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Civil Procedure - 1L
Black Letter Law for 1L Civil Procedure

Additional Law Flashcards




In Personam Jurisdiction Analytical Framework
○ Check to make sure the statute applies
○ Does a traditional basis apply?
§ If so, traditional basis may be enough on its own but tell him about the split
○ International shoe
§ Must be a relevant contact between D and forum
□ Purposeful availment
□ Foreseeable that could be sued there
□ If arguably a contact, specific or general jurisdiction
® Does complaint arise from the D's contact with the state
◊ If yes, specific jurisdiction
◊ If no, general jurisdiction
} D must be "essentially at home there"
§ Fairness
□ Fair to litigate in the state?
□ Burden on D to show that it is unconstitutionally unfair
® Very hard to do
□ 5 relevant factors
® Inconvenient for the defendant
® Forum state's interest
® Plaintiff's interest
® Efficiency

Shared substantive policies
In Rem and Quasi In Rem Jurisdiction
- True In Rem type: litigation/dispute about ownership of the property
- Quasi In Rem: clear that D owns property but dispute about something else
○ Would have been In Personam if it could have been
- In Rem and Quasi In Rem is appropriate when property has been seized by the court at the beginning of the suit
- Statute: Need an attachment statute
- Constitutional limits
○ D must meet International Shoe and the property must be seized at the outset
How to serve and individual
ow do we serve an individual § 4(e)
§ 4(e) (2)
□ Personal Service
□ Substituted Service
® Must be at the D's dwelling or usual abode
® And must serve someone of suitable age and discretion who resides there
□ Service on the person's agent
§ 4(e) (1)
□ Methods acceptable under state law
® Can be methods of state that court resides in
® Or can be methods of state where service will take place
Service on a Business
§ 4(h)(1)
□ Officer or a managing or general agent
® Looking for someone with sufficient responsibility that we expect them to transport important papers
Waiver of Service
§ 4(d)
§ Can have the D waive by sending the process and 2 copies of a waiver form and self addressed stamped envelope
□ Cheap and easy to do
§ What if the D fails to return the waiver form
□ Serve process on D and D will have to pay for it
Complete Diversity Rule
® No diversity if any plaintiff is a citizen of the same state as any defendant
Citizenship of Human Being
® Citizen of the state where domiciled
◊ Physical presence in the state
◊ Must form the intent to make it your permanent home
◊ Only one domicile at a time
◊ Always have one
Citizenship of Corporation
® Defined by 1331(C)(1)
◊ State where incorporated
◊ And the one state where it has its principal place of business

Test: Where the managers direct, control and coordinate corporate activity
Citizenship of Non incorporated business
® Look to the citizenship of all the members
◊ Non incorporated business can be citizens of multiple states
Requirements for Diversity Subject Matter Jurisdiction
§ Amount in controversy exceeds $75K ($75K exactly does not qualify

□ Complete Diversity Rule
® No diversity if any plaintiff is a citizen of the same state as any defendant
® Must add two or more claims to get over $75K
® When we aggregate:
◊ When there is one P and one D
} Claims can be infinite and don't have to be related
® Cannot aggregate if there are multiple parties on either side
Federal Question Cases
- Section 1331 of judicial code
○ Citizenship irrelevant
○ Amount in controversy irrelevant
- Claim must arise under federal law
○ Look at the P's claim alone
○ Well pleaded complaint rule
§ Look only at the complaint, forget everything else
○ Is the P enforcing a federal right?
§ If yes --> Federal court
§ If no --> Not a federal question, need diversity to get in federal court
Supplemental Jurisdiction
§ Lets a federal court hear a non diversity, non federal question claim § Can't get a case into federal court, but can get a claim in  § Case in federal court under federal question in claim 1, and Supreme Court allowed claim 2 into federal under supplement jurisdiction § If claim 1 and claim 2 share a common nucleus of operative fact then we allow both claims into federal court □ Pretty broad but essentially means that if claims are the same dispute □ Always satisfied when claims come from the same transaction or occurrence
Supplemental Jurisdiction Test
○ Does 1367(a) grant jurisdiction?
§ Yes if meets Gibbs
□ Does 1367 (b) take away that grant?
® Applies only in diversity cases, never in federal question cases
® Only takes away supplemental jurisdiction from claims by plaintiffs
- Allows a defendant to have a case filed in state court to have the case transferred to federal court
- Removal goes from state to federal
- Remand goes from federal to state court
- Mechanical rules (1441,1446,1447)
○ Removable if case meets federal subject matter jurisdiction
§ Exception: Cannot remove a diversity case if any defendant is a citizen of the forum. (In state citizen rule)
○ All defendants must agree
○ Must remove within 30 days of service of the document which first makes the case removable
§ Usually at the service of process
○ Can only remove to the federal district that embraces the state court where it was filed
Basic Venue Rules
- Venue Rules
○ Lay venue in any district where all defendants reside
§ If all defendants reside in the same state then you can lay venue where any one of them resides
§ Human resides where domiciled
§ Businesses reside:
□ In all districts where they are subject to personal jurisdiction
○ Lay venue in any district where a substantial part of the claim arose
○ 1391(a)(3) and (b)(3)

