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Civil Procedure Outline


Personal Jurisdiction (in what states can plaintiff sue defendant?)
a. Personal Jurisdiction exists when the forum state has power over the defendant
b. Three Steps:
i. Satisfy the Forum’s Statute (e.g., long-arm statute, attachment statute)
1. California’s long-arm statute claims jurisdiction is proper as long
as the exercise of jurisdiction meets federal constitutional
ii. Absolute Bases of In Personam Jurisdiction
1. In personam jurisdiction exists where the defendant:
a. Is domiciled in the state;
b. Is present and personally served with process in the state
(not through trickery or force);
c. Consents to suit in the state;
d. Enters a general appearance in the suit
iii. Satisfy the Constitution (due process test)
1. Jurisdiction is constitutional when the defendant has “such
minimum contacts with the forum state so that exercise of
jurisdiction does not offend traditional notions of fair play and
substantial justice” (two hurdles: minimum contacts &
a. Minimum Contacts
i. Quantity and Nature of the Defendant’s Contacts
1. Defendant purposeful availed himself of the
benefits and protections of the forum state;
2. Foreseeability that the defendant could get
sued in this forum
ii. Relatedness Between Defendant’s Contacts and the
Plaintiff’s Cause of Action(s)
1. Relatedness may not be required if the
defendant has substantial ties with the forum
state (e.g., present when served, domiciled,
doing substantial continuous business)
because then defendant is subject to general
personal jurisdiction and can be sued in the
forum state for a claim arising anywhere in
the world
2. For in rem (and quasi in rem) jurisdiction
(jurisdiction over the defendant’s property),
constitutionality depends on whether the
dispute is related to the property attached. If
the dispute is directly related to the land, the
constitution is satisfied if the land is located
within the forum state. If the dispute is not


related to the land, the constitution is only
satisfied if the defendant’s contacts with the
forum state are sufficient
iii. The Interest of the Forum State in Protecting Its
Citizens (e.g., interest in providing a forum for its
citizens to challenge wrongful behavior)
b. Reasonableness of Exercising Jurisdiction
i. Are the burdens placed on the defendant in
defending in this forum reasonable?
1. Defendant may complain that the forum
state is inconvenient because it is far from
his home, but this forum state will be
appropriate unless it puts the defendant at a
severe disadvantage in litigation (very tough
to show)
ii. Would plaintiff be unreasonably burdened if he had
to bring suit in another forum?
iii. Are some witnesses or evidence located in this
Subject Matter Jurisdiction (what court do we go to, state or federal?)
a. Subject matter jurisdiction involves the court’s power over a particular type of
b. Two Types of Cases that Can Be Heard in Federal Court
i. Diversity of Citizenship Cases (complete diversity is required)
1. Requirements:
a. Amount in controversy exceeds $75,000, excluding interest
and costs (more than $75,000 must be pled by the plaintiff
in good faith)
i. Whatever plaintiff claims in good faith is
controlling, unless it is clear to a legal certainty that
it will not exceed $75,000 (tough to prove)
ii. If plaintiff sues for more than $75,000, but recovers
less than that, jurisdiction is still appropriate, but
she may have to pay defendant’s costs
iii. Aggregation (adding together two or more claims to
meet the amount requirement)
1. Claims may be aggregated only if there is
one plaintiff verses one defendant.
a. Exception: If one plaintiff sues more
than one defendant (joint claims), the
total value of the claim can be used
to meet the amount in controversy
iv. When Plaintiff Seeks an Injunction (discuss both
1. Majority Rule

iii. b. Citizens of different states (at time case is filed) 1. etc. A citizen of one state and a citizen or subject of a foreign country (at time case is filed) 1. AND b. conservator. Presence in the state at some point with intent to make it your permanent or fixed home ii. executor).a.000 2. committee. State where “domiciled” i. minor. “Citizenship” for persons a. Headquarters (nerve center. The amount in controversy requirement is met if it would cost the defendant more than $75. voting there. minors. Person can only have one domicile at any given time b. There is no diversity of citizenship if any plaintiff is a citizen of the same state as any defendant. citizenship of the decedent. The amount in controversy requirement is met if the harm seeking to be prevented would harm the plaintiff by more than $75.000 to comply with the injunction. For decedents. and incompetents represented in litigation by a fiduciary (e. All states where incorporated. or incompetent controls (not the citizenship of the fiduciary) i.. The one state where the corporation has its “principal place of business” i. Action is between: i. guardian ad litem. OR ii. Exception: In class action suits. Minority Rule a. . the citizenship of the representative controls 2. where decisions are made). “Citizenship” for corporations (can be a “citizen” of more than one state) a.g. Intent can be found through paying in-state tuition.

A federal court in a diversity case must apply the substantive law of the state in which it is sitting. federal or state?) (an issue only in diversity cases) a. Even if the requirements for diversity jurisdiction are met.ii. and it is possible that a partnership could be a citizen of all 50 states (and no diversity jurisdiction) if general and limited partners live in every state. and A assigns his claim to C (Utah). This is no good if C is a mere collection agent for A. the citizenship of all members is important. Collusion a. There is no subject matter jurisdiction when a party “has been improperly or collusively made or joined to invoke jurisdiction” i. Example: A (California) wants to sue B (California). For unincorporated partnerships (partnerships. Choice of law rules 3. Erie Doctrine (which law applies. or child custody decree” or the probate an estate. labor unions). OR iii. with no real interest in the case 4. alimony. Many courts use the nerve center. Tolling . federal courts will not hear cases involving “issuance of a divorce. unless all activity occurs in a single state. Substantive Law Areas (where state law will apply) 1. C then sues B. Elements of the claim 2. Statutes of limitations 4. Valid federal statutes or rules dealing with procedural matters will be applied over contrary state law 1. 3. Exclusions a. However. a federal rule/law will not apply when its effect would be to toll a state statute of limitations (state law controls whether or not the statute of limitations is satisfied) ii. “Citizenship” for Partnerships a. Where the corporation does more business activity than anywhere else 3. but must apply federal procedural rules i. 2.

