1
Victorio N. Ang
500.3 Civil procedure
Outline
Civil procedure
Territorial jurisdiction
Types
Basis for territorial jurisdiction,
Rule 4(k)
Ways to give consent to territorial jurisdiction
Waivable defense
Long-arm statutes
Two requirements for exercise of jurisdiction by state court
Study of a legal system and how it works
The power of a court to engage in binding adjudication over a person or a thing
1.
In personam – Action taken against a person, does not apply if the person is outside the state
2.
In rem – Action against a thing, damages limited to property itself
3.
Quasi in rem – Action against a person based on his interest in property located within a court’s territory a.
Type I – dispute about the property itself b.
Type II – dispute unrelated to the property
1.
Service of summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant a.
who is subject to jurisdiction of a state court in the state in which the district is located, or b.
who is a party joined under Rule 14 (impleader) or Rule 19
(compulsory joinder of parties) and is served within a United States judicial district and not more than 100 miles from the place from which the summons issues, or c.
who is subject to the federal interpleader jurisdiction under §1335, or d.
when authorized by federal statute.
2.
If the exercise of jurisdiction is consistent with the Constitution and federal law, service of summons is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the defendant not subject to the jurisdiction of any state court. o Making general appearance to give your side o Failure to make a special appearance questioning territorial jurisdiction o Signing a contract giving consent to jurisdiction of courts in a certain state
Defense of lack of personal jurisdiction may be waived, but defense of lack of subject matter jurisdiction may be made at anytime. Rule 12(h).
Some states’ long-arm statutes authorize jurisdiction to the maximum extent permitted by the U.S. Constitution.
Other states have more detailed long-arm statutes setting out particular circumstances under which the state intends to exercise jurisdiction.
1.
Minimum contacts
2.
Reasonableness analysis, 211. a.
The burden on the defendant b.
Forum state’s interest in adjudicating the dispute c.
Plaintiff’s interest in obtaining convenient and effective relief d.
The interstate judicial system’s interest in obtaining the most efficient resolution of controversies e.
The shared interest of the several States in furthering fundamental substantive social policies

2
Who may effect service
Time
Defendant within a U.S. judicial district, Rule 4(e)
Defendant in a foreign country,
Rule 4(f)
Notice
Pennoyer v. Neff, 177.
Exercise of personal jurisdiction over absent defendant violated due process.
International Shoe Co. v. Washington, 196.
Defendant doesn’t have to be physically present in the forum State. The standards for jurisdiction are “minimum contacts” and “traditional notions of fair play and substantial justice.”
World-Wide Volkswagen v. Woodson, 209.
The Due Process Clause forbids the Oklahoma state court from exercising jurisdiction over World-Wide and Seaway. One unilateral act by a third party did not create a contact between Seaway and Oklahoma for the purpose of jurisdiction.
Asahi v. Superior Court, 253.
Cheng Shin impleaded Asahi on the theory that if Cheng Shin was liable to
Zurcher, then Asahi was liable to Cheng Shin. Assertion of jurisdiction is unreasonable because parties are foreign companies.
Burger King v. Rudzewicz, 238.
Florida state long-arm statute provides for jurisdiction over dispute arising from breach of contract.
Shaffer v. Heitner, 286.
Prohibits the attachment of property to reach the person and exercise jurisdiction over him
Burnham v. Superior Court of California, 302.
Service of process on defendant physically present in forum State was in accordance with due process.
A summons shall be served together with a copy of the complaint. The plaintiff is responsible for service of summons and complaint. Rule 4(c)(1).
Service may be effected by any person not a party and at least 18 years of age. Rule 4(c)(2).
If service of summons and complaint is not made within 120 days of filing of complaint, the court shall dismiss the action without prejudice. If the plaintiff shows good cause for failure, the court shall extend the time for service for an appropriate period. Rule 4(m).
Service may be effected in any U.S. judicial district
1.
pursuant to the law of the state in which the district is located
2.
by delivery of copies of summons and complaint to the defendant personally or by leaving copies at defendant’s residence wit a suitable person, or by delivering copies to an agent authorized by appointment or by law to receive service of process.
Unless otherwise provided by federal law, service may be effected in a place not within any U.S. judicial district
1.
by any internationally agreed means reasonably calculated to give notice
2.
if there is no internationally agreed means of service, provided that service is reasonably calculated to give notice a.
in the manner prescribed by the law of the foreign country, or b.
as directed by foreign authority, or c.
unless prohibited by the law of the foreign country, by i.
personal delivery to the defendant of copies of summons and complaint, or ii.
any form of mail, addressed and dispatched by the clerk of court to defendant and requiring a signed receipt d.
by other means not prohibited by international law as may be

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Seizure of property
Waiver of service
Waivable defense
Federal question jurisdiction
Art. III, §2
§1331
Defense of lack of subject matter jurisdiction
Diversity jurisdiction
§1332(a)
Citizenship of corporations
Citizenship of representative directed by the court.
If federal statute so provides, the court may assert jurisdiction over property.
Rule 4(n)(1).
A defendant who waives service of summons does not waive any objection to personal jurisdiction or venue. Rule 4(d)(1).
Defense of insufficiency of process or insufficiency of service may be waived. Rule 12(h)(1).
Mullane v. Central Hanover Bank & Trust, 317.
The notice requirement of NY Banking Law was insufficient for the purposes of the Due Process Clause. Notice not reasonably likely to reach intended parties.
The judicial power shall extend to all cases in law and equity arising under the Constitution, federal law, and treaties made under their authority, to all cases affecting ambassadors, to all cases of admiralty and maritime jurisdiction, to controversies with the U.S. as a party, to controversies between two or more States, between a State and citizens of another State, between citizens of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects.
The district courts shall have original jurisdiction of all civil actions under the constitution, laws, or treaties of the United States.
Congress must grant power to federal courts.
Whenever it appears that the court lacks subject matter jurisdiction, the court shall dismiss the action. Rule 12(h)(3).
Louisville & Nashville v. RR Mottley, 385.
SCOTUS had nothing to say on the merits of the case because federal courts did not have jurisdiction over the case.
The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the amount of $75,000 and is between
1.
citizens of different States,
2.
citizens of a State and citizens or subjects of a foreign State
3.
citizens of different States and in which citizens or subjects of a foreign
State are additional parties, and
4.
a foreign State as plaintiff and citizens of a State or different States.
Complete diversity required under §1332. Minimal diversity can be used for some cases where federal statute permits jurisdiction.
A corporation is deemed a citizen of any state in which it is incorporated and of the State where it has its principal place of business, §1332(c)(1).
There is only one principal place of business, but a party can have multiple places of incorporation.
The legal representative of a decedent’s estate is deemed a citizen of the same State as the decedent. §1332(c)(2).

