Civil Procedure Outline I. 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 Forums Statute (e.g., long-arm statute, attachment statute) 1. Californias long-arm statute claims jurisdiction is proper as long as the exercise of jurisdiction meets federal constitutional requirements 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 & reasonableness) a. Minimum Contacts i. Quantity and Nature of the Defendants Contacts 1. Defendant purposeful availed himself of the benefits and protections of the forum state; and 2. Foreseeability that the defendant could get sued in this forum ii. Relatedness Between Defendants Contacts and the Plaintiffs 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 defendants 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

II.

related to the land, the constitution is only satisfied if the defendants 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 forum? Subject Matter Jurisdiction (what court do we go to, state or federal?) a. Subject matter jurisdiction involves the courts power over a particular type of case 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 defendants 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 requirement iv. When Plaintiff Seeks an Injunction (discuss both rules) 1. Majority Rule

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

ii. Many courts use the nerve center, unless all activity occurs in a single state; OR iii. Where the corporation does more business activity than anywhere else 3. Citizenship for Partnerships a. For unincorporated partnerships (partnerships, labor unions), the citizenship of all members is important, 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. 2. Exclusions a. Even if the requirements for diversity jurisdiction are met, federal courts will not hear cases involving issuance of a divorce, alimony, or child custody decree or the probate an estate. 3. 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), and A assigns his claim to C (Utah). C then sues B. This is no good if C is a mere collection agent for A, with no real interest in the case 4. Erie Doctrine (which law applies, federal or state?) (an issue only in diversity cases) a. A federal court in a diversity case must apply the substantive law of the state in which it is sitting, but must apply federal procedural rules i. Valid federal statutes or rules dealing with procedural matters will be applied over contrary state law 1. 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. Substantive Law Areas (where state law will apply) 1. Elements of the claim 2. Choice of law rules 3. Statutes of limitations

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

Supplemental Jurisdiction 1. Pendant a. Requirements: i. Claim is asserted by the plaintiff in a federal question case; AND ii. Claim arises from a common nucleus of operative fact (from the same transaction or occurrence) b. 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. Ancillary a. Requirements: i. Claim is asserted by anyone but the plaintiff in a diversity or federal question case; ii. Claim arises from a common nucleus of operative fact as the underlying case (from the same transaction or occurrence) b. 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. Some federal question cases (e.g., patent infringement, federal antitrust and securities claims) have exclusive federal jurisdiction and can only go to federal court c. Removal (allows defendants to have a case filed in state court removed to federal court) i. A defendant may remove an action that could have originally been brought by the plaintiff in federal court ii. A case may be removed if: 1. It invokes federal question jurisdiction or diversity of citizenship jurisdiction a. In diversity cases only, however, removal is not available if any defendant is a citizen of the forum state

i.

III.

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

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

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i. A summons (formal court notice of a suit and time for response); and ii. A copy of the complaint b. 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. Process may be served by any nonparty who is at least 18 years old and may take the form of: i. Personal service 1. 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. Substituted Service 1. Process can be left with someone other than the defendant if: a. It is the defendants usual abode; b. The person being left with process is of suitable age and discretion; and c. The person being left with process resides there iii. Process can be delivered to defendants agent authorized to receive service (e.g., a corporations registered agent or any officer) or a state officer appointed by operation of law (nonresident motorist, etc.). iv. Waiver by Mail 1. Process can be mailed to the defendant by first class mail, postage prepaid, as long as: a. Defendant returns the waiver form waiving formal service within 30 days i. If he does not return the waiver form, he must be served personally or by substituted service at his cost) v. Process can be delivered to a defendant in another state as long as state law allows for it (with a long-arm statute, for example). 1. 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. These rules apply to formal service of process, by which a defendant is brought before the jurisdiction of the court. For subsequent papers (e.g., answer, other pleadings, motions, discovery requests and responses) can be served by delivering or mailing the document to the partys attorney (or pro se party). If mailed, three additional days are given for the required response time Pleadings (documents setting forth the claims and defenses) a. Notice pleadings i. Pleadings must convey enough contentions to allow a meaningful response (do not require great detail, just enough to put the other side on notice) b. Rule 11

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

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

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VIII.

a. An offensive claim against an opposing party (e.g., defendant vs. plaintiff) that is filed with defendants responsive pleading (answer). b. Two Types i. Compulsory Counterclaim 1. A defendants claim against the plaintiff that arises from the same transaction or occurrence as the plaintiffs claim; 2. Must be filed with the defendants answer in the pending case (or else defendant waives the right to sue on the claim) a. Exceptions i. If the claim had already been asserted before plaintiff sued defendant, then it is not compulsory ii. 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, so he can bring the claim in a separate case 3. If there is no independent basis of subject matter jurisdiction for the counterclaim, the court may still hear the claim under ancillary supplemental jurisdiction ii. Permissive Counterclaim 1. Requirements: a. A claim not arising from the same transaction or occurrence as the plaintiffs claim; b. Claim does not have to be asserted in a pending case (can sue in a separate action); c. Claim must meet the requirements for subject matter jurisdiction (diversity or federal question) i. 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; defendant v. defendant) a. Requirements i. Claim must arise out of the same transaction or occurrence as the underlying action; and ii. 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. Relation Back Doctrine i. Amended pleadings relate back to the date of the original pleading if they concern the same conduct, transaction, or occurrence as the original pleading 1. Example: P files a complaint on July 1. The statute of limitations runs on July 10. P then files and serves an amended complaint (adding a new related claim) on July 15 (before the defendant has

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

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

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c. Impleader (when defendant wants to bring in another third-party defendant for indemnity or contribution) i. 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, he needs court permission) ii. In an underlying diversity case, 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. 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 third party defendant can assert a claim against the plaintiff, 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. Bulge Rule 1. Third parties joined by impleader may be served out of state, within 100 miles of the federal courthouse, regardless of state law. Intervention (where an absentee wants to join a pending suit and bring herself in as a plaintiff or defendant) a. Intervention of Right i. Available whenever: 1. The absentee claims an interest in the property or transaction that is the subject matter of the action; and 2. The disposition of the action without him may impair his ability to protect that interest ii. There is no independent basis of subject matter jurisdiction required when one intervenes as a defendant (ancillary supplemental jurisdiction is satisfied) 1. However, under the supplemental jurisdiction statute, 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. Does not require independent jurisdictional grounds b. Permissive Intervention (discretionary with the court) i. Available when: 1. The applicants claim or defense and the main action have common questions of law or fact (no direct personal or pecuniary interest is required); and 2. The intervention is supported by its own jurisdictional ground (and wont destroy diversity); c. Interpleader

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

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2. A class action is the superior method to handle the dispute (e.g., mass tort case where the major common question is whether the tortfeasor was negligent) ii. Notification Required: 1. Class representative must pay to give individual notice to all members reasonably identifiable, telling them: a. They can opt out; b. They will be bound if they dont opt out; and c. They can enter a separate appearance through counsel ii. Who Is Bound by a Class Judgment 1. All class members are bound, except for those who opt out of a Damages type class action iii. Subject Matter Jurisdiction 1. Class action can invoke a federal question; OR 2. Invoke diversity of citizenship a. Only the citizenship of the class representative(s) matter b. As to amount in controversy requirement: i. Traditional Rule: Every class members claim must be in excess of $75,000 ii. Modern Trend (and followed by the 9th Circuit): Only the representatives claim must exceed $75,000 regardless of other class members claims iv. Settlement or dismissal of a class action must be approved by the court (and court, before approval, must notify the class members and get their feedback) Discovery a. Required Disclosures (must be produced even though no one asks for it) i. Initial Disclosures 1. Unless court order or stipulation of the parties provides otherwise, within 14 days of a Rule 26(f) conference, the parties must identify persons and documents likely to have discoverable information that the disclosing party may use to support its claims or defenses, as well computation of damages and insurance for all or part of judgment ii. Experts 1. As directed by the court, parties must identify experts who may be used at trial and produce a written report containing their opinions, data used, qualifications, compensation for the study, and etc. a. Experts must be paid reasonable fees

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

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

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

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

XII.

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

XIII.

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

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

XV.

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

a. It is distinct from the merits of the case; b. Involves an important legal question; and c. Is essentially unreviewable if we wait until final judgment (e.g., claim by a state that it has 11th Amendment immunity) iv. When more than one claim is presented in a case (e.g., claim and counterclaim), or when there are multiple parties, 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. Extraordinary Writ 1. Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a certain order 2. Available only to enforce a clear legal duty (not a substitute for appeal) vi. Class Actions 1. Court of appeals has discretion to review an order granting or denying certification of a class action, if review is sought within 10 days of the order 2. The appeal does not stay proceedings at the trial court unless the trial judge or court of appeals so orders XVI. Res Judicata and Collateral Estoppel (affirmative defenses; defendant must include in answer) a. Generally i. 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. Res Judicata (claim preclusion) (analyze the validity of the judgment and the finality on the merits for each claim) i. Once a valid and final judgment on the merits has been rendered on a particular cause of action, the plaintiff is barred by res judicata from trying the same cause of action against the same defendant(s) in a later lawsuit 1. Res judicata is limited to parties, so it does not bar similar causes of action brought by others 2. Final judgment on the merits a. Almost all judgments and involuntary dismissals are on the merits except for those based on jurisdiction, venue, indispensable parties, dismissal under the statute of limitations (in some courts), or dismissal without prejudice (in some courts) 3. Same cause of action a. 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. Some jurisdictions say there is a separate cause of action or claim for property damage and for personal injury, even if they were caused in a single transaction (because personal injury and property

rights are different primary rights) (primary rights theory) b. Note: Look to whether the second cause of action raises a different, but related, law that may require proof of additional or different elements (in which case, argue that the causes of action are not the same) ii. 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. This is true unless it would be unfair to apply res judicata under the circumstances (e.g., plaintiff didnt become aware of the facts constituting the claim until after the first lawsuit) iii. Merger vs. Bar 1. When the one claiming res judicata in the second case won Case 1, and res judicata is applied, it is called merger 2. When the one claiming res judicata in the second case lost Case 1, and res judicata is applied, it is called a bar (he is barred from suing again) c. Collateral Estoppel (issue preclusion) i. 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, 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. 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. Collateral estoppel may be used by: a. Traditional Mutuality Rule i. Only someone who was a party to the original suit could use/benefit from collateral estoppel ii. Present Status of Mutuality 1. In jurisdictions where the mutuality principal is being eroded away, courts will uphold collateral estoppel when: a. The issue decided in the first case is identical to that raised in the second; b. There was a final judgment on the merits; c. The party against whom the judgment is to be used had a fair opportunity to be heard on the critical issue; and d. The posture of the case is such that it would not be unfair or inequitable to a party to apply collateral estoppel

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