R. it is probably substantive 2. the federal court may certify the question to the state supreme court for clarification ii. but for every single claim joined in federal court. Factors the judge should use to determine if the law is substantive or not: 1. but the federal judge wants to do something other than apply state law.. that claim invokes federal question jurisdiction. His complaint mentions a federal law. If there is no federal provision on point. R. Is it outcome determinative (would applying or ignoring the state law affect the outcome of the case)? If yes. a. If the complaint were well pleaded. federal constitution. Gomer sues R.iii. just stating plaintiff’s claim without extraneous matters unrelated to the claim. federal question. would it arise under federal law? Is plaintiff enforcing a federal right? If so.g. Avoid forum shopping: If the federal court does not apply state law on this issue. or supplemental jurisdiction). will it cause litigants to flock to federal court? If so. the court should probably apply state law iv. she can only do this if it isn’t substantive. After several years. for specific performance. asserting that a federal statute prohibits such passes. Additional Claims: There may be additional state claims joined to the federal case. 1. If state substantive law is unclear. federal legislation). refuses to honor the pass. Citizenship is irrelevant and there is no amount in controversy requirement b.R. but there is no federal question because he is not seeking to enforce a federal right. there must be a basis of subject matter jurisdiction (diversity jurisdiction. Balancing of the interests (does either the federal government or state have an interest in applying its rule?) 3. Well-Pleaded Complaint Rule i. alleging the statute doesn’t apply.R. Supplemental Jurisdiction . Federal Question Cases (plaintiff’s claim “arises under federal law”) 1. Plaintiff’s complaint shows a right or interest founded substantially on federal law (e. Plaintiff sues to vindicate a federal right. Example: Mayberry R. gives Gomer a lifetime pass in settlement of a claim. i. c.

however. Some federal question cases (e. A defendant may remove an action that could have originally been brought by the plaintiff in federal court ii..g. It invokes federal question jurisdiction or diversity of citizenship jurisdiction a. ii. patent infringement. A case may be removed if: 1. Claim arises from a common “nucleus of operative fact” (from the same transaction or occurrence) b. In diversity cases only. Requirements: i. Claim is asserted by anyone but the plaintiff in a diversity or federal question case. Removal (allows defendants to have a case filed in state court “removed” to federal court) i. Even if these requirements are met. the court has discretion to not hear the supplemental claim if the federal question is dismissed early in the proceedings or if the state law is complex or state law issues would predominate 2. Requirements: i. the court has discretion to not hear the supplemental claim if the federal question is dismissed early in the proceedings or if the state law is complex or state law issues would predominate 2. Pendant a. Claim arises from a common “nucleus of operative fact” as the underlying case (from the same transaction or occurrence) b. removal is not available if any defendant is a citizen of the forum state . Even if these requirements are met. AND ii. federal antitrust and securities claims) have exclusive federal jurisdiction and can only go to federal court c. Claim is asserted by the plaintiff in a federal question case. Ancillary a.1.

removal is not available more than one year after the case was filed in state court iii. all the defendants reside in different states and the claim arose overseas). is signed under Rule 11. etc. 2. A copy is given to all adverse parties 3. then remand state law issues back to state court. and contains all documents served on the defendant in state court 2. Venue Generally i. Exception: If there is a “separate and independent” federal question claim against one defendant. but the court can. All defendants agree (plaintiffs cannot remove. if all defendants reside in the same state. A judicial district in which a substantial part of the transaction or occurrence giving rise to the claim occurred. the complaint. And..e. or 2. Defendant files a notice of removal in federal court. however. In a diversity case only. A civil action where jurisdiction is founded on a federal question or on diversity can be brought in: 1. a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced. the plaintiff has 30 days (if based on a defect other than subject matter jurisdiction) to move to “remand” the case back to state court a. the action may be brought in: 1.) a. But filing a compulsory counterclaim in state court does not waive the right to remove Venue (relates to the proper federal district in which the matter will be decided) a. A diversity case. he can remove the whole case (including state claims). ii. in a judicial district where any defendant is “found” . which sets forth the grounds for removal. or 2. A case can only be removed to the federal district embracing the state court in which the case was originally filed v. in its discretion. the federal court must remand the case to state court whenever it determines there is no federal subject matter jurisdiction iv.g. Removal is made within 30 days of service of the first document that makes the case removable (e. A defendant who files a permissive counterclaim in state court waives the right to remove. If removal is improper. In a federal question case. even if they are defendants in a counterclaim) a..III. Waiver of the Right to Remove 1. AND 3. A judicial district where any defendant resides (is domiciled). If there is no district in which the action may otherwise be brought (i. Procedure for Removal 1. dismissal of a defendant who prevented removal.

