Fall 2013 Civil Procedure I – Final Exam Outline
I.
Pleadings
a. Complaint
i. Rule 8(a) governs what must be in complaint:
1. Short and plain statement of grounds for subject matter jurisdiction.
2. Short and plain statement of the claim showing pleader is entitled to relief.
3. Demand for relief sought.
ii. Rule 10 – Form
1. Caption stating the name of the court, title of the case, identity of the
document, and file (case) number
2. Body has claims or defenses in numbered paragraphs
3. Parties are allowed to reference allegations found elsewhere in the document
4. Parties are allowed to attach to their pleading a copy of a significant written
instrument (like a contract)
iii. Legal Sufficiency:
1. Does P state a claim upon which relief may be granted?
a. On the face of the complaint, if every fact alleged by the plaintiff was
taken as true, does the law provide a remedy for P?
2. D can challenge whether P has stated a claim under Rule 12(b)(6)
3. D can make this challenge at other points in proceedings as well under Rule
12(h)(2)
iv. Factual Sufficiency:
1. If the pleading is legally sufficient, has P pleaded her claim in sufficient detail
to proceed in the litigation?
2. FRCP Rule 8(a)(2) requires that defendant have enough factual information
to respond to complaint.
v. Historically, notice pleading did not require details in complaint, but changed with:
1. Twombley (2007) and Iqbal (2009):
a. Court ignores conclusions of law and looks only at alleged facts.
b. The facts must support a plausible claim.
c. The court uses its experience and common sense to assess
plausibility. This is very subjective.
vi. Pleading inconsistent facts and alternative theories:
1. Rule 8(d)(2): A party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or defense or in
separate ones. If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient.
2. Rule 8(d)(3): A party may state as many separate claims or defenses as it has,
regardless of consistency
vii. Pleading with Particularity:
i. Rule 9(b): In alleging fraud or mistake, a person must state with particularity
the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and any other conditions of a person’s mind may be alleged generally.
ii. Rule 9(g): If an item of special damage is claimed, it must be specifically
stated
A. Special damages differ by court
B. Majority – hospital and medical bills and lost profits for a business are
special damages
Fall 2013 Civil Procedure I – Final Exam Outline
b. Dismissal of Complaint
i. Voluntary Dismissal, Rule 41(a): A plaintiff may dismiss an action (without
prejudice, unless P has previously dismissed an action based on or including the
same claim) without court order by filing
1. A notice of dismissal before the other party files an answer or makes a
motion for summary judgment in response to the complaint, OR
2. A stipulation of dismissal signed by all parties who have appeared
ii. Involuntary Dismissal, Rule 41(b): A defendant may move for dismissal, with
prejudice
1. Not dismissed with prejudice if it is dismissed for lack of jurisdiction,
improper venue, or failure to join a party under Rule 9
2. Link v. Wabash R. Co.: Court may dismiss a case on its own motion under
41(b)
iii. General: Defendant’s ways to get the case dismissed
1. Dismiss complaint (Rule 41)
2. Dismiss for failure to state a claim (Rule 12(b)6))
3. Summary Judgment (Rule 56)
4. Directed verdict (judgment as a matter of law)
5. Judgment Not Withstanding the Verdict
c. Defendant’s response
i. Rule 12: defendant must respond within 21 days of service, either by:
1. Answer – is a pleading.
a. Must respond to complaint by:
i. Admission
ii. Denial – FAILURE TO DENY IS AN ADMISSION ON ANY
ALLEGATION EXCEPT FOR DAMAGES.
1. General denial: deny every allegation
2. Specific denial: respond to each paragraph/allegation
individually
3. Qualified general denial: admits everything except X
4. Argumentative denial: pleading contrary facts (bad)
5. Negative pregnant: denial that is too specific/literal
(bad)
6. Conjunctive denial: deny an allegation that only some of
which is false (bad)
iii. Lack sufficient information. Rule 8(b)(5): information must be
about something not in your control.
b. Must raise affirmative defenses, if any:
i. Introduce new legal claim or practical matter.
ii. Denying the allegation with a new fact. If D is right, P should
not win.
1. Rule 8(c)(1): Includes things like duress, re judicata,
statute of frauds, statute of limitations.
iii. If not in answer, affirmative defenses are waived.
2. Motion – not a pleading. It is a request for a court order.
a. Rule 12(e) – motion for more definite statement, usually when
complaint is unintelligible.
Fall 2013 Civil Procedure I – Final Exam Outline
b. Rule 12(f) – motion to strike, any party can ask court to strike part of
the pleading.
c. Rule 12(b) – most important, motions to dismiss. All defenses under
this rule can be raised either by motion or in answer.
i. 12(b)(1) – lack of subject matter jurisdiction
ii. 12(b)(2) – lack of personal jurisdiction
iii. 12(b)(3) – improper venue
iv. 12(b)(4) – insufficient process (did not include correct docs rare)
v. 12(b)(5) – insufficient service of process
vi. 12(b)(6) – failure to state a claim upon which relief may be
granted
vii. 12(b)(7) – failure to join an indispensable party (Rule 19)
d. Rule 12(g): Any Rule 12 motion may be joined with any other Rule 12
motions
e. Rule 12(h) imposes very strict rules on waiver:
i. The 12(b)(2), (3), (4), and (5) must be put into first Rule 12
response, or else they are waived.
ii. The 12(b)(6) and (7) defenses can be raised for first time at
any time through trial.
iii. 12(b)(1) can be raised at any time; never waived. If lack of
subject matter jurisdiction is discovered at any time, the court
must dismiss the case.
f. Classic Hypo: P sues and D makes timely motion under 12(b)(5) for
insufficient service. Court denies motion. Now D files answer and
asserts lack of personal jurisdiction therein. NOT ALLOWED because
it was waived by not raising it in her first Rule 12 response.
d. Claims made by defendant
i. Defendant can assert claims against other parties and sometimes join additional
parties
ii. Counterclaim: Claim against an opposing party
iii. Crossclaim: Claim against a co-party
iv. Plaintiff must file answer to a counterclaim so designated, following Rule 12.
e. Failure to Respond
i. Rule 12(a): Responsive pleadings must be served within 21 days after the original
pleading is served (some exceptions)
ii. Default, Rule 55(a): When a party against whom a judgment for affirmative relief is
sought has failed to plead or defend, a clerk must enter the party’s default
 Just a notation in the court’s docket; can be set aside for good reason
iii. Default Judgment, Rule 55(b): If the plaintiff’s claim is for a liquidated amount, the
clerk must enter judgment for that amount and costs against a defendant who has
been defaulted. If the claim is for an unliquidated amount, the party must apply to
the court for a default judgment (holds hearings on damages and enters judgment)
1.  Can also be set aside for good reason but much harder.
f. Amendments
a. Rule 15(a): Whether you can amend pleading before trial
Fall 2013 Civil Procedure I – Final Exam Outline
i. As a matter of course, Rule 15(a)(1): A party may amend its complaint once as a
matter of course within 21 days after serving it, or if a responsive pleading is
required, 21 days after service of the responsive pleading or 21 days after
service of a motion under Rule 12
ii. Other amendments, Rule 15(a)(2): In all other cases, a party may amend its
pleading only with the opposing party’s written consent or the court’s leave. The
court should freely give leave when justice so requires.
