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CIVIL PROCEDURE OUTLINE2012 I. Introduction: Chapter 1: An Introduction to American Courts A. The reasons why we want the Supreme Court: 1. Federal Law 2. International Law 3. Diversity Jurisdiction B. Court of Original Jurisdiction: 1. Courts have the authority to hear the subject matter. 2. States get to set the own rules as to what type of claims they will hear C. The difference between concurrent and exclusive jurisdiction i. Concurrent- Authority possessed by two or more different courts to hear and decide on the same matter within the same territory. The choice of which court will be used is left up to the plaintiff. Exclusive- a court with "exclusive jurisdiction" has power in certain areas or over certain persons (subject matter) to the exclusion of all other courts.

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D. Litigation Process 1. Pleading/ Complaint i. Pleading: Each party in a lawsuit files initial papers. The pleadings explai each partys side of the dispute. Complaint: Litigation begins when the plaintiff files a complaint with the court and formally delivers a copy to the defendant. Complaint describes what the defendant did (or failed to do) that

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5 caused harm to the plaintiff and the legal bases for holding the defendant responsible for that harm. If defendant believes everything is true, then a 12B6 is set in place. iii. Answer: The defendant is given a specific amount of time to file an answer to the complaint. The answer provides the defendants side of the dispute.

2. Discovery: The parties ask each other and third parties for information about the facts and issues of the case. i. Scope of Discovery: Rule 26B- the court has the authority to limit discovery for various reasons. If the information that needs to be sought is a burden, then the party must have a good cause. If the party objects from producing information sought by an adversary, it may seek a protective order from the court. Discovery tools: Interrogatories (Rule 33) Production of documents (Rule 34) Deposition (Rule 30) 3. Pre-trial, trial, post trial: At trial, the parties present evidence in support of their claims or defenses to a jury and/or judge. Mistiral: Declared during the trial. 4. Appeal: If a party is dissatisfied with the result they may appeal. During an appeal, a party asks a higher court to review the trial court proceeding. II. Subject Matter Jurisdiction Chapter 3: Diversity Jurisdiction in the Federal Courts

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I. Introduction i. Diversity Jurisdiction: The plaintiff is not a citizen of the same state as the defendant. ii. Federal Court: Subject matter jurisdiction for federal courts fall under Article III of the Constitution. iii. Lack of Diversity: If the court is not allowed to hear the case, the court will dismiss for lack of subject matter jurisdiction. iv. Subject Matter Jurisdiction: The authority of the court to hear cases of a particular type or cases relation to a specific subject matter. Subject matter jurisdiction must exist. II. State Citizenship of Individuals: The Domicile Test 1. Gordons Domicile Test (Majority Rule): i. Must have the intent to remain there indefinitely ii. Look to see if there is permanent living iii. In determining whether diversity exists, the state of domicile for each party is the state of domicile as of the time the complaint is filed. 2. Stine Domicile Test (Minority) i. Taking up residence in a different domicile with ii. The intention to remain there. iii. Has to be your permanent home III. The Complete Diversity Rule There is no diversity jurisdiction when any party on one side of the dispute is a citizen of the same state as any party on the other side. If any plaintiff shares a common citizenship with any defendant, then diversity is destroyed and along with it federal jurisdiction. IV. State Citizenship of Corporations and Other Entities 1. For diversity purposes, corporations have dual citizenship. The state of incorporation and where they have their chief place of business. 2. Citizenship: 1. Incorporation

