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Civil Procedure Final Outline 2014


Article III. Of the Constitution
Focus is on Claims (not parties)

Challenging SMJ = Rule 12(b)(1)
Article III: States have all SMJ except where Federal Courts have been given limited
SMJ by Constitution and Congress.
Federal Statutes that give SMJ
Intellectual Property
Securities cases

Well Pleaded Rule:

1) Fed Courts only look at claims in π’s complaint that go to π’s case (Twiqbal)
2) Only take case if those claims have SMJ by Article III and Statute
Mottley – Claim must be in complaint, not in counterclaim or defense.
Ways To Get into Federal Courts
1) 28 USC 1331 Test – Claim arises under Federal Statute/Law.
2) 28 USC 1332 Test – 1) Complete Diversity; 2) $75,000.01 or More
 Need Complete Diversity => If π and ∆ overlap in anyway go to state
 Exception: Individual Domicile = Residence with intent to stay (Look into
 Corporations Citizens of: 1) Incorporation; 2) Nerve Center
 Unincorporated Association citizens of: All states members are citizens
 Domicile Measured at time of filing (not time of injury)
 For $75,000.01, claims can be aggregated but not for multiple ∆’s
Embedded Federal Question: Split if Federal court can take case where State Claim
implicates federal law.
Merrell Dow – No Federal SMJ for embedded
Grable – Yes to Federal SMJ for embedded

leg purpose/policy Limiting word = Substantial vs. tortious act vs. Tortious act or omission.Removal: If SMJ found. 2) Ask for limited discovery New PJ I. injury happens to π in forum . avoid absurd result. Respect Sovereignty of Foreign States Old/Classic In Personam: Court determines rights of persons In Rem: Courts determine rights of property Quasi in Rem: Court seizes property to reach person(1)/General People(2) Pennoyer – States Can’t extend powers beyond boarders to bring foreign ∆ into State. ∆ can move from state court to Federal   All ∆’s must agree to removal Removal must happen 30 days after service except where is diversity case then within 1yr of commencing action Hertz – Corporation’s Principle Place of business is where it is headquartered/nerve center PERSONAL JURISDICTION: WHAT STATE YOUR COURT IS IN FOR FOREIGN ∆ Policy: Don’t want to drag someone to foreign court for no reason   Due Process under the Constitution to deprive of Liberty (force you to move) and Property (If lose suit). In the forum = ∆ does tort vs. Any. Leg hist. Constitutionally Limited Long Arm Interpretation => Plain language meaning. Harris – Changed Pennoyer so can serve notice outside of state Hess – Cars are dangerous so give consent to be sued whatever State you dive car in Challenging PJ = Rule 12(2) Motion to dismiss   Must be raised in answer to complaint or pre-answer motion or else waived Π can counter with 1) easily available evidence. Enumerated Long Arm 2.   Statutory Basis – LONG ARM 1.

  II. Passive = Simply posting on site for people to see => NO PJ.4(k)(2) = Fed Court can take case if claim comes from state law.  ALS Scan – Have to actively 1) Direct activity to state. active Site  Zippo – Active = Knowing and repeated contact with foreign jurisdiction => PJ proper. R. 2) With intent to engage in business => PJ Cause of Action Arises From Contacts    But For cause (broad) vs. and Nature of Contacts: 1) Property (Shaffer) (d) Foreseeability: 1) Purposeful Availment 2) intentional business decisions = Advertisements/Marketing 3) Expect to be hailed into court 4) Benefits (seek to serve)/burdens  Not(/Maybe) mere mobility of product (WWV)  Usually need more than Fortuitous/Randomness (e) Nature of ∆: 1) Individual = 2) Small Business 3) Large Corp. Quantity. but no state court can take the case Constitutionality under Due Process Minimum Contacts (a) Stream of Commerce 1) O’Conner = Stream of Commerce + (Harder) = Put product in market and intend product to reach State 2) Brennan = Stream of Commerce = Put product in market and wherever product reaches can be brought into that state (b) Type of Lawsuit/Relationship: 1) Contract 2) Intentional Tort (c) Quality. Sliding Scale between the two. Essential evidence of claim (narrow) Contact has to have some connection to cause of action Can’t just use property owned in that state unless can show that is place of residence Fairness Factors (Only look to if meet minimum contacts) . (f) Internet: Passive v.4(k)(1) = Federal Courts borrow PJ Long Arm from state that in R.

