CIVIL PROCEDURE ISSUES

Preclusion 12b2 personal, 12b3 venue, 12b4 process,

Claim / res judicata 12b5 service
1. same parties or privity any time:
privity: substantial control 12b6 failure to state claim
2. final judge. on merits 12b1 subject matter
3. same claim* 12b7 failure to join indisp. party – R. 19
* unless couldn’t bring it before 12(b)(6) – failure to state claim
* R 42 – Dismissals 2 vol. = final on merits • plain and simple statement 8a
Issue • beyond doubt p can prove no set of facts to support
1. actually litigated claim
2. issue essential to judgment
3. final judgment Amendments - 15
4. same issue • justice so requires (after 20 days)
• relation back if after SOL
Personal Jurisdiction * can fight by collateral attack
General – power over all Joinder of Claim - 18
In personum • all except barred by res judicata
• in hand in state
• domiciled Joinder of Party - 20
• consents • same transaction, occcurence
• consents by waiving 12b2 defense • common question of law or fact
In Rem • R 42 – Sep./Consolid. Trials
• property in state, claim on prop.
Joinder Indispensible Party – 19
1. Long arm statute? 1. fit criteria (a)
2. Min. contacts or “contin. systematic” 2. if yes, necessary, bring in if can
3. if can’t go to Provident Test + (b) – go on w/out?
related to claim there for all purposes P’s interestsadequate judgement/can bring it
later?
fair play D’s interests reduce prejudice by unique ruling
absent party interestunfair
Venue §1391 (a. diversity, b. federal question) court’s interest
• where D resides
• sub. part of events in claim occur Counter Claim – D v P – 13 (about anything)
• where D has personal IF no other options Cross Claim – D v D (must be related)
Removal from state to fed. - 1441 • compulsory: same trans./occur.
• could have been in Fed. to begin • permissive: other claims
Change 1404 where could have been brought
1. convenience parties Impleader 14
2. convenience witnesses • liable to D all/part (contribution or contract, agent etc.)
3. interests of justice • balance: efficiency v prejudice
• forum non-conveniens: requires more
convenience proof, usually to a state ct. or foreign Discovery 26 (scope)_
country only, alt. forum must be avail. • scope: matter relevant to claim or defense
• (a) required disclosures
Subject Matter Jurisdiction *can fight by collateral attack R 34 – Request for Documents
Federal Question - 1331
• constitutional Right to Jury Trial – 38 / VII Amend.
• statute giving private cause action 1. statute establish right?
Diversity - 1332 2. legislative intent – i.e. other options avail.
• all D dif. all P + 75,000 3. public (no jury) vs. private interest protect (jury)
Supplemental - 1367 4. remedies: ($=jury)(injunction=non-jury)
• “common nucleus op. fact”
• can’t destroy diversity on P’s motion Summary Judgment-56
• insuff. evid. to prove one element
Choice of Law • no issue material fact
• state substantive – “outcome determinitive”
• fed ct. – fed. rule if applies & constitutional Judgment as a Matter of Law - 50
• all issues in favor of non-moving p.
Service - 4 Directed Verdict (after case, before jury)
• best means avail. + chance to respond evidence is clear and unchallenged
Judgment NOV (after jury)
Due Process must move before jury decides 1st
• notice, opportunity to respond
Motion for New Trial - 59
Defenses • against the weight of evidence
before answer: 12e more definite statement • mistakes
waivable – must raise all when raise one: