Civ Pro Outline 2

Civil Procedure Outline - Schmitt
Subject Matter Jurisdiction
 Overview of SMJ (state or federal court?)

o Complete diversity
 Individuals – domicile test
 Corporations – principal place of business; state of incorporation
o Amount in Controversy
o Federal Question
 Well-pleaded complaint rule
 Federal cause of action; state cause of action
o Removal
 Is the case potentially removable?
 Procedurals of removal
 Subject matter Jurisdiction

o the court’s power to hear that type of case
o This answers whether the case should be in state or federal court?
Complete Diversity
 domicile rule
o Renting an apartment in another state and desiring to remain there is
sufficient to establish domicile in that state for federal diversity jurisdiction
purposes.
 Domicile Rule
 A person acquires a new domicile if two factors are met:
o 1. Residency in the new state AND
o 2. Intent to remain in the new state indefinitely
 State citizenship for purposes of diversity jurisdiction is
determined by the parties’ domiciles
 If no new domicile is acquired, the party retains her last
domicile
 Domicile is determined at the time the complaint is filed
o Domicile is determined as a matter of federal law, not state law. The state of
a person’s residence is not necessarily the state of domicile for purposes of
establishing diversity jurisdiction.
 Complete Diversity Rule
 No party on one side of the litigation may be a citizen of the
same state as any party on the other side
 State Citizenship of Corporations
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o 1332 (c): a corporation is a citizen of

 The state where it was incorporated AND
 The state where it has its principal place of business
o A corporation is potentially a citizen of two states
o Principle place of business = place where the corporation’s high level officers
direct, control and coordinate the corporation’s activities
 State Citizenship of Other Organizations
o Unincorporated associations (partnerships, limited liability companies) are
treated as groups of individual litigants
 They have the citizenship of all partners/ members
Amount in Controversy
 1332 limits diversity jurisdiction to cases where the matter in controversy exceeds
the sum or value of $75,000
 The sum claimed by the P controls if the claim is apparently made in good faith. It
must appear to a legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal
o There must be a legal and factual basis for a recovery of the required amount
o P has the burden of proving the AIC. The court is looking for evidence of
damages. Is there any way that a rational fact finder would be able to
determine that the case meets the required AIC is the question we must ask.
 Aggregating Claims to meet AIC
o P may add together the value of any claims against a single defendant
 Ex. P sues D1 for 30k for tort claim and 60k for a K claim and D2 for 40l
claim
 P is allowed to add claims for D1= meets AIC, D2 does not meet AIC
o P may NOT add the value of claims against 2 separate defendants
o Co-P’s may not add the value of their claims; each P must individually have
more than $75,000 in controversy
 Ex. P1 sues D for 40k and P2 sues D for 50k
 P cannot add value of their claims
 The Constitutional Scope of Diversity
o The constitution does NOT require:
 The AIC requirement
 Complete diversity
Federal Question Jurisdiction

