Civil Procedure Outline
I.
Personal Jurisdiction (in what states can plaintiff sue defendant?)
a. Personal Jurisdiction exists when the forum state has power over the defendant
b. Three Steps:
i. Satisfy the Forum’s Statute (e.g., long-arm statute, attachment statute)
1. California’s long-arm statute claims jurisdiction is proper as long
as the exercise of jurisdiction meets federal constitutional
requirements
ii. Absolute Bases of In Personam Jurisdiction
1. In personam jurisdiction exists where the defendant:
a. Is domiciled in the state;
b. Is present and personally served with process in the state
(not through trickery or force);
c. Consents to suit in the state;
d. Enters a general appearance in the suit
iii. Satisfy the Constitution (due process test)
1. Jurisdiction is constitutional when the defendant has “such
minimum contacts with the forum state so that exercise of
jurisdiction does not offend traditional notions of fair play and
substantial justice” (two hurdles: minimum contacts &
reasonableness)
a. Minimum Contacts
i. Quantity and Nature of the Defendant’s Contacts
1. Defendant purposeful availed himself of the
benefits and protections of the forum state;
and
2. Foreseeability that the defendant could get
sued in this forum
ii. Relatedness Between Defendant’s Contacts and the
Plaintiff’s Cause of Action(s)
1. Relatedness may not be required if the
defendant has substantial ties with the forum
state (e.g., present when served, domiciled,
doing substantial continuous business)
because then defendant is subject to general
personal jurisdiction and can be sued in the
forum state for a claim arising anywhere in
the world
2. For in rem (and quasi in rem) jurisdiction
(jurisdiction over the defendant’s property),
constitutionality depends on whether the
dispute is related to the property attached. If
the dispute is directly related to the land, the
constitution is satisfied if the land is located
within the forum state. If the dispute is not
II.
related to the land, the constitution is only
satisfied if the defendant’s contacts with the
forum state are sufficient
iii. The Interest of the Forum State in Protecting Its
Citizens (e.g., interest in providing a forum for its
citizens to challenge wrongful behavior)
b. Reasonableness of Exercising Jurisdiction
i. Are the burdens placed on the defendant in
defending in this forum reasonable?
1. Defendant may complain that the forum
state is inconvenient because it is far from
his home, but this forum state will be
appropriate unless it puts the defendant at a
severe disadvantage in litigation (very tough
to show)
ii. Would plaintiff be unreasonably burdened if he had
to bring suit in another forum?
iii. Are some witnesses or evidence located in this
forum?
Subject Matter Jurisdiction (what court do we go to, state or federal?)
a. Subject matter jurisdiction involves the court’s power over a particular type of
case
b. Two Types of Cases that Can Be Heard in Federal Court
i. Diversity of Citizenship Cases (complete diversity is required)
1. Requirements:
a. Amount in controversy exceeds $75,000, excluding interest
and costs (more than $75,000 must be pled by the plaintiff
in good faith)
i. Whatever plaintiff claims in good faith is
controlling, unless it is clear to a legal certainty that
it will not exceed $75,000 (tough to prove)
ii. If plaintiff sues for more than $75,000, but recovers
less than that, jurisdiction is still appropriate, but
she may have to pay defendant’s costs
iii. Aggregation (adding together two or more claims to
meet the amount requirement)
1. Claims may be aggregated only if there is
one plaintiff verses one defendant.
a. Exception: If one plaintiff sues more
than one defendant (joint claims), the
total value of the claim can be used
to meet the amount in controversy
requirement
iv. When Plaintiff Seeks an Injunction (discuss both
rules)
1. Majority Rule
a. The amount in controversy
requirement is met if the harm
seeking to be prevented would harm
the plaintiff by more than $75,000
2. Minority Rule
a. The amount in controversy
requirement is met if it would cost
the defendant more than $75,000 to
comply with the injunction.
b. Action is between:
i. Citizens of different states (at time case is filed)
1. There is no diversity of citizenship if any
plaintiff is a citizen of the same state as any
defendant; OR
ii. A citizen of one state and a citizen or subject of a
foreign country (at time case is filed)
1. “Citizenship” for persons
a. State where “domiciled”
i. Presence in the state at some
point with intent to make it
your permanent or fixed
home
ii. Intent can be found through
paying in-state tuition, voting
there, etc.
iii. Person can only have one
domicile at any given time
b. For decedents, minors, and
incompetents represented in
litigation by a fiduciary (e.g.,
guardian ad litem, committee,
conservator, executor), citizenship of
the decedent, minor, or incompetent
controls (not the citizenship of the
fiduciary)
i. Exception: In class action
suits, the citizenship of the
representative controls
2. “Citizenship” for corporations (can be a
“citizen” of more than one state)
a. All states where incorporated; AND
b. The one state where the corporation
has its “principal place of business”
i. Headquarters (nerve center;
where decisions are made);
ii. Many courts use the nerve
center, unless all activity
occurs in a single state; OR
iii. Where the corporation does
more business activity than
anywhere else
3. “Citizenship” for Partnerships
a. For unincorporated partnerships
(partnerships, labor unions), the
citizenship of all members is
important, and it is possible that a
partnership could be a citizen of all
50 states (and no diversity
jurisdiction) if general and limited
partners live in every state.
2. Exclusions
a. Even if the requirements for diversity jurisdiction are met,
federal courts will not hear cases involving “issuance of a
divorce, alimony, or child custody decree” or the probate
an estate.