1. When does “justice so require”?
Balance the moving party’s need to amend, considering any
unwarranted delay, with prejudice that will result for the nonmoving party, considering any ways to mitigate it.
iii. Time to respond, Rule 15(a)(3): Any required response to an amended pleading
must be made within the time remaining to respond to the original pleading or
within 14 days after service of the amended pleading, whichever is later.
iv. Cannot amend complaint to add non-diverse party when diversity is sole
basis for jurisdiction.
a. Court would deny amendment and proceed with original parties,
EXCEPT for when party is indispensable, in which case court would
dismiss case.
b. Effect of variance at trial, Rule 15(b)
v. Relevant for issue presented at trial that was not raised in the pleadings
vi. Objection at trial, Rule 15(b)(1): If a party objects to an issue raised at trial that
was not in the pleadings, the court may permit the pleadings to be amended
when doing so will aid in presenting the merits and there is not prejudice to the
objecting party. Court may grant a continuance to enable the objecting party to
meet the evidence.
vii. No objection at trial (consent), Rule 15(b)(2): When an issue not raised by
pleadings is tried by the parties’ express or implied consent, it must be treated as
if raised in the pleadings. A party may move at any time to amend the pleadings
to include the issue but failure to amend does not affect the result of the trial of
that issue.
c. Whether an amendment can relate back, Rule 15(c)
a. An amendment relates back to the date of the original pleading when
1. Rule 15(c)(1)(A): The law on the statute of limitations allows relation back
2. Rule 15(c)(1)(B): The amendment asserts a claim or defense that arose out
of the conduct, transaction, or occurrence set out in the original pleading
3. Rule 15(c)(1)(C): The amendment changes the party against whom a claim is
asserted, if 15(c)(1)(B) is satisfied and if within 120 days from when the
original complaint was filed [Rule 4(m)],
a. The party to be brought in by amendment received notice of the
action AND
b. Knew or should have known that the action would properly have been
brought against it
Fall 2013 Civil Procedure I – Final Exam Outline
II.
Notice
a. Service of process must comply with constitutional and statutory requirements.
b. Constitutional standard for notice:
i. Mullane v. Central Hanover Bank:
1. Notice must be noticeably calculated under all the circumstances to apprise
the party of the proceeding (due process violated in this case for parties
whose addresses were known – must directly contact them).
2. Methods under Rule 4 are all constitutional, even if D did not receive the
actual notice.
ii. Jones v. Flowers (2006): if P is aware that D did not receive service, P may have to
try other means of giving notice.
c. Due process requires that defendant gets notice and has chance to be heard.
i. Reasonably calculated under all the circumstances to apprise interested parties of
the pendency of the action and afford them an opportunity to be heard.
ii. Of such a nature to reasonably convey the required information.
iii. Afford a reasonable time for those interested to make an appearance.
d. Statutory Requirements  (FRCivP Rule 4, or state statute where federal court sits)
i. Summons must be served with a copy of the complaint [Rule 4(1)]
1. By any person over the age of 18 who is not a party to the litigation [4(2)]
2. Within 120 days of when the complaint is filed [4(m)]
ii. Waiving Service, Rule 4(d)
1. P may request, by first class mail or other reliable means, that D waive
service
2. D has 30 days to return the waiver
3. If D fails to waive without good cause, the court must impose the expenses
later incurred in making service and the reasonable expenses of any motion
required to collect those service expenses on D
4. If D waives service, D has 60 days to answer the complaint (instead of 21)
iii. Serving an Individual, Rule 4(e):
1. Follow service methods permitted by state law, in the state where federal
court sits, OR
2. Delivering service to the individual personally. Can be done anywhere. OR
3. Leaving a copy at the individual’s dwelling or usual place of abode with
someone of suitable age (usually >16) and discretion who resides there, OR
4. Delivering service to an agent authorized by appointment or law to receive
service of process.
5. FRCivP generally does not allow service by mail, but some states allow.
iv. Serving a Corporation/Partnership, Rule 4(h):
1. Follow the state law for service in the forum state, OR
2. Deliver service to an officer, managing or general agent, or any other agent
authorized by appointment or by law to receive service of process.
Fall 2013 Civil Procedure I – Final Exam Outline
III.
Personal Jurisdiction
a. Can be waived – if you don’t object it Court will have power to haul you into court.
b. One issue to determine: CAN THE PLAINTIFF SUE THE DEFENDANT IN THIS STATE?
c. Answered exactly the same in federal or state court. The court must have power over:
i. Defendant herself
ii. Defendant’s property
d. Three types of personal jurisdiction:
i. In personam – court has power over person of D (through various contacts). This is
the preferable type of PJ but we cannot always get it.
ii. In rem – court has power over D’s property
iii. Quasi in rem – court has power over D’s property
e. How do we know if Court has power? Set by due process statutes of constitution.
i. Due process sets outside boundaries of PJ. If case falls within the boundaries, the
court has jurisdiction and the judgment is entitled to full faith and credit.
ii. It is not enough to just fall within boundaries of due process. State must also have
statue that grants Personal jurisdiction.
iii. Some states do not reach to full extent of due process clause of constitution.
iv. Analytically, on exam ask:
1. IS THERE A STATE STATUTE THAT ALLOWS JURISDICTION?
a. Rule 4(k)(1)(A) – Federal Long Arm allows forum’s jurisdictional
statute to apply to federal cases.
2. IS JURISDICTION CONSTITUTIONAL?
a. Traditional bases?
b. If not, general or specific jurisdiction?
f. We start with the Due Process test in this lecture.
g. In Personam Jurisdiction.
i. Two kinds:
1. General – D can be sued in forum on claim that arose anywhere in the world.
a. Based on D’s presence or domicile in the forum.
2. Specific – D is sued on claim that arose from contact with the forum (doctrine
of relatedness).
a. Based on D’s consent or forum-direct contacts.
ii. The Constitutional Limit. Chronology of cases establishing PJ rules:
1. Pennoyer (1878)– gives us traditional bases of In Personam Jurisdiction.
a. THE SUBSTANTIVE DUE PROCESS TEST HAS NEVER BEEN OVERRULED
b. D is served with process in the forum. Usually called “presence”.
c. D’s agent is served with process in the forum.
d. D is domiciled in the forum (gives general jurisdiction).
e. D consents to PJ in forum.
f. Under Pennoyer, it is tough to get PJ. If D is not domiciled or has agent
in forum, the only way to get PJ is to catch him in forum for service.
2. Hess v. Pawlovski (1927) – expanded traditional bases of PJ from Pennoyer.
a. Non-Resident Motorist Act: by driving into the forum, D gives implied
consent to jurisdiction and appoints state officer as agent for service
in forum. Every state has this statute to this day.
b. Court upheld this because it is consistent with Pennoyer, but expanded
to include implied consent.
c. Consent was stretched here based on social contract theory.
3. International Shoe (1945)
Fall 2013 Civil Procedure I – Final Exam Outline
a. None of traditional bases of PJ from Pennoyer applied.
b. The court gave a new formula for PJ: “Defendant must have such
minimum contacts with the forum so that jurisdiction does not offend
traditional notions of fair play and substantial justice.” But this is
totally open-ended and hard to define.
c. Established standard of “continuous and systematic contacts.”
d. By now, it is clear we can serve process outside the forum.
e. It appears there are two tests:
i. Contact
ii. Fairness
f. International Shoe does not overrule Pennoyer, just says what to do
with traditional bases does not apply  Use “Minimum contact” as the
test if D is not present when served.
4. McGee (1957) – Specific jurisdiction.
a. Upheld jurisdiction in CA over a TX insurance company after it
purchased an AZ insurer and took over CA resident’s policy.
b. Court emphasized that TX Company had reached in to CA to solicit
business, even if it sold just one policy. The claim arose out of the
contact with the forum.
i. It also continued to send invoices and receive payments from
CA citizen.
c. The CA Court had an interest in providing forum for its citizen.
5. Hanson (1959)
a. Upheld reasoning from International Shoe and established standard 
the contact between D and forum must result from “purposeful
availment.” D must reach out to the forum.
b. Here, wealthy woman in PA did business with DE bank for years, then
moved to FL. There is no jurisdiction in FL over the bank because the
bank did not avail itself to FL; it was a unilateral move there on
woman’s part.
6. Gray v. American Radiator (1961)
a. OH defendant manufactured a valve that was sold to a PA company
who incorporated the valve in a radiator, which was sold to IL
customer and injured him in IL. OH company has not done any other
business in IL.
b. Manufacturer put product in stream of commerce + derived benefit
from the state where product was sold + expected product to be sold
there = upholds personal jurisdiction.