The discretionary doctrine of forum non conveniens allows a federal court for the convenience of the parties and witnesses. iii. Two Statutes 1. Federal courts cannot transfer cases to a foreign judicial system or a different state court system. and where the accident or event took place i. for venue purposes. Forum non conveniens is rarely granted if the plaintiff is a resident of the present forum Service of Process a. If venue in the original forum is improper. in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced iv. so dismissal may be proper ii. A case can only be transferred to a federal district where the case could have been filed originally (a proper venue with personal jurisdiction over the defendant independent of any waiver by the defendant) ii. Availability of an alternative forum. The fact that a plaintiff may recover less in the other judicial system/court does not make transfer or dismissal improper ii. to dismiss the civil action without prejudice 1. the interest the forum state has in providing a forum for its residents. or the “interests of justice” a. The court must evaluate both private and public factors in making its decision 1. possession. Transfer of Venue (going from one federal district court to another) i. even if the plaintiff initiates the transfer 2. and what community should be burdened with jury service 2. Public factors a. Convenience of the parties and witnesses.IV. The court to which a case is transferred under this statute must apply the choice of law rules of the original court. or injury to land (including trespassing) must be filed in the district where the land lies b. location of the evidence. Plaintiff must arrange to have someone deliver to the defendant process: . Forum Non Conveniens i. to transfer any civil action to any other division or district where it might have originally been brought. what law applies. Private factors a. the convenience of the witnesses. or if transfer is not possible. Actions concerning ownership. If venue in the original forum is proper. Local Actions 1. the plaintiff’s choice of forum. the case may be transferred to another federal district court if needed for the convenience of the parties. A defendant that is a corporation is deemed to reside. in the interest of justice. the court may transfer in the interests of justice or may dismiss the case c.

If mailed. as long as: a.V. A summons (formal court notice of a suit and time for response). answer. iv. and c. by which a defendant is brought before the jurisdiction of the court.g. The person being left with process resides there iii. Process can be mailed to the defendant by first class mail. b.). A copy of the complaint b. etc. a corporation’s registered agent or any officer) or a state officer appointed by operation of law (nonresident motorist. For subsequent papers (e. other pleadings. for example). Process can be delivered to a defendant in another state as long as state law allows for it (with a long-arm statute. Papers are given to defendant personally anywhere you find the defendant in the forum state (unless defendant is present only to be a witness or party in another civil case) ii. Pleadings must convey enough contentions to allow a meaningful response (do not require great detail. he must be served personally or by substituted service at his cost) v.g. These rules apply to formal service of process. Personal service 1. Process can be left with someone other than the defendant if: a. Defendant returns the waiver form waiving formal service within 30 days i. Substituted Service 1.. 1. If he does not return the waiver form. Rule 11 . i. motions. discovery requests and responses) can be served by delivering or mailing the document to the party’s attorney (or pro se party). and ii. It is the defendant’s usual abode. Process may be served by any nonparty who is at least 18 years old and may take the form of: i. “Notice” pleadings i. Process can be delivered to defendant’s agent authorized to receive service (e.. three additional days are given for the required response time Pleadings (documents setting forth the claims and defenses) a. The person being left with process is of suitable age and discretion. just enough to put the other side on notice) b. Exceptions: a. Federal court can serve a defendant outside the forum state regardless of state law under the Bulge rule and/or statutory interpleader (see below) d. Waiver by Mail 1. Plaintiff must serve process within 120 days of filing the complaint or else the case will be dismissed without prejudice (unless plaintiff shows good cause for the delay) c. postage prepaid.

Statement of subject matter jurisdiction. and can be nonmonetary. but not filed. Three matters must be pleaded with particularity or specificity: 1. Matters of Abatement: . Sanctions may be levied (they are discretionary) against the attorney. Special Damages (damages that don’t normally flow from an event) d. and things that don’t belong (e. Must include: 1. Sanctions should be sufficient to deter repeat of conduct. The denials of factual contentions have evidentiary support (or are likely to after further investigation) ii. Complaint (principal pleading by the plaintiff that commences the suit) i. then the motion can be filed. a demand for a jury trial in a case where there is no right to a jury)) (any party can bring) b. Demand for judgment ii. The court can also order a party to show cause of why sanctions should not be levied c. Defendant’s Response (Rule 12) i. Mistake. after reasonable inquiry): 1. Rule 12 Motions a.g. 1. and papers (except discovery documents) certifying that (to the best of the attorney’s knowledge and belief. written motions. Issues of Form (motions must be brought by defendant before filing a responsive pleading. The party allegedly violating the rule has 21 days (“safe harbor”) to fix the offending document. and 4. If he doesn’t fix. 3. The paper is not for an improper purpose. Certification is effective every time the paper is “presented” to the court (filing. Defendant must respond to a complaint in one of two ways (motion or answer) no later than 20 days after service of process (or else he risks default) 1. cheap shots. Fraud. iv. Requires attorneys (or pro se litigants) to sign all pleadings. The legal contentions are warranted by law (or a nonfrivolous argument for change of the law). The factual contentions have evidentiary support (or are likely to after further investigation). 2. 2. or the party. etc.i. A motion for a violation of Rule 11 is served. 12(f) motion to strike (pares out immaterial allegations.) iii. later advocating a position. and 3.. 12(e) motion for a more definite statement (when a pleading is so vague that the defendant cannot frame a response) ii. or else waived): i. Short and plain statement of the claim showing entitlement to relief. Continuing Certification 1. the firm.

) VI. except as to damages ii. Responses to the Allegations of the Complaint 1. Counterclaims . or 3. Failure to deny can constitute an admission. Motions to dismiss due to: a. 12(b)(6) failure to state a claim on which relief can be granted (must be brought by pre-answer motion or inserted in answer) ii. Motion for summary judgment (Rule 56) 2. Insufficient service of process ii. Defendant must serve his answer no later than 20 days after service of process if she brought no preanswer motions. If defendant waives service of process. Matters Regarding the Merits i. Waiveable Defenses that Must Be Put in The Defendant’s First Rule 12 Response (pre-answer motion or answer) or Else Waived: 1. Timing i. contract isn’t enforceable due to fraud. State that he lacks sufficient information to admit or deny (which has the effect of a denial) a. Affirmative Defenses (statute of limitations. Insufficiency of process d. etc. Failure to join an indispensable party c. Cannot be used if the issue is a matter of public knowledge or is in defendant’s control i. Answer (filed when defendant decides not to file an answer or his pre-answer motion is denied) a. Defenses that Can Be Raised At Anytime: 1. Lack of subject matter jurisdiction b. Motions to dismiss due to: a. or no later than 10 days after a court rules on a pre-answer motion ii. Admit. Deny. Improper venue c. res judicata. An answer must contain: i. she has 60 days (from plaintiff’s mailing of the waiver form) in which to answer. b. 12(c) judgment on the pleadings iii. Lack of personal jurisdiction b.i. 2.

