said that placing into stream of commerce
knowing it would end up in forum state is enough
b. Others said that merely injecting goods into stream
of commerce not enough
v. Contractual Relationships
1. Burger King v. Rudzewicz: choice of law provision made it
likely that suit would take place in FL – generally, sales
contract will be sufficient to establish minimum contacts
vi. General v. Specific Jurisdiction
1. Specific: minimum contacts directly related to the subject
matter of the suit
2. General: cause of action doesn’t arise out of Δs contacts
with the forum state – higher standard of minimum contacts
(systematic and continuous) are required
a. Regular purchaser doesn’t fulfill continuous and
systematic
b. Distribution of magazines is activity being
conducted in state – valid PJ
e. Jurisdiction over things
i. General
1. In rem jurisdiction: jurisdiction over a thing when cause of
action arises out of the thing
2. Quasi in rem jurisdiction: action in which Δ has property
within state, not related to cause of action
a. Examples: mortgage foreclosures, replevin
(repossession), garnishment
ii. Shaffer Rule
1. All exercises of jurisdiction are subject to Int’l Shoe test of
minimum contacts and fairness. Therefore, jurisdiction
cannot be based only on property within state
2. Effect on quasi in rem: in states with long arm statutes,
quasi in rem is no longer really used. In states with limited
long arm statutes, still can be used with Δ has minimum
contacts but actions doesn’t fall under long arm
3. Land v. Intangibles: much stronger argument can be made
when land is in involved
f. Notice and Opportunity to be heard
i. General
1. reasonableness: procedure to notify Δ must be reasonably
likely to inform him
2. Δ must be given adequate time and opportunity to present
defense
ii. Requirements of notice
1. Reasonableness
a. Notice is sufficient when reasonably calculated
under the circumstances to apprise interested parties
of the pendency of action and afford them an
opportunity to present their objections
b. Balancing test of Δ interest in notice, availability of
names and addresses of Δs, practicality of
notification
c. Most likely method not required, just reasonable
d. Examples
i. Newspaper publication is reasonable if
addresses are not known - Constructive
Notice
ii. Publication is not valid if addresses are
attainable
iii. Posting notice on property is not valid where
another method is more likely to reach Δ
iv. Service on agent is valid if agent is
integrated into the organization and will
know what to do with the notice
iii. Actual results don’t matter
1. if valid method is used and Δ doesn’t receive, court has PJ
2. if invalid method is used but Δ receives notice, court
doesn’t have PJ
g. Mechanics of service
i. Requirements of valid service
1. Formal compliance with mechanics of service
2. State/Gov authorization of courts to exercise PJ over Δ
3. Exercise of PJ must not violate due process
a. Minimum contacts and reasonableness
b. Method of service reasonably calculated to provide
service
ii. MS mechanics of service
1. Court issues summons and clerk delivers
2. First class mail with acknowledgement of service form
a. Δ taxed with extra costs of alternate forms of
service if not signed
b. Personal delivery
c. Residence delivery – leave at usual home with
family member over 16 who is willing to receive
service – mail copy to same address
d. Delivery to agent authorized to receive service
e. Certified mail allowed only for personas in US
outside MS
f. Publication: 3 successive weeks in county in which
action is pending
3. Who serves?
a. ¶ or ¶ attorney
b. Incompetents and infants cannot be served directly
c. Proof of service – filed with court clerk
d. Time limit: served within 120 days of
commencement of the action
iii. Mechanics of Federal Service (FRCP 4)
1. ¶ is almost always responsible for service
2. Methods
a. Waiver of service – inducement to sign because Δ is
taxed with fees for alternate forms of service and
longer period of time to answer complaint
b. Any method allowed by state court
c. Personal delivery
d. Residential delivery: only required to leave at home
of Δ
e. Serve to foreign countries as allowed by treaty
3. Federal reach is the same as that of the state circuit court
a. Exceptions
i. 3rd party can be joined within 100 miles of
court
ii. Nationwide for interpleader
iii. Nationwide for federal question where Δ has
minimum contacts with US but not with
individual state
4. Time limit is 120 days
iv. Opportunity to be heard
1. General Rule: Δ has right to notice and a hearing before
there is any state sponsored deprivation of property interest
2. 3 part test for due process for notice
a. Strength of Δs interest – significance of effect on
property
b. Risk of erroneous deprivation
c. Interest of party seeking remedy
3. Factors indicating unconstitutionality
a. No bond posted by 
b. Deprivation before hearing
c. Decision made by clerk rather than judge
4. Exceptions to due process requirement
a. Need for quick action
b. Strong governmental interest
c. Government retained power to take
v. Defenses to Jurisdiction claims
1. Special Appearance
a. Some jurisdictions allow  to appear to contest
personal jurisdiction without waiving it
2. Collateral Attack
a. A  who defaults in one jurisdiction may attack PJ
in another when enforcement is sought in another
jurisdiction
3. Induced into PJ by fraud or duress
4. Immunity
a. Immunity from service to witnesses to testify at
trials in the forum state - criminal witnesses only
III.