Arises from. ∆ had burden to show if unfair 1) The burden on the defendant (Must be constitutionally inconvenient under due process of “severe disadvantage in comparison to his opponent”). General Jurisdiction International Shoe – Introduced Minimum Contacts. Alternative Bases for Jurisdiction A. but not to be served  Doesn’t work if fraudulently induce presence in state Pennoyer – Tag is still alive from this Burnham – Upheld TAG!!! But for different reasons. Consent = Parties can agree what forum to take suit to  Can Consent before or after and can be express or implied consent  Have to look to see if Contract is valid (no K defenses: adhesion. 2) The forum state’s interest in adjudicating the suit. unconscionability. World Wide Volkswagen – Negligent Torts. TAG!!!/Transient Jurisdiction = If within the jurisdiction. Scalia = Precedent. Brennan = There are contacts and fair. 4) “The interstate judicial system’s interest in obtaining the most efficient resolution of controversies. Carnival Cruise Line – Forum Selection Clause works C. and Fairness McGee – High point of minimum contacts where unilateral act of π counts Denckla – Minimum contact must be purposeful and not unilateral act of π Shaffer – Use International Shoe for all forms of jurisdiction including property.”  Look at foreign policy III. duress). B.” 5) “The shared interest of the several States in furthering fundamental substantive social policies. and that doesn’t deprive π of forum. Benefits must be direct to get burden. can serve  Can get around by coming to court to contest PJ. Is enough that printed libel in magazine that knew would be distributed to California (What volume is enough?) . and Purposeful Availment for PJ in foreign court => Can ∆ anticipate being taken to court there? Calder – Intentional Tort case. fraud. 3) The plaintiff’s interest in obtaining convenient and effective relief.

O’Connor Stream of Commerce + vs. No GJ for foreign subsidiaries Bauman – Corporation’s contacts must be great relative to contacts in other states. and 2) Nerve Center/Principle Place of Business Dunlop – Corporations must have such continuous and systematic contact to be essentially at home for GJ. Stream Reg meets min contacts. but not fair. Rejects Sotomayor’s that “reasonableness factors” are separate from Deciding if affiliations are systematic & continuous enough for corp to be “home” SERVICE = NOTICE Policy: Minimum efforts must be given to ∆ so that has ability to contest/fight suit  Due Process under the Constitution Process (noun) = Court Summons to ∆ to appear in court . not enough volume of distribution and is only fortuitous that magazine got to Paris => No PJ Asahi – International Tort. Dissent says only need more than random/fortuitous contact to meet stream+ GENERAL JURISDICTION: WHAT STATE YOUR COURT IS IN FOR AT HOME ∆ Policy: Can drag someone into state if already there or At Home  Don’t Need Minimum Contacts Bauman Test = Corporation’s forum affiliations are so continuous and systematic as to render it essentially at home in the forum state Individuals = At home in domicile (Where live + Where intend to reside) Corporations = At home in 1) Place of Incorporation. No Contacts by Stream+ because didn’t intend tire valve to get to California and not even fair because burden and foreign policy. Burger King – Minimum contact established by Contract. Fairness factors are sliding scale McIntyre – Only looked at Minimum contacts for foreign manufacturer that had national distributor and did not specifically advertise/focus on NJ market. Brennan Stream of Commerce.Noonan – Even though intentional tort in magazine. Purposeful availment not met because by stream+ need actions (not expectations). but burden on ∆ has to be unconstitutionally inconvenient.