 Federal Question Jurisdiction: suggest analytical approach
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o R: a case “arises under” federal law only when a federal law issue appears in
the plaintiff’s well-pleaded complaint (Mottley)
o A well-pleaded complaint is on the alleges only what is needed to prove the
P’s cause of action
o Application: Ask whether the P’s cause of action was created by state or
federal law
 If created by federal law, the federal court has jurisdiction
 If created by state law, the federal court has jurisdiction only if the
Grable test is met
 P’s claim must necessarily raise a federal issue
 Constitutional Scope
o a case “arises under” for constitutional purposes if the case has a “federal
ingredient”
o This “federal ingredient” may appear in the P’s claims or in the D’s answer
 Well-pleaded Complaint Rule- Mottley
 The rule is met when either:
1. Federal law creates the cause of action (Justice Holmes’ test)
OR
2. The P’s state law cause of action necessarily depends on
resolution of a substantial question of federal law
 The substantial federal question exception- Grable
 A case arises under federal law if the state law claim necessarily raises
a stated federal issue, actually disputed and substantial, which a
federal forum may entertain without disturbing any congressionally
approved balance of federal and state judicial responsibilities.
 Grable says that a case arises under federal law if the state-law claim
necessarily raises a stated federal issue
 The P’s claim must necessarily raise a federal issue—NOT the
D’s answer. The focus is on P’s case!
Removal Jurisdiction
 Standard for Removal: Mere allegations to federal law cannot be enough to create
SMJ. Only look at P’s cause of action in order to remove.
 Removal is determined at the time of removal (time the notice is filed),
so attempts to manipulate jurisdiction after that time may not work.
 Procedure for Removal
 Only a D may remove. The right of removal is generally decided from
the face of the pleadingsONLY look at P’s complaint.
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
Existence of federal question or diversity or amount in controversy
still apply in order to remove
 D files a “Notice of Removal” in federal court, and notifies the state
court and the plaintiff (§1446(d))
 The case is removed to the district court that hears cases from the
area where the state action is pending.
 § 1441(b)(2): a D may not remove based on diversity if any defendant
is from the state in which the suit was brought.
 When removal jurisdiction can differ from original jurisdiction:
 § 1441(b)(2): a D may not remove based on diversity if any
defendant is from the state in which the suit was brought
 § 1446 (c)(2): the notice of removal may state the AIC if P
seeks nonmonetary relief (ex. Injunction) or if the state permits
recovery in excess of the amount demanded in the complaint
o In such a case, the district court must find, by a
preponderance of the evidence, that the AIC has been met.
 If the case IS initially removable, D must remove within 30 days of
receiving the pleading (§1446(b))
 If the case was NOT initially removable, D may remove within 30
days of the time the case becomes removable (§1446 (b))
 Rule of Unanimity: All D’s must agree to removal (§1446(b)(2)(A))
 Removal of multiple claims
 If one claim is a diversity claim (federal jurisdiction) and the other is
claim with no federal jurisdiction then the second claim defeats the
D’s right of removal.
 If one claim is a federal question claim, and there is another “separate
and independent” claim where there is no federal jurisdiction then D
may remove the whole case.
 Procedure for Remand
o Can P file a motion to remand the case to state court?
 §1447(c): a motion to remand the case on the basis of any defect other
than lack of SMJ must be made within 30 days after the filing of the
notice of removal under section 1445(a)
o If it remanded for lack of SMJ there is no specific time
limit
 If removal does not satisfy the statutory requirements then federal
judge must remand the case to state court that it came from
Personal Jurisdiction
 For a P to sue in a given court, that court must have BOTH
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1. Subject Matter Jurisdiction AND

 State courts always have SMJ
 Federal Courts: SMJ can be based on either:
o Diversity; or
o Federal question
 2. Personal Jurisdiction
 Long arm statute; AND
 Application of the long arm statute is constitutional
o Specific jurisdiction (minimum contacts)
 Claims arise from contacts; fairness
o General Jurisdiction
 “at home in the forum state”/ more than minimum
contacts
 For corporations: “continuous and
systematic” contacts with the forum
 For individuals: wherever the D is domiciled
o Transient presence
 Voluntarily present in a particular state; reasonable
expectation that he is subject to suit there.
 Statutory Limits
o Long Arm Statutes
 For a court to have personal jurisdiction:
1. It must have statutory jurisdiction under a state long arm
statute; AND
2. The exercise of such statutory jurisdiction must be
constitutional
 Many states have statutes allowing their court’s jurisdiction over
persons committing tortious acts within the state.
 Long Arm Statutes in Federal Courts
o federal court may constitutionally exercise personal jurisdiction so long as a
D merely have contacts with the United States
History on PJ
 Pennoyer Framework for PJ (old framework)

o 1. In the state AND
o 2. Personally served
 Milliken v. Meyer
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o Holds that a court has personal jurisdiction over any individual who is
domiciled in the state, even when they are not physically present (e.g. a
student away at college who never acquired a new domicile)
 MK
Specific Jurisdiction
 Specific Jurisdiction: a suggested analysis