Only comes up if there is no district in the United States where no venue is proper
Transfer of Venue
- Two transfer statutes
○ Under both the transferee must be a proper venue and have personal jurisdiction over the defendant
§ Must be independently true without waiver by the defendant
○ 1404(a)
§ 1404 applies when transferor is a proper venue
§ Can transfer based on convenience for parties and witnesses and the interest of justice
§ Looking to see if other court makes more sense
§ Public and private factors
§ Totally discretionary on behalf of the judge
○ 1406(a)
§ 1406 applies when transferor is an improper venue
§ Court can transfer or dismiss
Forum Non Conveniens
- Where a court dismisses because there is another court that makes more sense
- Would dismiss because transfer is impossible
○ Better court to hear the case is in a different judicial system
- Usually comes up when better court is in a different country
- Factors looked at are the same as 1404
Forum Non Conveniens
- Where a court dismisses because there is another court that makes more sense
- Would dismiss because transfer is impossible
○ Better court to hear the case is in a different judicial system
- Usually comes up when better court is in a different country
- Factors looked at are the same as 1404
Eerie Doctrine
- Federal courts must apply state substantive law in federal diversity cases
• Required by the 10th amendment
- How do we know if its substantive
• Usually it will be easy
○ Elements of a claim are always substantive
• Is there a federal law on point that directly conflicts with state law
○ Federal rule of civil procedure, rule of evidence, statute, etc
○ If yes, then apply the federal law as long as it is valid
§ For FRCP test under the Rules Enabling Act
□ Court not very clear here
□ No FRCP has been found invalid
○ If no, if matter of substance then court must follow state law
§ How to test for substantive
□ Outcome determinative test
® Substantive based on whether it affects the outcome of the case
□ Balance the interest test
® Balance the federal and state interest and decide which is more important
□ Twin Aims of Eerie
® Avoid forum shopping
® Avoid inequitable administration of the law
® Application: If the federal judge ignores this state law will it cause parties to flock to federal court?
First. If yes, then we will follow state law to avoid forum shopping
- Requirements: Rule 8(a)
○ Statement of Subject Matter Jurisdiction
○ Short and Plain Statement of the Claim
§ Historically just needed notice to the D
§ Twombley and Iqbal raised the standard for pleadings
□ Court will ignore conclusions of law
□ Plaintiff must plead facts supporting a plausible claim
® Not enough that it is a possible claim, must be plausible
□ Court will use its own experience and common sense to determine if claim is plausible
□ Certain areas where you have to plead in greater detail rule 9(b) and 9(g)
® Rule 9(b)
◊ Allegations of fraud or mistake
® Rule 9(g)
◊ Items of special damage
} Does not normally flow from an event
} Very special, extraordinary
○ Demand for Relief
Defendant's Response
• D has a choice of how to respond
○ In whatever way you respond you must respond within 21 days of service
○ Can respond by motion or by answer
§ Motion is not a pleading
□ Request for the court to do something
Rule 12 Motions
○ 12(e) - Motion for more definite statement
§ Not very likely
○ 12(f) - Motion to strike
§ Cut out things that don't belong in the complaint
○ 12(b)
§ 7 defenses that could all come up as motions to dismiss
§ Can be raised either by motion or by answer
§ 12 (b) (1) - Subject Matter Jurisdiction
§ 12 (b) (2) - Personal jurisdiction
§ 12 (b) (3) - Venue
§ 12 (b) (4) - Insufficient Process
□ Fairly unlikely
§ 12 (b) (5) - Insufficient Service of Process
§ 12 (b) (6) - Failure to state a claim
§ 12 (b) (7) - Failure to join an indispensable party
Waivable 12(b) Motions
12(b)(2-5) must be in first response to complaint or they are waived
12(b) Motions that can be made at anytime through trial
12(b) motion that can be raised anytime during the case
○ Pleading
○ 2 things you must to
§ Respond to the complaint
□ Only three possible responses: Yes, No, Don't know
® Can only say you don't know if the stuff is not in your control
® Failure to deny is an admission
◊ Does not apply to damages
§ Raise affirmative defenses
□ Affirmative defenses inject a new fact and if you are right you win
□ Denial is reacting to what the plaintiff said
□ Defendant has the burden of asserting them
○ Pleading
○ 2 things you must to
§ Respond to the complaint
□ Only three possible responses: Yes, No, Don't know
® Can only say you don't know if the stuff is not in your control
® Failure to deny is an admission
◊ Does not apply to damages
§ Raise affirmative defenses
□ Affirmative defenses inject a new fact and if you are right you win
□ Denial is reacting to what the plaintiff said