Venue
a. Place within a jurisdiction that an action can be brought
i. Designed to promote convenience and efficiency
ii. Can be waived by parties – failure to make timely objection is
considered to be a waiver
b. Local and Transitory Actions
i. A transitory action is an action that could have arisen anywhere
(harm to personal property)
ii. Local action involves a particular piece of land that is located
within a jurisdiction
1. local action rule: venue is only proper in district where
property is located
c. General Federal Venue
i. Diversity of citizenship: civil action based solely on diversity of
citizenship may only be brought in:
1. judicial district where any Δ resides if all the Δs reside in
the same state
2. judicial district where a substantial part of the events giving
rise to the cause of action occurred or substantial piece of
property is located
3. judicial district where Δs are subject to PJ at the time the
action is commenced if there is no districts in which the
action may otherwise be brought
ii. Federal Question: civil action based on federal question
jurisdiction may be brought only in:
1. judicial district where any Δ resides if all Δ reside in same
state
2. judicial district where a substantial part of the events took
place or property is situated
3. judicial district in which any Δ may be found if there is not
other district in which the action may be brought
iii. Residency of Defendant
1. Individual: domicile
2. Corporation: any judicial district where the corporation is
subject to PJ at the time the action is commenced
a. Resides in any district in state
iv. Aliens: may be sued in any district
IV.
v. Unincorporated organizations: same as corporation, any district in
which it is doing business
d. Transfer of Venue in Federal Cases
i. When the venue is proper in original court
1. district court may transfer to any other district where the
action could have been brought (28 USC 1404)
2. “where it might have been brought”: district where ¶ could
have originally filed action and served Δ
3. Law of transferor applied
a. MS case transferred to NY Ct – MS law applies
ii. When the venue is not proper in original court
1. court will either dismiss or transfer to court with correct
venue
2. law of transferee applies
a. MS case to NY Ct – NY law takes over
3. all transfers must be within same court system – cant go
from federal to state or vice-versa
4. Removal is the only way to get from state to federal
e. Venue in State Actions
i. Most common test is based on residence of the 
ii. Forum Non Conveniens comes into play only when venue is
proper in first place
iii. Dismissal requires that there is an alternative forum to decide
matter
iv. Dismissal can be conditioned on all parties being secured and
complete relief can be given in another forum
v. The fact that the law in the alternative forum will be less favorable
to ¶ is not considered
vi. In Federal cases, forum non conveniens is not applicable because
federal courts have power to transfer. State courts do not have
power to transfer and therefore have Forum Non Conveniens
available
Applicable Law
a. Problem: in diversity suits, the federal and state courts have concurrent
jurisdiction - what law is followed?
b. Pre-Erie
i. Rules of Decision Act: in the absence of controlling federal law,
federal courts are required to follow state law
ii. Swift v. Tyson: Supreme Court interpreted the RDA as not
including state common law
c. The Erie Doctrine
i. Supreme Court cases that set forth analysis to determine which law
is followed
ii. Erie v. Thompkins: overruled Swift - said federal courts do not have
power to create own common law, must apply state law
1. Policies
a. Avoids forum-shopping
b. Prevents discrimination against citizens by noncitizens
2. Limitations
a. State law followed regarding substantive issues federal procedural law is still followed
d. Problems under Erie
i. Procedure v. Substance
1. Erie only applies when there is no applicable federal statute
- if a federal statute exists, then it rules under RDA and
Supremacy Clause of the Constitution
2. Outcome Determinative Test - federal court sitting in
diversity should provide an impartial forum and prevent
injustice, and the outcome should be the same as in a state
court
a. Problems
i. Any law is in some way determinative
ii. Guaranty held that a statute of limitations
(substantive) was procedural - confusing
3. Balancing Test
a. State and federal laws are weighed against each
other
b. Byrd weighed judge versus jury and decided that,
although the state law would produce a different
outcome, the federal law must be followed
i. Refutes Outcome Determinative
c. Elements of Balancing Test
i. Federal interests
1. control own procedures
2. strong federal policy (jury trial)
ii. State interests
1. avoid forum shopping
2. avoid inequitable administration of
law
3. degree of interest in state law
d. Hanna test reinforced idea that federal statutes are
supreme
i. Is there a FRCP directly on point?
