Table of Contents Civil Procedure Outline

PUBLIC POLICIES TO CONSIDER............................................................................................................................2

PERSONAL JURISDICTION.......................................................................................................................................2
SERVICE & PROCESS..............................................................................................................................................5
SUBJECT MATTER JURISDICTION..........................................................................................................................6
REMOVAL AND REMAND.........................................................................................................................................9
VENUE & FNC......................................................................................................................................................10
RAISING/CHALLENGING JXN CHALLENGES.......................................................................................................11
ERIE QUESTION- WHAT LAW APPLIES ................................................................................................................12
PLEADING (COMPLAINT AND ANSWER)..............................................................................................................14
DISCOVERY............................................................................................................................................................18
RIGHT TO A JURY TRIAL......................................................................................................................................22
JURY SELECTION..................................................................................................................................................23
DISPOSITIONS OF A CASE.....................................................................................................................................24
APPEALS................................................................................................................................................................27
FRCP 60-EXTRAORDINARY RELIEF FROM JUDGMENT.....................................................................................29
PRECLUSION..........................................................................................................................................................30
JOINDER AND SUPPLEMENTAL JURISDICTION ....................................................................................................32
CLASS ACTIONSFRCP 23.................................................................................................................................35

Civil Procedure Outline

DEPTarkington (Winter 2009)

PUBLIC POLICIES TO CONSIDER

I.
II.
III.
IV.
V.

Federalism- Allocation of powers between the federal government and state governments
a. Where federal law exists and conflicts with state law, the federal law controls so long as it concern an
issue properly within the purview of the federal government
Separation of Powers
Cost of litigation and courts resources
Lawyers love having an option on where they can suethus we still have diversity cases
Protect against in-state biases

PERSONAL JURISDICTION
I.

II.

III.

General Information:
a. Pennoyer v. Neff- Need to bring the person into the jurisdiction of the court at the outset of the suit
i. Two Principles:
1. Every state possess exclusive jurisdiction over person and property within its territory
2. No state can exercise direct jxn and authority over persons and property w/o its territory
b. PJ requires two things:
i. Constitutional authorization (minimum contacts)
ii. Statutory authorization (long arm statutes)
Automatic Personal Jurisdiction:
a. Domiciliary of the state: Current dwelling and intent to stay
i. Must physically move there
b. Personally served within the state (Burnham)
i. Being in the state is considered sufficient minimum contact
ii. Scalia- Tradition dictates that all you need to have is to be personally served in the state
iii. Brennan/White- Ds presence in the state dictates that it is sufficient b/c they meet the minimum
contact test (D, while in CA, was partaking of the fruit of the economy)
iv. Bottom line: Judges all agree that service in state is sufficient for PJ(just differ on reasoning)
v. Exception: Doesnt work if the person was tricked into coming into the state OR if you solely
appear to be part of a case pending in that state (e.g. witness or special appearance)
c. Consent
i. Appoint an agent for service of process
ii. Contract with a forum selection clause
1. Even when not freely negotiated and there is disparity in bargaining power
2. May be able to fight it if you can prove:
a. Forum selection clause deprives you of a meaningful day in court, OR
b. Prove lack of notice of the forum-selection clause
iii. Consent to abide by the cts determination regarding PJ once you show up and contest jurisdiction
d. Erroneous appearance
i. Appeared in the state erroneously, not under special service, and was served
ii. Come in for a different purpose like a traffic ticket and appear before the court
e. If yes to any of these question, you have PJ, if not look to the following items:
Step 1: Long Arm Statutes (Statutory Authorization) (Call Ds back into the state to defend against a lawsuit)
a. Due process doesnt actually confer any jurisdiction on state courts; it only defines the outer bounds of
permissible jurisdictional powerit is up to the leg. of each state to actually grant their courts PJ
b. State long arm statutes-authorization to the cts of power to have jurisdiction over anyone. Three types:
i. Authorize jurisdiction to the maximum extent allowed by due process (CA)- Min. cont test
ii. Enumerated list (Authorizes jxn over Ds based on specific types of contact w/forum state)

IV.

1. If this type, check statute first, then min. contacts

2. This is a literal construction interpretation (must fall within the list)
3. Tortuous acts: (Two interpretations)
a. Felt in the state = jurisdiction (Ill Rule)
b. Must be committed in the state = jurisdiction (NY Rule)
iii. Enumerated, but interpreted to be the extent of due processMin contact test
c. Where PJ would be constitutional, but the long arm statute does not authorize it, some courts allow Ps
to use quasi-in rem jurisdiction as an alternative statutory basis
d. Federal long arm statutes (Rule 4k)
i. 4(k)(1)(a)- Directs you to the state long arm statute
1. If state statute authorizes it, move on to minimum contacts
a. Really a three part test:
i. Meet 4(k)(1)(a)
ii. Meet the states long arm statute
iii. Must be constitutionalhave min. contacts
rd
ii. 4(k)(1)(b)- 3 party and 100 mile rule
1. If served within 100 miles for a judicial courthouse, jurisdiction counts and Rule 14 & 19
2. Must still have minimum contacts with US to get this
iii. 4(k)(1)(c)- When authorized by federal statute
1. Special courts: bankruptcy, antitrust, interpleader, securities
2. Min. contacts not with US, not specific state
iv. 4(k)(2)- Underlying case based on fed law, no state has jurisdiction, min contacts met
1. Claim has to be from federal law and D must be foreign
2. Not subject to PJ in ANY state court with general subject matter jurisdiction
v. Can also use in rem as statutory authorization
1. In rem still requires minimum contact
Step 2: Purposeful Availment- Minimum Contact Test Directed at the State (Constitutional Authorization)
MINIMUM CONTACT RULE (According to Intl Shoe)
*Related or give rise to liabilities
*Unrelated to lawsuit
+Continuous Yes, personal jurisdiction
Some cases say NO, but if it is soooooooo
and systematic
continuous or substantial then YES (this
contact
means you may general jurisdiction)
+Single or
(Hess Case), Yes it CAN BE if signf.
No, personal jurisdiction
Isolated
related
Contact
-The key is to see how related it is to the
suit

Two Parts
Part 1: Minimum Contacts (Moved away from presence and consent) States no longer need an implied
consent statute like in Hess
NOTE: P does NOT have to meet in min. contact requirementit is only for D
Part 2: Reasonableness/FairnessTraditional notions of fair play and substantial justice (Memorize all)
Five Factors
a. (1) Continuous or systematic (all of the contactsregardless if related to the suit)
i. Specific Jurisdiction: Found when contacts are not necessarily continuous and systematic, but are
related to the action
ii. General Jurisdiction: Found when the contacts are so systematic and so continuous that a forum
has PJ over them on any action brought
1. If it is the cos HQ, it will probably have general jurisdiction in that state
2. You have general jurisdiction in your domicile, you may have it if you are a resident
iii. TEST NOTE: Always mention that you are going to go for specific, if that is what you want;
otherwise, if you start making a lot of arguments about a lot of unrelated contacts, it looks like
you are arguing for general jurisdiction

b. (2) Relatedness (contacts just related to the suit)

i. Is it specifically related to the suit
c. (3) Foreseeability
i. Unilateral Act (WWVW)- If unilateral act of Pno jurisdiction
1. If D has a contact w/a 3rd party and the 3rd party unilaterally, w/o Ds control gets contact
w/the state, then D is NOT subject to suit based on the 3rd partys contact
2. Corp. must reach out to make salesif corp. puts product into the stream of commerce
expecting to sell into that state, than the state has PJ, but if consumer brings the item
there by a unilateral actNO PJ
d. (4) Purposeful availment
i. Contracts (BK v. Rudzewicks)
1. Prior negotiations
2. Contemplated future actions
3. Terms of the contract
4. Actual course of dealings
ii. Goods: Stream of Commerce (Asahi v. Superior Court)
1. OConnor- Stream of Commerce Plus (4 Votes)
a. Awareness of stream of commerce is NOT enough for purposeful availment of
minimal contacts
b. Need some additional activity aimed at the specific state for it to be enough
c. Things that give you the plus part to indicate an Intent or purpose to serve a
foreign state
i. Designing product for the market in the forum state
ii. Advertising in forum state
iii. Establishing channels
iv. Providing advice to customers
v. Marketing the product through someone who has agreed to be their
distributor in that state
2. Brennan- Stream of Commerce (4 Votes)
a. Anything within the chain of distribution is within the stream of commerce and
therefore constitutes minimum contacts
b. Maj. in VW in dicta said that what is in the chain of distribution is sufficient for
minimum contacts
c. This is the broadest interpretation
3. Stevens (3 Votes)
a. Consider the following about the units sent in the stream: (Two Prong Test)
i. Volume (must have 100,000), OR
ii. Hazardous character of the component
4. NOTE: If there is stream of commerce plus additional contacts stated by OConner, than
you have 8 judges (law); if only stream of commerce, but no additional contacts you have
4 judgesthen look to see if you have over 100,000 units, if so you have 5 judges (law),
if not you have 4 judges (not law)
iii. Property
1. Property is now only a contactmust be evaluated according to minimum contact test
2. Recovery limited to amount of property attached
3. Only true and quasi 1 really will give you PJ
a. True In Rem: Jurisdiction over property (Against the property)
i. Will have minimum contacts b/c all contacts related to the property in
the state, subject to specific jurisdiction
ii. Gives specific jurisdiction
iii. Shaffer- Got rid of the attach req. and all you have to do is look at the
min. contacts to meet the constitutional requirement
b. Quasi In Rem 1- Dispute about the property

i. Determines rights and property against specific claimants

1. Adverse possession, mortgage v. mortgagee
ii. Gives specific jurisdiction
c. Quasi In Rem 2- Dispute is unrelated to the property OR property that is
related, but not about ownership
i. Must attach the property at the outset to assert the courts jurisdiction
over the property
ii. This is a gap filler if the states long arm statute is crappy-P can attach
the property and use in rem to get PJ even when the states long arm
statute wouldnt allow it
iv. Calder Test
1. What state is targeted in the article/website?
2. What state feels the effects of the article/website
3. Activities in article took place in forum
v. Internet- Zippo Test
1. How interactive is the website?
a. Passive site = No PJ
b. Interactive = Use Calder test to see if directed at people in the forum
2. How related is the internet contact to the related suit?
vi. Corporations
1. May be sued in states where they have purposeful contacts, though the state of
incorporation has significance (only for general jxn)
e. (5) Fairness/Reasonableness (traditional notions of fair play and substantial justice) (Memorize all 5)
(1) Burden on the defendant
(2) Interest of the plaintiff in obtaining relief
(3) State interest in adjudicating the dispute
(4) Efficiency of the interstate judicial system
1. Where are the witnesses from, etc
(5) Shared interest of several states in their substantive social policies
i. NOTE: These reasonableness tests come into play when min. cont. are really weak, IF min. cont.
are very strong, then the reasonableness test will ONLY matter if it creates a high level of
unreasonableness creating a constitutionally concern or it denies a person their day in court
ii. Must be unconstitutionally unreasonable for it to really affect the situation

SERVICE & PROCESS

I.
II.

III.

Two part process: Constitutional and Statutory tests

Notice: Constitutional Requirement
a. DP of 5th and 14th amendment require: 1) Reasonable notice AND 2) Opportunity to be heard
b. DP requires notice that must under all the circumstances, (1) be reasonably calculated to apprise
interested parties of the pendency of the action and (2) afford them an opportunity to present their
objections (Mullane- merely published it in the newspaper)
i. If you have actual notice that they dont know, you must provide them more information
c. Classification is irrelevant (rem, personum, etc) in determining whether notice is adequate
d. Ordinarily, notice by publication is NOT sufficient
e. Must at least mail it to them when practical and you know their address
f. Best means of service NOT required
g. Does NOT create a subjective testit is an objective test of reasonably practicability
Service (FRCP 4): Statutory Requirement
a. Service requires two things 4(c)(1): 1) Summons and 2) Copy of the complaint
b. Time limit for service Have 120 days to serve after filing the complaint 4(m)
i. Fed Question: State of limitations (SOL) tolls when you file the suit
ii. Diversity JXN: SOL will start tolling by whatever the state statute says (two possibilities)
1. File the suit

2. By service of suit
c. Who can serve process
i. 4c1- Plaintiff is responsible for service of summons and complaint within Rule 4(m)120 days
ii. 4c2- Service may be performed by anyone (1) NOT a party to the suit and (2) at least 18 yr old
1. 4c3- At request of P, the court may direct that service be effected by a US Marshall
iii. Typically canNOT use the attorney to send the lawyer to serve process
d. How to serve process on an individual within US judicial districtFRCP 4e
i. Service upon a person from whom a waiver has not been obtained and filed (other than an infant
or incompetent person may be effected in any US judicial district)
1. 4e1- pursuant to the law of the state in which the DC is located, OR
2. 4e1- pursuant to the law of the state in which service is effected, OR
3. 4e2- delivering a copy of the summons and complaint to the individual personally, OR
4. 4e2- by leaving copies at the individuals dwelling or place of abode with some person
of suitable age and discretion then residing thereon, OR
a. Suitable age and discretion is usually over 18 yrs old
b. General Rule: You must choose their main home to serve them (even if you
spend hundreds of millions building/creating a second home)
c. Kashagi Exception:
i. Serve them while they are living in that particular residence
ii. Must have sufficient indicia of permanence
5. 4e2- by delivering a copy of the summons and complaint to an agent authorized by
appointment or by law to receive service of process
e. How to serve process on infants and incompetentsFRCP 4g
f. How to serve process on Corporations and associationsFRCP 4h
i. According to provisions in 4e1 (in accordance to state law where court sits), OR
ii. By delivering summons and complaint to an officer, manager, or general agent, OR
1. Secretary at front desk is usually NOT good enoughunless she has been appointed
agent by the company
iii. By delivering the summons and complaint to an agent authorized by appointment to receive such
process and if by statute, by also mailing it to defendants
g. How to serve process on the US and its agencies, corporations, or officesFRCP 4i (Must serve to at
least two people and maybe even three)
i. Deliver a copy to one of three people: (NOTE: You cannot mail it!
1. Attorney of the district where the suit is brought,
2. Assistant US attorney, OR
3. Clerical employee of the US
ii. Mail a copy to the attorney general of the US in Washington
iii. Send a copy to the agency or the officer
iv. NOTE: This rule requires duplicate service (usually 2-3 people)
h. In rem serviceFRCP(n)(2)
i. You may use in rem to serve someone IF you prove that the other methods didnt work
1. You MUST first show the other methods didnt work
i. Sewer Service- Dishonest process servers who certify that process was served when in it wasnt

SUBJECT MATTER JURISDICTION

I.

General Principles:
a. SMJ canNOT be CONSENTED to or WAIVED by either party
b. You can assert at any time that there is no SMJ, if correct, the case will be thrown out (even after verdict)
c. SMJ canNOT be waived by the courts (courts cant usurp this authority)
i. A court that doesnt have SMJ cannot assume it, however worthy the cause
d. Types:
i. State Courts- Have general jurisdiction (may be broken up into smaller courts that can hear
exclusive issues)

II.

III.

1. The aggregate of state courts can hear pretty much anything (there are five exceptions)
2. States are free to divide SMJ among whatever courts they decide
a. Some divide by specialty some by monetary amount
ii. Federal Courts- Have limited jurisdiction
1. Limited to what is contained in Article IIIif not in Art. III, then there is no SMJ
2. Generally have two types:
a. Diversity jurisdiction
b. Federal question jurisdiction
Federal Question Jurisdiction
a. Purposes of the rule are to procure the following in the interpretation of the law (USE):
i. Uniformity (Dont want states making different laws concerning fundamental rights)
ii. Sympathy (Fed judges more sympathetic to policies underlying federal legislation)
iii. Expertise
b. 1331- DCs have original jurisdiction of all actions arising under the constitution, laws, or treaties of
the USwhat does arising under mean
i. Does NOT impose an amount in controversy requirement!
c. Holmes test: What law creates the question or cause of action
d. Well Pleaded complaint rule (Mottley): (1331- arising under interpretation=well pleaded complaint)
i. Federal issue must be in the complaint!cannot be anticipated by the answer or by the reply, but
must be in the original claimFederal defense insufficient for federal question jurisdiction
ii. Even if P knows that D is going to answer with federal law, it is NOT enough for P to get into
federal court
iii. Purposes of the rule:
1. Predictability: P know where to file and will down on number of cases that can be heard
in federal courtalmost any state claim will have a federal defense claim
2. Jxn must be established at the outset: (Pennoyer)- Jxn must begin when action starts
iv. Well-pleaded rule is NOT part of the constitutioncongress could define what arises under but
they havent done that thus far
e. Embedded federal question-State claim that turns on a federal cause of action (Grable Test): 4 Parts
i. (1) Does the state law claim necessarily raise a stated federal question?
1. Not as a defense, but as part of claim for relief
ii. (2) Is it actually disputed?
1. Has to be some question concerning the validity, construction, or effect of the fed law
a. Ex: Did they discriminate on the basis of race under title VII?
iii. (3) Is it substantial?
1. This is really smallnot really a test cause its easy to meet
2. Just be sure to bring it up on the exam
iv. (4) Does asserting jxn disturb any congressional approved balance of fed/state judicial
responsibilities?
1. Is there a federal private cause of action for the federal issue?
a. If there is, even if P doesnt assert it, but relies solely on the state for relief, then
that indicates that asserting jurisdiction over the state law claim with the
imbedded federal issue would not disturb the approved bal. of fed/state resp.
2. It not, would this cause a shift in the allocation of cases between fed/state courts?
a. Tested by volume
i. Grable quiet titlemicroscopic shift, then federal question JXN
ii. Merrel Dowhoard or removals, then NO federal question JXN b/c it
disrupts congressional allocation
Diversity Jurisdiction
a. Purposes:
i. Protect an out-of-state litigant from in-state court prejudice
ii. Dont want to waste federal courts resources deciding a state law question
b. Applies to both Ps and Ds-draw a line btwn Ps and Ds and none of the parties may be from the same state

c. Constitution doesnt require complete diversitythat is only required by 1332(a)

i. General: Fed cts have jurisdiction when the matter exceeds $75,000 and is between
1. Citizens of different states
2. Citizens of states and citizens of a foreign state
3. A foreign state as P and citizens of a state or of different states
d. Two requirements: (SC has defined diversity more narrowly than Constitution requires)
i. Jurisdictional amount OVER $75,000
1. Legal Certainty Test/Requirement:
a. To remand on this amount, it must appear to a legal certainty that P canNOT get
the amount claimed in the complaint (this typically will only occur if damages
are fixed by statute or claiming punitive for a contract claim)
2. Aggregation Rules:
a. If one P vs. one D, then P in such a case may aggregate all of her claims to meet
the jurisdictional requirement, even if the claims are unrelated legally or
transitionally (add only Ps upnot Ds claim)
b. If multiple parties on either side, then:
i. Cannot aggregate, unless Ds were joint and severably liable (joint
tortfeasors)
1. Meaning, either D could be completely liable for the full amount
ii. Cannot aggregate multiple Ps claim even if arise out of STO, unless a
common, undivided interest in a single action exists
1. Ex: Plot of land and joint tenancy
iii. Personal injuries suffered by different people are separate claims and
cannot be aggregated
c. Counter claims CANNOT be aggregated to meet the threshold
i. Some courts hold that in removal if Ps counterclaim is over $75,000 then
can remove to federal court (this is a minority rule)
3. Injunctive/Equitable Relief:
a. Amount is either (courts typically allow either)
i. Cost of the harm to P, OR
ii. Amount it would cost D to remedy the situation
ii. Complete Diversity- No jurisdiction if there is any overlap of citizenship between Ps and Ds
1. If P is from state A and 99 Ds are from state B, but 1 D is from state A, then it will have
to be in state court
e. Citizenship of an individual: (Mas v. Perry) Citizenship does NOT equal residency!
i. Citizenship of individual is their domicile
ii. Only way to change domicile is:
1. Change residence (must physically move there), AND
2. Intention to remain their permanently
iii. You may only have ONE domicile at a time
iv. Marrying an alien does NOT make you lose your US citizenship
f. Citizenship of an estate representative
i. Where the decedent was a citizen
g. Legal Representation for insane or infant
i. Where the insane or infant is a citizen
h. Citizenship of a corporation
i. Corporations may have two citizenships: (1332)
ii. Citizen of every state of its incorporation (may be more than one), AND
iii. Citizen of one state in which it has its principal place of business (ONLY one test now)
1. Nerve Center test (Brain- e.g. Intangible production cos, Microsoft):
a. When corps activities are far flung, the sole nerve center of that corp is more
significant in determining place of bus b/c that is where all decisions are made
2. If corporation is incorporated in a foreign country, it is an alien for diversity purposes

a. However, if its principal place of business in U.S., it is also a citizen in that state
Citizenship of a partnership
i. That of each partner
j. Citizenship for non-incorporated businesses
i. The business is considered a citizen of all states of which its members are citizens
ii. If a labor union is big, it could have members in all states and thus no diversity jurisdiction
k. Citizenship of a class action
i. Citizenship of the representative
ii. Also, for jurisdictional amount, everyone in the class must meet the jurisdictional amount in a
class action lawsuit (If not, they can use supplement JXN to get over the amount)
Supplemental Jurisdiction (See Analysis on last page of outline)
a. If P files a federal question and a state law claim, through supplemental, and if comes out of the
common nucleus of operative facts, then supplemental jurisdiction allows the plaintiff to bring the
state law claim in federal court even though there is no diversity jurisdiction
i. As long as federal question is a bona fide claim at the outset, if later the federal question is
thrown out, state claim is still adjudicated by the federal court
i.

IV.

REMOVAL AND REMAND

I.

II.

III.

General Principles:
a. Removal- Moving a case from state to federal court
b. Remand- Moving a case from federal to state court
c. The case must be one over which federal courts have SMJ for it to be removed
d. P is master of the complaint: Even if P could have used a fed. argument, but instead relied solely on
state statutes, D canNOT remove the complaint
e. A federal defense does NOT provide for removalCan only remove when P asserts federal rights in
their complaint
f. Only D can remove: P cannot remove if there is a counterclaim asserting a right under fed. law
Benefits of removal:
a. Backlog comparison between two courts
b. Fed court favors Ds more than state courts
c. State courts jury awards damages
d. State courts have calendar system (may not have a single judge from beginning to end)
Removal Statutes: 28 USC 1441 & 1446
a. 1441(a)
i. Can remove any action brought in state court where the fed. court has original jurisdictioncan
remove only if P could have brought it in federal court
b. 1441(b)
i. If federal questionautomatic removal
ii. If diversity, canNOT remove IF one of the Ds is a citizen of the state from which removal is
sought AND Cant remove if you seek for LESS than $75,000
c. 1446- Procedure for removal
i. (a)- D files notice of removal in the DC
1. Action may be removed by D or DsALL Ds must agree to remove or it is NOT
removable
2. Noble Rule- A minority of courts will allow a new D being added to convince the
original party, the one that waived it originally, and if BOTH agree within 30 days of the
amended complaint, they will allow for it to be removed
ii. (d)- After filing notice, D gives notice to all parties and file a copy of the notice with the state ct
iii. (d)- State will STOP proceedings, and all will immediately go to federal court
iv. (b)- D has 30 days to remove after being served with the complaint
1. If case become removable (one of the Ds dropped or fed question added), then you have
30 days to remove from when case became removable
2. In diversity cases, have 1 year during which a case can become removable

IV.