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Amount in controversy
Defense of lack of subject matter jurisdiction
Venue
§§1391(a) and (b)
Diversity
Federal question
Residence of corporations
Alien
Waivable defense
Forum non conveniens
Improper venue
Does not include interests and costs.
If parties have common and undivided interest, they can aggregate claims for the purposes of requirement for amount in controversy. If one plaintiff asserts multiple claims against the same defendant, he can aggregate claims.
Whenever it appears that the court lacks subject matter jurisdiction, the court shall dismiss the action. Rule 12(h)(3).
Elizabeth Taylor problem: A U.S. citizen with no domicile in the fifty states cannot sue anyone in federal court because diversity of jurisdiction does not apply.
Mas v. Perry, 400.
Mr. Mas was considered a domiciliary of France because he did not show intent of having new domicile. Mrs. Mas was considered a domiciliary of
Mississippi because it was there that she was last domiciled and intended to remain indefinitely there.
The proper place for trial
A civil action may be brought in
1.
a judicial district where any defendant resides, if all defendants reside in the same State, or
2.
a judicial district in which a substantial part of the events or omission giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.
A civil action wherein jurisdiction is founded only on diversity of citizenship may be brought in a judicial district in which any defendant is subject to personal jurisdiction at the time of commencement, if there is no district in which the action may otherwise be brought. §1391(a)(3).
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought in a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. §1391(b)(3).
For purposes of venue, a defendant corporation is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time of commencement. In a Sate with more than one judicial district, the defendant corporation is deemed to reside in any district within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State. If there is no such district, the defendant corporation is deemed to reside in the district in which it has the most significant contacts. §1391(c).
May be sued in any district. §1391(d).
Defense of improper venue may be waived. Rule 12(h)(1).
Even if venue is proper, for the convenience of parties and witnesses a district court may transfer any civil action to another district where it might have been brought. §1404(a).
If venue is improper, the district court shall dismiss, or if it be in the interest of justice, transfer the case to any district where it could have been brought.
§1406(a).

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Removal of jurisdiction
Limitation on diversity cases
Federal question claim joined with other claims
John Doe defendants
Procedure
Well-pleaded complaint rule
Options for applying wellpleaded complaint rule
§1406 only applies if there is a viable alternative forum. However, even if it applies, the court will use a balancing test to see if transfer will be reasonable. Ravelo Monegro v. Rosa, pack.
Except as otherwise expressly provided by Congress, any civil action brought in a state court of which the federal district courts have original jurisdiction, may be removed by defendants to the federal district court embracing the place where such action is pending. §1441(a).
Case cannot be removed to federal district court if any defendant is a citizen of forum State. §1441(b).
If a claim within federal question jurisdiction is joined with one or more otherwise non-removable claims, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. §1441(c).
For purposes of removal, the citizenship of defendants sued under fictitious names is ignored. §1441(a).
Defendant files for removal at district court for the district in which action is pending. §1446(a).
Notice of removal filed within 30 days after receipt of copy of initial pleading, or within 30 days after service of summons, whichever period is shorter. §1446(b).
After the filing of notice of removal defendant shall give written notice to all adverse parties. The court proceeds no further unless and until the case is remanded. §1446(d).
An action can be removed to federal court only if a federal question arises on the plaintiff’s well-pleaded complaint. o Federal law explicitly creates law of action o Federal law can be interpreted to imply right of action o Federal claim and state claim based on same facts, hence question on federal law is connected to question on state law
Caterpillar v. Williams, 434.
Respondents sued in California state court based on state law claims.
Defendants filed for removal to federal district court because the collective bargaining agreement made it an action subject to federal law.

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Multi-party litigation
Multi-claim litigation
Class action
Pre-requisites, Rule 23(a)
Supplemental jurisdiction
Limitation on diversity cases
Well-pleaded complaint rule
Options for applying wellpleaded complaint rule
Original claim dismissed
Improper collusion o Permissive joinder of parties o Compulsory joinder of parties o Impleader o Intervention o Class action o Joinder of claims o Permissive counterclaims o Compulsory counterclaims o Cross-claims
A lawsuit in which a single person or a small group of people represents the interests of a larger group. o Size – The class is so numerous that joinder of all members is impracticable. o Commonality – There are questions of law or fact common to the class. o Typicality – Claims or defenses of the representative party are typical of the claims or defenses of the class. o Adequacy – Representative party will fairly and adequately protect the interests of the class.
Supervision of the class lawyer. Rules 23(g) and (h).
Appeal from order granting or denying class action certification. Rule 23(f).
Except as provided in subsections (b) or (c) or as expressly provided otherwise by federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Constitution. §1367(a).
If original jurisdiction is founded solely on §1332 (diversity of citizenship), there can be no supplemental jurisdiction over claims against parties brought under Rule 14 (impleader), 19 (compulsory joinder), 20 (permissive joinder), or 24 (intervention), when the exercise of supplemental jurisdiction would be inconsistent with §1332. §1367(b).
The use of supplemental jurisdiction is not allowed to make an end-run around the requirements for diversity jurisdiction.
A federal court can exercise jurisdiction only if a federal question arises on the face of plaintiff’s well-pleaded complaint. o Federal law explicitly creates law of action o Federal law can be interpreted to imply right of action o Federal claim and state claim based on same facts, hence question on federal law is connected to question on state law
If the federal court, in exercising federal question jurisdiction, dismisses the original claim over the merits, the federal court can exercise discretion whether to hear a supplemental claim. §1367(c).
Improper collusion to invoke the jurisdiction of a district court prohibited.
§1359.
UMW v. Gibbs, 411.
Court had supplemental jurisdiction over plaintiff’s state law claim since it

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Permissive joinder of parties
Compulsory joinder of parties
Rule 19
Difference between compulsory arose from the same “nucleus of operative fact” as his federal claim. State and federal claims must arise from the same “nucleus of operative fact” for supplemental jurisdiction.
Owen Equipment & Erection Co. v. Kroger, 416.
There was no jurisdiction over the plaintiff’s claim against appellant, since there was no diversity between him and appellee.
All persons may join in one action as plaintiffs if they assert any right to relief arising out of the same transaction, and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them any right to relief arising out of the same transaction, and if any question of law or fact common to all defendants will arise in the action. Rule 20(a).
Lambert v. Southern Counties Gas Co., 729.
Plaintiff sued both ranch owners and gas company in the action.
The gas company argued that the ranchers were contributorily negligent, so the gas company is immune from liability.
A party shall be joined to the action if he is a necessary party. a.
Is the party necessary? A party is necessary if
1.
in his absence complete relief cannot be accorded to those already parties, or
2.
the party claims an interest relating to the subject of the action and his absence may i.
as a practical matter impair or impede his ability to protect his interest, or ii.
leave any of those already parties subject to a substantial risk of incurring multiple or otherwise inconsistent obligations because of the claimed interest.
If the party is necessary, can he be joined? o Will territorial or subject matter (diversity) jurisdiction be destroyed? o Can party argue that his joinder would lead to improper venue?
If the party is necessary and can be joined, he is joined. If joinder shall lead to improper venue, he shall be dimissed from the action. b.
If the party is necessary and cannot be joined, is the party indispensable?
The court shall consider these factors: o To what extent a judgment rendered in the party’s absence might be prejudicial to him or those already parties o The extent to which, by taking some measures, the prejudice can be lessened or avoided o Whether a judgment rendered in the party’s absence will be adequate o Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder
If a necessary and indispensable party cannot be joined because of lack of jurisdiction, the case is dismissed.
Rule 19 on compulsory joinder applies to the absent person who must be

8 joinder and intervention
Impleader
Requirement of notice
Third-party claims
Plaintiff impleads third party
Making an end-run around the diversity requirement
Intervention
Permissive intervention, Rule
24(b)
Intervention of right, Rule 24(a)
Procedure joined. Rule 24 on intervention applies to the absent person claiming he should be joined.
Tell v. Trustees of Dartmouth College, 734, 739.
In the first litigation, plaintiffs sued the Alumni Association in state court.
The plaintiffs could not sue in federal court because of lack of diversity.
The Alumni Association won this case.
In the second litigation, the proposed class representatives sued the trustees in federal court. The proposed class representatives failed to show that the trustees were in a position to protect the interests of the alumni association.
Defendant as third-party plaintiff may implead a third-party defendant at any time after commencement of the action. Rule 14(a).
If the third-party complaint is filed within ten days after serving the original answer, the third-party plaintiff need not obtain leave to make the service.
Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties.
The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to plaintiff’s claim. The third-party defendant may also assert a claim against plaintiff that is related to the plaintiff’s claim against third-party plaintiff.
Plaintiff may assert a claim against third-party defendant that is related to the plaintiff’s claim against third-party plaintiff.
Any party may move to strike the third-party claim.
When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under Rule 14(a) entitle a defendant to do so. Rule 14(b).
Not allowed because of constraints on the use of supplementary jurisdiction over diversity cases. §1367.
The voluntary entry of a person into a lawsuit in which he was not an original party.
Upon timely application any person may be permitted to intervene in an action
1.
when a federal statute confers a conditional right to intervene, or
2.
when an applicant’s claim or defense and the main action have a question of law or fact in common.
In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice adjudication of the original parties’ rights.
Upon timely application any person shall be permitted to intervene in an action
1.
when a federal statute confers an unconditional right to intervene, or
2.
when the applicant claims an interest relating to the property or transaction which is the subject of the action and his absence may as a practical matter impair or impede his ability to protect that interest, unless his interest is adequately represented by existing parties.
Applicant shall serve a motion to intervene. Rule 24(b).
Atlantis Development Corp. v. United States, 755.
The United States argued that the Florida defendants were trespassing on
U.S. territory. The Florida defendants argued that they had a right to develop the reefs. Atlantis allowed to intervene. Adjudication of the lawsuit will not be binding on Atlantis but it will affect Atlantis’s interest.

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Joinder of claims
Counterclaims
Permissive counterclaims
Compulsory counterclaims
Time
Cross-claims
A party asserting any claim to relief may join as many claims as the party has against an opposing party. Rule 18(a).
After an original claim has been made, the opposing party asserts a counterclaim against the original party.
A pleading may state as a counterclaim any claim against an opposing party that is unrelated to the opposing party’s claim. Rule 13(b).
The counterclaim is permissive because the opposing party does not have to bring it forward.
A pleading shall state as a counterclaim any claim which the pleader has against an opposing party if it arises from the same transaction that is the subject matter of the opposing party’s claim, and it does not require the joinder of necessary parties of whom the court cannot acquire jurisdiction.
Rule 13(a).
The counterclaim is compulsory because later litigation will be subject to claim preclusion.
When serving the pleading
D’Agostino v. Heyward-Robinson Co., 714.
D’Agostino argued that the Navy and the Stelma job were so related that the federal court had supplemental jurisdiction over the Stelma job claim.
Territorial jurisdiction can be waived, but subject matter jurisdiction cannot be waived. However, subject matter jurisdiction can be questioned on appeal.
A pleading may state as a cross-claim any claim by one party against a coparty arising out of the same transaction that is the subject matter of the original action. Rule 13(g).
Cross-claims are not compulsory. One party may bring it or not.
Fairview v. Monzo, 749.
Plaintiff’s claim against codefendant township was dismissed under state law, which precludes a township from being sued by a subcontractor.
Monzo’s cross-claim against codefendant was valid because it was supplemental to plaintiff’s against codefendant, and it remained valid even if plaintiff’s claim was dismissed.