Defendant has the burden of asserting them
Claim Joinder by Plaintiff
• Rule 18(a)
○ Plaintiff can join any claims s/he has against the Defendant
○ Do not have to assert all the claims if s/he doesn't want to
• Must make sure subject matter jurisdiction is met after all the claims are joined
○ Rule 13(a) and 13(b)
○ Asserted against an opposing party
○ Compulsory counter claim
§ Arises from the same transaction or occurrence as the complainants claim
§ If applies then it must be asserted or it is waived
○ Permissive counterclaim
§ Any counterclaim that’s not compulsory
Cross Claim
○ Rule 13(g)
○ A claim against a co-party
§ Must arise as the same transaction or occurrence
○ Never compulsory
Proper Parties
• Rule 20 (a)
○ Who may be joined
• Test for co-plaintiffs - 20(a)(1)
○ Arise from the same transaction or occurrence an raise at least one common question
• Test for co-defendants - 20(a)(2)
○ Claims against defendants arise from the same transaction or occurrence and raise at least one common question
• Must check for subject matter jurisdiction
Necessary and Indispensable Parties Test
○ First Step
§ Is the absentee party necessary?
□ Yes if we meet any of three tests
® 19 (a)(1)(a) - Without absentee party the court cannot accord complete relief among the parties
® 19 (a) (1) (b) (1) - The absentee's interest may be harmed if s/he is not joined
® 19 (a) (1) (b) (2) - Absentee's interest may subject the defendant to a risk of multiple or inconsistent obligations
§ Joint tortfeasors are never necessary as a matter of law
○ Second Step
§ Is joinder of the absentee feasible?
□ Personal jurisdiction over the absentee?
□ Will bringing in absentee affect subject matter jurisdiction?
○ Potential Third Step
§ Absentee cannot be joined (no personal jurisdiction, no subject matter jurisdiction with the absentee added)
§ Two options
□ Go on without the absentee
□ Dismiss the case
§ Decide based on four factors found in 19(b)
□ We should not dismiss the case unless the plaintiff has an alternative forum (most important factor)
□ If dismiss based on four factors then absentee is labeled indispensable and 12(b)(7) motion is in place
• Rule 14 in the FRCP
• Defending party joins a new party (third party defendant)
○ Why?
§ Because third party defendant may be liable to the defendant for the plaintiff's claim (Generally through indemnity or contribution)
• 2 Claims that can be asserted under Rule 14
○ 14(a) - Plaintiff can assert a claim against the third party defendant
§ Must arise from the same transaction or occurrence
○ 14(a) - Third Party Defendant can assert a claim against the plaintiff
§ Must arise from the same transaction or occurrence
• Must assess subject matter jurisdiction
• Rule 24
• Non party (absentee) brings him/herself into a case
○ Chooses which side comes in on
§ Court can move them if they think it was the wrong place
○ Must be timely
• Two types
○ Intervention of right - 24(a)(2)
§ Right to intervene if his/her interests may be harmed if s/he does not come in
○ Permissive intervention - 24(b)(2)
§ Absentee has to show that his/her claim or defense and the pending case have at least one common question
§ Discretionary of the court
• Must check subject matter jurisdiction
Class Action Prerequisites
§ Numerousity
□ Too many parties that it would overwhelm traditional joinder rules
§ Commonality
□ Got to have something between all the class
§ Typicality
□ Representative's claim must be typical of those of the class members
□ Representative will adequately represent the interests of the class
Required Disclosure
○ 26 (a) (1)
§ Must identify people with discoverable information that you may use to support claims or defenses
§ Also must identify documents and things with information that you may use to support claims or defenses
○ 26 (a) (2)
§ Required disclosure about experts that you are going to call at trial
○ 26 (a) (3) - Pretrial Required Disclosures
§ Must lay out everything you are going to raise at trial
Discovery Tools
• Deposition - Rule 30 and 31
○ Written or oral questions answered orally under oath
○ Can use this to get info from a party to non-party
§ Must subpoena the non-party or else they do not have to show up
• Interrogatories - Rule 33
○ Written questions answered in writing under oath
○ Only can be sent to parties
• Request to produce - Rule 34
○ Written request to gain access to stuff
○ Can be sent to non parties only if using a subpoena
• Medical Exam - Rule 35
○ Must get a court order
○ Must show good cause
○ Can be ordered of a party or someone in a party's custody or legal control
§ Fairly narrow
• Request for Admission - Rule 36
○ Can only be sent to parties
○ Force the party to admit or deny something
• Inspections of Land and Other Property Rule 34(a)(2)
• Complaint Rule 8: No officially a discovery device. D admits/denies allegations, thus operating like request for admission.
Standard for Discovery/What is discoverable
• Standard for discovery
○ We can discover anything that is relevant to a claim or defense
○ Fairly broad
• What is discoverable