ii. Is it valid under the Rules Enabling Act (no
FRCP has ever been held to be in conflict
with REA, but must be analyzed)
ii. Applying State Law
1. In case where there is no holding by the highest state court
for the federal courts to follow, federal court must predict
what that court would do.
a. Apply intermediate courts decisions
b. Speculate as to what the court would say, but not
what they should say - no case on point
c. Decision is obsolete - where old law exists, federal
court can decide that state could would decide
differently
d. Certification - ask highest state court for opinion
i. MS S. Ct. Rule 20: Federal Court of Appeals
or the Supreme Court may ask the MS
Supreme Court their opinion
iii. Conflict of Laws
1. Which state's laws control if federal court is sitting in
different state than the action took place and the two state's
laws are different?
a. Federal Court looks to conflict of law rules in state
where it is sitting
b. If suit is transferred, federal court should apply the
law of the state court in which the action was
originally filed
e. Federal Common Law
i. In some special situations, the federal court can make common law
ii. Areas of Federal Common Law
1. Interstate conflicts
2. Admiralty
3. International relations
4. Legal rights/obligations involving the US government must determine:
a. Whether US government has an interest
b. Need for federal uniformity
c. Extent to which federal law frustrates federal policy
d. Whether federal common law will have adverse
effect on commercial activity under state law
iii. Interstitial Federal Common Law
1. determine how federal common law fills in the gaps where
there is a general statute establishing federal policy but
specifics are left to the courts
a. analogize to closest applicable state statute
b. if none, analogize to closest federal statute
V.
The Lawsuit
a. Stating the Case
i. Lawyer’s Responsibility
1. Lawyer must bear responsibility of correctly following
procedure
a. Rule 11: counsel must demonstrate competent
research; may be subject to sanctions if suit is
frivolous
i. prime goal is deterrence
ii. attorney’s duty is to “stop, look, and listen”
iii. must make reasonable search of facts and
law
iv. if Rule 11 broken, there may be sanctions by
court
2. Rule 12 (b)(6) – dismiss for failure to state claim
3. Rule 12 (b)(2) – dismiss for want of PJ
ii. Complaint
1. Rule 8(a) – requires a short and plain statement stating:
a. reason for federal jurisdiction
b. facts of the incident (why seeking relief)
c. type of relief desired (damages)
2. period of discovery: allows time to get details, ask
questions, and reasonably investigate
iii. Response: Motions & Answers
1. defense of the action – once  is aware of complaint, he
must decide on response
2. Two forms of Response:
a. motion – attacks complaint in some way
i. takes no position on truth of claims
ii. seeks immediate relief from court (reason
why action should not proceed – SMJ,
failure to state claim, uncertainty of
allegations)
iii. can be made pre-answer
b. Answer – responsive pleading
i. Takes position on truth of claims
ii. Denies truth of at least one allegation
iii. May assert information that contradicts ¶
iv. Responds to all allegations
v. Does not seek immediate relief from court
3. Affirmative defense – if you don’t deny allegations, court
assumes you’re admitting them
4. Counterclaims –  files claim against ¶ in response to ¶s
claim
a. Compulsory: stems from same event as ¶s claim
b. Permissive: does not stem from same event
c. Cross-claims:  files claim against another 
5. Third-party claims: claims against a 3rd party not in suit
iv. Amendment of Pleadings
1. Federal Rules have liberal policy toward amendments
(changes) to pleadings
2. Rule 15: “leave to amend may be freely given when justice
so requires”
a. Amendments can be made after statute of
limitations under certain conditions
v. Preliminary Injunction: Rule 65
1. Temporary Restraining Order
a. Affidavit or verifiable complaint
b. Specific facts
c. Immediate and irreparable danger of injury
d. Lawyer must show efforts have been made to notify
other side
2. Inglis and Sons v. ITT Baking:
a. Test 1 for provisional injunctive relief:
i. ¶ will suffer injury
ii. ¶ will probably prevail on merits
iii. Balance of equity – Δ cannot be harmed
more than ¶ is helped
iv. In accordance with public interest
b. Test 2:
i. Probable success versus irreparable injury
3. Due Process outlaws State taking of property
a. Need for quick action
b. Strong governmental interest
c. Government retained power to take
4. Matthews v. Eldridge:
a. Strength of private interest
b. Risk of error
c. Probable value of additional safeguards
d. Weight of government interest
vi. Interpleader
1. NOT impleader (indemnifying Δ through 3rd party)
2. Interpleader is a remedy
a. Client has property to give but doesn’t know who to
give it to
b. Example: insurance company who has money to
pay but doesn’t know who to get it to – if they give
to the wrong person, they will be sued and will pay
a second time out of pocket
c. Allows stakeholder to bring all claimants into court
to decide who gets property – court decides and the
stakeholder is protected from making the wrong
decision
3. Statutory Interpleader: Diversity citizenship, $500
minimum, 2 claimants
4. Rule Interpleader: complete div, amount in controvery,
PJ/due process, venue
vii. Parties to Lawsuit
1. Permissive Joinder
a. Who may be joined as ¶ or ?