Remand Procedures 28 USC 1447(c)

a. Once removed by D, state ct has NO say P must go to fed ct and contest the removal
b. P has 30 days to file a notice in federal ct to remand the case back to state court UNLESS he files because
of SMJ (then he has all the time P wants)
i. Other grounds for remand may include:
1. Removal filed too late (after 30 days)
2. Not all Ds joined together for removal diversity
3. One D is a citizen of the state from which removal is sought in diversity
c. If after removal, the case is remanded, the ct may order the payment of costs and actual expenses incurred
as a result of the removal
d. 1447(d)- An order remanding a case to state ct from which it was removed is NOT reviewable on appeal
i. CAN appeal removal to federal court, where ct has refused to remand the case and the final
judgment has been made

VENUE & FNC

I.

II.
III.

IV.

V.

General Principles:
a. Venue- Where within the district or state should the trial be held
b. Purposes
i. Protect D from burdensome trials
ii. Preserve efficiency of court systems
iii. Restrict to 1 or a few of all the possible courts in the state
State Courts
a. Transfer of venue is county to countynever from state to state
b. For a state to state transfer in a state ct, you will use a forum non conveniens dismissal
Venue is proper for Diversity and Federal Question in
a. Where any defendant resides if all defendants reside in the same state, OR
i. If there is only one district in the state, this will not be an issue
ii. If all Ds reside in CA, but all the Ds live in different districts within the state, you can file in ANY
of the four districts
1. Ex- If 99 Ds live in district 1, and only 1 D lives in district 2, P can still file in district 2
b. Where a substantial part of the events giving rise to the claim occurred or where a substantial part of the
property that is the subject of the action is situation
i. Doesnt have to be the best place as long as substantial events occurred there
c. Fall Back Provision: If options A or B do NOT apply and there is no district where it can be brought,
then venue will be proper where D is properly subject to PJ when the action commenced
i. Only happens if the underlying cause of action occurs in a foreign country or all the different
parties reside in different states
d. An alien may be sued in ANY jurisdiction
Where does D reside for venue purposes? (Based on residencyNOT citizenship!)
a. Individuals
i. Majority view: Residence = Ds domicilehave only one residence and that is your citizenship
ii. Minority view: Can be a resident of two states if you have two homes that you reside in
b. Corporations
i. A corporation is a resident in any jurisdiction that has PJ over it
ii. To discover residence, analyze minimum contacts with each judicial district as though it were
a state. If minimum contacts with that district are sufficient, venue is proper
iii. If no such district, then corporation shall be deemed to reside in the district within which it has
the most significant contacts
1. This can be substantive or numerical
Change of Venue
a. 1404(a)- Proper Venue
i. Transfer of venue is proper if
1. Convenience of the parties and witnesses, and

10

VI.

VII.

2. In the interests of justice, and

3. Must be to a district or division where it might have been brought
ii. Burden of proof on party seeking transfer
iii. Use law of transferor court (no change of law when case is transferred)
b. 1406(a)- Improper Venue
i. May be dismissed, or in the interest of justice transferred to any district or division where it might
have been brought
ii. Use law of transferee court (choice of law rules will change)
c. Goldlawr Transfer- If ct lacks PJ, they can still transfer it to the proper venue where you will have PJ
i. Can be improper or proper venue
ii. Regardless if it is 1404 or 1406, they will use the choice of law in the transferee court
d. NOTE: Ds CANNOT waive PJ in change of venuethey can in other situations, just not here
Choice of Law
a. 1404(a)- Use law of transferor court
b. 1406(a)- Use law of transferee court
c. Goldlawr Transfer- Use law in the transferee court
d. Klaxon rule: Federal cts, sitting in diversity cases, must use state law in which they sit
Forum Non Conveniens (FNC)
a. Results in actual dismissal of the case, and it must be filed again for a more convenient forum
b. This was used before 1404 was aroundnow if you want to transfer to more convenient federal district
ct, just use 1404 rather than dismiss with a FNC
c. Use FNC when in fed ct and you think that a foreign ct is more convenient
d. Use FNC when in state ct and there is a more convenient court in another state
e. Choice of law does NOT applyMeaning, FNC may change the law that is applied
f. No FNC if the ct. knows that the more convenient forum will not hear the casemust be the MOST
convenient forum where can be subject to suit
g. Main focus: Is it convenient or not
h. Two step process:
(1) D must show that an adequate forum is available
i. Possible change in law is NOT enough to make it inadequate UNLESS the changes makes the
remedy so clearly inadequate or unsatisfactory that it is no remedy at all
(2) Must show considerations of party and forum override Ps choice of forum and justify dismissal
ii. Two types of factors to consider:
1. Look at private factors to decide if FNC is proper: (Memorize Daw)
a. Relative ease of access to sources of proof
b. Availability of witnessesboth compulsory process for attendance of unwilling,
and the cost of obtaining willing witnesses
c. Possibility of viewing the premises
d. All other practical problems that make trial of a case easy, expeditious, and
inexpensive
2. Look at public factors to decided if FNC is proper: (Memorize Daw)
a. Administrative difficulties flowing from court congestion
b. Local interest in having localized controversies decided at home
c. Having a diversity case trial in a forum that is at home with the law that must
govern the action
d. Avoidance of conflict of law
e. Avoidance of application of foreign law
f. Unfairness of burdening citizens in an unrelated forum with jury duty

RAISING/CHALLENGING JXN CHALLENGES

I.

Direct Attack
a. Appear in court to battle it out
b. Special Appearance

11

II.

i. Only worked for PJ questions

ii. If you raised anything else besides PJ, it becomes a general appearance and you waived PJ
c. Most courts now follow FRCP 12 (This got rid or special and general appearances)
i. FRCP 12(b)- Things you may contest
1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted, and
7. Failure to join a party under Rule 19
ii. Must be raised in either:
1. Motion before responding, OR
2. Pleadingthe answer itself
3. Note: Must include ALL of your defenses at once
iii. FRCP 12(h)(1)- A party waives any defense listed above in (2-5) by:
1. Omitting it from a motion when first filed, OR
2. Failing to make a motion or include it in a responsive pleading
iv. Summary of Timelines for Motions
1. 12(b)(2-5)- Must be asserted in the first response
2. 12(b)(6-7)- Must be asserted anytime before judgment
3. 12(b)(1) (SMJ)- Anytime (just not in collateral attack)
d. Good to do direct attack when you can win on merits alone or not liable
Collateral Attack
a. Do not appearyour attorney does nothing and they enter default judgment against you
b. ONLY thing you can contest is PJ
i. You CANNOT due collateral attack on SMJ
c. If your case has strong case on its merits, DONT use collateral attack
d. If on collateral attack, the ct decides that the initial judgment is void b/c of lack of PJ, then the suit can be
refilled but it will have to be filed in a diff. place (where PJ exists)

ERIE QUESTION- WHAT LAW APPLIES

I.

II.

Generally
a. Eerie applies in diversity and imbedded federal question cases
b. Is the state law substantive or procedural?
i. State law: Fed cts must give proper regard to decisions of state ACs and TCs, but its job is to
apply the law as announced, or as it would be announced, by the states SC
ii. Substantive: law that defines duties, relationships, and rights of the parties external to the
litigation process
iii. Procedural: law that determines the means by which the substantive rights are determined in ct
History
a. Swift: Interpreted the Rules of Decision act and held that federal cts in diversity should apply general law
rather than states local law where the state law deviates from the general law
b. Erie: Man is hit while walking close to RR tracks and sues the RR
i. Overturned Swift because (even though neither party argued to overturn Swift)
1. Misinterpreted the Rules & Decisions Act (said ALL lawsnot just some state law)
2. Inequitabledenied equal protection of the law and encouraged forum shopping
3. Swift was unconstitutional because it violated const. limitsthe fed cts had NOT been
delegated the law-making power of state law (e.g. torts and contract claims)
ii. Held that in div. cases substantive = state law, procedural = fed law, and NO MORE FED CL!
c. York: P sues for fraud, but statute of lim. had run; ct uses fed SL law; SCt holds that state SL applies
i. Outcome determinative test: Look to see if it significantly affects the result of litigationif it
does, apply state law

12

III.

IV.

1. State substantive law includes procedural law that sig. affects the outcome of litigation
d. Byrd: P injured while doing power lines and sues contractor for negligenceD wants a judge to
determine whether or not P is a statutory employee
i. May be outcome determinative according to York, but some procedures are such an essential
characteristic of the Independent Federal System in Administering Justice (ECIFSAJ) that
they override outcome determinative state procedure (is there an overriding federal interest)
ii. If it is a state procedure bound up with substance (PBUWS), then state law would override
federal procedural lawdetermine PBUWS by
1. Did lawmakers consider the procedure to be part and parcel of the substantive right of
recovery?
a. Aka- is the procedure used by the state leg. to affect a policy change?
iii. Balancing test: Use balancing test when you have something outcome determinative & ECIFSAJ
e. Hanna: D served according to FRCP 4- argues that state law serves differently, thus service doesnt count
i. Outcome determinative in York MEANS those procedural rules whose effect is so vital that to
apply different state and fed rule would cause forum shoppingdoes NOT mean any rule that
if unadhered to might change the outcome of the litigation
ii. If there is a valid and applicable (on point) FRCP, then it applies no matter what
regardless if it is outcome determinative, PBUWS, etc
iii. Two ways to determine if procedural:
1. Is there an FRCP on point?
2. If not, then follow the relatively unguided Erie choice
Policies
a. Limit forum shopping (gamesmanship)
b. Promotes vertical uniformity
c. Equitable administration of the law
Flowchart
a. Is there a valid FRCP on point, controlling, and in conflict with state law? If yes, use federal law
i. Two Steps: Ask
1. Is FRCP Constitutional- Rationally procedural
a. Can anyone think that it has something to do with procedure
2. Does it violate the Rules Enabling Act- FRCP canNOT abridge, modify, or enlarge a
substantive right
a. If it does violate it, the FRCP is unconstitutional and state law applies
b. Never has been struck down before, SCt is going to do it now
b. Is it state substantive law? If yes, use state law
i. Procedural- Manner or means by which substantive rights are determined
ii. Substantive- Defines duties, relationships, or rights
c. Is it procedure bound up with substance (PBUWS)? If yes, use state law
i. If it is ECIFSAJ, the cts are split and you apply state law at TC level and fed law at AC level
b/c they could accommodate both interest in that case they did which causes havocGasperini)
ii. Did the lawmakers consider it part and parcel of the substantive rights or recovery?
1. Is the procedure part of the relief to be granted?
d. Is it outcome determinative (view in light of the two Erie policies)? If yes, GO TO QUESTION E, if no,
then federal law applies
i. Two ways:
1. Twin Aims of Erie
a. Look at forum shopping and inequitable administration of laws (meaning one
outcome in one court and a different outcome in another court)
2. Post Hoc (Guaranty Trust) (Many feel this has been overruled by twin aims, but there is
nothing explicitly stating that
a. Look at cases decided and see if it made a difference
b. Ex: Bring wrong size paper to court and they dismiss

13

V.

e. Is it an essential characteristic of the independent federal system in administrating justice (ECIFSAJ)? If

yes, federal law applies, if no (and it is outcome determinative), use state law
i. ECIFSAJ- Trying to allow people to have their day in court, FRCP are supposed to be liberal
ii. Ex- right to jury in federal system
Alternative Flowchart (Byrd)
a. 1 and 2 are the same
b. 3-5 you just combine them as factors and weigh them all together
c. Note: Do this analysis last for extra points!!

PLEADING (COMPLAINT AND ANSWER)

I.

II.

Generally
a. Purposes
i. Putting parties on notice of claims and defenses of their opponents
ii. Stating facts each party believed it could prove
iii. Narrowing the number and scope of issues needing trial
iv. Providing a quick method for resolving meritless claims and defenses
b. Historic Theories of Pleading
i. Common law pleading (now abandoned)
1. Had to fit pleading into a specific writ-could prove liability, but if you plead wrong writ,
you would lose and had to start all over again
ii. Code pleading
1. Didnt have to fit into a specific writ
2. Required a pleading of the facts (a statement of the facts)
3. Code pleading requires more detail than notice pleading (the difference btwn the two)
4. Problems:
a. A P who alleges facts to specifically could be guilty of pleading the evidence
b. A P who alleges facts to generally could be guilty of pleading conclusions of law
c. Had to try to find the balance between the two
iii. Notice pleading (federal rules pleading)
1. Must make a short and plain statement of the claim (NOTE: 8(a)(2) does NOT use the
word facts)
2. Majority rule
Complaint
a. TypesFRCP 7(a) Lists 7 types of pleadings that are allowed (can be summed up in three categories)
i. Complaint, Answer, and Reply
b. RequirementsFRCP 8(a)
i. Claim for relief must contain the following: (Three things)
1. Short and plain statement of the ground for the cts. JXN
a. This is for SMJ
b. FRCP 8 does NOT require any allegations of PJ or venue (although some state
require it)
2. Short and plain statement of the claim showing the pleader is entitled to relief
3. A demand for relief sought (typically a monetary amount)
a. A demand is often called the prayer
b. The demand does NOT limit the claimyou can prove more or less at trial
c. You do NOT have to prove or put an exact amountyou can just put an
amount to be proven at trial
ii. Failure means the complaint can be dismissed by a 12(b)(6) motion failure to state a claim
1. Even if all allegations are true, it is still insufficient
2. Usually 1 opportunity to amend, then dismiss with prejudice
c. Sufficiency
i. Old Rule:

14

III.

1. Old Rule: Pleading set parameters/scope of disagreement and gave notice to D of Ps

legal theory
2. FRCP 84Forms are sufficient (could just use Form 11)
a. This was a really low bar and easy to pass
3. Complaint should NOT be dismissed for failure to state a claim UNLESS it appears
beyond doubt that P can prove no set of facts in support of his claims which would entitle
him to relief (Connoly)
4. NOTE: Talk about old rule on test because Tarkington HATES the current rule
ii. Current Rule:
1. General Rule: Showing under FRCP 8(a)(2) requires that the facts are plausible and
legal conclusions are not entitled to presumption of truth
2. Twombly- Include enough facts that the claim is plausible, possible is not enough, but it
does NOT have to be probable
a. Possible < plausible < probable
b. Plausibility rule- Must have enough facts that there is a reasonable expectation
that discovery will show that you are entitled to relief
c. Labels and legal conclusions are NOT sufficientthey must be supported by
underlying facts, enough facts to show youre entitled to relief
i. E.g. dont say they were negligent, say they were drunk and hit me
d. Parallel conduct is insufficient; need a fact to prove the inference
3. Iqbal- (5-4 decision) Confirmed that Twombly didnt just apply to antirust
a. Two prong approach: The tenet that a ct must accept as true all allegations
contain in a complaint is inapplicable to legal conclusions
i. Legal conclusions are NOT entitled to presumptions of truth
1. Ct will strike down legal conclusions
2. What is left, after striking parts, is read in light of prong 2
ii. The claim must be plausible (Twombly plausibility requirement)
1. Look for reasonable inference that the defendant is liable using
judicial experience and common sense
4. Problems: (Discuss these for points on the test to advocate going back to old rule)
a. Possible, probable, and plausible are all synonyms and are difficult to distinguish
b. Judicial experience and common sense do NOT provide notice to parties and
are arbitrarythey also promote judicial activism
c. Bald allegations dont give us any clue what the SCt is talking about
d. Iqbal was a 5-4 splitwhich means the lower courts are going to have a hard
time determining whether a fact is conclusory or not
e. Iqbal, according to the Bushman article, will cause harm in situations where there
is information asymmetry
d. Heightened PleadingFRCP 9(b)
i. Heightened pleading is required for certain things under FRCP 9(b):
1. Fraud
2. Mistake
ii. Peculiarity in FRCP means heightened pleading
iii. CanNOT require heightened pleading through judicial interpretationmust be done by cong.
e. Pleading in the alternative: Inconsistent theories are OK to plead, but you can only recover on one
Answer
a. Two options:
i. Answer the complaint
1. Time Limit: Must answer w/in 21 days, or 60 if D waive service, or 90 days if out of the
country
2. Answer must contain two things: FRCP 8(b)
a. Admit or deny any allegations asserted against you by the opposing party
i. General Denial: Deny everything

15

ii.
iii.
iv.
v.

IV.

Specific Denial: Deny individual allegations

Qualified Denial: Rephrase part that is true and otherwise deny
Admit
Lack of knowledge or info insufficient: To form a belief about the truth
of an allegation
vi. Failure to deny is treated as an admission (is admitted as true forever)
vii. Once you admit, you cannot go back on the issue
b. Affirmative defenses: State in short and plain terms partys defense
i. FRCP 8(c) and 12(b)(6) list affirmative defenses
ii. If 12(b)(2-5) and 8(c) are NOT included in answer, they will be waived
iii. There is a big argument that you must provide evidence of fact to support
all of your affirmative defenses that are listedthis would follow
Twiqbal, but the lower courts are split on this issue and since Twiqbal
relied on showing but showing doesnt appear in 8(b) defenses
ii. Bring a motion
1. FRCP 12(b)- Present Defenses
a. May bring the 12(b) motionsif you dont bring any you waive 12(b)(2-5)
b. 12(b)(6-7)- either can be made any time before or after trial
c. 12(b)(1)SMJ can be raised anytime
2. FRCP 12(e)- Motion for a more Definite Statement
a. Move for a more definite statement to which a responsive pleading is allowed,
but which is so vague/ambiguous that the party cant reasonably prepare a answer
b. Elements
i. State the defect AND State details you want
c. If 12(e) is granted, the P has 10 days to fix the complaint or the ct will strike it
3. FRCP 12(f)- Motion to Strike (very rare)
a. Court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter
i. May do it on its own,
ii. Or on motion by a party either before responding to the pleading OR
within 21 days after being served with the pleading
Amended or Supplemental PleadingsFRCP 15
a. Amendments before trial- 15(a)
i. Matter of course amendments-15(a)(1) May amend your pleading as a matter of course within:
1. 21 days after serving it, OR
2. If the pleading is one to which a responsive pleading is required, 21 days after service of
a responsive pleading or 21 days after service of a motion under any of 12(b, e, f)
3. The other party has 14 days after service of the amended pleading to respond
ii. Other Amendments-15(a)(2) In all other cases, a party may amend its pleading ONLY with
1. Opposing partys written consent, OR
2. Courts leave (when justice so requires)
b. Amendments during and after trial- 15(b)
i. Ct should freely permit an amendment when doing so will (1) aid in presenting the merits and
(2) the objective party fails to satisfy the ct that the evidence would prejudice that partys action
or defense on the merits
c. Relation back to amendments- 15(c) (Deals w/ Statute of Limitations and Amending)
i. An amendment to a pleading relates back to the date of the original pleading when:
1. The law that provides applicable SOL allows relation back,
a. Look at states SOL to see if you can
2. Amendment asserts a claim or defense that arose out of the conduct, transactions, or
occurrence set outor attempted to be set outin the original pleading
a. This usually means if it comes out of the same set of facts, it is OK to amend

16

V.

3. The amendment changes the party or the naming of the party against the claim is
asserted and that party knows or should have known that the action would have been
brought against it, but for a mistake concerning the proper partys identity
a. Failure to not know who the person is does NOT countit has to be a mistake!
i. Lack of knowledge does NOT = mistake
Veracity in Pleadings/SanctionsFRCP 11
a. Everything submitted to the court MUST have the following things: 11(a)
i. Signature by one attorney of record in the attorneys name OR by the party if they are pro se
ii. Signers contact information, email, phone number, address, etc
iii. Unsigned paper MUST be stricken by the ct UNLESS it is promptly corrected by the attorney
after being called to the attorneys or partys attention
b. Representation in the court11(b)
i. Submission to the ct certifies that the paper certifies that to the best of the persons knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:
1. It is not for an improper purposesuch as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation, AND
2. The legal claims are warranted by existing law or by a nonfrivolous argument for
extending, modifying, or changing existing law, AND
3. Factual contentions have evidentiary support or are likely to have evidentiary support
after a reasonable opportunity for further investigation after discovery, AND
4. The denials or factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a lack of information
ii. NOTES:
1. Do NOT forget the first part that it was formed after a reasonable inquiry under the
circumstances
a. If you have one day to file b/c of the SOL, you can take your clients word for it
c. Sanctions11(c)
i. If the court determines that 11(b) has been violated, the court may impose an appropriate
sanction on ANY attorney, law firm, or party that violated the ruleabsent exceptional
circumstances, a law firm must be held jointly responsible for a violation committed by its
partner, associate, or employee
ii. Two ways sanctions may be imposed: 11(c)(2-3)
1. By Motion
a. Motion for sanction must be made separately from any other motion, AND
b. Must describe the violations of 11(b), AND
c. You send it FIRST to the opposing party and give them 21 days before you file
the motion sanction, to fix the problem
i. Safe harbor rule: Party has 21 days after motion to correct a motion that
was incorrect
d. If warranted, court may award to the prevailing party the reasonable expenses,
including attorney fees, incurred for the motion
2. Sua Sponte
a. On its own, the court may order an attorney, law firm, or party to show cause
why conduct has not violated 11(b)called an order to show cause
i. You do NOT have 21 days if this happensyou are pretty much hosed
iii. Nature of the Sanction11(c)(4)
1. Must be limited to what suffices to deter repetition of the conduct or comparable conduct
by others similarly situated
2. May be non-monetary directives:
a. Striking, CLE requirements, Admonition, Censure, Reporting lawyer to the bar
3. May be a monetary penalty
a. Fine payable to the court

17

b. Reasonable attorney fees and other expenses relating to the violation payable to
the movant
c. Monetary sanctions are NOT appropriate when:
i. The party is making 11(b) legal argument (frivolous, bad), OR
ii. If sua sponte (unless there was a show-cause order before voluntary
dismissal or settlement of the claims made by or against the party
sanctioned),
iii. Can NOT do it against the partymust be against their attorney

DISCOVERY
I.
II.

Generally: The quantity and time of the information sought is left almost entirely to the parties with judicial
intervention only when there is a problem
Scope of Discovery: FRCP 26(b)
a. Parties may obtain discovery regarding any non-privileged matter that is relevant to any partys claim
or defense
i. Good Cause- For good cause a party may get the old rule for scope which use to be super
broadgood cause is a vague term, just mention it on the test for extra points
ii. Relevant Matter
1. Relevance- Need a cogent nexus between the information that you want and the claim
or defense that you are bringing
2. Must be for existing claims/defensescant try to find new ones
3. Relevance for discovery is viewed more liberally than relevance for evidentiary purposes
4. Requesting party has burden to show relevance
5. You dont have to even ask for something that will be admissible in trial as long as what
you are asking for will help lead you to information that you can submit in trial
iii. Privileged Matter
1. Once disclosed, it is no longer privileged
a. If you disclose pat of communication on a subject, rest of communication on the
subject is waived
2. Privileges
a. Attorney/clientfour elements (Memorize for test daw)
i. Confidential
ii. Communication
1. It is ONLY communication that is privilegedthat does NOT
mean that your client can tell you something and the fact is going
to be hidden
2. It does NOT make facts privileged
iii. Between attorney and client
iv. For the purpose of obtaining legal advice
v. NOTE: If there are other parties present, the privilege is destroyed
b. Work/product immunity26(e)
i. All trial preparation by an attorney
1. Qualified immunity- Such as notes for interviews, courts, etc
a. CAN be discoverable IF a substantial neednot
available by other means
2. Absolute immunity- Thought, conclusions, opinions, impressions
c. Doctor/patient
d. Priest/penitent
e. Spousal
3. Privileged Documents- 26(b)(5)
a. When a party withholds information otherwise discoverable by claiming that it is
privileged, the party must:
i. Expressly make claim that it is privileged, AND

18

ii. Describe the nature of the documents in such a manner that, w/o
revealing info itself privileged or protected, will enable the other party to
assess the privilege claim
1. Cant just hide thingsmust disclose
III.

Discovery Devices:
a. Initial Disclosure-FRCP 26(a) A party, w/o awaiting a discovery request, must provide to other parties:
i. Name and contact information of each person likely to have discoverable information you may
use to support your claim or defense
1. UNLESS the use would be solely for impeachment
ii. A copy/description of all documents, including tangible things, the party has in their control to
support its claims
1. UNLESS the use would be solely for impeachment
iii. A computation of each category of damages
1. Includes docs used to computer UNLESS they are privileged
iv. Any insurance agreement under which an insurance business may be liable
b. Supplementing Disclosures and Responses- (FRCP 26(e)) A party who has made a disclosure under
26(a), must supplement or correct its disclosure or response:
i. In a timely matter if the party learns the response/disclosure is incomplete or incorrect; OR
ii. As ordered by the court
iii. Generally: This rule means that if you get a new document you have to disclose anything new and
correct anything that you gave them that might not be correct anymore
c. Disclosure of Expert WitnessesFRCP 26(a)(2)
i. Ordinary witnesses cannot express opinions, only experts where technical/specialized knowledge
will assist trier of fact to understand the evidence
ii. A party MUST disclose to the other parties the identity of any experts that may be used at trial to
present evidencemust disclose at least 90 days before trial (2)(A)
1. Note: If the witness is NOT disclosed, they can NOT be used at trial (see 37(c))
a. Two exceptions: Unless if substantially justified OR harmless
iii. Unless otherwise stipulated or ordered by the court, this disclosure MUST be accompanied by a
written reportprepared and signed by the witness; report must contain: 26(a)(2)(B)
1. Complete statement of all opinions the witness will express and basis/reasoning,
2. Data other information considered by the witness in forming them,
3. Any exhibits that will be used to summarize or support them,
4. The witnesss qualifications, including list of all publications authored in previous 10 yrs,
5. List of all other cases in which, during the previous 4 years, the witness testified as an
expert at trial or deposition,
6. A statement of the compensation to be paid for study and testimony in the case
iv. Categories of witnesses (Must know ALL for test)
1. Experts a party expects to use at trial
2. Experts retained or specifically employed, but NOT expected to be used at trial
a. Courts are split
i. Some require names/numbers but NOT facts and opinions (absent
exceptional circumstances)
1. E.g. would it be impractical to get opinions anywhere else
ii. Some courts said NOT even names or numbers or any information
(absent exceptional circumstances)
3. Experts informally consulted in preparation for trial, but not retained
a. No discovery may be had of the names or views of experts in this category
4. Experts whose information was not acquired in preparation for trial
a. These are experts that are in fact witnesses and are accessible by either party
v. Factors to determine if the expert is retained/specially employed (2) or informally consulted (3)
1. Are they paid (specially employed) or not (Ager trial court)
a. Extent of time/depth of consultation

19

d.

e.

f.

g.

h.

i.

j.

2. Decide not to use the witness = Informally consulted (Ager)

3. Ad Hoc Basis Test: (Ager USSC)
a. Manner it was initiated
b. Nature and extent of information provided
c. Duration and intensity of the relationship
d. Terms of consultation
e. Payment of consultation
f. Additional factors that are examined as relevant
DepositionsFRCP 30-32
i. Depositions is a sworn statement
1. Used for impeachment of witnesses and evidence for summary judgment
ii. Limitations:
1. Generally, each side has 10 depositions
a. Can be changed by agreement or court order
2. Time (1 day with a 7 hour maximum per day per deposition)
a. Can be altered by agreement
3. Anyone with relevant information can be deposedthey dont need to a party to the issue
a. If you dont know who will have the best information, the corporation MUST
name the person that does
b. Must provide the name of the organization, information you want, and the
corporation must find the person and present them
4. Cannot be used at trial except for impeachment OR if not available
5. Very expensive to do
InterrogatoriesFRCP 33
i. Written question to opposing side
ii. Can ONLY be sent to parties (this is a BIG difference from a deposition)
iii. Written by an attorney and are carefully crafted
iv. Relatively inexpensive
v. Used to get basic information and answers to research
vi. Typically get 25 (including subparts)
1. May be changed by court order
vii. Helpful to get BEFORE a deposition, so you know what to ask in deposition
Document RequestsFRCP 34
i. Permits a party to require another party to produce for inspection, copying, or testing all relevant
documents and tangible things
ii. Unlimitedyou get as many as you want
iii. Limited to the party
iv. Get these BEFORE your deposition so that you can get the ?s you want to ask in your deposition
Medical ExaminationsFRCP 35
i. Must show good cause and a mental/physical condition must be in controversymust be
specific about what you cover or ask for
ii. Limited to parties to the suit (or extremely closely tied to the suit)
Request for AdmissionFRCP 36
i. Used to determine what issues are and are not in dispute
1. Used to get the other side to admit facts that are not in dispute
ii. There are sanctions if you dont admit facts that are not in dispute
Conference with PartiesFRCP 26(f)
i. Parties must confer as soon as practicableand in any event at least 21 days before a scheduling
conference is to be held or a scheduling order is due under 16(b)
ii. Discuss settlement, initial disclosures, and set up a proposed discovery plan with oppsing attorney
iii. Within 14 days after 26(f) conference, must make initial disclosures (R26(a)), leaving 1 week
until 16(a) scheduling conference
Scheduling Conference and OrderFRCP 16

20

IV.

i. Conference covers all aspects of the trial and sets deadlines for everything
ii. Must live by the scheduling orderit is binding absent showing really good cause
iii. Scheduling order is issued as soon as practicable, but it is within the earlier of (1) 120 days after
any defendant has been served with the complaint OR (2) 90 days after any D has appeared
iv. Whole process results in two orders:
1. Scheduling Conference16(b)Scheduling Order
a. Sets all deadlines, close of dispositive motions, can only be modified with good
cause and the judges consent
2. Final Pretrial Conference16(e)Pretrial Order
a. Held right before trial
b. Contains
i. Each partys assertion of facts/legal issues
ii. Every witness to be called
iii. Every piece of evidence that will be submitted
iv. Every piece of relief that you want
c. Will NOT be modified unless there will be manifest injustice
d. Supersedes all pleadings and governing actions
k. Timeline Summary
i. 26(f) conference with opposing counsel
ii. Scheduling conference and order (happens w/14 days of conference with opposing counsel)
1. Tells when the date for close of discovery
2. Tells when the date for close of dispositive motions
3. Sets a trial date
iii. 30 days before trialpretrial disclosures
1. Names of witnesses to be called, evidence to be used, and depositions/interrogatories to
be used at trial must be disclosed
a. Experts are disclosed 90 days before trial
iv. 16 days before trialfile objections to opposing counsels arguments/pretrial disclosures
1. You object before trial even happens
v. Final pretrial conferenceheld as close to the trial as possible
1. Receive the pretrial motion/order
a. This motion supersedes everything (even previously dictated date schedule)
l. Signing Disclosures and Discovery Requests/ResponsesFRCP 26(g)
i. Similar to Rule 11all documents MUST be signed by at least one attorney and must give their
contact information (email address, phone number, address)
ii. By signing, the attorney certifies that they formed their belief after a reasonable inquiry AND it
is to the best of their knowledge or information; they certify that:
1. It is complete and correct, AND
2. Consistent with the rules and warranted by existing law, AND
3. Not interposed for any improper purpose such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation, AND
4. Neither unreasonable nor unduly burdensome or expensive, considering the needs of
the case, prior discovery in the case, the amount in controversy, and the importance of the
issues at stake in the action
a. THIS section (4), is different than Rule 11
Discovery SanctionsFRCP 37
a. A party may move for an order to compel discovery, BUT the movant MUST certify that they conferred
or attempted to confer with the other party or the party failing to make disclosure/discovery BEFORE
involving court action/assistance
b. Steps to Discovery Problems:
i. Confer- with opposing counsel and ask them for the desired material
ii. Compel- Go to the court and move for an order to compel disclosure or discovery
iii. Court rules on the motion

21

1. If they rule to compel, the court MUST require the losing counsel to pay reasonable
expenses, including attorney fees:
a. Two exceptions to this:
i. The movant filed the motion BEFORE attempting in good faith to
obtain the disclosure/discovery without court action
ii. The opposing partys nondisclosure, response, or objection was
substantially justified
2. If they do NOT rule to compel, the court MUST require the moving party to pay
reasonable expenses of the other party in answering the motion
a. Only one exception here: No penalty if motion was substantially justified
iv. Losing party must give over the info. (and pay the feesunless it meets one of the exceptions)
1. If you dont comply, you will be found in contempt of court
a. Attorneys will only use this option when the attorney really feels that giving up
will be too damaging to their client and they want a quick chance at an appeal
b. Only happens in rare and extreme circumstances
2. Court may also do any of the following: 37(b)(2)
a. Direct the matters wanted to be taken as fact,
b. Prohibit disobedient party from supporting or opposing designated claims or
defenses,
c. Striking pleadings in whole or in part,
d. Staying further proceedings until the order is obeyed,
e. Dismissing the action or proceeding in whole or in part, or
f. Rendering default judgment
3. Instead of or in addition to what is just mentioned, the court must order payment of fees
c. Failure to Disclose or Supplement37(c)
i. If a party fails to provide information or identify a witness required by Rule 26(a), the party is
NOT allowed to use that information or witness to supply evidence on a motion, at a hearing, or
at a trial, UNLESS the failure was
1. Two Exceptions:
a. Substantially justified, OR
b. Harmless

RIGHT TO A JURY TRIAL

I.
II.

III.

In 1938, FRCP merged the legal and equitable courts

Amendments
a. 6th Amendment requires jury trials in criminal cases (applies to states)
b. 7th Amendment applies to civil cases (does not apply to statesthus in a civil court case, there is no
federal constitutional right to a jury, though a state constitution may provide for one)
i. Suits at common law refers to suits in the courts of law as opposed to the courts of equity
ii. It provides that the right of trial by jury shall be preserved
Test for Whether Jury Trial is Required
a. Preserve = Did you have a right to a jury trial in 1791?
i. Problem: States were all over the place on this issue, so we need to go to England in 1791 to see
when they allowed for equitable or legal relief
b. Two types of claims to decide:
i. Legal- Jury
ii. Equitable Claims- Bench Trial
c. Two part test to determine which kind of claim it is:
i. 1791 Analog (Legal History Prong)
1. See whether the instant cases cause of action was in equity or legal
2. If it was NOT a claim in 1791, find an analogous cause of action in 1791 and find out
whether or not it relates or is analogous to the instant case
ii. Type of Remedy Involved (trumps part 1 if they conflict)

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IV.

1. Look to see if it is a legal or equitable remedy

2. Monetary relief, OR
a. Monetary will be equitable when
i. It is restitution
ii. Incidental or intertwined with injunctive relief
1. No bright line rule on thishard to peg down
iii. Congress characterizes it as such (Title VII Scenario)
1. Here, congress in statute characterizes something as equitable
when that happens you will NOT have a right to a jury
b. Back pay MAY be legal or equitableit just depends on
i. It is equitable when it is restitutionarythis occurs when you work and
dont get paid
ii. It is legal when you were allowed to do it, but you werent able to do it,
so you are suing to get paid for something you didnt get to do
3. Injunctive relief
d. Brennans Dissent Test: (Chauffeurs Local)
i. Get rid of the first prong, and ONLY use the second prong because if the two conflict, the second
prong is chosen anyway
ii. This doesnt violate the 7th amendment because historically jurisdictional lines between law and
equity were primarily a matter of remedy
iii. Tarkington REALLY likes this argument! On the test, say that prong 1 is garbage and a
waste of time, Brennan was right, and finish prong two analysis
1. You might get a point in saying how bad the first prong is
Mixed Claims and Mergers
a. FRCP merged equitable and legal cts & permits parties to join legal and equitable claims in a single suit
b. You will try the legal one first (with a jury), and the equitable claims second
i. You do this b/c if you try equitable ones first, the facts will be assumed true in the legal case
(which is tried second) and the jury wouldnt be able to rule on the facts (contrary to their right)

JURY SELECTION
I.
II.

III.

Venire- Jurors summoned for duty

a. Must selected from a fair and reasonable cross-section of the population
Voir dire- Jurors that are ultimately selected from the venire
a. Purpose is to gather information about prospective jurors knowledge, bias, or opinions on the case
b. Jurors can be struck for cause when they have close connection to the parties or witnesses, or when they
have such fixed opinions that they could not judge impartially guilt of the defendant
i. Attorneys move to have the jurors stricken for cause
Peremptory Challenges
a. Number is fixed by statute:
i. Federal civil cases- 3, Non-capital felony prosecutions- 10, Capital cases- 20
b. Reasons for peremptory challenges
i. Allows for D to equalize their position
ii. Legitimizes verdicts since both sides pick the jury
iii. Allows lawyers to strike people w/o spending time and effort to ask a bunch of ?s in voir dire
c. Traditionally, attorneys could strike anyone for any reason
d. Now, b/c of Batson and J.E.B., can NOT strike for gender or race reasons
i. Batson Challenge- to challenge a peremptory strike on basis of gender or race
1. Elements/Process
a. Opponent MUST establish a prima facie case of discrimination
b. The burden shift to the proponent of the strike to come forward with a
constitutionally permissible reason
c. Ct must determine whether impermissible discrimination has been established

23

i. The reasons dont have to be very good, they could be ANYTHING other
than race or gender or a pretextual reason for those two groups
1. Could say you didnt like how they slouched, etc
2. If successful, cts are split on whether to dismiss the entire venire or sit the juror
3. Cts are also divided on the question of discrimination on religion (beliefs, not affiliation)
4. Cts have refused to extend it to economic status or visibility
ii. OConners Concurrence: J.E.B.
1. Only states should be restricted to peremptory strikes b/c the Ds rights are at stake and
they should get the jury that they want
iii. Scalias Dissent: J.E.B.
1. No harm in allowing it b/c both sides struck opposite genders, so it evens out in the end

DISPOSITIONS OF A CASE
I.

Summary JudgmentFRCP 56
a. Generally
i. Use before going to trial
ii. SJ is used when there are just issues of law
iii. All evidence considered is in written form
b. Timing of motions56(c)
i. A party may move for summary judgment any time until 30 days after the close of all discovery,
ii. A party opposing the motion must file a response within 21 days after the motion is served or a
responsive pleading is due, whichever is later; and
iii. The movant may file a reply within 14 days after the response is served
c. Appropriate when there is no genuine issue as to any material fact and when the movant is entitled to
judgment as a matter of law56(c)(2)
d. If opposing party moves for SJ, but there hasnt been time for discovery yet to disprove their assertions,
the court will grant time for discovery56(f)
e. SJ v. 12(b)
i. SJ is different than 12(b) b/c in 12(b) the court relies solely on pleadings to determine the facts
ii. In contrast, in ruling on SJ, the court looks beyond the pleadings and considers material such as
affidavits or other sworn statements such as depositions or interrogatory answers
iii. SJ is often called piercing the pleadingsyou look beyond the pleading to see if there is
anything there to support your claim or facts that you need
f. Ct may grant SJ sua sponte, but must give losing party notice that they need to come forward w/ evidence
g. Standard
i. View the evidence in the light most favorable to the nonmoving party (resolving inferences in
favor of the nonmoving party), and movant must prove that no reasonable jury could find (under
the appropriate standard: preponderance of evidence < clear and convincing evidence < beyond a
reasonable doubt) for the nonmoving party (NRJCFF)
1. The court can NOT weigh the evidence or make judgments
a. Ex: If you have 1 witness and they have 15, you are OK, if you are the only
witness on your side and the other side has 15, SJ is still NOT appropriate
b. Circumstantial evidence is good enough to defeat SJeven if other side has
direct, contradictory evidence
2. Materiality
a. Not all factual disputes are materialmust be about a critical substantive fact
b. Scintilla of evidenceMere existence of a scintilla of evidence in support of
the P's position will be insufficient; there must be evidence on which the jury
could reasonably find for the P. (Anderson)
i. Lavender (switch operator killed by a mail hook) stands somewhat
against this proposition by supporting that a scintilla of evidence is
enough, but Anderson overruled Lavender to the extent that it held that
h. Burden Standards and Responding to SJ

24

i. Preponderance of evidence (51%+), clear and convincing evidence (highly probable or

reasonably certain), and beyond a reasonable doubt
ii. Burden of Production
1. The burden the moving party bears when they make the motion for SJ
iii. Burden of Persuasion
1. This lies with the person that has the burden of proof (this could be on the D or P)
iv. Celotex (Wife claimed husband died from Asbestos from Ds products)
1. Brennans Dissent in Celotex (this has become the majority view)
a. First identify who has the burden of persuasion
b. Next, if moving party has the burden of persuasion, they can meet this burden in
Two ways:
i. Submit affirmative evidence that negates an essential element of the
nonmoving partys claim, OR
ii. Demonstrate to the ct that the nonmoving partys evidence is insufficient
to establish an essential element of the nonmoving partys claim
1. Dont need any evidence for thisyou can just argue it in your
motion
c. You are trying to move the evidence to where NRJCFFD
d. Once you have met NRJCFFD, the other party must, by evidence, move it back
to where it could go either way or to a point where no reasonable jury could find
for the movant
e. If movant does NOT have burden of persuasion at trial, they can move for SJ w/
little evidence
i. Maj: requires less evidence that Brennan would require for this to be met
f. If you have burden of proof at trial, you must produce evidence in SJ to support
your motions (whether you are moving or responding to SJ)

i.

II.

Bench Trial
i. This does NOT change the standard for SJ
1. If you did change the standard and allowed the judge in a bench trial to just take care of it
in SJ, it would become a paper trial where the judge merely rules on the affidavits and not
on all the evidence
Judgment as a Matter of Law (JMOL) (FRCP 50)
a. JMOL = Directed verdict
i. Occurs BEFORE the jury comes back with their decision
b. Process
i. Can NOT be done sua spontea motion is required if a party wants a JMOL from the court
ii. Motion MUST be made AFTER all evidence from both parties has been presented
1. Ex: P cant move for JMOL after they just present their evidence
c. Standard
i. Standard for SJ, JMOL, and RJMOL are ALL THE SAME: Viewing the evidence in the light
most favorable to the nonmoving party, no reasonable jury could find under (appropriate burden)
for the non moving party NRJCFF
d. Differences from SJ
i. SJ is pretrial, JMOL is after the trial has began
ii. SJ is based on discovery, but JMOL is based on evidence at trial in court
e. Summary
i. 12(b)(6) motions- based on pleadings
ii. SJ- based on discovery

25

III.

IV.

iii. JMOL/RJMOL- based on testimony/evidence at trial

iv. All of these take away things from the jury
Renewed JMOL (FRCP 50)
a. RJMOL = Judgment notwithstanding the verdict
i. Occurs AFTER the jury has given their verdict
b. Process
i. MUST first move for RJMOL BEFORE the jury comes back with their verdict
ii. Then, after verdict is entered, you MUST renew your RJMOL motion
1. This must be done no later than 28 days after the entry of judgment
a. This may be filed jointly or alternatively with a motion for new trial
b. No previous motion is needed for a new trial, just JMOL
iii. If the court grants RJMOL, it MUST conditionally rule on the new trial in case the ruling is
reversed or vacated
iv. On appeal, if the appellate court reverses/vacated the renewed RJMOL, then it has 3 options:
1. Reinstate the verdict
2. Grant a new trial
3. Remand to trial court determine if there should be a new trial
c. 7th Amendment
i. Not violated (no fact tired by a jury shall be otherwise reexamined in any court in the US, than
according to common law) because it is considered a DELAYED ruling on a directed verdict and
a directed verdict is found in common law
d. Many states have pattern instructions that are used
Motion for New TrialFRCP 59
a. Granting a new trial doesnt take it away from all juries, just the one that decided it b/c they werent
reasonable
b. Process:
i. Motion for new trial must be filed no later than 28 days after the entry of judgment59(b)
1. If motion is based on affidavits, they must be filed with the motion, and the opposing
party has 14 days to respond59(c)
ii. Sua sponte, the court can on its own, order a new trial for any reason that would justify granting
one no later than 28 days after the entry of judgment59(d)
c. Reasons for a new trial: (Consistent w/ 7th amendment, a new trial may be granted were CL would give
you a trial)
i. Insufficiency of evidence
1. New trial is given if the prior verdict was contrary to a great weight of evidence
2. The judge weighs the evidence and if it is REALLY one sided, he can grant a new trial
3. Look to see if there is a insufficient evidence as to a material fact
ii. Prejudicial conduct
1. Judge and attorney
a. Ex: Ex parte contact with jurors, alluding to matter not relevant or not supported
by admissible evidence, or lawyer expresses personal belief
iii. Juror Misconduct
1. Iowa Rule:
a. Extrinsic Influences- CAN be used to impeach the verdict
i. Getting outside information
ii. Verbally admitting racial discrimination or slurs
b. Intrinsic Influences- Can NOT be used to impeach the verdict
i. Use of drugsbeing high
ii. Sick, tired, etc
iii. Thinking racist thoughts, but NOT speaking them
2. Incorrect answers during voir dire may provide a basis for a new trial in VERY limited
circumstances
iv. Excessive Damages

26

1. Must shock the conscience of the court

2. Remittur- Original amount was too high, offer a lower amount or a new trial
3. Addittur- Unconstitutional in federal courtsonly applies in state courts
a. Original amount is too low, offer a higher amount or a new trial
v. Newly discovered evidence
1. Has to be evidence that could NOT have been discovered with due diligence before the
judgment was rendered
2. Has to likely have changed the outcome of the case
3. It can NOT be information that you had all along
vi. Jury Instructions
1. Before the close of evidence, the attorney must submit proposed instructions to the judge
2. Then, you have an instruction conference with the judge
a. Review instructions judge plans to give
b. Make objections to any instructions on the record
c. Judge decides which instructions will be given
i. If you fail to object, or object w/o a reason (why they are incorrect
statements of law), then appeal on the issue is waived
3. It is REALLY good to get this b/c it is de novo review on appeal
4. Two things to remember for test (from Tarkington):
a. Errors in jury instructions are common basis for appeal and reversal
b. You MUST object to jury instruction in the trial court before you can appeal the
instructions on appeal

APPEALS
I.
II.

III.

IV.

There is NO constitutional right to an appeal

a. 1291 gives appellate court jurisdiction over all final judgments of the district courts
Final Judgment:
a. A judgment that ends litigation on the merits and leaves nothing for the court to do but execute the
judgment
i. Merger: All interlocutory ruling of the court merge to become the final judgment that can be
appeal together
1. Harmless error: Errors on interlocutory orders only reversed if they materially affect the
outcome of the case
2. However, if you can show that many small decisions linked together affected the
outcome, you might be able to appeal
b. Interlocutory decision: A decision that comes before the end of the case and thus, are NOT immediately
appealable under 1291
Process:
a. After final judgment is entered, the party has 30 days to file an appeal or 60 days if the US is a party
i. The court can NOT allow a change to the 30 daysregardless of the reason
b. The judgment is effective immediately after the judgment is entered
i. This means that you have to pay the judgment even while the appeal is going on
ii. You may get a staybut you still have to provide a bond to cover the original judgment
1. The court is worried about you liquidating your asset during the appeal process
Interlocutory Appeals: Exceptions to the final judgment rule
a. Collateral Order DoctrineCohen
i. Even though it is NOT final, some rulings are immediately appealable it when they are
conclusive, resolve important questions, separate from the merits, and are effectively
unreviewable on appeal from final judgment in the underlying action
ii. Elements:
1. Conclusive
a. This is a very low bar to meet, and the ONLY time it is NOT conclusive is when
the court explicitly states that they are reserving the issue to be decided later

27

2. Important question (have this because of Rex Lee)

a. Question on a constitutional or statutory right
3. Separate (collateral to) from the merits
a. Must be completely separate (PJ and FNC are NOT considered separate)
b. Really applies to qualified immunity of governmental officials and 11th amend
i. This is not reviewable on appeal b/c the whole purpose of the immunity
is to make it so that they dont go through a lawsuit taking time away
from the job of the official
c. Really tricky prong b/c it isnt uniform and it covers random things
4. Effectively unreviewable on appeal
a. This occurs when the opportunity for meaningful review will perish unless
immediate appeal is permitted
iii. COD does NOT cover PJyou dont have an immediate appeal once the court rules that they
have PJ over you
b. 1291(a)Injunctions
i. Anything about granting, continuing, modifying, refusing or dissolving injunctions, or refusing
to dissolve or modify injunctions, you can get an interlocutory appeal on it
1. Meaning, anything dealing with an injunction means that you can get an interlocutory
appeal as a right
2. The reason we have this for injunctions is that irreparable harm is being done and you
cant wait for the case to be over to appeal because the harm would continue throughout
the original trial until the final judgment is rendered
c. FRCP 54(b)Multiple claims/parties
i. When an action presents more than one claim for relief or when multiple parties are involved, the
court may direct entry of final judgment as to one or more, but fewer than all, claims or parties if
the court expressly determines there is no just reason for delay
1. This means that you dont have to wait around for the other parties in the suit to finish,
you can appeal your suit/portion that was disposed of early on
ii. Process:
1. District court MUST enter a final judgment as to the claim, AND
2. Expressly say there is no just reason for delay
a. Must expressly state thatits similar to certification
iii. After this occurs, you still have a final judgment and thus have a right to appeal under 1291
d. 1292(b)Question of law that is key to the whole case
i. Must have the following:
1. An order
2. Involving a controlling question
3. Of law
a. It can only be a legal questionnot a question of fact or an application of a fact
to law
4. As to which there is a substantial ground for difference of opinion
a. Cant be too one sided
b. There needs to be a split among the authorities
5. That an immediate appeal from the order may materially advance the ultimate
termination of the litigation
a. This means that the case cant go forward if they dont have an answer to this
particular question/element
ii. District court MUST certify that all five of these elements are truethey have to give you
permission to appeal by certifying this
iii. Then, the appellate court must agree to the certification of the five elements
1. They have to agree too!
2. Appellate court has complete discretion on whether or not to accept it

28

iv. Summary: There must be a question of law that is key to the whole case that is split in authority
and the court does NOT know what to do in the situation/case
e. FRCP 23(f)Class Action Lawsuit
i. Applies only to the certification of a class action
1. Court has to agree that it is going to go forward as a class action
2. Must have permission to appeal with appellate courthave 14 days to do this
3. Appellate court has unfettered discretion to permit an appeal
ii. Instances when we grant a 23(f)
1. When denial of class status effectively ends the case
a. This focuses on the plaintiff
2. When grant of class status raises the stakes of the litigation so substantially that the
defendant likely will feel irresistible pressure to settle
a. This focuses on the defendant
3. When it will lead to a clarification of a fundamental issue
f. MandamusExtraordinary Remedy/Circumstances
i. Appropriate where the party seeking issuance of the write has no other adequate means to attain
the relief he desires and has carried his burden of showing that his right to issuance of the writ is
clear and distinguishable
ii. Elements: Must show
1. Gross usurpation of the lower court will allow for mandamus
a. You are trying to confine the lower court to the lawful exercise in their area
2. Must have no other effective remedies
3. Must be clear and distinguishable that you have a right to relief
a. Must have a clear and indisputable right to what happened
4. DC is blatantly flouting the law
iii. Ex: FLDS kids being taken away from their homemandamus appeal got them back
g. NOTES:
i. None of the interlocutory appeals give a stay to the proceedings of the lower court
ii. Make sure the one could arguably apply when you talk about it on the testdont just throw
random ones in for points

FRCP 60-EXTRAORDINARY RELIEF FROM JUDGMENT

I.

II.

Counsel returns back to the trial court that issued the final judgment and asks that the final judgment be undone
a. This is NOT an appealyou are going back to the court and asking them to change what they said
b. Rarely happensmust be an extraordinary situation
c. You have a reasonable time to make a 60(b) motion60(c)
i. For reasons 1-3, no more than a year is reasonable
Reasons for Extraordinary Relief from Judgment60(b)
a. Mistake, inadvertence, surprise, or excusable neglect
i. Mistake has to be one of factnot a lawotherwise you would have appealed it to the AC
ii. Excusable neglect does NOT include failure to read or understand the law or rules
1. If you dont understand the law or rules you are in troublect will not change the rules
because of your incompetence
2. Inability to manage your case load is NOT excusable neglect
iii. Excusable neglect does include:
1. Secretary that NEVER messes up, messes up and things are lost
2. Heart attack
3. Computer breaks down (possibly)
b. Newly discovered evidence that, with reasonable diligence, could NOT have been discovered in time to
move for a new trial under FRCP 59(b);
i. Evidence is likely to change the outcome of the case
c. Fraud, misrepresentation, or misconduct by an opposing party
d. The judgment is void;

29

i. Only applies in rare situations where you have jurisdictional errors where there was no arguable
basis for jurisdiction
e. The judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively is no longer equitable; OR
i. This means preclusion
f. Any other reason that justifies relief
i. Has to be the same sort of things as 1-5
ii. Almost NEVER occurslevel of mandamus
1. Super exceptional circumstances

PRECLUSION
I.

Claim Preclusion (AKA Res Judicata)

a. Definition: Precludes all claims that could have been brought in the first case
b. Elements: (Three + Result)
i. Final judgment on the merits
1. 41(b)Pretty much everything that is not lack of jurisdiction, improper venue, or
failure to join a party under Rule 19 is ON THE MERITS
2. On the merits means where there was an opportunity to prosecute on the merits
ii. Same parties or their privies (nonparties)
1. Virtual representation is NOT allowed anymoreTaylor
2. Exceptions to virtual representation
a. A nonparty who agreed to be bound by the determination of issues in an action
between others is bound in accordance with that agreement,
b. Nonparty preclusion may be justified based on a variety of preexisting
substantial legal relationships between the party to be bound and a party of
the judgment
i. Ex: If you have a property dispute with neighbor, and it is settled,
someone that buys your house cannot relitigate the issue
c. A nonparty may be bound by a judgment b/c she was adequately represented
by someone with the same interests who was a party to the suit
i. Ex: Class actions, fiduciaries, parents
d. A nonparty is bound is she assumed control over the litigation in which the
judgment was rendered
e. A bound party may NOT avoid preclusive force by relitigating through a proxy
i. Cant hire someone to pursue an issue that is basically your case
f. Certain special statutory schemes may expressly foreclose successive
litigation by nonparties if the scheme is otherwise consistent with due process
i. Ex: Bankruptcy
iii. Same claim4 Different Theories
1. Primary Rights: We define a claim by deciding if it is the same right
a. Ex: Right to secure property is different than the right to secure person
2. Single Wrongful Act: Look at the wrongful act that caused everything
a. Ex: If someone slanders you and punches you, that is two different acts; but,
when he punched you he ruined your shirt, that would be a single wrongful act
even though you had property and personal damages
3. Same Transaction or Occurrence (STO):This is the federal rule (federal common law)
and the majority view- Focuses on whether the facts are connected in time or manner
AND common nucleus of operative fact (CNOF)
4. Sameness of the Evidence: Rarely used, do not need to know about it, just that it exists
list on the exam for extra points
iv. Result: It precludes all matter that were or might have been litigated
c. Exceptions to Claim Preclusion
i. The parties have agreed in advance to allow P to split his claim,

30

II.

ii. The ct in the first action has expressly reserved the Ps right to maintain the second action; or
iii. The plaintiff was unable to rely on a certain theory of the case, etc; or
iv. The judgment in the first action was plainly inconsistent with the fair and equitable
implementation of a statutory or constitutional scheme; or
v. For reasons of substantive policy in a case involving a continuing or recurrent wrong, the
plaintiff is given an option to sue once for the total harm, both past and prospective, or to sure
from time to time for the damages incurred to the date of the suit, and chooses the latter course;
or
vi. It is clearly and convincingly shown that the policies favoring preclusion of a second action are
overcome for an extraordinary reason, such as the apparent invalidity of a continuing restraint
or condition having a vital relation to personal liberty or the failure of the prior litigation to yield
a coherent disposition of the controversy
Issue Preclusion
a. Definition: Not allowed to relitigate an issue that has been decided by a previous lawsuit
b. Elements: (Three)
i. Final judgment on the merits
1. Default judgment and 12(b)(6) will not bring up issue preclusion
ii. Precludes a party or privy from first case
1. This is different than claim preclusion analysismay be mutuality, DNMCE, ONMCE
iii. From relitigating the same issuetwo part test:
1. Actually litigated and decided, AND
2. Necessary and essential to the judgment
a. Sally and Joe hypos (pg. 614) (If it changes verdict, it is essential)
c. Mutuality- Required to have the same plaintiff and defendant from prior action to use preclusion
i. Required in some states
d. Defensive Non-Mutual Collateral Estoppel (DNMCE)
i. Rule: Used by D, P sues D1 and loses on an issue, then sues D2 on the same issue= D2 can use
the decision on the 1st case to preclude P from relitigating the issue
1. Allowed by federal court and most states (some states still require strict mutuality)
ii.
D1 (wins)
P1 (loses)
D2
e. Offensive Non-Mutual Collateral Estoppel (ONMCE)
i. Rule: Used by P, D is precluded from using a defense/issue decided in the 1 st case
ii. P1
D1 (loses)

(win)

f.

P2
iii. DC has discretion to decide if it is allowed; may be accepted in some states
1. Elements of discretion:
a. Ease of joining
i. If P could have easily joined the 1st trial then he may be precluded from
using ONMCE
b. Judgment is inconsistent with previous decisions
c. Different procedural opportunities
i. Ex: You had no discovery in the first action
1. Jury trial is NOT enough of a procedure for preclusion
d. Incentive to litigate or foreseeable
i. If in the first judgment you could not foresee that there were going to be
future cases and the amount was small, you may not zealously defend
your position and losethus opening up a floodgate
ii. Ex: RR Co. will settle with the first case for a high amount
Exceptions to Issue preclusion

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III.

i. The party against whom preclusion is sought could not, as a matter of law, have obtained review
of the judgment in the initial action, OR
ii. The issue is one of law and
1. The two actions involve claims that are substantially unrelated, OR
2. A new determination is warranted in order to take account of an intervening change in the
applicable legal context or otherwise avoid inequitable administration of the laws, OR
iii. A new determination of the issue is warranted by differences in the quality or extensiveness of
the procedures followed in the two courts or by factors relating to the allocation of jurisdiction
between them, OR
iv. The party against whom preclusion is sought had a significantly heavier burden of persuasion
with respect to the issue in the initial action than in the subsequent action; the burden has shifted
to his adversary, or the adversary has a significantly heavier burden than he had in the first action,
v. There is a clear and convincing need for a new determination of the issue
1. because of the potential adverse impact of the determination on the public interest or the
interests of the persons not themselves parties in the initial action
2. because it was not sufficiently foreseeable at the time of the initial action that the issue
would arise in the context of a subsequent action, or
3. because the party sought to be precluded, as a result of the conduct of his adversary or
other special circumstances, did not have an adequate opportunity or incentive to
obtain a full and fair adjudication in the initial action
Deciding which Preclusion Law Applies
1st Court
2nd Court
Applicable Law
Claim Preclusion
Issue Preclusion
Possibilities
Possibilities
State
LJRS
CNOF
Strict Mutuality
State
Fed
LJRS
Wrongful Act
DNMCE
State
LJRS
Primary Right
ONMCE
Fed (Diversity)
Fed
Fed CL = LJRS
Sameness of evid.
State
LJRS??
Claim- Just CNOF
LJRS= Law of
Fed (Question)
Issue- Always
judgment
Fed
DNMCE (possibly
rendering state
ONMCE)

JOINDER AND SUPPLEMENTAL JURISDICTION

I.