3. Collusion
a. There is no subject matter jurisdiction when a party “has
been improperly or collusively made or joined to invoke
jurisdiction”
i. Example: A (California) wants to sue B
(California), and A assigns his claim to C (Utah). C
then sues B. This is no good if C is a mere
collection agent for A, with no real interest in the
case
4. Erie Doctrine (which law applies, federal or state?) (an issue only
in diversity cases)
a. A federal court in a diversity case must apply the
substantive law of the state in which it is sitting, but must
apply federal procedural rules
i. Valid federal statutes or rules dealing with
procedural matters will be applied over contrary
state law
1. However, a federal rule/law will not apply
when its effect would be to toll a state
statute of limitations (state law controls
whether or not the statute of limitations is
satisfied)
ii. Substantive Law Areas (where state law will apply)
1. Elements of the claim
2. Choice of law rules
3. Statutes of limitations
4. Tolling
iii. If there is no federal provision on point, but the
federal judge wants to do something other than
apply state law, she can only do this if it isn’t
substantive. Factors the judge should use to
determine if the law is substantive or not:
1. Is it outcome determinative (would applying
or ignoring the state law affect the outcome
of the case)? If yes, it is probably
substantive
2. Balancing of the interests (does either the
federal government or state have an interest
in applying its rule?)
3. Avoid forum shopping: If the federal court
does not apply state law on this issue, will it
cause litigants to flock to federal court? If
so, the court should probably apply state law
iv. If state substantive law is unclear, the federal court
may certify the question to the state supreme court
for clarification
ii. Federal Question Cases (plaintiff’s claim “arises under federal law”)
1. Plaintiff’s complaint shows a right or interest founded substantially
on federal law (e.g., federal constitution, federal legislation).
Plaintiff sues to vindicate a federal right.
a. Citizenship is irrelevant and there is no amount in
controversy requirement
b. Well-Pleaded Complaint Rule
i. If the complaint were well pleaded, just stating
plaintiff’s claim without extraneous matters
unrelated to the claim, would it arise under federal
law? Is plaintiff enforcing a federal right? If so,
that claim invokes federal question jurisdiction.
1. Example: Mayberry R.R. gives Gomer a
lifetime pass in settlement of a claim. After
several years, R.R. refuses to honor the pass,
asserting that a federal statute prohibits such
passes. Gomer sues R.R. for specific
performance, alleging the statute doesn’t
apply. His complaint mentions a federal
law, but there is no federal question because
he is not seeking to enforce a federal right.
c. Additional Claims: There may be additional state claims
joined to the federal case, but for every single claim joined
in federal court, there must be a basis of subject matter
jurisdiction (diversity jurisdiction, federal question, or
supplemental jurisdiction).
i.
Supplemental Jurisdiction
1. Pendant
a. Requirements:
i. Claim is asserted by the
plaintiff in a federal question
case; AND
ii. Claim arises from a common
“nucleus of operative fact”
(from the same transaction or
occurrence)
b. Even if these requirements are met,
the court has discretion to not hear
the supplemental claim if the federal
question is dismissed early in the
proceedings or if the state law is
complex or state law issues would
predominate
2. Ancillary
a. Requirements:
i. Claim is asserted by anyone
but the plaintiff in a diversity
or federal question case;
ii. Claim arises from a common
“nucleus of operative fact” as
the underlying case (from the
same transaction or
occurrence)
b. Even if these requirements are met,
the court has discretion to not hear
the supplemental claim if the federal
question is dismissed early in the
proceedings or if the state law is
complex or state law issues would
predominate
2. Some federal question cases (e.g., patent infringement, federal
antitrust and securities claims) have exclusive federal jurisdiction
and can only go to federal court
c. Removal (allows defendants to have a case filed in state court “removed” to
federal court)
i. A defendant may remove an action that could have originally been
brought by the plaintiff in federal court
ii. A case may be removed if:
1. It invokes federal question jurisdiction or diversity of citizenship
jurisdiction
a. In diversity cases only, however, removal is not available if
any defendant is a citizen of the forum state
III.
2. All defendants agree (plaintiffs cannot remove, even if they are
defendants in a counterclaim)
a. Exception: If there is a “separate and independent” federal
question claim against one defendant, he can remove the
whole case (including state claims), but the court can, in its
discretion, then remand state law issues back to state court;
AND
3. Removal is made within 30 days of service of the first document
that makes the case removable (e.g., the complaint, dismissal of a
defendant who prevented removal, etc.)
a. In a diversity case only, however, removal is not available
more than one year after the case was filed in state court
iii. Procedure for Removal
1. Defendant files a notice of removal in federal court, which sets
forth the grounds for removal, is signed under Rule 11, and
contains all documents served on the defendant in state court
2. A copy is given to all adverse parties
3. If removal is improper, the plaintiff has 30 days (if based on a
defect other than subject matter jurisdiction) to move to “remand”
the case back to state court
a. And, the federal court must remand the case to state court
whenever it determines there is no federal subject matter
jurisdiction
iv. A case can only be removed to the federal district embracing the state
court in which the case was originally filed
v. Waiver of the Right to Remove
1. A defendant who files a permissive counterclaim in state court
waives the right to remove. But filing a compulsory counterclaim
in state court does not waive the right to remove
Venue (relates to the proper federal district in which the matter will be decided)
a. Venue Generally
i. A civil action where jurisdiction is founded on a federal question or on
diversity can be brought in:
1. A judicial district where any defendant resides (is domiciled), if all
defendants reside in the same state; or
2. A judicial district in which a substantial part of the transaction or
occurrence giving rise to the claim occurred;
ii. If there is no district in which the action may otherwise be brought (i.e., all
the defendants reside in different states and the claim arose overseas), the
action may be brought in:
1. A diversity case, a judicial district in which any defendant is
subject to personal jurisdiction at the time the action is
commenced; or
2. In a federal question case, in a judicial district where any defendant
is “found”
IV.