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Pleading
Notice pleading system
Allowed pleadings, Rule 7(a)
Claims for relief, Rule 8(a)
Concise and direct
Requirement of signature
Pleading in the alternative
Construction of pleading
Fraud or mistake
Waiver by omission
Waivable defenses, Rule
12(h)(1)
Defenses preserved, Rule
12(h)(2)
Defense of lack of subject matter jurisdiction
No evidence for claim
Pleading, liberally construed, is supposed to follow the notice pleading system. The process runs by having the parties give notice of the pleadings they make. o Complaint o Answer o Reply to counterclaim o Answer to a cross-claim, if the answer contains a cross-claim o Third-party complaint, if third-party defendant is impled under Rule 14 o Third-party answer, if a third-party complaint is served o The court may order a reply to an answer or a third-party answer.
A pleading which sets forth a claim for relief shall contain
1.
a short and plain statement of the grounds on which the court’s jurisdiction depends, unless the court already has jurisdiction,
2.
a short and plain statement of the claim showing that the pleader is entitled to relief, and
3.
a demand for judgment for the relief sought.
Relief in the alternative may be demanded.
Each averment of a pleading shall be simple, concise and direct. No technical forms are required. Rule 8(e)(1).
Every pleading shall be signed by at least one attorney of record. Rule
11(a).
A party may set forth two or more statements of a claim or defense alternately or hypothetically. Rule 8(e)(2).
All pleadings shall be construed as to do substantial justice. Rule 8(f).
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Rule 9(b).
Some defenses are waived by omission. Rule 12(g). o Lack of personal jurisdiction o Improper venue o Insufficiency of process o Insufficiency of service of process o Failure to state a claim upon which relief may be granted o Failure to join a party indispensable under Rule 19 (compulsory joinder) o Objection of failure to state a legal defense to a claim
May be made in pleading, or by motion for judgment on the pleadings, or at the trial
Whenever it appears that the court lacks subject matter jurisdiction, the court shall dismiss the action. Rule 12(h)(3).
A party is allowed to include a claim even if he still does not have evidence for it, as long as evidentiary support is likely to be found during discovery.
Rule 11.

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Rule 12(b)(6) motion to dismiss
Time
Answer
Affirmative defenses
Effect of failure to deny
Amended pleadings
Procedure, Rule 15(a)
Relation back
Amendments to conform to evidence
Supplemental pleading
Difference with amended
The motion to dismiss is a test for failure to state a claim. If the complaint is set aside for failing to state a claim, the court allows the plaintiff to amend his complaint, assuming that he made it in good faith.
Defense of failure to state a claim can be filed at anytime. You can assert it later after the pleading stage. Rule 12(h)(2).
Swierkewicz v. Sorema N.A., pack.
Plaintiff brought claim against discrimination because of national origin and age. Court held that plaintiff need not bring a prima facie case before the court.
The complaint does not state what the plaintiff will exactly bring before trial, and neither should he be required.
This is because of discovery. Rule 12(b)(6) allows the court to dismiss the complaint for failing to state a claim. All we need is fair notice of claim
Opposing party is required to answer the complaint.
A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Rule 8(b).
A party shall set forth affirmative defenses at an answer to a pleading. Rule
8(c). If party fails to bring forward his affirmative defenses, he runs the risk of waiving them.
If a responsive pleading is required, failure to deny is considered an affirmation. If a responsive pleading is not required, denial is implied.
A party may amend his pleading before a responsive pleading is served.
If no responsive pleading is required and the action has not yet been placed on the trial calendar, the party may amend within 20 days after it is served.
Otherwise a party must have leave of the court or written consent of the adverse parties.
An amendment of a pleading relates back to the date of the original pleading if o the claim or defense asserted in the amended pleading arose out of the circumstances of the original pleading. Rule 15(c)(2). o the amendment changes the party or naming of the party, provided Rule
15(c)(2) is satisfied and the period of service set by Rule 4(m) is satisfied. Rule 15(c)(3).
Amendments to conform to evidence allowed, for the sake of litigating on the merits. However, amendments are allowed only if they will not prejudice the other party in maintaining its action or defense on the merits.
Rule 15(b).
Used when new events occur after the original pleading
Upon motion, a party may be permitted to serve a supplemental pleading setting forth transactions happening after the original pleading. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable, it shall order the adverse party to plead to the supplemental pleading. Rule
15(d).
Supplemental pleading is subject to permission of the court, while an