7. Worldwide Volkswagon (1980)
a. Supreme court held that OK (site of accident) had no jurisdiction over
the NY car retailer and distributor because those defendants did not
avail themselves to OK. The only reason the car got there was that Ps
drove it there.
b. Surprising ruling because it is foreseeable that a car is bought in one
state and driven through others. Court says foreseeability is relevant
but not enough.
c. It must be foreseeable that D could get sued in the forum. D’s contact
with forum must be “such that he should reasonably anticipate being
haled into court.”
Fall 2013 Civil Procedure I – Final Exam Outline
d. Court does NOT find this to be stream of commerce case – WWVW did
not inject their products into stream that led to OK.
8. Shaffer v. Heitner (1977)
a. P owns stock in Greyhound (incorporated in DE, principal place of
business in AZ). P sues Greyhound and its officers in DE, based on the
officers’ ownership of stock considered to be “present” in DE.
b. Property in the forum is not enough to satisfy personal jurisdiction.
“Historic pedigree” of property as basis for PJ is not enough, must do
International Shoe test.
c. “Historic pedigree” argument not consistent with Burnham (later).
9. Keeton v. Hustler (1984) – Libel
a. P is NY citizen but sued in NH because of statute of limitations.
b. Plaintiff doesn’t need minimum contacts with a forum state. Hustler
did publish in NH and, even if that is its only contact with the state, is
subject to personal jurisdiction there.
10. Calder v. Jones (1984)
a. Allegedly libelous story about the CA activities of a CA resident whose
career was centered in CA. The harm was primarily felt by P in CA.
b. Personal jurisdiction upheld over a nationwide publication in CA
because publisher was aware that the magazine had a significant
circulation in CA, that the plaintiff resided in CA, and that the
allegations made in the article would harm her career there.
c. “Calder Test” to evaluate specific jurisdiction for publishers:
i. Alleged libelous publication must be directed towards the
forum as “focal point” AND
ii. Produce the greatest harm for P in the forum state.
11. Revell v. Lidov (2002) – Internet
a. P (TX) sued Columbia University (NY) and D (MA) in TX for
defamation in an article posted by D on Columbia’s website.
b. P alleges general jurisdiction over Columbia because website allows
users to subscribe to online journal, purchase ads, and submit articles
for posting. Court decides Columbia’s contact with TX are not
“substantial” – less than 20 internet subscriptions from TX.
c. Court evaluates general jurisdiction using Zippo Scale:
i. “Passive website “  allows only its owner to post information
 not enough for jurisdiction.
ii. “Interactive”  site owners engage in repeated online contacts
with forum residents  jurisdiction may be proper.
iii. In between sites  examine extent of interactivity and nature
of the forum contacts. (confusing since we need a yes/no
answer)
d. Court evaluates specific jurisdiction over Lidov with Calder test:
i. The article and Columbia’s site must produce greatest harm of
plaintiff in the forum state AND direct the publication towards
forum as “focal point.”
ii. No specific jurisdiction  Contrary to Calder, Lidov’s article
contains no reference to TX, does not to mention Revell’s
activities in TX, and was not directed at TX readers more than
those in other states. He did not even know Revell lived in TX.
Fall 2013 Civil Procedure I – Final Exam Outline
iii. Revell’s alleged harm was also not substantial in Texas, where
there is a scarce readership of Columbia’s website.
12. Burger King (1985) – Cite for contracts cases
a. Contract case brought in FL jurisdiction upheld over two guys who
ran the franchise store in MI.
b. Court emphasizes that there are two parts to International Shoe:
contact and fairness.
c. In BK, court says there must be relevant contact before even
evaluating fairness.
d. The defendants deliberately reached out into FL to get franchise and
signed a 20-year lease to create “continuing obligations”, so this
satisfies contact.
e. Ds argue that it is not fair for them to litigate in FL against large
corporation, but court gave high burden to prove inconvenience to Ds:
they must show forum is so gravely inconvenient that they are at a
severe disadvantage in the case. This is almost impossible to show.
f. Court held that D need not ever physically enter into forum state.
Relevant minimum contacts for contract disputes:
i. Prior negotiations
ii. Expected future relationship
iii. Present contract terms
iv. Parties’ actual course of dealings
13. Asahi (1987)
a. Classic “stream of commerce” case. Defendant makes components in
state A and sells to manufacture in state B. Manufacture uses
component in making their product and sells it to other states. D
DOES NOT HAVE CONTROL OVER DISTRIBUTOR’S ACTIONS.
b. Does defendant have relevant contact with final states?
c. Court is split 4 to 4 on whether Asahi’s placement of product into
“stream of commerce” constitutes “purposeful availment.”
d. Asahi gives no law but two very strong arguments:
i. O’Connor approach: need more; there must also be an intent to
serve the final states; D must target final states by advertising,
offering in-state customer service, etc. There is also no interest
for forum state since Zurcher (CA resident) settled out of case.
ii. Brennan approach: no need for “intentional, directed contact”;
it is sufficient contact if D puts product into stream and
reasonably anticipates that it will get to final states, or derives
a significant known benefit from the state.
e. 8 justices agree that fairness factors discourage PJ over Asahi.
14. McIntyre (2011)
a. Another “stream of commerce” case that made no law, or is it?
b. British company sold large machine to a distributor in Ohio, who then
sold it to other states including NJ. Plaintiff is injured in NJ and sues
British company in NJ.
c. Court finds no jurisdiction because:
i. 4 justices take O’Connor approach: No PJ because English
company did not “avail itself,” reach out, or target NJ.
ii. 2 justices agree on need for “purposeful availment” but not to
extent plurality suggests.
Fall 2013 Civil Procedure I – Final Exam Outline
iii. Three dissenters (AND PETERSON) would have upheld Specific
Jurisdiction in NJ because the company targeted the US without
avoiding any particular states, so it should expect the machine
to end up in NJ. They also think this is not a stream of
commerce case because McIntyre had power to affect
distributor’s sales and tell them to avoid certain markets.
15. Burnham (1990) – transient jurisdiction okay
a. Married couple separated in NJ, P moves to CA and D filed for divorce
in NJ. P sued for divorce in CA. D came to CA for three days to visit
children and was served with process in CA.
b. General jurisdiction case  claim arose in NJ.
c. Does presence when served give general jurisdiction? Pennoyer said
yes, but is this still true after International Shoe?
i. Scalia’s view: presence when served is okay by itself. Shoe is
irrelevant and it is good law under Pennoyer (“historical
pedigree”). After all, remember that Shoe expands Pennoyer,
not overrules it  conduct Shoe test IF the defendant is not
present in forum when served.
ii. Brennan’s view: Must apply Shoe to all cases regardless of
pedigree. Based on fairness, D has journeyed once to CA and
should do so again to defend himself (terrible argument – not
necessarily true). Peterson thinks Brennan does not apply Shoe
correctly because the fact that D was served in forum is
irrelevant under Shoe.
d. Court decides that transient jurisdiction is constitutionally
permissible for general jurisdiction.
16. Goodyear (2011)
a. Now the leading case on general jurisdiction with unanimous opinion.
b. Older cases (Helicopteros and Perkins) say there is general jurisdiction
if D has continuous and systematic ties with the forum.
c. Before Goodyear, contacts such as those in Shoe were sufficient.
d. Goodyear says defendant’s ties must be so continuous and systematic
that D is essentially at home in forum. (suggests Perkins would satisfy)
i. For human: domicile.
ii. For corporations: state of incorporation and state of principle
place of business.
e. But is there general jurisdiction in any other place? Goodyear cast
some doubt on the belief that huge corporations can be sued in any
state.
f. Court said general PJ cannot be based on buying and selling in the
state (mainly through internet). There must also be some kind of
physical presence.
iii. Analytical framework of constitutional test:
1. Do the traditional bases apply? (Presence, service, domicile – no more
property after Shaffer)
2. If so, then state that based on Burnham, maybe the traditional basis of
territorial service is sufficient. On the other hand, the other justices on the
opinion said Shoe test should be applied.