iii. A defendant that is a corporation is deemed to reside, for venue purposes,
in any judicial district in which it is subject to personal jurisdiction at the
time the action is commenced
iv. Local Actions
1. Actions concerning ownership, possession, or injury to land
(including trespassing) must be filed in the district where the land
lies
b. Transfer of Venue (going from one federal district court to another)
i. A case can only be transferred to a federal district where the case could
have been filed originally (a proper venue with personal jurisdiction over
the defendant independent of any waiver by the defendant)
ii. Two Statutes
1. If venue in the original forum is proper, the case may be
transferred to another federal district court if needed for the
convenience of the parties, the convenience of the witnesses, or the
“interests of justice”
a. The court to which a case is transferred under this statute
must apply the choice of law rules of the original court,
even if the plaintiff initiates the transfer
2. If venue in the original forum is improper, the court may transfer
in the interests of justice or may dismiss the case
c. Forum Non Conveniens
i. The discretionary doctrine of forum non conveniens allows a federal court
for the convenience of the parties and witnesses, in the interest of justice,
to transfer any civil action to any other division or district where it might
have originally been brought, or if transfer is not possible, to dismiss the
civil action without prejudice
1. Federal courts cannot transfer cases to a foreign judicial system or
a different state court system, so dismissal may be proper
ii. The court must evaluate both private and public factors in making its
decision
1. Public factors
a. Availability of an alternative forum; the plaintiff’s choice
of forum; the interest the forum state has in providing a
forum for its residents; what law applies; and what
community should be burdened with jury service
2. Private factors
a. Convenience of the parties and witnesses; location of the
evidence; and where the accident or event took place
i. The fact that a plaintiff may recover less in the other
judicial system/court does not make transfer or
dismissal improper
ii. Forum non conveniens is rarely granted if the
plaintiff is a resident of the present forum
Service of Process
a. Plaintiff must arrange to have someone deliver to the defendant process:
V.
i. A summons (formal court notice of a suit and time for response); and
ii. A copy of the complaint
b. Plaintiff must serve process within 120 days of filing the complaint or else the
case will be dismissed without prejudice (unless plaintiff shows good cause for
the delay)
c. Process may be served by any nonparty who is at least 18 years old and may take
the form of:
i. Personal service
1. Papers are given to defendant personally anywhere you find the
defendant in the forum state (unless defendant is present only to be
a witness or party in another civil case)
ii. Substituted Service
1. Process can be left with someone other than the defendant if:
a. It is the defendant’s usual abode;
b. The person being left with process is of suitable age and
discretion; and
c. The person being left with process resides there
iii. Process can be delivered to defendant’s agent authorized to receive service
(e.g., a corporation’s registered agent or any officer) or a state officer
appointed by operation of law (nonresident motorist, etc.).
iv. Waiver by Mail
1. Process can be mailed to the defendant by first class mail, postage
prepaid, as long as:
a. Defendant returns the waiver form waiving formal service
within 30 days
i. If he does not return the waiver form, he must be
served personally or by substituted service at his
cost)
v. Process can be delivered to a defendant in another state as long as state
law allows for it (with a long-arm statute, for example).
1. Exceptions:
a. Federal court can serve a defendant outside the forum state
regardless of state law under the Bulge rule and/or statutory
interpleader (see below)
d. These rules apply to formal service of process, by which a defendant is brought
before the jurisdiction of the court. For subsequent papers (e.g., answer, other
pleadings, motions, discovery requests and responses) can be served by delivering
or mailing the document to the party’s attorney (or pro se party). If mailed, three
additional days are given for the required response time
Pleadings (documents setting forth the claims and defenses)
a. “Notice” pleadings
i. Pleadings must convey enough contentions to allow a meaningful
response (do not require great detail, just enough to put the other side on
notice)
b. Rule 11
i. Requires attorneys (or pro se litigants) to sign all pleadings, written
motions, and papers (except discovery documents) certifying that (to the
best of the attorney’s knowledge and belief, after reasonable inquiry):
1. The paper is not for an improper purpose;
2. The legal contentions are warranted by law (or a nonfrivolous
argument for change of the law);
3. The factual contentions have evidentiary support (or are likely to
after further investigation); and
4. The denials of factual contentions have evidentiary support (or are
likely to after further investigation)
ii. Continuing Certification
1. Certification is effective every time the paper is “presented” to the
court (filing, later advocating a position, etc.)
iii. A motion for a violation of Rule 11 is served, but not filed. The party
allegedly violating the rule has 21 days (“safe harbor”) to fix the offending
document. If he doesn’t fix, then the motion can be filed.
iv. Sanctions may be levied (they are discretionary) against the attorney, the
firm, or the party. Sanctions should be sufficient to deter repeat of
conduct, and can be nonmonetary.
1. The court can also order a party to show cause of why sanctions
should not be levied
c. Complaint (principal pleading by the plaintiff that commences the suit)
i. Must include:
1. Statement of subject matter jurisdiction;
2. Short and plain statement of the claim showing entitlement to
relief; and
3. Demand for judgment
ii. Three matters must be pleaded with particularity or specificity:
1. Fraud; Mistake; Special Damages (damages that don’t normally
flow from an event)
d. Defendant’s Response (Rule 12)
i. Defendant must respond to a complaint in one of two ways (motion or
answer) no later than 20 days after service of process (or else he risks
default)
1. Rule 12 Motions
a. Issues of Form (motions must be brought by defendant
before filing a responsive pleading, or else waived):
i. 12(e) motion for a more definite statement (when a
pleading is so vague that the defendant cannot
frame a response)
ii. 12(f) motion to strike (pares out immaterial
allegations, cheap shots, and things that don’t
belong (e.g., a demand for a jury trial in a case
where there is no right to a jury)) (any party can
bring)
b. Matters of Abatement:
i. Waiveable Defenses that Must Be Put in The
Defendant’s First Rule 12 Response (pre-answer
motion or answer) or Else Waived:
1. Motions to dismiss due to:
a. Lack of personal jurisdiction
b. Improper venue
c. Insufficiency of process
d. Insufficient service of process
ii. Defenses that Can Be Raised At Anytime:
1. Motions to dismiss due to:
a. Lack of subject matter jurisdiction
b. Failure to join an indispensable party
c. Matters Regarding the Merits
i. 12(b)(6) failure to state a claim on which relief can
be granted (must be brought by pre-answer motion
or inserted in answer)
ii. 12(c) judgment on the pleadings
iii. Motion for summary judgment (Rule 56)
2. Answer (filed when defendant decides not to file an answer or his
pre-answer motion is denied)
a. Timing
i. Defendant must serve his answer no later than 20
days after service of process if she brought no preanswer motions, or no later than 10 days after a
court rules on a pre-answer motion
ii. If defendant waives service of process, she has 60
days (from plaintiff’s mailing of the waiver form) in
which to answer.
b. An answer must contain:
i. Responses to the Allegations of the Complaint
1. Admit;
2. Deny; or
3. State that he lacks sufficient information to
admit or deny (which has the effect of a
denial)
a. Cannot be used if the issue is a
matter of public knowledge or is in
defendant’s control
i. Failure to deny can constitute
an admission, except as to
damages
ii. Affirmative Defenses (statute of limitations, res
judicata, contract isn’t enforceable due to fraud,
etc.)