5 2. Principal place of business 3. Must have Diversity for both (Incorporation & principal) A. Principal Place of business test: 1. Nerve center test: Principal place of business is the corporate headquarters, where decision-making takes place. (Hertz Corp v. Friend) 2. If a company has two nerve centers, the court must decide which one is the principal place. The court makes the decision by determining where the bulk decision-making takes place. V. The Amount-In-Controversy Requirement 1. Diversity jurisdiction can be invoked only if the amount in controversy exceeds the sum of $75,000 exclusive of interest and costs. The words are interpreted literally. If the matter in controversy is precisely $75,000 or less, there is no jurisdiction. 2. There is no amount in controversy requirement for federal question cases. In determining whether the amount in controversy requirement has been met, the court looks to the sum demanded by the plaintiff in his complaint. 3. St. Paul Mercury Test: Gives the plaintiff the benefit of the doubt. If it is likely that they will recover $75,000, but might now, the amount requirement is met. Even if she does not meet that amount, she conceivably could, therefore the amount is met. 4. A case should be dismissed if it appears that the plaintiff could not recover the required amount. 5. Establishing jurisdictional amount: i. Good faith claims ii. Must be adequately found in the facts. VI. Aggregating Claims to Meet the Amount Requirement 1. If a single plaintiff is suing a single defendant, FRCP 18 permits the plaintiff to join as many claims as he may have against the defendant regardless of their nature, and the value of all the claims is added together in determining whether the jurisdictional amount is met.

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2. Multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional amount requirement. VII. The Constitutional Scope of Diversity Jurisdiction compared to the Statutory Grant of Diversity. 1. If there is diversity and damages do not meet the amount-in-controversy requirement, then federal courts can not hear the case. 2. Article III authorizes federal courts to hear all diversity cases, without regard to the amount-in-controversy. 3. The complete diversity rule (Stawbridge v. Curtiss): i. Diversity cases can only be brought in federal court if there is complete diversity between ALL Plaintiffs and all No plaintiff is a citizen of the same state as the 4. Minimal diversity: i. A case is a proper diversity case under Article II, Section 2 as long as there is minimal diversity. Under minimal least one plaintiff is from a different state than at Defendant.

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Chapter 4: Federal Question Jurisdiction 1. Federal question jurisdiction is the second major category of cases within the scope of Article III, section 2 that arise under federal law. 2. The cause of action has to be federal law for it to be a federal question jurisdiction. 3. Well pleaded complaint rule: a rule of procedure that federal question jurisdiction cannot be acquired over a case unless an issue of federal law appears on the face of a properly pleaded complaint 4. Justice Holmes Creation Test: A suit arises under the law that creates the cause of action. i. If a plaintiff sues in state court on a state law claim and the defendant asserts a counterclaim that arises under federal law, the case cannot be removed to federal court.

5 Cases may be removed to federal law if they were brought there originally. Assessing federal jurisdiction in declaratory judgment actions: i. Declaratory judgment allows a part to bring suit and ask the court to declare the rights of the parties. Declaratory judgment allows a party to know whether the cause of action prior to taking an action may violate the other parties rights. ii.

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6. Beyond the Holmes Test: State Law Claims Involving Substantial Questions of Federal Law i. Where a plaintiff seeks relief under a federal statute or regulations then the federal court will have jurisdiction. Cases that arise under state law can still arise un federal court. A state law cause of action can end up in federal court depending on the issue of law. The issue must turn to an important federal issue.

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Chapter 5: Removal of Cases from State to Federal Court Introduction: Concurrent Jurisdiction of the State and Federal Courts 1. If a plaintiff files a suit in federal court, the defendant may not remove it to state court. 2. If the plaintiff files in state court, the removal statute allows the defendant to choose a federal forum by removing the case to federal court Part 3: Personal Jurisdiction Chapter 6: The Evolution of Personal Jurisdiction I. An Introduction to Personal Jurisdiction II. Early History: Pennoyer v. Neff III. Social Change and doctrine Rigidity: Problems with the Pennoyer Doctrine IV. The Modern Era Begins: International Shoe Co. v. Washington Chapter 7: Specific In Personam Jurisdiction

5 I. Refining the Test for Specific Jurisdiction A. Defining Contacts B. The Relationship between Contacts and Reasonableness C. Elaborating on the Definition of Contact D. Contracts as Contacts II. Personal Jurisdiction in Federal Court III. Stream of Commerce Problems: IV. The Arises Out of Element V. Back to the Future: Does the Internet Pose a New Challenge for Personal Jurisdiction Doctrine V. Issue Analysys A. The Question B. Suggested Analysis Chapter 8: Other Constitutional Bases for Personal Jurisdiction I. General in Personam Jurisdiction A. Distinguishing specific and general jurisdiction B. Why Is General Jurisdiction Fair? C. The Meaning of Continuous and Systematic Contacts II. Domicile III. In Rem and Quasi in Rem Jurisdiction A. Distinguishing In Personam and In Rem/Quasi In Rem Jurisdiction B. Other Types of Attachment C. Taking Attachment to the Extreme D. Addressing International Shoes Unanswered Question: Shaffer IV. Transient Presence Jurisdiction Chapter 9: Long Arm Statutes I. Introduction II. Distinguishing Constitutional and Statutory Limitations on Personal Jurisdiction III. Interpreting Long Arm Statutes IV. Long Arm Provisions in Federal Courts Chapter 10. The Constitutional Requirement of Notice and Methods of Service of Process Chapter 16: Amending Pleadings Rule 15(a): 1. With leave 2. W/o leave before trial Rule 15 (b): during and after trial Rule 15 (c): After Statute of limitations has run 15(a):

5 1. Within 21 days of service of pleading 2. Within 21 days of responsive pleading <- if responsive pleading required 7(a). How to tell if the responsive pleading is required? -Look at Rule 7a 3. 12(b), 12(e), 12(f) It is better for you to ask for forgiveness than permission because you may or may not get it. You only get one chance for free amend. Beeck v. Aquaslide N Dive Corp: pg 551 Incident: July 1972 Complaint: Oct 1973 Answer: Dec 1973 They could have filed a 12b motion in between the complaint and the answer. SOLruns: July 1974 Jan 1975 Not our slide. Standard of Review: Abuse of discretion There can not be an issue of bad faith What youre amending can not be too much for the court to deal with. Ways around the SOL: 15c. Preparation prejudice Components of an answer: Denial of everything. Protect yourself for a Rule 11 motion. How to get a separate trial: Rule 42(b) & 48 To reject an amendment: Rule 12(b)(6) Preparation prejudice: SOL: A period between the incident to determine what When the SOL has passed: If you are dealing with the same party you can relate back the same evidence. If you are dealing with parties that did not exist in the original complaint then 15(b) & (c) Chapter 17: Joinder of Claims and Parties Joinder: Determines the scope of the litigation. First: Procedural rule to enforce joinder Second: Does it have subject matter jurisdiction Rule 18(A):Allows a plaintiff to assert any claims she has against a defendant, whether related or unrelated. DOES NOT FORCE JOINDER. Once you become a claimant then 18a will kick in and allow the assertion of all claims.

Res judicata- avoids multiple suits about the same facts and prevents litigants from harassing adversaries by suing again for events they already litigated in a prior action. May prevent you from using the second claim if you could have add it to the first claim. ***Joinder does not cure subject matter jurisdiction. If there is a claim that is not federal question or diversity then you go to supplemental. Joinder of the Parties to the Original Action: If you want to have a multi-party case: 1. Rule 20(a): places some limits on the plaintiffs choices. 2. Rule 20(a)(1): Allows plaintiffs to sue together if they assert claims that arise out of the same transaction, occurrence, or series of transactions or occurrences. 3. Rule 20(a)(2): defendants may be sued together if the same two criteria are met. 4. Compulsatory joinder- If adding those parties is not diversity then the case has to be dismissed. Why dont we require all of the parties at once? Hohlbein v. Heritage Mutual Insurance Co. Issue: Applying Rule 20(a)(1) standard for joining plaintiffs 1. Counterclaim- claim against the imposing party. 2. 13a- The compulsory counterclaim: arises from the same transaction or occurrence as the plaintiffs claim against the defendant. It must be asserted in the pending case or it will be waived. Unless youve done so before the plaintiff sues you. 3. 13b- Permissive counterclaim: Does not arise from the occurrence and transaction. Do not have to be asserted in the pending case. Supplemental Jurisdiction: United Mine Worker v. Gibbs: 1. 1367a is met anytime we have There is q1q1 qajurisdiction if there is a common nucleus of operative fact 2. 1367b- only applies to diversity cases to kill supplemental

5 cases asserted by PLAINTIFF: 1. Plaintiff joined under 18,19,20,or 24.