3. Then apply Shoe analysis:
Fall 2013 Civil Procedure I – Final Exam Outline
a. Is there a relevant contact between contact and forum?
i. Contact must result from purposeful availment, AND
ii. It must be foreseeable that D can be sued in forum.
b. If contact is relevant, we assess relatedness  Does this claim arise
from D’s contact with the forum?
i. No  General Jurisdiction
1. “Continuous and systematic contact”
2. Fairness
ii. Yes  Specific Jurisdiction
1. Contact is intentionally directed at forum or creates
significant known benefits to D.
2. Fairness
c. Is jurisdiction fair? Evaluate Five factors:
i. Burden on Defendant. (Remember BK put huge burden on D in
proving this.)
ii. Forum state’s interest. (Remember McGee said forum has state
in protecting its residents.)
iii. Plaintiff’s interests (usually in litigating at home.)
iv. Judicial efficiency/systemic convenience
v. Impact on substantive policy.
iv. Statutory test of forum state.
1. Forum State’s jurisdictional statute, as decided by state’s supreme court
a. Usually interpreted broadly so that they can have personal
jurisdiction over all disputes that affect state interest and the interest
of the state’s citizens.
b. Federal long-arm statute: Rule 4(k)(1)(A) makes the forum state’s
jurisdictional statute applicable to federal cases
2. Every state has long arm statute, allows P to sue non-resident under a list of
requirements that subject D to personal jurisdiction.
a. If professor gives long arm statute in fact pattern, study it carefully.
b. The same language may be interpreted in different ways. Watch for:
c. “The defendant committed a tort in the forum.”
Ex: Defendant manufactures widgets in state A, sells it in state B.
Widget injures P in state B and P sues in state B. Suppose state long
arm says there is jurisdiction over D who commits tort in state B.
Some courts say D did not commit tort in state B, so no jurisdiction.
Other courts say yes because injury occurred in state B. (similar to
Gray case from IL.)
v. Side Hypo: Plaintiff from Maryland is driving back home and while in Virginia, buys
a clock. The clock is defective and injures P in MD. P wants to sue clockmaker in MD.
Is there personal jurisdiction?
1. Look for MD statute that allows it to exercise in personam jurisdiction.
Suppose fact pattern gives long arm statue: “There is personal jurisdiction
over non-resident who commits a tort in MD. “
2. Did clockmaker “commit tort in MD?” Arguable either way.
a. No – he did not make the clock in MD.
b. Yes – but the plaintiff was injured in MD.
3. Would jurisdiction be constitutional?
Fall 2013 Civil Procedure I – Final Exam Outline
a. Do traditional bases apply? No.
b. Does it fulfill Shoe test?
i. Relevant contact? The clock did travel to MD.
ii. But is there purposeful availment? Read the facts carefully to
make arguments. This case seems like Worldwide VW because
P unilaterally took the clock to MD. But there might be other
facts that sway you otherwise: does clockmaker advertise in
MD? Does clockmaker sell a lot of clocks to MD residents? This
case now looks more like McGee than Worldwide.
c. Does plaintiff’s claim arise from Defendant’s contact with forum? Yes.
This means specific jurisdiction.
d. Fairness factors  What facts would reject the argument that it is
inconvenient? Clockmaker is in neighboring state. MD would have an
interest to protect its resident. P’s convenience in traveling to VA is
the same as D’s inconvenience in going to MD.
h. In Rem/Quasi in Rem Jurisdiction
i. Always prefer in personam, but sometimes it is not possible and court uses property
as basis for jurisdiction.
ii. In rem – suit is about who OWNS property.
iii. Quasi in rem – defendant clearly owns property and lawsuit is about something else.
1. Pennoyer is best QIR case. Underlying case was Mitchell v. Neff. P could not
get in personam jurisdiction over D in Oregon so he used D’s land in Oregon
as grounds to get jurisdiction over him. Holding: court must seize property at
the beginning of the case.
iv. Must have statute granting In Rem – State will have an attachment statute: forum
has jurisdiction over defendant who owns or claims to own property in forum.
v. Constitutional test is same for In Rem/Quasi In Rem:
1. Shaeffer v. Heitner (1977): seizing property at outset of case is not enough.
Defendant must also meet Shoe test (minimum contacts, etc.).
Fall 2013 Civil Procedure I – Final Exam Outline
IV.
Subject Matter Jurisdiction
a. Personal jurisdiction is over parties, subject matter jurisdiction is over cases and claims.
i. NEED BOTH FOR A CASE TO BE HEARD IN A COURT.
ii. Presumption is against SMJ  party asserting it must prove it exists.
b. CANNOT be waived – even if you consent, court cannot hear a case where it has no SMJ.
c. Once personal jurisdiction is satisfied, should the claim be heard in state or federal court?
d. State courts can hear pretty much any case; federal power is much more limited.
Constitution says Federal courts can only hear cases in Article III, §2:
i. Diversity of Citizenship, AND/OR
ii. Federal Question
iii. Other narrow categories including admiralty and maritime cases, and cases between
citizens and aliens.
e. Diversity Jurisdiction. (28 United States Code § 1332)
i. Purpose: Prevent prejudice against out-of-state citizens
ii. Relevant citizenship is at time of filing complaint:
1. Complete diversity rule  from Strawbridge – no diversity if “any plaintiff is
a citizen of the same state as any defendant.”
2. Amount in controversy must exceed $75,000.
a. Amount must exceed $75,000, does not include interest or cost.
b. Use the amount in the complaint unless D can show to a legal certainty
that P cannot recover that much
c. Aggregation: Can P add together separate claims to reach $75,000?
i. Can ONLY aggregate plaintiff’s claim if there is one P versus
one D.
ii. There is no limit on the number of claims and they can be
completely unrelated.
iii. With joint claim, use total value of the claim. The number of
parties is irrelevant. This will be clearly stated on exam with
“joint.”
iii. Citizenship for individual:
1. For US citizen, State citizenship = domicile (residence + intent to stay).
a. Person only has one domicile at a time. Test for domicile:
i. Must be present in state, AND
ii. Must form intent to make it permanent home.
1. Look at job status, voter registration, etc.
iii. Person born into parent’s domicile, and does not change
domicile until both elements have been satisfied.
2. An alien with permanent residence in the U.S. is a citizen of the state in which
he his domiciled.
3. For representatives of decedents, minors, and incompetents, use the
citizenship of the represented party.
4. No diversity jurisdiction for U.S. citizens domiciled in another country
a. Also no diversity for one alien against another, regardless of
residence status and their intent to stay in use.
iv. Citizenship for corporation is defined as: (§ 1332(c)(1))
a. State(s) of incorporation AND
b. One state where company has principal place of business.
i. Supreme Court defined in Hertz case (2010) that this is where
corporation has “nerve center”: where managers direct, control
Fall 2013 Civil Procedure I – Final Exam Outline
and coordinate corporate activities (Normally the place where
the corporate headquarters is).
2. Citizenship of unincorporated business
a. Partnerships, LLCs, labor unions, associations, etc.
b. Citizen of all states of which its members are citizens. Unions usually
cannot be sued under diversity jurisdiction.
v. Why should diversity jurisdiction go to federal court?
1. Hometown bias
2. Judges (how they are selected, how qualified they are, identity of judge,
ideology or biases)
3. Law (procedural law varies between states)
4. Juries (selection process and composition)
5. How long it will take to get a jury trial
f. Federal Question Jurisdiction. (Judicial Code § 1331)
i. If diversity fails, there must be federal question jurisdiction.
ii. Citizenship and amount in controversy are irrelevant.
iii. Claim itself must “arise under” federal law. Not enough that the case raises some
federal issues.