VI.
Counterclaims
VII.
VIII.
a. An offensive claim against an opposing party (e.g., defendant vs. plaintiff) that is
filed with defendant’s responsive pleading (answer).
b. Two Types
i. Compulsory Counterclaim
1. A defendant’s claim against the plaintiff that arises from the same
transaction or occurrence as the plaintiff’s claim;
2. Must be filed with the defendant’s answer in the pending case (or
else defendant waives the right to sue on the claim)
a. Exceptions
i. If the claim had already been asserted before
plaintiff sued defendant, then it is not compulsory
ii. If the defendant never had to answer (because he
asserted a pre-trial motion and it was granted) he
never had to assert the compulsory counterclaim, so
he can bring the claim in a separate case
3. If there is no independent basis of subject matter jurisdiction for
the counterclaim, the court may still hear the claim under ancillary
supplemental jurisdiction
ii. Permissive Counterclaim
1. Requirements:
a. A claim not arising from the same transaction or
occurrence as the plaintiff’s claim;
b. Claim does not have to be asserted in a pending case (can
sue in a separate action);
c. Claim must meet the requirements for subject matter
jurisdiction (diversity or federal question)
i. Claim can never meet the requirements for ancillary
supplemental jurisdiction because the claim does
not arise out of the same transaction or occurrence
Cross-Claim (claims made against a co-party; defendant v. defendant)
a. Requirements
i. Claim must arise out of the same transaction or occurrence as the
underlying action; and
ii. Meet the requirements for subject matter jurisdiction (diversity or federal
question) or supplemental jurisdiction
Amending Pleadings
a. A plaintiff has a right to amend a complaint one time prior to when the defendant
serves an answer
b. Relation Back Doctrine
i. Amended pleadings relate back to the date of the original pleading if they
concern the same conduct, transaction, or occurrence as the original
pleading
1. Example: P files a complaint on July 1. The statute of limitations
runs on July 10. P then files and serves an amended complaint
(adding a new related claim) on July 15 (before the defendant has
IX.
answered). P’s amended complaint is not time barred and relates
back to the date of the first complaint.
ii. New parties may be added (e.g., changing the defendant) (and the
amended complaint will relate back) if:
1. The new party receives notice of the action so that he will not be
prejudiced in maintaining his defense on the merits;
2. The new party knew that but for a mistake, he would have been
named originally; and
3. This all occurs within 120 days after the filing of the original
complaint
c. A defendant has right to amend an answer one time within 20 days after serving
the answer
d. If there is no right to amend, a party can seek leave of court, and it will be granted
if “justice so requires” (courts usually allow unless there is delay or prejudice)
e. If, at trial, plaintiff introduces evidence regarding a claim not contained within the
original complaint, and the defendant does not object (impliedly consents to a trial
of this new claim), after trial, the plaintiff can move to amend the pleading or
pretrial conference order to conform to the evidence (to show the new complaint)
i. However, if the defendant does object to the new claim, the evidence
regarding the new claim is inadmissible because it is at “variance with the
pleadings”
Joinder of Parties and Claims
a. Joinder of Parties
i. Parties may join as plaintiffs or defendants (permissive joinder) whenever:
1. Some claim is made by each plaintiff against each defendant
relating to or arising out of the same series of occurrences or
transactions;
2. There is at least one question of fact or law common to all the
parties; AND
3. The requirements for subject matter jurisdiction (federal question
or diversity) or supplemental jurisdiction are met for each claim
ii. If the plaintiff wants to join an additional defendant, joinder will be
allowed if:
1. There is an independent basis for subject matter jurisdiction; or
2. The additional claims arise out of the same transaction or
occurrence as the underlying claim, the original claim’s
jurisdiction is not based on diversity, and the court, in its
discretion, decides to hear the claim
a. Reasons the court would not hear the claim
i. The claim is novel or complex;
ii. The state claim predominates over the federal
claim; or
iii. The federal claim has been dismissed
iii. Compulsory Joinder (when necessary and indispensable parties must be
joined)
1. A party (an absentee) is “needed for just adjudication” and must be
joined by the court if:
a. Complete relief cannot be given to existing parties in his
absence (worried about multiple suits);
b. Disposition in his absence may impair his ability to protect
his interest in the controversy (worried about harm to the
absentee);
c. His absence would expose existing parties to a substantial
risk of double or inconsistent obligations (worried about
defendant); AND
d. The party is amenable to process (there is personal
jurisdiction over him) and his joinder will not destroy
diversity or venue
2. If Joinder is Impossible (no personal jurisdiction or joinder will
destroy diversity or venue)
a. The court will use factors to decide whether to proceed in
the party’s absence or dismiss:
i. Whether the judgment in the party’s absence would
prejudice him or the existing parties
ii. Whether the prejudice can be reduced by shaping
the judgment
iii. Whether a judgment in the party’s absence would
be adequate
iv. Whether the plaintiff will be deprived of an
adequate remedy if the action is dismissed
3. Joint tortfeasors subject to joint and several liability are not
necessary parties
4. Bulge Rule
a. An absentee joined as a necessary party may be served out
of state, within 100 miles of the federal courthouse,
regardless of state law.
b. Joinder of Claims
i. A plaintiff can join any number and type of claims against a defendant.