i. Rule 20: all persons may join as ¶ if they
assert right to relief jointly or severally, or
arising out of same transaction or series;
same with 
1. Court may declare separate trials in
order to prevent one party from
being forced to sue another party
against whom they have no claim
ii. Rule 21: if  unhappy w/ another s
inclusion, that is not grounds for dismissal,
but  can claim “not properly joined”
2. Compulsory Joinder
a. Who must be joined as ¶ or ?
i. Rule 19: person must be joined if relief
cannot be granted in their absence, or the
person’s interest in the action is so great that
absence may hurt them or other parties
1. Person may be joined at any stage of
action
2. If person can’t join, court must
decide if action can still continue
based on adequacy of jud, prejudicial
jud, etc.
3. Intervention
a. Are there people not in suit who can join parties if
they choose?
i. Rule 24: intervention of right – when statute
gives unconditional right to intervene or
when action’s result may hurt intervener
1. Permissive intervention – when
statute gives conditional right to
intervene, or when intervener’s claim
and main action have common fact
4. Class Actions
a. Can some people represent others not in suit so that
decision determines rights of all? (ex: suing airline)
i. Rule 23: some parties may stand in for
whole group if class is very large, there are
facts common to everyone, claims/defenses
are same, and reps. will fairly protect class
interest
b. Development of Suit
i. Discovery
1. Can gather evidence through observation, knowledge,
conversations, etc.
2. Discovery rules compel parties to cooperate with one
another; broad in scope
3. Scope of discovery is anything not privileged (major
limit), anything relevant, and anything reasonably
calculated
4. Disclosures – basic information (witness names,
documents)
5. Inspection of documents – provide backbone of evidence; if
opposing party has documents, they must produce them
(can be obtained through subpoena)
6. Oral depositions – questioning witness under oath in
presence of judge
7. Written interrogatories – written questions by opposing
party, usually to locate documents
ii. Summary Judgment (Pre-trial)
1. Summary judgment determines whether a trial is necessary;
rarely granted
2. Does not weigh evidence, but decides whether there is
evidence to weigh (no facts in dispute)
3. In deciding SJ, judge must look at evidence in light most
favorable to non-moving party
c. Trial
i. Mechanics
1. Begins with opening statements by lawyers
2. Witnesses examined, cross-examined, redirected, recrossed
3. After ¶ rests case,  can ask for directed verdict (¶ has not
presented evidence sufficient to get relief, judge does not
even need to hear )
4. Judge gives jury instructions (very important, since judge is
seen as neutral)
5. Loser may ask for judgment not withstanding verdict (says
that “no reasonable jury could’ve found this way,” judge
renders decision regardless of jury verdict)—rarely granted;
in civil cases, judge always renders verdict - JNOV
ii. Former Adjudication
1. res judicata- matter having been decided
a. Notion that ¶ or  cannot try case again if
unsatisfied with result
b. Claim preclusion – can only bring same claim once;
first claim precludes second; not all claims from
same accident are part of same claim (ex: Injury to
arm cannot be separate suit from injury to leg)
c. Issue preclusion –  cannot claim same defense on
two claims, if defense in first claim found to be
untrue; also called collateral estoppel