12 pleading
Motion for judgment on the pleadings
Motion for more definite statement
Motion to strike
Time
Courts’ initiative
Rule 11 sanctions
Requirement of signature
Attorney’s certification, Rule
11(b)
Sanctions
Procedure
21-day safe harbor rule
Amount amended pleading is not.
After the pleadings are closed, any party may move for judgment on the pleadings. Rule 12(c). The judgment is based only on the allegations and information contained in the pleadings.
If a pleading to which a responsive pleading is permitted is vague or ambiguous, a party may move for a more definite statement before interposing a responsive pleading. Rule 12(e).
Party may move to strike from any pleading any redundant, immaterial, impertinent, or scandalous matter. Rule 12(f).
Before responding to a pleading, or if no responsive pleading is permitted, within 20 days of service of pleading
Court may also make order on its own initiative.
Attorney who multiplies the proceedings unreasonably and vexatiously may be required to satisfy the excess costs, expenses, and attorney’s fees reasonably incurred because of such conduct, §1927.
Rule 11 sanctions are placed on lawyers who bring in meritless litigation.
Every document shall be signed by at least one attorney of record. Rule
11(a).
By presenting a document to the court, an attorney certifies that to the best of his knowledge formed after a reasonable inquiry,
1.
it is not being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,
2.
the claims or defenses therein are warranted by existing law or a nonfrivolous argument,
3.
the allegations and other factual contentions have evidentiary support, or are likely to have evidentiary support during discovery, and
4.
the denials of factual contentions are warranted on the evidence or are reasonably based on a lack of information or belief
If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, impose an appropriate sanction upon the violating attorney. Rule 11(c).
A party may move for sanctions, or the court may enter an order on its initiative. Rule 11(c)(1).
The non-moving party has 21 days after service of motion to amend its assertions. Rule 11(c)(1)(A).
The court awards to the party prevailing on motion the reasonable expenses and attorney’s expenses incurred from motion.
Sanctions are limited to what is sufficient to deter future violations. Rule
11(c)(2).
Procedural provisions for the imposition of monetary sanctions. Rule
11(c)(2)
Rule 11 sanctions are not applicable to discovery. Rule 11(d).
Hadges v. Yonkers Racing Corp., pack.
The court determined that it was improper to impose Rule 11 sanctions on plaintiff’s attorney because attorney reasonably believed that plaintiff’s assertions were true.

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Discovery
Objectives
Questions
Scope
Privilege
Limitations on discovery, Rule
26(b)(2)
Need not be admissible at trial
Requirement of signature
Conference
Sanctions
No evidence for claim
Forms of discovery
Initial disclosures
Available tools for a party to get information from the other party o Obtaining evidence not later available o Issue formulation o New leads – to avoid unfair surprise o Automatic disclosure
Discovery is party-driven. Parties take the initiative to ask for information.
Is the matter relevant to any party’s claim or defense? Rule 26(b)(1).
Is it privileged? Federal Rule of Evidence 501.
Are there any limitations on discovery? Rule 26(b)(1).
Is it under work-product immunity? Rule 26(b)(3). o Can the other party show substantial need of the materials and undue hardship in obtaining their substantial equivalent? o Is it opinion work-product?
Will it be admissible at trial, or is it reasonably calculated to lead to the discovery of admissible evidence? Rule 26(b)(1).
Generally, scope of discovery is regulated by Rule 26(b). Parties may discover any matter, not privileged, that is relevant to any party’s claim or defense.
In civil actions, privilege shall be determined according to State law.
Federal Rule of Evidence 501.
Discovery shall be limited if i.
discovery is duplicative, ii.
the party seeking discovery has had ample opportunity to obtain the information sought, or iii.
the burden of the proposed discovery outweighs its likely benefit.
Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Rule
26(b)(1).
Signature required for disclosures. Signature certifies reasonable inquiry before disclosure. Rule 26(g)(1).
Signature required for discovery requests. Signature certifies party’s good faith in making discovery request. Rule 26(g)(2).
At least 21 days before scheduling conference, parties must confer to plan discovery. Rule 26(f).
Appropriate sanctions are imposed for violations. Rule 26(g)(3).
A party is allowed to include a claim even if he still does not have evidence for it, as long as evidentiary support is likely to be found during discovery.
Rule 11. o Depositions, Rules 30 and 32 o Interrogatories, Rule 33 o Request to produce and to inspect land, Rule 34 o Physical and mental examination, Rule 35 o Request for admission, Rule 36.
A party must, without awaiting a discovery request, provide to other parties a.
the name and if known, address and telephone number of each person

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Pretrial disclosures
Deposition
Purposes of deposition
Number
Method of recording
Interrogatories
Number
Asking for other party’s opinion
Requirement to disclose
Request to produce
Request to inspect land
Physical and mental examination
Examiner’s report likely to have discoverable information that the disclosing party may use to support his claims or defenses b.
a copy or description of evidence in the party’s possession that he may use c.
a computation of damages, and d.
any insurance agreement under which insurer may be liable for judgment. e.
Some categories of information are exempt from initial disclosure.
Initial disclosures must be made within 14 days after the Rule 26(f) conference. Rule 26(a)(1).
A party must provide to other parties o the name, address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises, o the designation of witnesses to be deposed, and o an appropriate identification of each document, separately identifying those which the party expects to offer and those which the party may offer if the need arises.
Pretrial disclosures must be made at least 30 days before trial.
Witness testimony used in discovery or later at trial o Obtaining information o Recording information o Promoting settlement – Gives one party an idea of the strength of other party’s case.
Limited to ten depositions, unless there is written consent from other parties or court permission. Rule 30(a)(2)(A).
The party taking deposition shall state the method of recording. Testimony may be recorded by sound, sound-and-visual, or stenographic means. Rule
30(b)(2).
Written questions addressed to an opposing party
Limited to 25 in number. Subject to Rule 26(b)(2), additional interrogatories permitted. Rule 33(a).
An interrogatory is proper even if we ask the party for its opinion on the case. Rule 33(c).
Opposing party is required to disclose only that kind of information that he will use to build his argument. Rule 26(b)(1).
A party may serve a request to produce any designated documents within the scope of Rule 26(b) and which are in the other party’s possession or control.
Rule 34(a)(1).
A party may serve a request to permit entry upon designated land in the other party’s possession or control for the purpose of inspection, photographing or sampling, within the scope of Rule 26(b). Rule 34(a)(2).
When a party’s mental or physical condition is in controversy , the party may be ordered to submit to a physical or mental examination. The order may be made only on motion for good cause shown and upon notice to all other parties. Rule 35(a).
If the examined party requests, he shall receive a copy of examiner’s report.