ii. When multiple plaintiffs or multiple defendants are involved, it is essential
only that at least one of the claims arise out of a transaction in which all
were involved
iii. A plaintiff may join two claims if success on the first is a prerequisite to
the second
iv. When jurisdiction is based on diversity of citizenship between the plaintiff
and the defendant, the plaintiff may aggregate all claims that he has
against the defendant to satisfy the jurisdictional amount
v. When jurisdiction is based on federal question, a nonfederal claim can be
joined only if it is regarded as part of the same case or controversy as the
federal claim
vi. Whenever claims are joined, the requirements of subject matter
jurisdiction must be met
X.
c. Impleader (when defendant wants to bring in another third-party defendant for
indemnity or contribution)
i. Defendant (who becomes a third-party plaintiff) has the right to implead a
third party defendant within 10 days of serving his answer (after that, he
needs court permission)
ii. In an underlying diversity case, there does not have to be diversity (or
existing diversity may be destroyed) for the third party defendant to be
joined if there is ancillary supplemental jurisdiction for the claim
1. A plaintiff can assert a claim against the third party defendant only
if it arises from the same transaction or occurrence as the
underlying claim and meets the requirements for subject matter
jurisdiction (federal question or diversity) or supplemental
jurisdiction
2. The third party defendant can assert a claim against the plaintiff, if
it arises from the same transaction or occurrence as the underlying
case and meets the requirements for subject matter jurisdiction
(federal question or diversity) or supplemental jurisdiction
iii. Bulge Rule
1. Third parties joined by impleader may be served out of state,
within 100 miles of the federal courthouse, regardless of state law.
Intervention (where an absentee wants to join a pending suit and bring herself in as a
plaintiff or defendant)
a. Intervention of Right
i. Available whenever:
1. The absentee claims an interest in the property or transaction that
is the subject matter of the action; and
2. The disposition of the action without him may impair his ability to
protect that interest
ii. There is no independent basis of subject matter jurisdiction required when
one intervenes as a defendant (ancillary supplemental jurisdiction is
satisfied)
1. However, under the supplemental jurisdiction statute, there is no
ancillary supplemental jurisdiction over claims made by one
seeking to intervene as a plaintiff (meaning there must be some
independent basis of subject matter jurisdiction)
iii. Does not require independent jurisdictional grounds
b. Permissive Intervention (discretionary with the court)
i. Available when:
1. The applicant’s claim or defense and the main action have
common questions of law or fact (no direct personal or pecuniary
interest is required); and
2. The intervention is supported by its own jurisdictional ground (and
won’t destroy diversity);
c. Interpleader
i. When one holding property or money (stakeholder) forces all potential
adverse claimants (those who want the property/money) into a single
lawsuit to avoid multiple litigation and inconsistency
ii. Two Types:
1. Rule 22 Interpleader
a. Requires:
i. Complete diversity between the stakeholder and
every adverse claimants and an excess of $75,000 in
issue; OR
ii. A federal question claim
b. Normal service and venue rules apply
2. Statutory (section 1335) Interpleader
a. Requires:
i. Minimum diversity between the claimants (one
claimant must be diverse from one other claimant)
and $500 in issue
b. Service may be nationwide (no personal jurisdiction
problems) and venue is proper where any claimant resides
d. Class Actions (where representative(s) sue on behalf of a group)
i. Requirements (all must be met)
1. Parties are too numerous for practical joinder (for them all to be
parties in the case);
2. There are some questions of law or fact that are common to the
class;
3. Representative’s claims/defenses are typical of those of the class;
and
4. The representative and his lawyer will fairly and adequately
represent the class;
5. Class Must Fit Within One of Three Types:
a. Prejudice Class Action
i. Class treatment is necessary to avoid harm either to
class members or to the opposing party (e.g., there
are many claimants to a fund and individual suits
would deplete the fund leaving some without
remedy)
ii. No notice to potential class members is required and
no right to opt out
b. Injunction or declaratory judgment (not damages) is sought
because the class members were treated alike by the other
party (e.g., discrimination in employment)
i. No notice to potential class members is required and
no right to opt out
c. “Damages” Class Action
i. Requirements:
1. Common questions predominate; and
XI.
2. A class action is the superior method to
handle the dispute (e.g., mass tort case
where the major common question is
whether the tortfeasor was negligent)
ii. Notification Required:
1. Class representative must pay to give
individual notice to all members reasonably
identifiable, telling them:
a. They can opt out;
b. They will be bound if they don’t opt
out; and
c. They can enter a separate appearance
through counsel
ii. Who Is Bound by a Class Judgment
1. All class members are bound, except for those who opt out of a
“Damages” type class action
iii. Subject Matter Jurisdiction
1. Class action can invoke a federal question; OR
2. Invoke diversity of citizenship
a. Only the citizenship of the class representative(s) matter
b. As to amount in controversy requirement:
i. Traditional Rule: Every class member’s claim must
be in excess of $75,000
ii. Modern Trend (and followed by the 9th Circuit):
Only the representative’s claim must exceed
$75,000 regardless of other class members’ claims
iv. Settlement or dismissal of a class action must be approved by the court
(and court, before approval, must notify the class members and get their
feedback)
Discovery
a. Required Disclosures (must be produced even though no one asks for it)
i. Initial Disclosures
1. Unless court order or stipulation of the parties provides otherwise,
within 14 days of a Rule 26(f) conference, the parties must identify
persons and documents “likely to have discoverable information
that the disclosing party may use to support its claims or defenses,”
as well computation of damages and insurance for all or part of
judgment
ii. Experts
1. As directed by the court, parties must identify experts “who may
be used at trial” and produce a written report containing their
opinions, data used, qualifications, compensation for the study, and
etc.