Claim must arise out of the same transaction or occurrence as the underlying action. then it is not compulsory ii. Claim does not have to be asserted in a pending case (can sue in a separate action). Compulsory Counterclaim 1. c.. Meet the requirements for subject matter jurisdiction (diversity or federal question) or supplemental jurisdiction Amending Pleadings a. A plaintiff has a right to amend a complaint one time prior to when the defendant serves an answer b. b. b. Requirements: a. A defendant’s claim against the plaintiff that arises from the same transaction or occurrence as the plaintiff’s claim. 2.VII. Requirements i. Two Types i. so he can bring the claim in a separate case 3. Amended pleadings relate back to the date of the original pleading if they concern the same conduct. Claim can never meet the requirements for ancillary supplemental jurisdiction because the claim does not arise out of the same transaction or occurrence Cross-Claim (claims made against a co-party. and ii. Exceptions i. Must be filed with the defendant’s answer in the pending case (or else defendant waives the right to sue on the claim) a. If there is no independent basis of subject matter jurisdiction for the counterclaim. a. A claim not arising from the same transaction or occurrence as the plaintiff’s claim. P then files and serves an amended complaint (adding a new related claim) on July 15 (before the defendant has . Example: P files a complaint on July 1. An offensive claim against an opposing party (e. defendant v. defendant vs. or occurrence as the original pleading 1. defendant) a. plaintiff) that is filed with defendant’s responsive pleading (answer). If the claim had already been asserted before plaintiff sued defendant. Permissive Counterclaim 1.g. transaction. The statute of limitations runs on July 10. Claim must meet the requirements for subject matter jurisdiction (diversity or federal question) i. If the defendant never had to answer (because he asserted a pre-trial motion and it was granted) he never had to assert the compulsory counterclaim. Relation Back Doctrine i. the court may still hear the claim under ancillary supplemental jurisdiction ii. VIII.

. If there is no right to amend. There is at least one question of fact or law common to all the parties. The new party receives notice of the action so that he will not be prejudiced in maintaining his defense on the merits.IX. Parties may join as plaintiffs or defendants (permissive joinder) whenever: 1. If the plaintiff wants to join an additional defendant. The federal claim has been dismissed iii. The requirements for subject matter jurisdiction (federal question or diversity) or supplemental jurisdiction are met for each claim ii. P’s amended complaint is not time barred and relates back to the date of the first complaint. plaintiff introduces evidence regarding a claim not contained within the original complaint. the plaintiff can move to amend the pleading or pretrial conference order to conform to the evidence (to show the new complaint) i. the original claim’s jurisdiction is not based on diversity. This all occurs within 120 days after the filing of the original complaint c. AND 3. ii. New parties may be added (e. and the defendant does not object (impliedly consents to a trial of this new claim). a party can seek leave of court. If. joinder will be allowed if: 1. There is an independent basis for subject matter jurisdiction. The claim is novel or complex. The new party knew that but for a mistake. A defendant has right to amend an answer one time within 20 days after serving the answer d. Joinder of Parties i. and the court. and 3. However. changing the defendant) (and the amended complaint will relate back) if: 1. 2. 2. Compulsory Joinder (when necessary and indispensable parties must be joined) . and it will be granted if “justice so requires” (courts usually allow unless there is delay or prejudice) e.g. at trial. if the defendant does object to the new claim. answered). decides to hear the claim a. The additional claims arise out of the same transaction or occurrence as the underlying claim. or iii. The state claim predominates over the federal claim. or 2. Some claim is made by each plaintiff against each defendant relating to or arising out of the same series of occurrences or transactions. in its discretion. the evidence regarding the new claim is inadmissible because it is at “variance with the pleadings” Joinder of Parties and Claims a. he would have been named originally. Reasons the court would not hear the claim i. after trial. ii.

1. ii. Disposition in his absence may impair his ability to protect his interest in the controversy (worried about harm to the absentee). the requirements of subject matter jurisdiction must be met . When jurisdiction is based on diversity of citizenship between the plaintiff and the defendant. Whether a judgment in the party’s absence would be adequate iv. regardless of state law. b. Whenever claims are joined. When multiple plaintiffs or multiple defendants are involved. The court will use factors to decide whether to proceed in the party’s absence or dismiss: i. His absence would expose existing parties to a substantial risk of double or inconsistent obligations (worried about defendant). A party (an absentee) is “needed for just adjudication” and must be joined by the court if: a. Bulge Rule a. A plaintiff can join any number and type of claims against a defendant. c. a nonfederal claim can be joined only if it is regarded as part of the same case or controversy as the federal claim vi. An absentee joined as a necessary party may be served out of state. within 100 miles of the federal courthouse. The party is amenable to process (there is personal jurisdiction over him) and his joinder will not destroy diversity or venue 2. AND d. the plaintiff may aggregate all claims that he has against the defendant to satisfy the jurisdictional amount v. When jurisdiction is based on federal question. it is essential only that at least one of the claims arise out of a transaction in which all were involved iii. If Joinder is Impossible (no personal jurisdiction or joinder will destroy diversity or venue) a. Whether the prejudice can be reduced by shaping the judgment iii. Complete relief cannot be given to existing parties in his absence (worried about multiple suits). Whether the judgment in the party’s absence would prejudice him or the existing parties ii. b. A plaintiff may join two claims if success on the first is a prerequisite to the second iv. Joinder of Claims i. Joint tortfeasors subject to joint and several liability are not necessary parties 4. Whether the plaintiff will be deprived of an adequate remedy if the action is dismissed 3.