Service (verb) = Delivering Process to ∆ Reasonable Service Test: 1) 2)   Reasonably Convey Info Give Reasonable amount of Time to Appear Must actually inform ∆ of problem and how to address it Look At ALL circumstances Rule 4           ∆ served with summons and complaint [c(1)] Server Must Be 18yrs or older [c(2)] Have 120 days to serve after file complaint [m]. Gov’t. 2) Leave at dwelling/usual place of abode with reasonable person who lives there 3) Agent [e] Can serve corporation in same way as individual + Officer/Managing Agent [h] Fed Court’s reach is State courts reach from long arm [k(1)(a)] International Service: 4(k)(2) Mullane – Notice must be 1) reasonable under circumstances. and 2) Comport with Due Process. corporation. VENUE. TRANSFER AND FORUM NON CONVENIENS (FNC): SPECIFIC DISTRICT IN STATE Policy: Focus on Microlocational convenience of party once know what state you’re within Venue Clarification Act 2011:   Can choose venue if both π and ∆ consent Considers burdens on ∆ based on residency = Where ∆ lives (not citizenship) Challenging Venue: Done with Rule 12(b)(3) Transfer: Can change venue when proper/improper. 2) Waiver Serve (Get longer to reply if just get notice mailed) [d] Personal Service to individual = 1) Give to person. Ok for unknown Beneficiaries (Jurisdiction By Necessity). Must 1) Personally Serve. if not then complaint dismissed w/o prejudice Government gets more time to answer complaint Can serve any local or foreign person (individual. Notice by publication: Bad for known Beneficiaries. or where no PJ . association) [e-j].

Right to be heard at trial by jury SJ. motive.     Good for international suits => Basically saying can’t have venue in entire Sovereign because inconvenient Hard to do because of Burger King and American system says parties have to pay suit fees => Need more than this Dismisses case => Have to re-file Might go away with PJ fairness factors Piper – Don’t want to allow forum shopping for substantive law in international suits. or intent Question => Go to Jury What must Moving Party Show: 1) Point to/Cite absence of evidence in discovery for claim/defense (don’t have to prove a negative) . 2) Movant entitled to SJ as matter of law Given discovered facts => Rational Jury couldn’t come up with different finding      It is a matter of law if burden is produced Inferences drawn in light most favorable to non-movant (don’t weigh evidence) Look to 1) Disputed fact. 2) Fact is material Π has burden of production If Credibility. Court shall grant if 1) No genuine dispute of material fact. Bias of Judge in deciding without jury  Same As JAML  Rule 1 = Right to Expedient Trial vs. Can do FNC if: 1) heavy burden on ∆ and 2) π doesn’t have good reason for venue. then have to motion for transfer => But by judges discretion to stop forum shopping Based on convenience of parties and witnesses FNC: Lets party change venue where grossly. SUMMARY JUDGMENT: PAPER PROXY TO TRIAL BEFORE TRIAL Policy:  Judge should Control Jury vs. Except if alternative forum’s substantive law sooooo inadequate that would afford basically no remedy at all. manifestly inconvenient for ∆ and therefore Constitutionally Unfair.    Can only transfer to other venues that have proper PJ and Venue Both Parties can agree to transfer If one party want to move.

2) Grant SJ for their own reasons. Court shall grant if 1) No genuine dispute of material fact. Unless different time set Supporting Factual Positions – Have to support absence/presence of dispute of fact by (A) Citing Materials in record. or other sanctions listed in R. Evidence doesn’t need to be admissible trial form. but has to be capable of being in admissible trial form 3. Positive evidence > Negative Evidence 5. Specific Evidence > General 4. contempt. Can also Ask for more time for discovery! Moving Party Counter: Materials submitted/Arguments 1) Don’t show genuine dispute. 2) Can’t produce evidence that could become admissible in court What Materials Can be used to Support/Oppose: 1. Argue/Just say: 1) π doesn’t have enough evidence to support. 2) No genuine Dispute What Must Opposing Party Show: Cite/submit evidence and explain/demonstrate why 1) do meet burden of production or 2) Not material dispute. 3) Consider SJ for IMF they find. Can’t use pleadings R. Court then gives reasons for granting/denying Time to File Motion: Anytime until 30days after close of all discovery.11 . Bad Faith Sanction: Expenses. 2) Movant entitled to SJ as matter of law. Affidavits and Written Documents 2. OR (B) Showing that cited materials don’t show absence/presence because not admissible as evidence  Materials not cited – Don’t look at When Facts Unavailable to Nonmovant: Court can 1) Defer/deny SJ motion 2) allow nonmovant more time 3) Do other things Failing to Properly Support/Address Fact: Court can do above options or Grant SJ Judgment Independent of Motion: After giving notice and time to respond court may do what they want like 1) grant SJ for nonmovant.56 – Summary Judgment Motion for Summary/Partial Summary Judgment: Moving party ID’s claim that want SJ.