15
Request for admission
Effect of admission
Protective orders
Motion to compel
Violations of discovery rules
Work-product protection
Attorney-client privilege
Pretrial conference
Function of conference
Scheduling order
Rule 35(b)(1).
A party may serve a written request for the admission of the truth of any matters within the scope of Rule 26(b)(1). Such admission is for the purposes of the pending action only. Rule 36(a).
Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Rule
36(b).
On motion by a party from whom discovery is sought and for good cause shown, a court may make a protective order to protect party from undue burden. Rule 26(c).
Upon reasonable notice to other parties and all affected persons, a party may make a motion to compel disclosure or discovery. Rule 37(a).
Motion must be made in good faith. Rule 37(a)(2)(A).
Failure to comply with court order. Rule 37(b).
Failure to disclose, and refusal to admit. Rule 37(c).
Flagrant misconduct. Rule 37(d).
Materials prepared in anticipation of litigation or for trial by a party or his representative are protected from discovery. Discovery may be allowed only if the other party shows substantial need of the materials and undue hardship in obtaining the substantial equivalent of the materials. Rule 26(b)(2).
Protection of opinion work-product is absolute. Rule 26(b)(3).
Work product protection operates only when a party is in anticipation of litigation.
State law applies to work-product protection in a civil action on a state law claim. Federal Rule of Evidence 501.
Upjohn Co. v. United States, 930.
The oral statements constituted a strong form of work product since they reflected the attorney’s mental impressions and opinions of the case.
The right to refuse disclosure of confidential communication between attorney and client.
Does not apply to communication with third party. Privilege waived if client relays communication to third party.
The court may in its discretion direct a pretrial conference for such purposes as expediting the disposition, improving the quality of trial, and facilitating settlement. Rule 16(a).
Sharpening and limiting issue
Scheduling discovery
Facilitating settlement
Encouraging alternative dispute resolution
Determining adjudication of counterclaims and cross-claims
Serves to limit the time for filing, pleading and joining. Must issue within
90 days after defendant’s appearance and within 120 days of service of complaint. Rule 16(b).

16
Amendments to conform to evidence
Final pretrial conference
Time
Pretrial orders
Settlement
Factors for willingness to settle
Protection
Offer of judgment
Amendments to conform to evidence allowed, for the sake of litigating on the merits. However, amendments are allowed only if they will not prejudice the other party in maintaining its action or defense on the merits.
Rule 15(b).
The purpose of the conference is to formulate a plan for trial, including a program for facilitating the admission of evidence. Rule 16(d).
As close to the time of trial as reasonable
Control the subsequent course of the action
Shall be modified only to prevent manifest injustice
Rigby v. Beech Aircraft Co., 983.
Plaintiff prohibited from presenting evidence on the main fuel cells since this was not mandated in the pretrial order.
Agreement ending a dispute o Party’s chances of prevailing o Amount of award o Attitudes to risk
Statements made during settlement talks cannot be used to prove liability or damages. Federal Rule of Evidence 410.
If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after making the offer. Rule
68.

17
Adjudication without trial
Default
Voluntary dismissal
Involuntary dismissal
Summary judgment
Two kinds of burden of proof
Difference between motion to dismiss for failure to state a claim and motion for summary judgment
Jury trial
Amend. VII. o Default o Voluntary dismissal o Involuntary dismissal o Summary judgment
Default judgment is entered against defendant who fails to plead or otherwise defend. Rule 55.
Entry of default. Rule 55(a).
Entry of default judgment. Rule 55(b).
Harder to set aside entry of default judgment than entry of default
Plaintiff may dismiss an action i.
by filing a notice of dismissal before the other party serves an answer or moves for summary judgment, or ii.
by filing a stipulation of dismissal signed by all parties.
Dismissal is without prejudice . However, if a claim has been dismissed previously, the second dismissal serves as an adjudication on the merits.
Rule 41(a).
A defendant may move for dismissal of an action for plaintiff’s failure to prosecute or to comply with court order or these rules. Dismissal is with prejudice , unless dismissal is for lack of jurisdiction, improper venue, or failure to join a party under Rule 19. Rule 41(b).
Defendant may move for summary judgment in his favor at any time. Rule
56(b). Plaintiff may move for summary judgment in his favor within 20 days of commencement of action or after the adverse party serves a motion for summary judgment. Rule 56(a). Summary judgment shall be renderd if there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Plaintiff has burden of proof and burden of persuasion at trial. Plaintiff has to win by showing that his entire case can prevail at trial. Defendant wins just by attacking one element of plaintiff’s claim.
Burden of production – Producing evidence in trial
Burden of persuasion – Persuading the jury that each element of plaintiff’s claim is true
In a motion to dismiss for failure to state a claim, the court weighs whether there is a claim based on the facts. In a summary judgment, the court weighs whether the claim is true.
Celotex Corp. v. Catrett, 1027.
Moving party has to show the places in the record that show no reasonable jury will find for the non-moving party. To oppose motion for summary judgment, non-moving party must point to affidavits and supporting documents that show he has a legitimate claim.
The right to trial by jury is preserved in suits of common law where the amount in controversy exceeds $20. No fact tried by jury shall be otherwise