a. Experts must be paid reasonable fees
b. If an expert retained in anticipation of litigation is not
expected to testify, no discovery will be allowed absent
exceptional need
iii. Pre-Trial
1. No later than 30 days before trial, parties must produce detailed
information about trial evidence, documents, and the identity of
witnesses who will testify live or by deposition
iv. Duty to Supplement
1. If a party learns that its response to required disclosure is
incomplete or incorrect, it must supplement its response
b. Discovery Tools (cannot be used until there has been a Rule 26(f) conference,
unless a court order or stipulation says otherwise)
i. All substantive answers must be signed under oath
ii. Every discovery request and response must be signed by counsel
certifying it is warranted, not interposed for improper purposes, and not
unduly burdensome
iii. Duty to Supplement
1. If a party learns that its response to a discovery request is
incomplete or incorrect, it must supplement its response
iv. Tools that Can be Used to Get Information from a Non-Party or a Party
1. Deposition
a. Questions can be oral or written
b. Answers are oral, under oath, and in response to questions
asked by each party or her counsel
c. If used on a non-party, the non-party should be subpoenaed
(or else he is not compelled to attend)
d. A party deponent does not have to be subpoenaed; notice of
the deposition, properly served, is sufficient to compel
attendance
e. A party cannot object at trial to any evidentiary question
which could have been remedied at the deposition
f. A party cannot take more than 10 depositions or depose the
same person more than once (unless court orders it or the
parties stipulate to it)
g. Deposition is one day of seven hours (unless court order or
the parties’ stipulation says otherwise)
h. Use of depositions at trial (all subject to the rules of
evidence):
i. To impeach any deponent;
ii. For any purpose if the deponent is an adverse party;
iii. For any purpose if the deponent (regardless of
whether a party) is unavailable for trial, unless that
absence was procured by the party seeking to
introduce the evidence
2. Requests to Produce
a. Requests by a party to another party (or, if accompanied by
a subpoena, to a non-party) requesting that he make
available for review and copying various documents or
things, or to permit entry upon designated property for
inspection or measuring
b. Responses to a request to produce must be made within 30
days
v. Tools that Can be Used to Get Information from a Party Only
1. Interrogatories
a. Questions are in writing
b. Answers are in writing, and under oath
c. Party receiving interrogatories must respond or object
within 30 days
i. The party can say they don’t know the answer to a
question, but only after reasonable investigation
1. If the answer could be found in business
records and it would be burdensome to find
it, the propounder can be allowed access to
those records)
d. At trial, a party cannot use their own answers, but others
may be used per regular rules of evidence
e. A party may only serve 25 interrogatories on another party
(including subparts) (unless a court order or party
stipulation says otherwise)
2. Physical or Mental Examination
a. Only available:
i. Through court order upon a showing:
ii. That the party’s (or a person in the party’s control
(e.g., parent litigating on behalf of her child)) health
is in actual controversy;
iii. And a showing of good cause (i.e., you need it and
cannot get it elsewhere)
b. The person examined may obtain a copy of the report
without making this showing, but by requesting a copy
without making this showing, he waives his doctor-patient
privilege regarding reports by his doctors regarding the
same condition
3. Requests for Admission
a. A request by one party to another party to admit the truth of
any discoverable matters
b. Party must respond to a request for admission within 30
days
i. The response must either admit or deny
1. Exception: It can indicate a lack of
information if the party has indicated that he
has made a reasonable inquiry
2. A failure to deny is tantamount to admission
(but the party can amend if the failure is not
made in bad faith)
c. Substantive Scope of Discovery
i. A party can discover anything “relevant to a claim or defense.”
ii. For good cause, the court can allow discovery of anything relevant to the
subject matter of the case
1. “Relevant”
a. Anything reasonably calculated to lead to admissible
evidence (you can discover stuff that may end up being not
admissible)
iii. Privileged matter is not discoverable (evidentiary privileges)
iv. Work product (“trial preparation materials”; material prepared in
anticipation of litigation) is not discoverable (whether it is prepared by the
attorney, the party, or any representative of the party)
1. Exception:
a. It is discoverable if there is:
i. Substantial need; and
ii. The information is not otherwise available
v. Mental impressions, opinions, conclusions, and legal theories are
absolutely protected from discovery
d. Enforcement of Discovery Rules & Sanctions
i. Discovery is usually worked out among the parties, without court
intervention. In problem cases, the court can get involved.
ii. When making any motion against a party, the party must certify that he
tried in good faith to get the materials from the other side
1. How Presented to the Court
a. Receiving party can seek a protective order under Rule
26(c) (e.g., because the request is over burdensome, trade
secrets are involved and their use should be limited to this
case, etc.)
b. Receiving party answers some discovery requests, but
objects to others. If objections are not well taken, this is a
partial violation (imposing a light sanction)
i. Possible Sanctions for parties: An order compelling
answers, plus costs of associated with seeking the
order
1. If the party violates the new order, the court
may impose these penalties (plus costs and
attorneys fees involved with seeking the
order):
a. Impose an establishment order
(establishes the facts requested as
true);
b. Strike pleadings of the disobedient
party (as to issues relating to
discovery)
c. Disallow evidence from the
disobedient party (on such issues)
2. If the party violates the order with bad faith,
the court may:
a. Dismiss the plaintiff’s case; or
b. Enter a default judgment against the
defendant
3. The violating party may also be held in
contempt (except in cases involving refusal
to submit to mental or physical exams)
ii. Possible Sanctions for non-parties
1. Contempt, for violating subpoenas or court
orders
iii. Possible Sanctions against attorney
1. Attorney may be liable for all expenses
(including attorney’s fees) incurred by the
other side if he counseled one of these bad
acts
c. Receiving party fails completely to attend a disposition,
respond to interrogatories, or to respond to requests for
production. This is a total violation (heavy sanction).
i. Possible Sanctions for a Party
1. Court may impose these penalties (plus costs
and attorneys fees involved with seeking the
order):
a. Impose an establishment order
(establishes the facts requested as
true);
b. Strike pleadings of the disobedient
party (as to issues relating to
discovery)
c. Disallow evidence from the
disobedient party (on such issues)
2. If the party violates the order with bad faith,
the court may:
a. Dismiss the plaintiff’s case; or
b. Enter a default judgment against the
defendant
3. There can be no contempt, however, because
the party did not violate any court order
ii. Possible Sanctions for non-parties
1. Contempt, for violating subpoenas or court
orders
XII.