The absentee claims an interest in the property or transaction that is the subject matter of the action. c. Does not require independent jurisdictional grounds b. and 2. Available when: 1. Available whenever: 1. In an underlying diversity case. if it arises from the same transaction or occurrence as the underlying case and meets the requirements for subject matter jurisdiction (federal question or diversity) or supplemental jurisdiction iii. The applicant’s claim or defense and the main action have common questions of law or fact (no direct personal or pecuniary interest is required). he needs court permission) ii. and 2. Interpleader . Permissive Intervention (discretionary with the court) i. there does not have to be diversity (or existing diversity may be destroyed) for the third party defendant to be joined if there is ancillary supplemental jurisdiction for the claim 1.X. regardless of state law. Intervention of Right i. under the supplemental jurisdiction statute. Bulge Rule 1. Third parties joined by impleader may be served out of state. within 100 miles of the federal courthouse. A plaintiff can assert a claim against the third party defendant only if it arises from the same transaction or occurrence as the underlying claim and meets the requirements for subject matter jurisdiction (federal question or diversity) or supplemental jurisdiction 2. The disposition of the action without him may impair his ability to protect that interest ii. Impleader (when defendant wants to bring in another third-party defendant for indemnity or contribution) i. However. Defendant (who becomes a third-party plaintiff) has the right to implead a third party defendant within 10 days of serving his answer (after that. Intervention (where an absentee wants to join a pending suit and bring herself in as a plaintiff or defendant) a. There is no independent basis of subject matter jurisdiction required when one intervenes as a defendant (ancillary supplemental jurisdiction is satisfied) 1. The intervention is supported by its own jurisdictional ground (and won’t destroy diversity). The third party defendant can assert a claim against the plaintiff. there is no ancillary supplemental jurisdiction over claims made by one seeking to intervene as a plaintiff (meaning there must be some independent basis of subject matter jurisdiction) iii. c.

There are some questions of law or fact that are common to the class. there are many claimants to a fund and individual suits would deplete the fund leaving some without remedy) ii. Representative’s claims/defenses are typical of those of the class. Service may be nationwide (no personal jurisdiction problems) and venue is proper where any claimant resides d. and . Prejudice Class Action i. 5.. When one holding property or money (stakeholder) forces all potential adverse claimants (those who want the property/money) into a single lawsuit to avoid multiple litigation and inconsistency ii. Minimum diversity between the claimants (one claimant must be diverse from one other claimant) and $500 in issue b. 2. Two Types: 1. Class Must Fit Within One of Three Types: a.i. Requirements: 1. Normal service and venue rules apply 2. OR ii. Rule 22 Interpleader a. Injunction or declaratory judgment (not damages) is sought because the class members were treated alike by the other party (e. Requirements (all must be met) 1. No notice to potential class members is required and no right to opt out c.. 3. “Damages” Class Action i. A federal question claim b. Requires: i.g. Complete diversity between the stakeholder and every adverse claimants and an excess of $75. Parties are too numerous for practical joinder (for them all to be parties in the case). No notice to potential class members is required and no right to opt out b. and 4. Requires: i. Statutory (section 1335) Interpleader a. Class treatment is necessary to avoid harm either to class members or to the opposing party (e.000 in issue.g. The representative and his lawyer will fairly and adequately represent the class. Class Actions (where representative(s) sue on behalf of a group) i. Common questions predominate. discrimination in employment) i.

Experts 1. Class action can invoke a federal question. mass tort case where the major common question is whether the tortfeasor was negligent) ii.g. compensation for the study. and etc. All class members are bound. Invoke diversity of citizenship a. must notify the class members and get their feedback) Discovery a. Subject Matter Jurisdiction 1. Settlement or dismissal of a class action must be approved by the court (and court. Only the citizenship of the class representative(s) matter b. Notification Required: 1. except for those who opt out of a “Damages” type class action iii. Who Is Bound by a Class Judgment 1. Class representative must pay to give individual notice to all members reasonably identifiable. data used. As to amount in controversy requirement: i.. b. Modern Trend (and followed by the 9th Circuit): Only the representative’s claim must exceed $75. telling them: a.XI. parties must identify experts “who may be used at trial” and produce a written report containing their opinions. before approval. Unless court order or stipulation of the parties provides otherwise. Required Disclosures (must be produced even though no one asks for it) i. a. within 14 days of a Rule 26(f) conference.000 ii.” as well computation of damages and insurance for all or part of judgment ii. They can opt out. Experts must be paid reasonable fees . They can enter a separate appearance through counsel ii. the parties must identify persons and documents “likely to have discoverable information that the disclosing party may use to support its claims or defenses. qualifications. Initial Disclosures 1. 2. and c. As directed by the court. OR 2. Traditional Rule: Every class member’s claim must be in excess of $75. A class action is the superior method to handle the dispute (e. They will be bound if they don’t opt out.000 regardless of other class members’ claims iv.