○ Anything that is reasonably calculated to lead to admissible evidence
§ Broader than admissible
Work Product
§ Material that is prepared in anticipation of litigation
§ Cannot discover work product
§ Not always absolute
□ Can be overrode by:
® Substantial need and
® Not otherwise available
§ Absolute Work Product
□ Mental impressions
□ Conclusions
□ Legal theories
§ Does not have to be generated by an attorney
12(b)(6) Motion
• Motion to dismiss for failure to state a claim
• Just look at the face of the complaint
○ Doesn’t look at evidence
○ If all the facts alleged were true would the complainer win?
§ Plausibility is in the eye of the judge
• Can point out sloppy pleading
○ When the complainant doesn’t plead every element needed to prove a complaint then we would grant 12(b)(6) - probably with leave to amend
Summary Judgment
• Rule 56
• Moving party must show that there is no genuine dispute on a material fact and that s/he is entitled to judgment
• Trying to weed out cases where we don't need a trial because there is no dispute of fact
• Tend not to grant this very readily
○ Supreme Court aimed in Celotex to have courts loosen up in allowing more summary judgments
○ Rarely granted for the party bearing the burden at the trial
Test to See if Right to Jury Trial
• Whether we have a jury test today depends on whether you would have had a jury at English common law in 1791
○ 2 things we look at
§ Is this claim analogous to a claim that existed in 1791 in England?
□ Almost always going to be yes
§ What remedy is sought by the plaintiff?
□ Remedy at law is damages, so if damages are sought then jury
□ Equitable remedies are injunctions, specific performance and rescission. If these are sought then no right to a jury
□ When the case includes both equity and law, then right to jury based on these rules:
® Jury right will be determined issue by issue
® If an issue of fact underlies both law and equity then you get a jury
® Generally we will try the jury issues first
Judgment as a Matter of Law
○ Case taken away from the jury when something has been previously decided as a matter of law
○ Standard: a reasonable jury could only find in one way
○ When can make this motion
§ Only after the opposing side has been heard at trial
Renewed Judgment as a Matter of Law
○ JML after the jury has ruled
○ Standard: reasonable jury could not have reached the verdict
○ Must move for this within 28 days after entry of judgment
○ There must be a motion, court cannot do it on its own
○ Must have moved for JML at a proper time at trial or waive the use of RJML
Motion for New Trial
○ Timing as RJML
○ If granted we start over with a new trial
○ Can be based on any error that the court thinks changed the outcome
○ Court can enter this on its own but generally there is a motion
○ Less drastic than RJML
Final Judgment Rule
• Cannot appeal until the trial court enters a final judgment
• The entire case has to be wrapped up before appeal is appropriate
• How to tell if judgment is final
○ Ask: After making this order does the trial judge have anything left to do on merits of the case?
§ If yes, then the order is interlocutory and the appeal is not appropriate
§ If no, then appeal appropriate
Claim Preclusion Requirements
○ Both cases were brought by the same claimant against the same defendant
○ Case 1 ended in a valid final judgment on the merits
§ Rule of thumb: all judgments are on the merits unless they are based on jurisdiction, venue or indispensable parties
○ Both cases involve the same claim
§ Split authority on what qualifies as a claim
□ Claim = transaction or occurrence (Majority)
□ Primary rights theory = different claim for every right invaded (Minority)
Requirements for Issue Preclusion (Collateral Estoppel)
○ Case 1 ended on a valid final judgment on the merits
○ Same issue was actually litigated and decided in Case 1
○ Issue was essential to the judgment in case 1
○ Against whom is preclusion used?
§ Can only against someone who was a party to case 1
□ Includes people in privity with parties in case 1
○ By whom is preclusion used?
§ Starting part is mutuality
□ Traditional rule is that you can only use this if you were a party to case 1
Non-mutual Collateral Estoppel
® Majority rule that this is acceptable as long as the party that it is being levied against had the opportunity to sufficiently litigate the issue previously
Non-mutual defensive Issue Preclusion
Person using was not a party in case 1 is the defendant in case 2

Generally allowed because it is used against had the chance to litigate
Non-mutual offensive issue preclusion
- Party using it is the plaintiff in case 2 but wasn't a party in case 1

- Most courts don't allow

- Strong trend towards allowance after Park Lane Hosiery as long as not unfair to person being used against

– Fairness factors
w Party it is being used against had a full chance to litigate the issue
w Party could foresee multiple litigation
w Person using it could not have joined easily in case 1
w No inconsistent judgments on the record
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