iii. Possible Sanctions against attorney
1. Attorney may be liable for all expenses
(including attorney’s fees) incurred by the
other side if he counseled one of these bad
acts
d. Party submits a false denial to a request to admit
i. Sanctions for Parties
1. The other party may recover only costs and
attorney’s fees related to having to prove the
issue
ii. Possible Sanctions against attorney
1. Attorney may be liable for all expenses
(including attorney’s fees) incurred by the
other side if he counseled one of these bad
acts
e. Party unjustly fails to make a required disclosure
i. Sanctions for Parties
1. Other side can choose to treat it as a partial
answer/partial objection to the discovery
request or as a complete failure to respond;
AND
2. Failing party may not use that evidence at
trial, unless the failure was harmless or
justified
ii. Possible Sanctions against attorney
1. Attorney may be liable for all expenses
(including attorney’s fees) incurred by the
other side if he counseled one of these bad
acts
Termination of a Case Without Trial
a. Voluntary Dismissal by Plaintiff
i. Plaintiff may file one written notice of voluntary dismissal before the
defendant answers or moves for summary judgment (and case will be
dismissed without prejudice)
b. Default and Default Judgment
i. Entry of Default
1. Clerk is asked to enter a default on the docket (purely ministerial
act).
ii. Default Judgment
1. After the default is entered, plaintiff may seek a default judgment
(which will be enforced so that plaintiff may recover money)
2. The clerk may enter a default judgment when:
a. There has been no response at all by the defendant within
20 days after service of process
b. The claim is for a certain sum (plus costs)
c. The plaintiff gives an affidavit that the sum is owed; AND
XIII.
d. The defendant is not a minor or an incompetent
3. The court (after a hearing on damages) may enter a default
judgment when any of the four prior things have not been
established
a. When the court is going to hold a hearing on damages, the
defendant is entitled to notice only if he has made an
appearance (e.g., filed a motion to dismiss that was denied,
etc.)
c. Dismissal for Failure to State a Claim (“demurrer” in some state courts) (Rule
12(b)(6))
i. Defendant can move to dismiss for failure to state a claim prior to filing an
answer
ii. Court takes all of the allegations of the plaintiff’s complaint as true and
asks: if plaintiff shows what she alleged, would she win a judgment?
1. This motion tests only the sufficiency of the plaintiff’s allegations,
and does not address evidence
iii. If the court grants the defendant’s motion, it will probably allow the
plaintiff to amend his complaint
d. Motion for a judgment on the pleadings
i. Does exactly the same thing as Rule 12(b)(6), but is filed after pleadings
are closed (after defendant has filed an answer)
e. Motion for Summary Judgment
i. Summary judgment must be granted if:
1. From the evidence (affidavits, discovery materials), there is no
genuine issue of material fact; and
2. The moving party is entitled to judgment as a matter of law
ii. Court looks at the evidence proffered by the parties and it must be
admissible
1. The pleadings submitted by the parties are not evidence (unless
specifically told so in the facts or told they are “verified
pleadings”), so each party should put in evidence (e.g., affidavits)
iii. Court will generally view the evidence in the light most favorable to the
nonmoving party
Conferences
a. Rule 26(f) Meeting
i. Unless a court order says otherwise, at least 21 days before scheduling a
conference or order, the parties must meet to discuss claims, defenses, and
settlement.
ii. A discovery plan must be presented by the parties to the court within 14
days
iii. Generally, parties cannot use discovery until after the Rule 26(f) meeting
b. Scheduling Order
i. Unless local rules or a court order says otherwise, the court can hold a
conference among counsel no more than 120 days after service of process
on the defendant.
ii. The conference is for scheduling cut-offs for joinder, amendment,
motions, and the scheduling order sets these out (blueprint for the
litigation)
c. Pretrial Conferences
i. Court may hold pretrial conferences as needed to expedite the case and
foster settlement.
ii. The final pretrial conference order basically supersedes the pleadings
1. However, it may be amended:
a. “To prevent manifest justice;” or
b. By conforming to the evidence, if the evidence beyond the
pretrial conference order is proffered and not objected to
XIV. Trial, Judgment, and Post-Trial Motions
a. Jury Trial
i. Requirement of Demand
1. Party must demand a jury trial in writing (in a pleading or a
separate document) no later than 10 days after service of the last
pleading raising a jury-triable issue
ii. Right to a Jury Trial in Civil Cases (Federal Court)
1. The Seventh Amendment preserves the right to a jury trial in
federal courts in all suits of “common law” (actions at law where
there is a claim for damages), but not in suits in equity (seeking an
injunction).
2. If a case arises that involves both law and equity, the jury will
decide the facts underlying the law issues first, and the judge will
then decided the equity issues
a. Judge is bound by the jury’s findings on the factual issues
iii. Jury Selection (Voir Dire)
1. Each side has unlimited strikes of potential jurors for cause
2. Each side has three peremptory strikes
a. Must be used in a race and gender neutral manner
iv. Motion for Judgment as a Matter of Law (jnol) (directed verdict)
1. A motion to take the case away from the jury
2. Defendant can move for a jnol twice (at the close of the plaintiff’s
evidence and at the close of all evidence)
3. Plaintiff can move for a jnol at the close of all evidence
4. Court will grant the motion when reasonable people could not
disagree on the result
5. Court generally views the evidence in the light most favorable to
nonmoving party
b. Renewed Motion for Judgment as a Matter of Law (what used to be called a
judgment notwithstanding the verdict “jnov”)
i. If a party made a motion for a judgment as a matter of law at the close of
all of the evidence, and then loses at trial, that party can file a renewed
motion for judgment as a matter of law no later than 10 days after entry of
judgment
XV.