is sufficient to compel attendance e. Answers are oral. no discovery will be allowed absent exceptional need iii. For any purpose if the deponent is an adverse party. Requests to Produce . properly served. it must supplement its response iv. Duty to Supplement 1. unless a court order or stipulation says otherwise) i. it must supplement its response b. A party cannot take more than 10 depositions or depose the same person more than once (unless court orders it or the parties stipulate to it) g. If a party learns that its response to a discovery request is incomplete or incorrect. notice of the deposition. Questions can be oral or written b. unless that absence was procured by the party seeking to introduce the evidence 2. If a party learns that its response to required disclosure is incomplete or incorrect. under oath. and the identity of witnesses who will testify live or by deposition iv. Discovery Tools (cannot be used until there has been a Rule 26(f) conference. To impeach any deponent. Every discovery request and response must be signed by counsel certifying it is warranted. All substantive answers must be signed under oath ii. parties must produce detailed information about trial evidence. and not unduly burdensome iii. the non-party should be subpoenaed (or else he is not compelled to attend) d. A party cannot object at trial to any evidentiary question which could have been remedied at the deposition f. No later than 30 days before trial. Deposition a. Pre-Trial 1. If an expert retained in anticipation of litigation is not expected to testify. Tools that Can be Used to Get Information from a Non-Party or a Party 1. Use of depositions at trial (all subject to the rules of evidence): i. For any purpose if the deponent (regardless of whether a party) is unavailable for trial. If used on a non-party. and in response to questions asked by each party or her counsel c. Duty to Supplement 1. ii. not interposed for improper purposes. A party deponent does not have to be subpoenaed. iii. documents. Deposition is one day of seven hours (unless court order or the parties’ stipulation says otherwise) h.b.

Physical or Mental Examination a..g. A request by one party to another party to admit the truth of any discoverable matters b. If the answer could be found in business records and it would be burdensome to find it. Responses to a request to produce must be made within 30 days v. the propounder can be allowed access to those records) d. The response must either admit or deny 1. Only available: i. Requests for Admission a. iii. but by requesting a copy without making this showing. That the party’s (or a person in the party’s control (e. Through court order upon a showing: ii. The party can say they don’t know the answer to a question. but only after reasonable investigation 1. a party cannot use their own answers. he waives his doctor-patient privilege regarding reports by his doctors regarding the same condition 3. Party receiving interrogatories must respond or object within 30 days i. if accompanied by a subpoena. Party must respond to a request for admission within 30 days i. and under oath c. At trial. but others may be used per regular rules of evidence e. And a showing of good cause (i. Questions are in writing b. you need it and cannot get it elsewhere) b. parent litigating on behalf of her child)) health is in actual controversy. Requests by a party to another party (or. Answers are in writing. The person examined may obtain a copy of the report without making this showing. A party may only serve 25 interrogatories on another party (including subparts) (unless a court order or party stipulation says otherwise) 2.. Tools that Can be Used to Get Information from a Party Only 1. Exception: It can indicate a lack of information if the party has indicated that he has made a reasonable inquiry . to a non-party) requesting that he make available for review and copying various documents or things. Interrogatories a.a.e. or to permit entry upon designated property for inspection or measuring b.

For good cause. Anything reasonably calculated to lead to admissible evidence (you can discover stuff that may end up being not admissible) iii. the court can allow discovery of anything relevant to the subject matter of the case 1. How Presented to the Court a. this is a partial violation (imposing a light sanction) i. because the request is over burdensome. Enforcement of Discovery Rules & Sanctions i. Possible Sanctions for parties: An order compelling answers. or any representative of the party) 1. Substantive Scope of Discovery i. Discovery is usually worked out among the parties.g. .” ii.2. Mental impressions. If objections are not well taken. The information is not otherwise available v. It is discoverable if there is: i. Exception: a. In problem cases. Receiving party can seek a protective order under Rule 26(c) (e. and ii. “Relevant” a. the court can get involved. material prepared in anticipation of litigation) is not discoverable (whether it is prepared by the attorney. Receiving party answers some discovery requests. without court intervention. If the party violates the new order. Work product (“trial preparation materials”. the party. ii. A failure to deny is tantamount to admission (but the party can amend if the failure is not made in bad faith) c.. A party can discover anything “relevant to a claim or defense. Substantial need. plus costs of associated with seeking the order 1. trade secrets are involved and their use should be limited to this case. When making any motion against a party.) b. conclusions. opinions. the party must certify that he tried in good faith to get the materials from the other side 1. the court may impose these penalties (plus costs and attorneys fees involved with seeking the order): a. but objects to others. and legal theories are absolutely protected from discovery d. etc. Impose an establishment order (establishes the facts requested as true). Privileged matter is not discoverable (evidentiary privileges) iv.

There can be no contempt. Contempt. however. Impose an establishment order (establishes the facts requested as true). the court may: a. b. If the party violates the order with bad faith. Disallow evidence from the disobedient party (on such issues) 2. respond to interrogatories. Enter a default judgment against the defendant 3. Receiving party fails completely to attend a disposition. Dismiss the plaintiff’s case. Possible Sanctions for non-parties 1. for violating subpoenas or court orders . This is a total violation (heavy sanction). Contempt. because the party did not violate any court order ii.b. Enter a default judgment against the defendant 3. Court may impose these penalties (plus costs and attorneys fees involved with seeking the order): a. The violating party may also be held in contempt (except in cases involving refusal to submit to mental or physical exams) ii. Possible Sanctions for non-parties 1. or b. Disallow evidence from the disobedient party (on such issues) 2. the court may: a. Attorney may be liable for all expenses (including attorney’s fees) incurred by the other side if he counseled one of these bad acts c. i. Dismiss the plaintiff’s case. for violating subpoenas or court orders iii. If the party violates the order with bad faith. Strike pleadings of the disobedient party (as to issues relating to discovery) c. Possible Sanctions against attorney 1. or to respond to requests for production. Possible Sanctions for a Party 1. Strike pleadings of the disobedient party (as to issues relating to discovery) c. or b.