1. Well-pleaded complaint rule: Look only at the complaint, not at any of D’s
affirmative defenses or counterclaims. Ignore everything in complaint except
the claim itself.
a. Ask: Is the plaintiff enforcing a federal right? If yes, it arises under
federal law.
b. Just because in the course of litigation it is likely that a federal
question does arise does not make the suit arise under federal law.
c. Mottley case: Ps got lifetime passes on railroad and Congress passes
statute that bans railroad from giving passes. Complaint alleges that
railroad breached contract and that new federal law does not apply to
Ps. On face of complaint, Ps raised federal issue, but it is not a federal
question case because Ps are not trying to enforce a federal right – the
disputed statute does not give them any rights, it merely prohibits
railroad from doing something.
2. Centrality of federal issue to claim:
a. Holmes test for claims arising from federal law: “The case arises
under the law that creates the cause of action “
i. American Well Works: P manufactured a pump and sued D
under state trade libel law, because D had wrongfully accused
P of infringing on its patent on the pump. No federal question
jurisdiction. The case arises under state law – even though it
would focus on the federal issue of patents.
b. Exceptions:
i. Shoshone Mining: No SMJ if federal law creates the claim but
the only substantive law at issue is state law. Federal law gives
you the right to sue but state law governs the merits of the
case.
ii. Grable: SMJ valid if the claim arises under state law but the
substantive law at issue is federal law (if Holmes doesn’t
apply):
1. Claim necessarily raises a federal law issue
Fall 2013 Civil Procedure I – Final Exam Outline
2. That is actually disputed (not already decided & is
actually contested)
3. Substantial (not an insignificant part of the claim)
4. Won’t disturb the balance of authority between state
and federal court
5. Grable’s title action arose under state law but was based
on IRS’s failure to give adequate notice under a federal
statute. The meaning of the federal statute is actually
disputed because it is yet undecided. It is substantial
because it is the only legal or factual issue in the case.
Federal jurisdiction will not affect federal-state division
of labor.
g. Removal Jurisdiction
i. A defendant sued in state court wants to remove case to federal court. D does not
need permission to remove, just file notice of removal.
1. ONLY DEFENDANTS CAN REMOVE.
2. If P sues D in state court on a non-removable claim, and then D files a
counterclaim against P that meets federal subject matter jurisdiction
requirements, P cannot remove.
ii. If case does not belong in federal court (no jurisdiction, not properly removed), the
federal court remands to state court.
iii. Relevant statutes: USC § 1441, 1446, 1447.
iv. Defendant can remove case if:
1. The case could have been brought in federal court. (On exams, this is used to
test removal AND subject matter jurisdiction.)
a. Don’t forget In-State Defendant Rule (below)
2. D must remove within 30 days of service of process.
a. All Ds who have been served with process must join the removal.
b. 30 day restraint starts anew with each newly served defendant.
i. A later-joined D has 30 days from being served with process in
which to get the original D to join her notice of removal
ii. Contrary to Noble – this is now majority rule
3. Must remove directly to the federal court of the jurisdiction of the state court
in which it started.
4. All Ds must agree to remove the case.
v. Removability is determined at the time the removal notice is filed.
1. But – diversity must exist both when the complaint is filed and when the
removal notice is filed, to prevent D from acquiring a new domicile after the
commencement of the suit and then removing it on basis of diversity.
vi. In-State Defendant Rule [1441(b)]:
1. An in-state defendant can’t remove a claim that would be based on diversity
because there is no hometown bias.
a. NJ sues CA on a state claim in CA state court with $1 billion amount in
controversy. CA cannot remove.
b. NJ sues CA on a state claim in NJ state court with $1 billion amount in
controversy. CA can remove.
2. An in-state defendant can remove a claim based on federal question
jurisdiction.
Fall 2013 Civil Procedure I – Final Exam Outline
a. NJ sues CA on a federal claim in CA state court. CA can remove
regardless of amount in controversy.
vii. If after removal P seeks to join additional Ds whose joinder would destroy SMJ, the
court may deny joinder or permit joinder and remand the action to state court.
h. Supplemental Jurisdiction
i. Once in federal court from diversity or federal question, other claims may arise
between parties that do not invoke either basis for federal jurisdiction.
ii. Supplemental jurisdiction does NOT get a case into federal court; it applies only to
additional claims in a case that already has subject matter jurisdiction.
iii. Classic case: United Mine Workers v. Gibbs (1966)
1. Gibbs sued UMW under a federal statute in TN federal court. Gibbs joined a
state law claim. So two claims arising from one transaction, one under federal
law, and the other under state law.
2. Supreme Court held that federal court could hear the state claim under
pendant (supplemental) jurisdiction because it shares “a common nucleus of
operative fact” as the federal claim.
3. BUT  State claims arising under the same “case” as the federal law that
provides jurisdiction for the anchor claim should NOT be heard if:
a. Federal (anchor) claim dismissed before trial
b. State claim substantively predominates
iv. Supplemental Jurisdiction Test:
1. Does § 1367(A) grant supplemental jurisdiction to claim?
a. Yes if it meets Gibbs test:
i. Identify anchor claim – satisfies diversity or federal question?
ii. Does claim arise from same “Case or controversy” as anchor
claim?  “Common nucleus of operative facts”, same (or series
of) transaction or occurrence.
iii. Supplemental jurisdiction may include claims involving joinder
or intervention of other parties.
2. Is supplemental jurisdiction excluded under § 1367(B)?
a. Anchor claim only got into federal court on diversity jurisdiction, AND
b. It is a claim made by plaintiffs (or persons proposed to be joined as
plaintiffs), AND
c. Supplemental jurisdiction would be inconsistent with jurisdictional
requirements of §1332.
i. Intended to codify Kroger: The claim is inconsistent with
jurisdictional requirements of § 1332 if it is essentially the
same as an original claim that would violate complete
diversity. A claim isn’t inconsistent with § 1332 if it is made by
a defending party.
3. Claim may also be excluded in the discretion of district court if
a. It raises novel issues of state law
b. State claim substantially predominates over the federal jurisdiction
claim
c. District court has dismissed all federal jurisdiction (anchor) claims
d. Exceptional circumstances where there are compelling reasons for
declining jurisdiction.
Fall 2013 Civil Procedure I – Final Exam Outline
4. HINT: Compulsory counterclaim will always meet supplemental jurisdiction
test.
Owen Equipment & Erection Co. v. Kroger
ISSUE: Is Kroger’s claim against the third-party defendant, Owen, allowed when there is no independent
basis for SMJ over that claim?
Kroger (IA)
OPPD (NE)
Owen (IA)
ANALYSIS: Kroger’s claim against Owen arises under the same case (“nucleus of operative fact”), so it is
allowed under Gibbs. However, the claim violates the complete diversity required by U.S.C. § 1332
because Kroger would not have originally been able to sue OPPD and Owen together, because Owen and
Kroger are both citizens of IA. Kroger’s claim is an independent claim, not a dependent claim. Kroger’s
claim is also not made by a defending party.
Fall 2013 Civil Procedure I – Final Exam Outline
V.
Venue
a. Within federal court system, where can a case be brought?
i. For convenience of the parties and the courts.
b. Subject matter jurisdiction gives case permission to be heard in federal court, Venue
establishes which federal court (there are one or more districts in a state).
i. Case must satisfy Personal Jurisdiction, Subject Matter Jurisdiction, and Venue
c. Venue may be waived. If D does not raise objections to venue in answer, she waives.
d. Common Law Rules
i. Local action – If it affects real property (usually ownership or damage), needs to be
filed in the place where the land was located
ii. Transitory action – can typically be brought in places other than where they arose;
state and federal statutes prescribe venue
e. State Statutory Rules:
i. Often provide that cases must brought in the county where one of the parties
resides or does business, where the claim arose, or where property in dispute is
located.
f. Federal Statutory Rules  § 1391(b)(1) or (2), (3) if neither
i. § 1391 applies only to cases originally filed in federal court, not actions
removed to federal court.
1. Proper venue for removed actions is “the district and division embracing the
place where such action is pending [in state court].” § 1441(a)
ii. § 1391(b)(1)  Proper venue = A judicial district where any defendant resides, if all
defendants reside in the same state.
1. If all Defendants reside in forum state, then P may lay venue where any one
of them resides. This is different from citizenship.