and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that. (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.50 – Judgment as a Matter of Law => Looks at Adequacy of Evidence (a) Judgment as a Matter of Law. JUDGMENT AS A MATTER OF LAW (JAML) : GET JUDGMENT FROM JUDGE DURING TRIAL BEFORE/AFTER JURY VERDICT Policy:   Don’t want jury to make incorrect inferences/Biases vs. . the court may: (A) resolve the issue against the party. Judge Biases and court as a play that citizens can engage in Same as SJ Number of Witnesses: If witnesses give clashing testimony => Up to Jury (not judge) who to believe  Number of witnesses doesn’t usually matter except when would bias jury Evidence: Look at ALL evidence and inferences can draw from them in light most favorable to non-movant  Probabilistic Evidence: Needs to be strong probabilistic evidence (75-80% sure) to be brought to jury so they can make the inference gap for a rational jury verdict. Harris – Cop rammed car in chase and made π a paraplegic.Celotex –Wrongful death exposure to asbestos. ∆ points to holes in π’s burden of evidence. under the controlling law. Scott v. can be maintained or defeated only with a favorable finding on that issue. and π has to submit explain why met burden of production (doesn’t need to be admissible evidence at trial) Bias – π must support explanation that son was not cocaine user and/or could have gotten Jumbo insurance that didn’t ask about drug use with specific evidence. Evidence of videotape in police car is enough that jury couldn’t come to any other conclusion even when taken in light most favorable to π. R.

(2) Motion. if the jury returned a verdict. or (3) direct the entry of judgment as a matter of law. no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a). the court may: (1) allow judgment on the verdict. Conflicting Testimony between π and his witnesses is not enough for SJ . Reasons New Trials Have been Granted  verdict against the weight of the evidence • excessive or insufficient verdict -Remittitur? • newly discovered evidence -Consider also R. Grant a new trial. Etc. 60 • conduct of counsel that tainted the case • jury misconduct • verdict based on false testimony • unfair surprise • substantial errors in the admission/rejection of evidence • giving or failure to give jury instructions Guenther – Tire explosion at mechanic. . In ruling on the renewed motion. Conflicts in witness testimony resolved by Jury. for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. Alternative Motion for a New Trial. and (B) in an action tried without a jury. No later than 28 days after the entry of judgment —or if the motion addresses a jury issue not decided by a verdict. . . The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. (2) order a new trial. Probabilistic evidence must be strong (75-80% sure) to be brought to Jury. . (A) in an action in which there has been a trial by jury. R. the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion.59 – New Trials and Amendments of Judgments => Looks at both Adequacy of Evidence and Process a)(1) In general: The court may . for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. (b) Renewing the Motion After Trial.

The number of witnesses per side shouldn’t matter but sometimes it does. Agent Orange 3. Juries should not be given cases where the plaintiff contradicts his own witness. On a case-by-case basis. Schwarzer . Chamberlain 5. Gallagher 4. Juries should not be given cases that involve inferring negligence or causation from statistics because statistics address a generic state of affairs rather than a specific fact. but in light most favorable to non-movant. Inferences bridge gaps. but they can’t go too far to replace proof with speculation Rules about Juries: 1. Need conflict of substantial interest to make jury question. Guenther. Guenther 2. there are cases in which the inferential “gap” will lead to speculation and the possibility of a non-rational verdict.Boeing – JNW takes into account both sides of argument. whether the burden of production has been met. as a question of law. It is for the judge to decide. Galloway – Cannot allow juries to speculate.