Default Judgment 1. AND 2. unless the failure was harmless or justified ii. Sanctions for Parties 1. Party submits a false denial to a request to admit i. The plaintiff gives an affidavit that the sum is owed. The claim is for a certain sum (plus costs) c. After the default is entered. plaintiff may seek a default judgment (which will be enforced so that plaintiff may recover money) 2. Clerk is asked to enter a default on the docket (purely ministerial act). Voluntary Dismissal by Plaintiff i. Sanctions for Parties 1. Attorney may be liable for all expenses (including attorney’s fees) incurred by the other side if he counseled one of these bad acts d. AND . Other side can choose to treat it as a partial answer/partial objection to the discovery request or as a complete failure to respond. Plaintiff may file one written notice of voluntary dismissal before the defendant answers or moves for summary judgment (and case will be dismissed without prejudice) b.XII. Attorney may be liable for all expenses (including attorney’s fees) incurred by the other side if he counseled one of these bad acts Termination of a Case Without Trial a. Party unjustly fails to make a required disclosure i. Default and Default Judgment i. Possible Sanctions against attorney 1. The clerk may enter a default judgment when: a. Possible Sanctions against attorney 1. ii. There has been no response at all by the defendant within 20 days after service of process b. Failing party may not use that evidence at trial. Attorney may be liable for all expenses (including attorney’s fees) incurred by the other side if he counseled one of these bad acts e. The other party may recover only costs and attorney’s fees related to having to prove the issue ii. Possible Sanctions against attorney 1. iii. Entry of Default 1.

Unless local rules or a court order says otherwise. The moving party is entitled to judgment as a matter of law ii. This motion tests only the sufficiency of the plaintiff’s allegations. Motion for Summary Judgment i. From the evidence (affidavits. at least 21 days before scheduling a conference or order. Dismissal for Failure to State a Claim (“demurrer” in some state courts) (Rule 12(b)(6)) i. and settlement. Unless a court order says otherwise. but is filed after pleadings are closed (after defendant has filed an answer) e. the defendant is entitled to notice only if he has made an appearance (e. the court can hold a conference among counsel no more than 120 days after service of process on the defendant. Scheduling Order i. there is no genuine issue of material fact. Court looks at the evidence proffered by the parties and it must be admissible 1. and does not address evidence iii... Motion for a judgment on the pleadings i. Generally. filed a motion to dismiss that was denied.g. Court takes all of the allegations of the plaintiff’s complaint as true and asks: if plaintiff shows what she alleged. . discovery materials). If the court grants the defendant’s motion.) c. Court will generally view the evidence in the light most favorable to the nonmoving party Conferences a. A discovery plan must be presented by the parties to the court within 14 days iii. Defendant can move to dismiss for failure to state a claim prior to filing an answer ii. defenses. Does exactly the same thing as Rule 12(b)(6). d.g. The defendant is not a minor or an incompetent 3.XIII. it will probably allow the plaintiff to amend his complaint d. so each party should put in evidence (e. the parties must meet to discuss claims. The court (after a hearing on damages) may enter a default judgment when any of the four prior things have not been established a. would she win a judgment? 1. The pleadings submitted by the parties are not evidence (unless specifically told so in the facts or told they are “verified pleadings”). ii. and 2. When the court is going to hold a hearing on damages. etc. Summary judgment must be granted if: 1. parties cannot use discovery until after the Rule 26(f) meeting b. Rule 26(f) Meeting i. affidavits) iii.

amendment. and the scheduling order sets these out (blueprint for the litigation) c. A motion to take the case away from the jury 2. Must be used in a race and gender neutral manner iv. If a case arises that involves both law and equity. The final pretrial conference order basically supersedes the pleadings 1. Court may hold pretrial conferences as needed to expedite the case and foster settlement. ii. and the judge will then decided the equity issues a. Defendant can move for a jnol twice (at the close of the plaintiff’s evidence and at the close of all evidence) 3. The conference is for scheduling cut-offs for joinder. Renewed Motion for Judgment as a Matter of Law (what used to be called a judgment notwithstanding the verdict “jnov”) i. Plaintiff can move for a jnol at the close of all evidence 4. if the evidence beyond the pretrial conference order is proffered and not objected to Trial. ii. motions. Judgment.XIV. Pretrial Conferences i. Judge is bound by the jury’s findings on the factual issues iii. 2. Court will grant the motion when reasonable people could not disagree on the result 5. By conforming to the evidence. Each side has three peremptory strikes a. Party must demand a jury trial in writing (in a pleading or a separate document) no later than 10 days after service of the last pleading raising a jury-triable issue ii. Court generally views the evidence in the light most favorable to nonmoving party b. If a party made a motion for a judgment as a matter of law at the close of all of the evidence. Jury Selection (Voir Dire) 1. it may be amended: a. Motion for Judgment as a Matter of Law (jnol) (directed verdict) 1.” or b. and Post-Trial Motions a. the jury will decide the facts underlying the law issues first. that party can file a renewed motion for judgment as a matter of law no later than 10 days after entry of judgment . However. “To prevent manifest justice. and then loses at trial. Right to a Jury Trial in Civil Cases (Federal Court) 1. Jury Trial i. The Seventh Amendment preserves the right to a jury trial in federal courts in all suits of “common law” (actions at law where there is a claim for damages). Each side has unlimited strikes of potential jurors for cause 2. Requirement of Demand 1. but not in suits in equity (seeking an injunction).