2. For venue purposes, “residence” is: (under 1391(c)(1))
a. All districts where individual is domiciled, and
b. Where business (corporations and unincorporated associations) is
subject to personal jurisdiction for this case.
i. Usually, district of incorporation, principal place of business,
and district satisfying “minimum contact” would all work.
c. Applies to aliens lawfully admitted to permanent residence in US
iii. § 1391(b)(2)  A judicial district in which a substantial part of the events giving
rise to the claim occurred, or a substantial part of the property that is the subject of
the action is situated.
1. Can be multiple districts. Likely will find proper venue under this rule.
2. Evaluate “Substantial part” with common sense
iv. § 1391(b)(3)  If there is no district in which the action may otherwise be
brought, a judicial district in which any defendant is subject to personal jurisdiction
1. “fallback” provision – will probably only apply if incident occurred outside of
US. If so, find a district that has personal jurisdiction over any defendant.
v. § 1391(c)(2)  A corporation defendant resides in any judicial district in which it is
subject to personal jurisdiction at the time the action is commenced
1. When a state has multiple districts, D resides in any district in which its
contacts would be sufficient to subject it to personal jurisdiction
2. If no such district exists, D resides in the district in which it has the most
significant contacts
3. If D has no contacts with a district, cannot lay venue in that district.
Fall 2013 Civil Procedure I – Final Exam Outline
vi. A forum selection clause may override § 1391 if it does not show unfairness.
g. Change of Venue
i. Intra-system: Going from one court to another within federal system.
ii. Transferor = original federal court; Transferee = court to which case is transferred.
iii. Governed by § 1404 and § 1406:
1. IN BOTH STATUTES, TRANSFEREE MUST BE A PROPER VENUE AND
MUST HAVE PERSONAL JURISDICTION OVER DEFENDANT.
2. These requirements cannot be waived.
iv. § 1404(a): Transferor is proper venue.
1. “For the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district where it
might have been brought”
2. May transfer based upon convenience to parties and witnesses and in
interest of justice. The transferee court makes more judicial sense under
public and private factors (witnesses, evidence, etc.)
3. Every 1404 transfer asks where there would have been personal jurisdiction
and where there would have been proper venue
a. Hoffman: “Where it might have been brought” means where personal
jurisdiction and venue are proper, not where there is no personal
jurisdiction and venue but the defendant has waived them.”
v. § 1406: Transferor is an improper venue.
1. Court may dismiss the case or transfer in interest in justice. (Goldlawr)
vi. Choice of Law
1. Forum state chooses to apply own laws, or that of state where claim arose.
a. Federal court must use the choice of laws from state in which it sits
2. Choice of law is determined by the choice of law rules of the forum state
3. Transfer between forums – Which choice of law rules do you use?
a. Van Dusen: If personal jurisdiction and venue are proper in the
transferor state, use transferor choice of law rules in the transferee
state.
b. Ferens v. John Deere: This is true even when the plaintiff moves to
transfer and PJ/V were proper in the transferor forum (use transferor
choice of law rules)
c. Goldlawr: If personal jurisdiction/venue are improper in the
transferor state, transfer to forum where personal jurisdiction/venue
are proper and use transferee choice of law rules
d. Stewart: Choice of forum clause is important but not dispositive
h. Intersystem transfer: Forum non convenience
i. Court dismisses case because another court that is more convenient. Why? Transfer
is impossible because other court is in a different judicial system.
1. Ex: Transferor is Colorado state court, but better venue is Missouri state
court. Transfer is impossible because those are two different judicial
systems.
2. Used in federal court when better court is in foreign country  obviously no
transfer is possible so must dismiss and let parties re-litigate cases.
Fall 2013 Civil Procedure I – Final Exam Outline
3. Classic case of Piper v. Reyno: Court looked at “center of gravity” test: public
and private factors listed in footnote 6.
ii. The other court must be adequate and available.
iii. It is irrelevant if plaintiff’s remedy in the other court will be less.
iv. Piper/Gilbert test for forum non conveniens motion to dismiss: A plaintiff’s
choice of forum should rarely be disturbed, except…
i. When an alternative forum has jurisdiction to hear the case and
ii. When trial in the chosen forum would be oppressive to D at the expense of
P’s convenience or when the chosen forum is inappropriate because of
inconvenience to the court
a. Private factors (inconvenience of the litigants)
A. Relative ease of access to sources of evidence
 Keep in mind evidence of damages, too
B. Availability of witnesses
C. Possibility of view of premises, if appropriate
D. All other practical problems that make trial of a case easy,
expeditious, and inexpensive
b. Public factors (inconvenience of the forum)
i. Administrative difficulties of court congestion
ii. Local interest in having localized controversies decided at home
iii. Interest in having the trial of a diversity case in a forum that is at
home with the law that must govern the action
iv. Avoidance of unnecessary problems in conflict laws or in the
application of foreign law
v. Unfairness of burdening citizens in an unrelated forum with jury
duty
2. Piper Aircraft Co. v. Reyno
i. Reyno (administratrix) sues Piper and Hartzell in CA state court over plane
crash in Scotland. Case removed [1441] to CA federal court. Piper moved for
a 1404 transfer to PA. Hartzell moved for a 1406 transfer. Case was
transferred to PA. Both Piper and Hartzell then moved to dismiss for forum
non conveniens based on the Gilbert test.
ii. Because P’s transfer from CA to PA was a 1404 transfer, CA choice of law
rules apply (PA substantive law). Because Hartzell’s transfer from CA to PA
was a 1406 transfer, PA choice of law rules apply (Scottish substantive law).
iii. HOLDING: Gilbert test.
Fall 2013 Civil Procedure I – Final Exam Outline
VI.
Challenging Personal Jurisdiction
a. General approaches
i. Special appearance: Allows a defendant to appear in a forum for the sole purpose of
contesting personal jurisdiction. D can only raise this question and submits to the
court’s determination.
ii. 12(b)(2) Motion: Defendant is allowed to raise several defenses simultaneously
with an objection to personal jurisdiction.
b. Collateral and direct attacks on personal jurisdiction
i. Direct attack: D challenges personal jurisdiction in Case 1
1. Submit to this court’s decision
2. May challenge the decision on appeal of Case 1
ii. Collateral attack: D defaults in Case 1 and waits for the judgment in Court 1; when P
seeks to enforce the judgment in Court 2 (different jurisdiction), D challenges Court
1’s personal jurisdiction over him
1. Cannot litigate on the merits
2. If you lose Case 2, you are bound by the judgment of Case (res judicata)
c. Baldwin v. Iowa State Traveling Men’s Association
i. P sued D in MO state court. Case was removed to MO federal court. D moved to
dismiss for lack of personal jurisdiction; motion was overruled and a default
judgment for P was ultimately entered because D ignored the court’s further orders.
P sought to enforce the judgment in IA, and D there moved for dismissal for the MO
court’s lack of personal jurisdiction.
ii. A party can challenge personal jurisdiction either on a direct attack or a collateral
attack, but not both. Challenging on a direct attack and failure to follow through
amounts to res judicata.
VII.