18
Rule 38(a)
Time
Waiver
Distinction between legal claim and equitable claim
Number
Instructions
Time for request
Objections
Formal exceptions
Special verdict
Bench trial
Judgment as a matter of law re-examined in any federal court, than according to the rules of the common law.
The right of trial by jury as declared by the Seventh amendment shall be preserved.
A party may demand a jury trial not later than 10 days after service of last pleading. Rule 38(b)(1).
A party waives its right to a jury trial if it fails to serve and file a demand.
Rule 38(d).
If parties fail to demand a jury, the court has discretion to order jury trial.
Rule 39(b).
Rationale for jury: Impartial ruling based on the standards of the community
In a legal claim, parties have the right to trial by jury. In the federal system, there is a merger of legal and equitable claim. There shall be one form of action to be known as “civil action.” Rule 2.
Jury of six to twelve. Verdict shall be unanimous and from not less than six jurors. Rule 48.
A party may file to every other party written requests that the court instruct the jury on the law. Rule 51(a)(1). The court may instruct the jury at any time. Rule 51(b)(3).
At the close of evidence or at a reasonable time directed by the court
Must be made in a timely fashion. Rule 51(c)(2).
To preserve a claim that the court made an error in instruction, a party should make timely objection according to this rule. Right to object to plain errors affecting substantial rights are preserved. Rule 51(d).
Not necessary. Rule 46.
Court may require jury to return special verdict upon each issue of fact .
Rule 49.
Sabella v. Southern Pacific Co., 1208.
Attorney went beyond the bounds of allowed argument. However, the judgment was not in error.
A case will be tried without a jury if no right to a jury trial exists, or all parties waive the right.
No voir dire, shorter opening statements, rules may be relaxed.
Anderson v. Bessemer City, supp.
District court’s finding for plaintiff was not in error. Mere fact of proposed findings from one of the parties does not mean we should not defer to district court’s findings.
The rule applies both for live testimony and for documents.
Disagreement with the district court is not sufficient ground for reversal, unless the district court’s findings were clearly erroneous.
If a party has been fully heard on an issue and there is no evidence for a reasonable jury to find for that party on that issue, the court may grant a motion for judgment as a matter of law against that party. Rule 50(a)(1).
Judge does not weigh the evidence. He simply takes all evidence favorable to non-moving party and determines whether a reasonable jury can find in

19
Time
Renewed motion, Rule 50(b).
Motions joined
Post-verdict motions
Motion for new trial
Time
Motions joined
Conditional grant favor of non-moving party.
Motion may be made at any time before submission of the case to the jury.
Rule 50(a)(2). Motion may be renewed within 10 days of entry of judgment. Rule 50(b).
If you want to preserve your right to make the motion after judgment, you should make the motion beforehand, at the close of the evidence.
In ruling on a renewed motion, the court may
1.
If a verdict was returned a.
allow the judgment to stand, b.
order a new trial, or c.
direct entry of judgment as a matter of law, or
2.
If no verdict was returned a.
order a new trial, or b.
direct entry of judgment as a matter of law.
Renewed motion may be joined with motion for a new trial under Rule 59.
Rule 50(b).
A motion for JML poses a dilemma for the judge. If he grants the motion, the appellate court may find error. A new trial will be ordered and the original jury’s work will be wasted. If he denies the motion, the appellate court may overturn.
To overcome this problem, the judge reserves judgment on the motion and submits the case to the jury. If the verdict is unfavorable to the movant, the movant may renew the motion, and if the judge agrees that no reasonable jury could have found in favor of the non-moving party, the judge grants judgment as a matter of law.
Sioux City & Pacific Railroad Co. v. Stout, 1187.
There was enough evidence for a reasonable jury to find in favor of plaintiff.
It was a close case which could go either way. This is a case about questions of law, not about questions of fact.
Simblest v. Maynard, 1191.
Judgment as a matter of law was proper because of state law. Plaintiff was so clearly guilty of contributory negligence. o Renewed motion for judgment as a matter of law o Motion for new trial o Motion to amend judgment
Under Rule 60(a), a new trial may be granted
1.
in an action where there has been a jury trial, for any of the reasons for which new trials have been granted in actions at law.
2.
in an action tried without a jury, for any of the reasons for which rehearings have been granted in suits in equity.
Within 10 days of entry of judgment. Rule 59(b).
Renewed motion for JML may be joined with motion for a new trial under
Rule 59. Rule 50(b).
If a renewed motion for JML has been granted, the court shall also rule on the motion for new trial, by determining whether it should be granted if the judgment is thereafter vacated or reversed. Conditional grant of new trial does not affect the finality of judgment.

20
Motion for JML and motion for new trial
Enforcement of judgment
Final judgment on some of the claims
Relief from judgment
Clerical mistakes
In a motion for JML, non-moving party’s claim is closed. In a motion for new trial, trial is moved to a new jury. Motion for new trial is less extreme.
Both motions may be made at once. Motion for JML must be first made during trial, while motion for new trial must be made after a verdict is entered.
Spurlin v. General Motors Corp., 1243.
If the district court can conclude that there is no evidence for a reasonable jury to find in favor of plaintiff, the court has to enter judgment as a matter of law. The court considers evidence in the light most favorable to the nonmoving party.
Appellate court reversed judgment as a matter of law and ruled against the motion for new trial in the alternative. Motion for new trial must not be granted against the great weight of the evidence.
Process to enforce a judgment for the payment of money shall be a writ of execution. The procedure on execution shall be in accordance with the practice and procedure in which the district court is held. Rule 69(a).
Prevailing party gets costs. Rule 54(d).
Allowed, only if there is no just reason for delay and upon an express direction for the entry of judgment. Requirement of express direction is for party’s benefit to know that he can appeal. A party can file an immediate appeal on the partial judgment. Rule 54(b).
On motion and upon such terms as just, the court may grant relief from a final judgment for the following reasons: a.
mistake, inadvertence, surprise, or excusable neglect b.
newly discovered evidence not discoverable in time for motion for new trial c.
fraud, misrepresentation, or misconduct of an adverse party d.
the judgment is void e.
the judgment has been satisfied, released, or discharged f.
any other reason justifying relief.
Motion shall be made in a reasonable time, and for reasons 1, 2, and 3 not more than one year after judgment. Rule 60(a).
Rule 60(b)(4) to (6) severely limited.
The court may correct clerical mistakes in entry of judgment at any time.
Rule 60(a).
Jackson v. Sears, Roebuck & Co., 1271.
Government told sheriff to take defendant’s property, auction it and use the proceeds to satisfy any claims against defendant. Arizona supreme court held that execution was void since it should relate back to the date of judgment.
Ackermann v. United States, 1276.
Ackermann claimed that failure to make an appeal was due to financial hardship. He moved to set aside judgment under Rule 60(b).
Court held that Ackermann should have followed the advice of his lawyer to file the appeal promptly. Court distinguished Ackermann’s claim with that in Klapprott, where the appellant was under real hardship.