II.

III.

Generally
a. Step 1: Ask if there is a joinder rule that permits assertion of the claim
i. If no, you cannot continue
ii. If yes, continue to step two
b. Step 2: Ask does the court have jxn (PJ, SMJ, venue, etc) to hear the claim?
i. Must satisfy BOTH steps
c. Test Note: For additional points, argue why the court would decline to hear a claim
FRCP 18- Joinder of Claims
a. Rule: Allows P to join/add as many claims as they want to their claim against the opposing party, but
they must have an existing claim (or counterclaim) to use this rule
b. Covers claims, counterclaims, cross-claims, or 3rd party claims
c. Claims do NOT have to be related
d. Court MUST have jxn to hear all of the claims asserted (need independent OR supp. jxn)
FRCP 14- Impleader of 3rd Parties
a. When a Defendant May Bring in a 3rd Party-14(a)
i. Rule: D may serve a summons and complaint on a nonparty who is or may be liable to it for all
or part of the claim against it

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IV.

V.

1. D can bring in a TPD even if it occurs before the TPD is liable to D14(a) says who is
or may be liable (Markvicka)
ii. Timing: D must obtain the cts leave, by making a motion, if it files the 3 rd party complaint more
than 10 days after serving its original answer
b. 3rd Party Ds Claims and Defenses-14(a)(3)
i. TPD must assert their 12(b) defenses in answer
ii. May assert against P any claim arising out of the STO that is the subject matter of Ps complaint
1. However, make sure there is sufficient SMJ or SJ for the claim to be supported
c. When a Plaintiff may Bring in a 3rd Party-14(b)
i. Rule: When a claim is asserted against a plaintiff, the plaintiff may bring in a 3 rd party if this
rule would allow a defendant to do so
d. Upsloping Claim: Where P asserts a claims against TPD
i. Not OK if in diveristy UNLESS there is independent jxn (does NOT meet 1367(b))
1. Split: There is a split if P adds a TPD after receiving a counter claim from the original D
a. Some cts allow this b/c they consider P in that situation to become a D (P is
responding to a counterclaim and thus becomes a D)
b. Other cts consider P still a P, and thus they are adding a TPD under Rule 14
which is NOT allowed for supp. jxn under 1367(b)
e. Downsloping Claim: Where TPD asserts a claim against P
i. OK under supp. jxn and independent jxn (see supp jxn discussion)
FRCP 20- Permissive Joinder of Parties
a. Plaintiffs: 20(a)(1)
i. Rule: P may join in one action as plaintiffs if:
1. The claim arises out of CNOF, AND
2. Any question of law or fact common to all Ps will arise in the action
b. Defendants: 20(a)(2)
i. Rule: P may join in one action as defendants if (same rule as plaintiffs)
c. Courts Discretion: 20(b)
i. The court may issue ordersincluding an order for separate trialsto protect against
embarrassment, delay, expense, or other prejudice that arises from including a person against
whom the party asserts no claim and who asserts no claim against the party
d. Supplemental Jxn
i. If federal question, allowed under 1367a
ii. If jurisdiction is based on diversity, no SJ if
1. If this would destroy diversity OR
2. Claim doesnt reach jurisdictional amount
FRCP 13(a) & (b)- Counterclaims
a. Compulsory- 13(a)
i. Rule: A pleading must state as a counterclaim any claim that the pleader has against an opposing
party if the claim:
1. Arises out of STO that is subject matter of the opposing partys claim, AND
2. Does NOT require adding another party over whom the ct cannot acquire jxn
3. Exceptions: Do NOT need to state the counterclaim when
a. The action commenced, the claim was subject to another pending action, or
b. No PJ
ii. D may include a new plaintiff if CNOF and STO standards are met
iii. Discretion: Because compulsory counterclaim is an equitable doctrine, the court has discretion
and may let parties out of it if
1. The plaintiff was pro se and didnt have legal assistance
2. There is a settlement (rarely happens, but the court will state this isnt a final judgment
and perhaps let you out of it)
iv. NOTE: Use it or lose itif default judgment is entered against you, you lose that case AND any
compulsory counterclaims that you would have had in that case

33

VI.

VII.

b. Permissive- 13(b)
i. Rule: A pleading may state as a counterclaim against an opposing party any claim that is not
compulsory
c. Supplemental Jxn for Compulsory Counterclaim
i. Rule: ALWAYS will have CNOF
ii. Federal Question: If you have a compulsory counterclaim on a case that is there b/c of a federal
question, you will ALWAYS have SJ because it arises out of CNOF
1. Just need to meet CNOF
a. Ex: Even if the compulsory counterclaim is a state claim, SJ will be given b/c it
has a CNOF with the jnx conferring claim
iii. Diversity: Will ALWAYS have CFNO for diversityeven if jxn amount on claim is too small
1. May not have if it is an upsloping compulsory counterclaim
d. Supplemental Jxn for Permissive Counterclaim
i. Rule: Permissive counterclaims will NEVER have supplemental jxn
1. They will always need independent jxn
FRCP 13(g)- Cross claims
a. Rule: A cross claim is permitted if
i. The claims arises out of STO, OR
ii. The claim relates to any property that is subject matter of the original action
b. Note: CanNOT have a cross claim on something that is unrelated (this is different than a counterclaim
b/c with a counterclaim you can have it on something that is unrelatedcalled permissive counterclaims)
i. Must have CNOF- this is odd b/c it is NOT compulsory to cross claim, but it is w/counterclaims
FRCP 19- Required Joinder of Parties
a. Process: 2 Steps
i. Step 1: Determine if the party is a required party (aka necessary)
1. Three ways a party can be required:
a. The court cannot provide complete relief without them, OR
b. It will impair or impeded absentees ability to protect their practical interest, OR
c. It would subject the existing party to risk of double, multiple or inconsistent
obligations (Ex: Cant put full amount of stock in the name of 2 people)
ii. Step 2: Determine if joining parties is feasible
1. Whether absentee is subject to PJ, would it invoke fed q and diversity
2. No one really knows what this means (it could be a location thing)
b. If party is NOT feasible
i. Rule: If joining party is not feasible, must determine if party is indispensible
1. Factor in determine if indispensible
a. Extent of prejudice to outsiders or existing parties
b. Extent to which this can be fixed through other means
c. Whether a judgment rendered in the persons abuses would be adequate
i. Adequacy: Determine if there is a public interest as doing it as a whole,
and if it will be complete, consistent, and efficient
d. Whether there is an alternate forum for this dispute where everyone can be
parties and they can be all be sued
i. Ex: All could be sued in state court
2. If indispensible, dismiss the caseif not, proceed
c. Supplemental Jxn
i. Federal Question
Rule: Will have SJ because if they are required there is CNOF-which is enough for supp
ii. Diversity
1. If brought under diversity and they are a D, they are NOT allowed under 1367(b) OR
2. If brought under diversity and they are a P, they are NOT allowed under 1367(b)
3. Rule: No supp. jxn for Rule 19 parties
a. You will always need independent SMJ for the party to be proper

34

VIII.

IX.

FRCP 24- Intervention

a. Rule: On a timely motion, the court must permit anyone to intervene who:
i. Has an interest relating to the property or transaction that is the subject of the action,
ii. So situated that disposing of the action may as a practical matter impair or impede the movants
ability to protect its interest, or
iii. Existing party will adequately represent you
b. Timeliness Factors
i. How long the intervernor knew of her interest before moving to intervene,
ii. Whether the intervenors delay will prejudice an extant party,
iii. Whether denial of the intervention will prejudice the absentee, and
iv. Any unusual circumstances affecting a finding of timeliness
c. Supplemental Jxn
i. Federal Question
1. Rule: Will have SJ because there will always be CNOF-which is enough for supp JXN
ii. Diversity:
1. Rule: No supp. JXN allowedwill always need independent SMJ
Jurisdiction
a. Independent: Always check for independent basis for SMJ (federal question and diversity)
b. Supplemental- 1367
i. Federal Question (Check (a) and (c) only)
1. Step 1: Is there CNOF with jurisdictional conferring claim? (a)
a. STO = CNOF
2. Step 2: Does the case meet any of the discretionary factors to decline supp. jxn? (c)
a. Claim raises a novel or complex issue of state law
b. Claim substantially predominates over the claim or claims over which the DC has
original jxn,
c. DC has dismissed all claims over which it has original jxn, or
d. Exceptional circumstances
i. Ex: Jury Confusion
ii. Diversity: (Check (a), (b), and (c))
1. Step 1: Is there CNOF with jurisdictional conferring claim? (a)
2. Step 2: Supplemental jxn is NOT OK when
a. Claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24
b. Claims by persons proposed to be joined as plaintiffs under Rule 19
c. Claims by persons seeking to intervene as such plaintiffs under Rule 24
3. Step 3: Discretionary factors (see step 2 under federal question)
iii. Diversity Problems:
1. Complete diversity
a. Contamination Theory- Complete diversity is destroyed and parties are not
allowed to get supp. jxn because they can NOT get past 1367(a)
i. Reasoning: Contamination means that the original DC did NOT have the
requisite original jxnthus they fail 1367(a)
2. Jurisdictional amounts
a. First, need CNOF with a jxn conferring claim
b. Next, if on P has met the jxn amount, other Ps can be added even if they have
less than the jxn amount using supp. jxn
c. Plain reading of 1367(b) states allows for parties to get around jxn amount
i. We do NOT care what he legislative intent wasused textual approach

CLASS ACTIONSFRCP 23
I.

Process
a. Step 1: Get your class action certified by the court

35

II.

III.

i. Must prove that you meet the requisites for a class action
ii. Done after (a) and (b) are met
b. Step 2: Meet Prerequisites- 23(a)
i. (1) Numerosity
1. Too many people that it would make it non-manageable
2. No magic number
ii. (2) Commonality
1. Must have common question of law or fact
a. Should be really easy to do
iii. (3) Typicality
1. Class representative must be typical of rest of the class
2. If you have people w/different harms and facts, then you will need a class rep for each of
those classes
iv. (4) Adequate Representation
1. Court must investigate whether or not the lawyer is qualified to be the class rep
2. Look at 23(g) for factors
Different Classes
a. 23(b)(1) Limited fund class- (mandatory)
i. Class that is needed to avoid inconsistent judgments AND practical impairment
1. Practical impairment could occur when there is a limited fund situation for a company
b. 23(b)(2) Equitable and Injunctive class (mandatory)
i. Only trying to get injunctive or declaratory judgments
ii. Always used in the civil rights cases
iii. Class members cannot opt out
c. 23(b)(3) Predominant and Superiority (voluntary)
i. Monetary damage claims
ii. Two Factors:
1. SuperiorityClass action has to be superior to other methods
2. PredominanceQuestions of law or fact must predominate
a. These facts must predominate more than the individual issues
iii. Difference of 23(b)(3)
1. Option to opt out
a. At the beginning AND before judgment is entered, parties are given the option to
opt out of the class action and pursue with their own attorneys
2. Required notice
a. Must give notice to all affected parties at the beginning of the suit
b. Notice must be clear and concise
c. Class reps have to pay for the required notice
i. This is a big deterrent
ii. Attorney are NOT allowed to pay for it
d. Permissive Notice: Court can require notice for 23(b)(1) and (b)(2) options, but it
is NOT required that they do so
Settlement, Voluntary Dismissal, or Compromise 23(e)
a. Rule: Court must approve any action that will affect the entire class
i. Court must approve the settlement amount
b. Factors to Consider23(e) (1-5)
i. Direct notice to all that would be affected,
ii. Must hold a hearing to determine if fair, reasonable, and adequate
iii. Attorneys must disclose any agreement made in connection with the proposal
iv. Must allow for 23(b)(3) class members to opt out
v. Must allow objections from all class members

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