Challenging Subject Matter Jurisdiction
a. D may move to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)
b. A defendant who litigates the issue of subject matter jurisdiction and loses cannot
challenge it again in a separate action
i. You can fail to raise SMJ while litigating the merits of the case and raise it on appeal
c. SMJ cannot be raised in a collateral suit
i. Narrow exception: Case 1 was litigated in state court but is a claim over which
federal court has exclusive jurisdiction under a statute, when P seeks to enforce the
judgment of Case 1 in federal court Case 2, D may collaterally attack
d. Remember: Rule 12(g) & 12 (h)
i. If you file any Rule 12 motion you must join any other Rule 12 motion at that time,
with the only exceptions of
1. 12(b)(6) – Failure to state a claim
2. 12(b)(1) – Lack of subject matter jurisdiction
3. 12(b)(7) – Failure to join an indispensible party
Fall 2013 Civil Procedure I – Final Exam Outline
VIII. Joinder
a. Successful joinder must satisfy Joinder Rules AND subject matter jurisdiction (under
federal question, diversity, or supplemental).
b. Adding any claim or party is “joinder,” even if it is on the original pleading.
c. Joinder Rules determine how many claims and parties can be in one case.
d. Claim joinder by plaintiff:
i. Rule 17:
1. (a) An action must be prosecuted in the name of the real party in interest
2. (b) A person must have the capacity (ability) to be sued
ii. Rule 18(a):
1. P can join any claims she has, even unrelated, in one case.
2. Not compulsory  She doesn’t have to join all her claims, but res judicata
law makes joinder of transactionally related claims mandatory, or you lose
them.
iii. After satisfying joinder rules, claims/parties still must satisfy subject matter
jurisdiction.
e. Permissive Party Joinder by Plaintiffs: Who MAY be joined?
i. Rule 20(a)(1): plaintiffs may be joined if:
1. Claims arise from same series of transaction/occurrence AND
2. Raise at least one common question.
ii. Rule 20(a)(2): plaintiffs may assert that defendants be joined if:
1. Any right to relief is asserted against them jointly, severally, OR
2. Claims arise from same series of transaction/occurrence AND
3. Raise at least one common question.
iii. If above rules allow joining parties, still must evaluate if joining parties satisfy
subject matter jurisdiction.
iv. “Same series of transaction/occurrence” define functionally – does it make sense to
try claims together for judicial economy? Can possibly be discreet events sharing a
common question of law or fact.
f. Claim joinder by defendant: (Rule 13(a) and 13(b))
i. Counter-claim: against an opposing party. Raised in defendant’s answer. Original
plaintiff becomes “defending party” and can implead 3rd parties of her own.
1. Compulsory counter-claim  Rule 13(a):
a. In answer, D must make counterclaims that arise from same
transaction/occurrence as the plaintiff’s claim AND not require
adding another party over whom the court cannot acquire
jurisdiction.
b. COMPULSORY because D must assert all claims he has against P that
arises from the same transaction/occurrence, or they are WAIVED.
2. Permissive counter-claim  Rule 13(b):
a. Claims that do not arise from same transaction/occurrence as P’s
claim. D may assert in his answer but does not have to.
3. Defendant is NOT obligated to file a counterclaim on a default judgment.
ii. Counter-claims, by itself, must satisfy diversity or federal question jurisdiction. If
not it must satisfy supplemental jurisdiction.
Fall 2013 Civil Procedure I – Final Exam Outline
1. RUN THROUGH TEST FOR EACH IN ORDER OF DIVERSITY, FEDERAL
QUESTION, SUPPLEMENTAL.
2. Common Hypo: NY plaintiff sues FL defendant for $100,000 and gets into
federal court under diversity. Compulsory counterclaim is for $45,000 under
state law. First, the claim is procedurally okay because it is a compulsory
counterclaim. Second, it does not invoke diversity jurisdiction because
amount in controversy is not enough. It does not invoke federal question
jurisdiction because it is a state law claim. But - Compulsory counterclaim
will always meet supplemental jurisdiction test because by definition it
arises from the same transaction. It is not excluded by 1367(b) because it is a
claim by defendant, thus supplemental jurisdiction is upheld.
3. Never talk about supplemental jurisdiction before evaluating diversity and
federal question.
iii. Cross-claim: Against a co-party (same side of v.)  Rule 13(g):
1. Claim arises out of the same transaction of occurrence that is the subject
matter of the original action or of a counterclaim, OR
2. Relates to property that is the subject matter of the original action.
3. Cross claims are not compulsory.
4. Common Hypo: Three way car crash between A, B, and C. All claims exceed
$75,000 and no federal question is raised. A (MS citizen) sues B and C (NY
citizens). So far the case is in federal court under diversity jurisdiction.
a. Suppose I represent C. What claims do I file?
i. C must file a compulsory counterclaim against A (or waive it).
It has subject matter jurisdiction under diversity. C may file a
cross-claim against B because it is against a co-party and arises
from same accident. There is no diversity or federal question in
the cross-claim, but supplemental jurisdiction grants subject
matter jurisdiction (arises from same transaction, not excluded
by 1367(b) because it is raised by a defendant).
g. Impleader (Third party claims) Rule 14
i. Defendant joins someone who is not an existing party – third party defendant (3PD).
1. Third-party claims are derivative, depends on outcome of main claim
a. If A is liable, someone else is liable to A.
2. The defending party cannot implead a 3rd party as an alternate
defendant  3rd party must be liable to defendant in some way.
3. Once 3rd party defendant is impleaded, defendant becomes 3rd party plaintiff.
ii. A defendant (can be the D to a counterclaim, or original P) passes on liability via a
derivative claim by:
1. Contribution among joint tortfeasors (one D sues other parties for only a
portion of the total damages)
2. Indemnity – one D sues other parties for the entire amount of the damages;
can only be used where the defendant is completely not at fault (often raised
against insurer).
iii. Impleader claim is treated like a original suit for pleading, service and other
purposes.
1. 3rd party complaint must comply with Rule 8 pleading requirements through
11
Fall 2013 Civil Procedure I – Final Exam Outline
2. Must be served under Rule 4.
3. 3rd party defendant must respond under Rule 12
iv. Hypo: Two joint tort-feasors who injure the plaintiff. P sues D, but D claims that 3PD
is jointly liable and should be in suit to pay D through contribution/indemnity. (NOT
A CROSS CLAIM BECAUSE PARTY IS NEW TO THE LITIGATION.)
v. Rule 14(a)(1): A defending party may join a non-party who is or may be liable to it
for all or part of the claim against it.
1. [3rd party plaintiff (original D) must obtain the court’s leave if it files the 3rd
party complaint more than 14 days after serving its original answer]
2. 3rd party plaintiff CAN BE THE ORIGINAL PLAINTIFF (i.e. in response to
D’s counterclaim, P brings in a third party.)
3. Again, cannot be a party who might be an alternate defendant but owes
nothing to the defendant who wants to implead him.
4. Cases show that court always has discretion to deny impleader claim.
a. Factors favoring impleader: efficiency of hearing related claims
together, avoid repeated suits or inconsistent judgments.
b. Factors against impleader: undue delay in seeking it, complication of
issues in main action, potential prejudice to the plaintiff from
sympathetic 3rd party.
vi. Rule 14(a)(2): The third-party defendant
1. (A) Must assert any defense against the third-party plaintiff’s claim under
Rule 12
2. (B) Must assert any counterclaim against the third party plaintiff under Rule
13(a) and may assert any counterclaim against the third-party plaintiff under
Rule 13(b) or any crossclaim against another third-party defendant under
Rule 13(g)
3. (C) May assert against P any defense that the third-party plaintiff has to P’s
claim
a. 3rd party Defendant can raise 12(b) defenses against P on behalf of
3rd party plaintiff, EXCEPT for objecting personal jurisdiction if the
original D has already waived that defense.
b. Also works if original P = 3rd party P; the 3rd party D can assert any
defenses that the original P would have against the original D in
response to D’s counterclaim.
4. (D) May assert against P any claim arising out of the transaction or
occurrence that is the subject matter of P’s claim
vii. Rule 14(a)($): if court has concerns about fairness of allowing impleader, may
allow impleader but separate the main suit and 3rd party suit for trial.
viii. Rule 14(a)(5): 3rd party defendant may implead further parties.
ix. Other claims that may be inserted after impleader:
1. Plaintiff can assert claim against 3PD. (Uphill claim)
2. 3PD can assert claim against plaintiff. (Downhill claim)
3. New claims must arise from same transaction/occurrence as the underlying
claim.
x. Must assess subject matter jurisdiction over every new claim. Diversity 
Federal Question  Supplemental.
Fall 2013 Civil Procedure I – Final Exam Outline
1. Impleading 3rd party does not affect court’s diversity jurisdiction over
original claim.
a. If 3rd party D has common citizenship with original P, wil not defeat
diversity jurisdiction because otherwise original D could use this to
manipulate diversity.