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Claim preclusion
No claim preclusionary effect
Issue preclusion
Exceptions
Privity
Non-mutual issue preclusion
Defensive
Offensive
Recognition of judgment
Art. IV, §1
§1738
An affirmative defense barring the same parties from litigating a second lawsuit on the same or related claim
1.
Valid and final judgment
2.
Judgment was on the merits
3.
Same or related claim
4.
Same parties or persons in privity with them
Dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19. Rule 41(b).
Moitie, 1286.
Because of Brown I, there is claim preclusion on respondents’ federal law claims.
An affirmative defense barring other party from relitigating an issue determined against that party in a previous action
1.
Valid and final judgment
2.
Issue actually litigated
3.
Issue actually determined and essential to judgment
4.
Same parties or persons in privity with them
Defensive non-mutual issue preclusion is generally accepted. offensive non-mutual issue preclusion is allowed in very rare cases,.
Renders a party bound by a judgment by virtue of party’s relationship with litigant
Party not in privity with party in first suit is bound by judgment
Defendant in the second action asserts issue preclusion against the plaintiff
Plaintiff in the second action asserts issue preclusion against the defendant
Tuteur v. Taubensee, 1307.
Case 1: Tuteur sued Taubensee in S.D. Texas for breach of contract, but the case was removed to N.D. Illinois. Tuteur voluntarily dismissed.
Case 2: Taubensee sued Tuteur in N.D. Illinois to stop the arbitration proceedings
Case 3: Tuteur sued Taubensee in N.D. Illinois for breach of contract.
However, issue preclusion barred Tuteur’s suit.
Bernhard v. Bank of America, 1319, 1333.
Defendant prevailed because of defensive non-mutual issue preclusion.
Parklane Hosiery Co. v. Shore, 1320.
Use of offensive non-mutual issue preclusion did not violate defendants’
Seventh Amendment right to jury trial. Fact issue already determined in previous litigation with SEC. Where plaintiffs in subsequent action could not have joined in previous action and defendant had an interest in litigating vigorously the previous action, offensive non-mutual issue preclusion is allowed.
Full Faith and credit shall be given to the public Acts, Records, and judicial proceedings of every other State.
Acts, records and judicial proceedings shall have the same full faith and credit in every court within the United States as they have by law or usage

22
Suit 2
Another pending action
Concurrent devices
Plea in abatement
Motion to stay
Appeals
Time
Abuse of discretion
Harmless error doctrine
Collateral order doctrine
Appeals allowed
Extraordinary writ in the courts of such State, Territory or Possession from which they are taken.
Federal common law pertains to the preclusive effect of federal court judgments. By federal common law, federal courts adjudicating state law claims follow the preclusive effect of state court judgments, unless it conflicts with federal laws.
Used when there is another pending action between the same parties concerning the same subject matter
Plea that seeks dismissal of action by objecting to the place, time, or method of asserting plaintiff’s claim. Applies for same parties, same claim, same court system
Motion to suspend prosecution of the second action until the first action is terminated. Applies when res judicata will not necessarily take force on the second lawsuit, or if it is in another court system
A party has the right to bring the decision before a final court on the grounds that o the lower court failed to adhere to proper procedure, or o the decision was based on misapplication of the substantive law or gross misapprehension of the facts.
The courts of appeals shall have jurisdiction of appeals from all final decisions of the federal district courts. §1291.
Available at entry of judgment in lower court
An appellate court will not disturb rulings within the lower court’s discretion, unless there was an abuse of discretion.
If error does not affect final judgment, it will not be reversed
Doctrine allowing appeal on interlocutory orders
Conclusive determination of issue wholly separate from merits of action and effectively unreviewable on appeal from final judgment
Appeal from order granting or denying injunction. §1292(a)(1).
Court determination that there is substantial ground for difference of opinion on issue of law, and immediate appeal may materially advance the ultimate termination of the litigation. §1292(b).
Final judgment on some of the claims. Rule 54(b).
Appeal from order granting or denying class action certification. Rule
23(f).
Appellate court issues an order binding on lower court.
Suit 1
State court
State court
Federal court
Federal question
Federal court
Diversity
Full Faith and Credit (FFC) clause
FFC statute
FFC statute
FFC statute
Federal court
Federal question
Art. III (judicial power)
Art. VI (federal supremacy)
Art. III
Art. VI
Art. III
Art. VI
Federal court
Diversity
Art. III
Art. VI
Art. III
Art. VI
Art. III
Art. VI

23
Erie doctrine
Rules of Decision Act
Rules Enabling Act
Applying doctrine
A federal court exercising diversity jurisdiction over a case that does not involve a federal question must apply the substantive law of the state where the court sits
If a diversity case is brought before a district court, the district court must apply the same choice of law analysis that will be used by the court of the state in which the district court is located.
The laws of the several states, except where the Constitution or federal statutes or treaties otherwise require or provide, shall be regarded as rules of decision in civil actions in federal courts, in cases where they apply. §1652.
Federal rules of procedure and evidence shall not abridge, enlarge or modify any substantive right. §2072(b).
1.
Is the issue substantive or arguably procedural? o If it is substantive, apply state law, unless U.S. Constitution or valid federal statue provides otherwise. In limited instances, apply federal common law. Erie; 28 U.S.C. §1652. o If it is arguably procedural, move on.
2.
Is there a conflict between state and federal practices? o If there is no conflict, follow both. o If there is conflict, move on.
3.
Is there a federal constitutional provision, or a valid federal statute, rule or treaty on point? o If there is, apply federal provision. Hanna; 28 U.S.C. §§1652, 2072. o If there is none, move on.
4.
Is application of the relevant state procedure likely to determine outcome of the case? York. o If no, follow federal practice. o If yes, move on.
5.
Is there an over-riding federal interest justifying the application of federal law? o If there is an overriding federal interest, follow federal practice. Byrd. o If not, follow state practice.