1. If the party failed to make a motion for a judgment as a matter of
law at the close of all evidence, he is deemed to have waived the
right to make the renewed motion for judgment as a matter of law
ii. Court will grant the motion when reasonable people could not disagree on
the result
iii. Court generally views the evidence in the light most favorable to the
nonmoving party
c. Motion for a New Trial
i. If a judgment has been entered, but errors committed at trial require a new
trial, a party can move for a new trial no later than 10 days after entry of
judgment
ii. Grounds for a New Trial
1. Error at trial makes the judgment unfair (e.g., wrong jury
instructions or evidentiary ruling);
2. New evidence surfaces that could not have been obtained with due
diligence for the original trial
3. Prejudicial misconduct of a party, attorney, third party, or juror
(e.g., juror lied on voir dire or made independent investigation of
the accident scene)
4. Judgment is against the weight of the evidence (serious error of
judgment by the jury)
5. Inadequate or excessive verdict
Appeal
a. Final Judgment Rule
i. A losing party can only appeal from a final judgment (an ultimate decision
by the trial court on the merits of the entire case; when there is nothing
else for the court to decide on the merits)
1. Denial of a motion for summary judgment and a grant of a motion
for a new trial are not final judgments
2. The grant or denial of a renewed motion for judgment as a matter
of law is a final judgment
b. Interlocutory (non-final) Review
i. Interlocutory Orders Reviewable as a Matter of Right
1. Orders granting, modifying, or refusing injunctions
2. Appointing or refusing to appoint receivers
3. Findings of patent infringement where only an accounting is left to
be accomplished by the trial court
4. Orders affecting possession of property (e.g., attachments)
ii. Interlocutory Appeals Act
1. Allows an appeal of a nonfinal order if:
a. The trial judge certifies that it involves a controlling issue
of law as to which there is substantial ground for difference
of opinion; and
b. The court of appeals agrees to hear it
iii. Collateral Order Rule
1. The appellate court has discretion to hear and rule on an issue if:
a. It is distinct from the merits of the case;
b. Involves an important legal question; and
c. Is essentially unreviewable if we wait until final judgment
(e.g., claim by a state that it has 11th Amendment
immunity)
iv. When more than one claim is presented in a case (e.g., claim and
counterclaim), or when there are multiple parties, the trial court may
expressly direct entry of final judgment as to one or more of them if it
makes an express finding that there is no just reason for delay
v. Extraordinary Writ
1. Not technically an appeal, but an original proceeding in appellate
court to compel the trial judge to make or vacate a certain order
2. Available only to enforce a clear legal duty (not a substitute for
appeal)
vi. Class Actions
1. Court of appeals has discretion to review an order granting or
denying certification of a class action, if review is sought within 10
days of the order
2. The appeal does not stay proceedings at the trial court unless the
trial judge or court of appeals so orders
XVI. Res Judicata and Collateral Estoppel (affirmative defenses; defendant must include in
answer)
a. Generally
i. The court in Case 2 should apply the law of the system that decided Case
1 when determining res judicata and collateral estoppel issues
b. Res Judicata (claim preclusion) (analyze the validity of the judgment and the
finality on the merits for each claim)
i. Once a valid and final judgment on the merits has been rendered on a
particular cause of action, the plaintiff is barred by res judicata from trying
the same cause of action against the same defendant(s) in a later lawsuit
1. Res judicata is limited to “parties,” so it does not bar similar causes
of action brought by others
2. “Final judgment on the merits”
a. Almost all judgments and involuntary dismissals are on the
merits except for those based on jurisdiction, venue,
indispensable parties, dismissal under the statute of
limitations (in some courts), or dismissal without prejudice
(in some courts)
3. “Same cause of action”
a. Most jurisdictions define “cause of action” or “claim” as
including any rights to relief arising from a transaction or
occurrence or a series of related transactions
i. Some jurisdictions say there is a separate cause of
action or claim for property damage and for
personal injury, even if they were caused in a single
transaction (because personal injury and property
rights are different primary rights) (“primary rights”
theory)
b. Note: Look to whether the second cause of action raises a
different, but related, law that may require proof of
additional or different elements (in which case, argue that
the causes of action are not the same)
ii. Res judicata bars subsequent causes of action arising out of the same
transaction or occurrence which should have been asserted in the earlier
lawsuit
1. This is true unless it would be unfair to apply res judicata under the
circumstances (e.g., plaintiff didn’t become aware of the facts
constituting the claim until after the first lawsuit)
iii. “Merger” vs. “Bar”
1. When the one claiming res judicata in the second case won Case 1,
and res judicata is applied, it is called “merger”
2. When the one claiming res judicata in the second case lost Case 1,
and res judicata is applied, it is called a “bar” (he is barred from
suing again)
c. Collateral Estoppel (issue preclusion)
i. A final judgment on an issue for plaintiff or defendant is conclusive in a
subsequent action involving a different cause of action between them or
their privies, as to issues actually litigated and essential and necessary to
the judgment in the first action (that issue is deemed established in the
second action)
1. Collateral estoppel may only be asserted against someone who
was a party (or was in privity with a party) to the original case (due
process requirement)
2. Collateral estoppel may be used by:
a. Traditional “Mutuality” Rule
i. Only someone who was a party to the original suit
could use/benefit from collateral estoppel
ii. Present Status of Mutuality
1. In jurisdictions where the mutuality
principal is being eroded away, courts will
uphold collateral estoppel when:
a. The issue decided in the first case is
identical to that raised in the second;
b. There was a final judgment on the
merits;
c. The party against whom the
judgment is to be used had a fair
opportunity to be heard on the
critical issue; and
d. The posture of the case is such that it
would not be unfair or inequitable to
a party to apply collateral estoppel
b. Modern Rules
i. Will allow nonparties to use/take advantage of a
prior judgment when claimed by:
1. The defendant in the second case who was
not a party to the original case (“non-mutual
defensive collateral estoppel”); or
2. The plaintiff in the second case who was not
a party to the original case in some cases if it
is fair (“non-mutual offensive collateral
estoppel”)
a. Factors Used to Determine if It Is
Fair:
i. Party collateral estoppel is
being asserted against had a
full opportunity to litigate in
the first case;
ii. Party collateral estoppel is
being asserted against could
foresee multiple litigation;
iii. Plaintiff could not have
joined easily in the first case;
and
iv. There are no inconsistent
judgments on record (i.e., no
multiple litigation arriving at
different results on the issue)