. Inadequate or excessive verdict Appeal a. attachments) ii. If a judgment has been entered. Allows an appeal of a nonfinal order if: a. Orders granting. The court of appeals agrees to hear it iii.. when there is nothing else for the court to decide on the merits) 1.. Court will grant the motion when reasonable people could not disagree on the result iii.XV. Findings of patent infringement where only an accounting is left to be accomplished by the trial court 4. Motion for a New Trial i. but errors committed at trial require a new trial. Court generally views the evidence in the light most favorable to the nonmoving party c. Interlocutory Orders Reviewable as a Matter of Right 1. attorney. Judgment is against the weight of the evidence (serious error of judgment by the jury) 5. or refusing injunctions 2. juror lied on voir dire or made independent investigation of the accident scene) 4. The grant or denial of a renewed motion for judgment as a matter of law is a final judgment b. New evidence surfaces that could not have been obtained with due diligence for the original trial 3. Denial of a motion for summary judgment and a grant of a motion for a new trial are not final judgments 2. a party can move for a new trial no later than 10 days after entry of judgment ii. Interlocutory Appeals Act 1. modifying.g. wrong jury instructions or evidentiary ruling). Prejudicial misconduct of a party. Appointing or refusing to appoint receivers 3.g. The appellate court has discretion to hear and rule on an issue if: . and b. 2. 1. Orders affecting possession of property (e. Grounds for a New Trial 1. Error at trial makes the judgment unfair (e. Final Judgment Rule i. he is deemed to have waived the right to make the renewed motion for judgment as a matter of law ii. A losing party can only appeal from a final judgment (an ultimate decision by the trial court on the merits of the entire case. Interlocutory (non-final) Review i. third party.g. The trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion. or juror (e. If the party failed to make a motion for a judgment as a matter of law at the close of all evidence. Collateral Order Rule 1.

Most jurisdictions define “cause of action” or “claim” as including any rights to relief arising from a transaction or occurrence or a series of related transactions i. “Final judgment on the merits” a.” so it does not bar similar causes of action brought by others 2. b. “Same cause of action” a. Court of appeals has discretion to review an order granting or denying certification of a class action. dismissal under the statute of limitations (in some courts). the trial court may expressly direct entry of final judgment as to one or more of them if it makes an express finding that there is no just reason for delay v. Involves an important legal question. if review is sought within 10 days of the order 2.. Class Actions 1. or dismissal without prejudice (in some courts) 3. venue. Res judicata is limited to “parties.. Available only to enforce a clear legal duty (not a substitute for appeal) vi. and c. Res Judicata and Collateral Estoppel (affirmative defenses. Is essentially unreviewable if we wait until final judgment (e.g. but an original proceeding in appellate court to compel the trial judge to make or vacate a certain order 2. Some jurisdictions say there is a separate cause of action or claim for property damage and for personal injury. Once a valid and final judgment on the merits has been rendered on a particular cause of action. The appeal does not stay proceedings at the trial court unless the trial judge or court of appeals so orders XVI. claim by a state that it has 11th Amendment immunity) iv. Almost all judgments and involuntary dismissals are on the merits except for those based on jurisdiction. It is distinct from the merits of the case. defendant must include in answer) a. the plaintiff is barred by res judicata from trying the same cause of action against the same defendant(s) in a later lawsuit 1. indispensable parties. Extraordinary Writ 1. claim and counterclaim). Generally i.g. Not technically an appeal.a. or when there are multiple parties. The court in Case 2 should apply the law of the system that decided Case 1 when determining res judicata and collateral estoppel issues b. When more than one claim is presented in a case (e. Res Judicata (claim preclusion) (analyze the validity of the judgment and the finality on the merits for each claim) i. even if they were caused in a single transaction (because personal injury and property .

Present Status of Mutuality 1. The issue decided in the first case is identical to that raised in the second. The posture of the case is such that it would not be unfair or inequitable to a party to apply collateral estoppel . This is true unless it would be unfair to apply res judicata under the circumstances (e. and res judicata is applied. The party against whom the judgment is to be used had a fair opportunity to be heard on the critical issue. plaintiff didn’t become aware of the facts constituting the claim until after the first lawsuit) iii. In jurisdictions where the mutuality principal is being eroded away. but related. b. argue that the causes of action are not the same) ii. Traditional “Mutuality” Rule i. Collateral estoppel may be used by: a. as to issues actually litigated and essential and necessary to the judgment in the first action (that issue is deemed established in the second action) 1. “Bar” 1. Collateral Estoppel (issue preclusion) i. “Merger” vs.g. and d.. Collateral estoppel may only be asserted against someone who was a party (or was in privity with a party) to the original case (due process requirement) 2. it is called a “bar” (he is barred from suing again) c.rights are different primary rights) (“primary rights” theory) b. it is called “merger” 2. When the one claiming res judicata in the second case won Case 1. c. There was a final judgment on the merits. Note: Look to whether the second cause of action raises a different. Only someone who was a party to the original suit could use/benefit from collateral estoppel ii. courts will uphold collateral estoppel when: a. law that may require proof of additional or different elements (in which case. Res judicata bars subsequent causes of action arising out of the same transaction or occurrence which should have been asserted in the earlier lawsuit 1. When the one claiming res judicata in the second case lost Case 1. and res judicata is applied. A final judgment on an issue for plaintiff or defendant is conclusive in a subsequent action involving a different cause of action between them or their privies.

Party collateral estoppel is being asserted against had a full opportunity to litigate in the first case. ii. Modern Rules i. iii. The defendant in the second case who was not a party to the original case (“non-mutual defensive collateral estoppel”). There are no inconsistent judgments on record (i. The plaintiff in the second case who was not a party to the original case in some cases if it is fair (“non-mutual offensive collateral estoppel”) a.. Factors Used to Determine if It Is Fair: i.b. or 2.e. and iv. Plaintiff could not have joined easily in the first case. no multiple litigation arriving at different results on the issue) . Party collateral estoppel is being asserted against could foresee multiple litigation. Will allow nonparties to use/take advantage of a prior judgment when claimed by: 1.