2. But there must be a basis for subject matter jurisdiction over the
impleader.
a. Assess Diversity  Federal Question  Supplemental jurisdiction
between original D and 3PD’s.
rd
xi. 3 party also disregarded in determining proper venue.
h. Compulsory Joinder of Parties – Rule 19
i. Joining of indispensable parties: who SHOULD be joined?
ii. There is a non-party (Absentee) that the court will force to enter the case because
he is necessary. Three steps:
1. Is Absentee necessary? Yes if she meets any test in 19(a)(1):
a. 19(a)(1)(A): Without the absentee, the court cannot accord complete
relief among the parties.
i. Common absentees: co-owner of property and only one has
been sued; Leaser controls sub-leaser who is sued by tenant,
leaser should be joined.
b. 19(a)(1)(B)(i): Absentee has interest in subject matter of suit and her
interest may be harmed if she is not joined. This is the most common
test in fact patterns.
i. Anything jointly owned/used (stocks, limited resource), for
which increasing amounts to one party will decrease amounts
for the others.
c. 19(a)(1)(B)(ii): Absentee has interest in subject matter of suit and
adjudicating without her may subject one of the parties to multiple or
inconsistent obligations.
i. Existing party will be “whipsawed” – subject to conflicting
orders in two actions that could not both be implemented.
2. Joint and several tortfeasors are never required parties. (Temple v.
Synthes) Present party isn’t adversely affected because if they have
contribution claim, they can always bring it up later. Absent party isn’t
affected becayse they aren’t bound by any judgment of the court.
3. If Absentee does not meet any of above, the case can proceed without her. If
she is “necessary,” and there is no jurisdictional impediment, she will be
made a party, usually a defendant.
4. Is joining the absentee feasible?
a. Assess personal jurisdiction and subject matter jurisdiction.
b. Joinder is feasible if there is PJ and joining absentee will not destroy
diversity.
i. As long as there is PJ, there will be a proper venue.
ii. If joinder is not feasible, then court must either proceed
without absentee or dismiss the case.
c. Deciding whether to dismiss case because absentee is “indispensable”
– judge should consider:
Fall 2013 Civil Procedure I – Final Exam Outline
i. How prejudicial will judgment be to preexisting parties,
without absentee?
ii. Are there protective measures that may lessen prejudice to the
absentee?
iii. Will judgment rendered without absentee be adequate to
existing parties?
iv. Will plaintiff have adequate remedy (presumably in another
court) if case is dismissed?
d. Court will never dismiss if it leaves plaintiff without a remedy.
i. If necessary but cannot be joined, label the absentee
“Indispensable.”
ii. 12(b)(7) motion to dismiss is the lack of an indispensable
party.
iii. Common hypo: A owns 1000 shares of stock in a corporation, but B paid for half of
it. B sues corporation to cancel the stock and reissue it in joint name between A and
B. Should A be forced to join?
1. Test 1: without A’s presence, the court cannot provide complete relief.
2. Test 2: if not joined, A will definitely be hurt. If B wins case, A’s stocks are
cancelled.
3. Test 3: the corporation might be subject to multiple and inconsistent
obligations. B might win and corporation must cancel stock, and A might sue
to get the stocks reinstated.
Fall 2013 Civil Procedure I – Final Exam Outline
IX.
i.
Intervention: Absentee is joining herself. (Rule 24)
i. Intervention of right (Rule 24(a)(2)).
1. Absentee has right to intervene if her interest may be harmed if she is not
joined. Same as one of the test for necessary parties. Difference here is that
absentee raises the issue instead of defendant.
ii. Permissive intervention (Rule 24(b)(2)):
1. Absentee can assert claim or defense if there is at least one common question
with existing claim.
j.
Class Action: Representative sues on behalf of a group of plaintiffs.
i. Prerequisites: (must meet all four in Rule 23(a))
1. Too many plaintiffs for practical joinder.
2. There is at least one question in common to the class.
a. Walmart case (2011): Supreme Court rejected case because there
were too many differing episodes of alleged discrimination.
3. Typicality. Representative’s claim must be typical of the class.
4. Representative will fairly and adequately the interest of the class.
ii. Types of class action: (must be one listed under Rule 23(b))
1. (b)(1) and (b)(2) are mandatory class actions.
2. Most common type on exam is (b)(3): must show that (1) common question
predominates over individual questions, and (2) class action is the superior
way to resolve the dispute.
iii. Motion to certify
1. Not a class action until court satisfies motion.
2. Court must appoint class counsel.
iv. Notice of pendency
1. In (b)(3) class action, court must give individual notice to all members who
are reasonably identifiable. Court must inform them of right to opt out.
2. There is no such notice required in (b)(1) or (b)(2) class action.
v. Who is bound by class judgment?
1. All class members except those who opted out of (b)(3).
2. There is no right to opt out of (b)(1) or (b)(2).
vi. The court must approve settlement or dismissal of a certified class.
vii. SUBJECT MATTER JURISDICTION
1. Could invoke federal question. Much more testable issue is diversity – how to
invoke with a class action?
a. For citizenship, look only at rep and not class members. Rep must be
diverse from all defendants.
b. Rep’s claim must exceed $75,000. Individual class members’ claims do
not matter. (Exxon v. Alapata)
Erie Doctrine
a. Generally arises in diversity cases. Federal judge must decide on an issue and question is:
Must federal judge follow state law?
b. Erie Railroad v. Tompkin:
i. In diversity cases federal court must apply state substantive law in deciding an issue
regarding state substantive law. Compelled by:
1. Rules of Decision Act (§ 1652)
Fall 2013 Civil Procedure I – Final Exam Outline
2. 10th Amendment. Federal government cannot invade powers reserved for
states.
c. Evaluate whether a claim is substantive state law on elements of claim. What if it is not
obviously substantive?
i. Hannah (1965): splits Erie doctrine in two.
1. Hannah prong: Is there a federal directive (like a FRCivP) on point? If yes,
federal law trumps state law as long as federal provision is valid.
a. Based on supremacy clause of Constitution.
b. A federal rule of civil procedure is valid if it holds up to Rule Enabling
Act – if it does not modify substantive rights. No FRCivP has ever been
held invalid.
2. Erie prong: If no federal directive on point, the judge must follow state law if
it is substantive. Supreme court does not tell us how to figure out whether
state law is substantive. THIS IS WHERE PROFESSORS DISAGREE.
a. “Outcome determinative” – if ignoring state law, there will be a
different outcome than applying it. If yes, it is substantive and judge
must apply state law. Problem is that at some point every rule will be
seen as outcome determinative.
b. “Balance the interest” – if it is not obviously substantive, judge should
apply state law unless the federal court system has an interest in
doing it differently.
c. “Twin aims of Erie” – (1) to avoid forum shopping and (2) avoid
inequitable administration of the law. To apply, ask one question at
outset of the case: if federal judge ignores the state law in question,
will it cause parties to flock to federal court? If so, do not ignore state
law.
3. Do not worry about getting an answer in this analysis, but analyze.
d. Legislature in State X wants to reduce healthcare cost through statute that requires a
medical malpractice suit to be resolved through arbitration. If plaintiff does not like
arbitration award, she can continue to a jury but jury will be told what the award was.
Suppose plaintiff sues malpractice defendant in federal court under diversity – does federal
judge need to enforce arbitration?
i. Is there federal directive on point? No.
ii. Now do Erie analysis:
1. “Outcome determinative” – could go either way.
2. “Balance the interest” – state has an enormous interest because it is trying to
drive down healthcare costs. Federal interest is not as dire.
3. “Twin aims of Erie” – if judge ignores state law, it will definitely cause parties
to flock to federal court to avoid arbitration. This is automatically inequitable
administration of law, because residents of state X cannot go into federal
court because they are barred by diversity.
X.
Discovery
XI.
Pretrial Adjudication
XII.
Trials and Motions
Fall 2013 Civil Procedure I – Final Exam Outline
XIII.
Appeals
XIV.
Claims & Issue Preclusion