o Does the D have purposeful contact with the forum?
 If no, no jurisdiction (W-W Volkswagen)
o If YES, does the P’s claim arise out of the contact?
 If NO, no jurisdiction (UNLESS there is general jurisdiction- if D “at
home” in forum state)
o If YES, did the D present a compelling case of unfairness?
 If yes, no jurisdiction (Burger King)
 Specific jurisdiction exists over claims that arise out of the D’s deliberate in-state
contacts (minimum contacts) so long as the exercise of jurisdiction would be
consistent with traditional notions of fair play and substantial justice.
 3 requirements for specific jurisdiction:
o 1. The D has contacts with the forum;
o 2. The claim arose from those contacts; AND
o 3. Personal jurisdiction is otherwise fair and reasonable
 International Shoe: minimum contacts
o Jurisdiction is not based on presence and consent—now we have “minimum
contacts”—modern era
o The forum state may exercise personal jurisdiction over the corporation only
if the corporation has minimum contacts with the forum state such that the
maintenance of the suit does not offend traditional notions of fair play and
substantial justice.
 D will be found to have minimum contacts with the state only if D has
purposely availed itself of the chance to do business in the forum state.
 Shaffer v. Heitner
o The same minimum contacts analysis from international shoe must be used
for in rem jurisdiction
 The D’s ownership of property in the forum is a relevant
consideration
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o Just because you have property in the forum state does not
mean it would be fair to say you have minimum contacts
with the forum.
 Suits based on contractual relationship: Minimum Contacts
o The requisite minimum contacts are more likely to be found where one party
to a contract is a resident of the forum state. But the fact that one party to a
contract is a residence does not by itself automatically mean that the other
party has minimum contacts. The existence of a contract is just one factor to
look at.
o In suits relations to a contract, the minimum contacts requirement boils
down to: Reasonable anticipation:
 Could the D have reasonably anticipated being required to litigate in
the forum state?
 The mere fact that a product manufactured or sold by D outside of the forum state
finds its way into the forum state and causes injury there is not enough to subject D
to personal jurisdiction there. D can be sued in the forum state only if it
purposefully availed itself of the forum state, either directly or indirectly.
o But if the out of state manufacturer makes or sells a product that it knows
will be eventually sold in the forum state, this fact by itself is probably not
enough to establish minimum contacts.
 5 factors to consider whether personal jurisdiction is fair:
1. The burden on the D
2. The interest of the forum state
3. P’s interest in obtaining relief
4. The interstate judicial system’s interest in obtaining the most efficient
resolution of controversies
5. The shared interest of the several states in furthering fundamental
substantive social policies
 Choice of law clause: minimum contacts
o Where there is a contract between the parties to the suit, the fact that the
contract contains a choice of law clause requiring use of the forum state’s law
will also be factor (though not a dispositive one) towards a finding of
minimum contacts.
o In suits relations to a contract, the minimum contacts requirement boils
down to: Reasonable anticipation.
 The “Arises out of” element
o The supreme court has not clearly defined this requirement
 Evidence Test: does the D’s contact with the forum provide evidence
of an element of the underlying claim?
 But for test: But for the D’s contact, would the P’s claim exist?
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 Personal Jurisdiction and the internet

o If an out of state business just passively post info on the web, and doesn’t
especially want to reach in-staters or conduct transactions with them, this
probably does not amount to minimum contacts, even if some in-staters
happen to access the site.
o Zippo Test (use this 3 part test if you have a website)
1. Interactive website whereby the D’s conduct business and elicit
sales are enough to grant personal jurisdiction
2. Passive websites that afford internet users no interactivity are
NOT enough to grant personal jurisdiction
3. Interactive websites whereby a user can exchange information
with the host computer, may be sufficient to find personal
jurisdiction
o Keeton , Calder and Zippo for personal jurisdiction:
 Keeton v, Hustler Magazine (selling into the
forumpurposeful availment)
 Calder v. Jones (D is targeting the forumpurposeful
availment)
General Jurisdiction
 Different from specific jurisdiction:
o Specific jurisdiction: suit arises from D’s contacts with the forum
 Forum can only hear claims arising from those contacts
o General jurisdiction: suit is unrelated to D’s contacts
 Forum can hear ANY claims against that D
 General jurisdiction= D may be sued on any claim (including claims unrelated to the
D’s contacts)
o more than minimum in-state contacts. The D’s contacts must be sufficiently
extensive that D is “essentially at home in the forum state.”
 For corporations:
o Standard is typically satisfied wherever the D has
“continuous and systematic” contacts with the forum
state
 For individuals:
o Standard is wherever the D is domiciled
 Helicopteros: mere purchases made in the forum state even if occurring at regular
intervals, are not enough to warrant a state’s assertion of general jurisdiction (PJ)
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over a nonresident corporation in a cause of action not related to those purchase

transactions.
Transient Presence
 Individuals:
o When D is voluntarily in the forum state, physical presence in a state at the
time process is served upon them satisfies traditional notions of fair play and
substantial justice, regardless of whether or not the litigation arises out of
D’s activities in the state.
 a D who is voluntarily present in a particular state has a reasonable
expectation that he is subject to suit there.
 Transient presence in the corporate context
o Courts have held that a P cannot obtain PJ over a corporation by serving an
officer of that company who happens to be in the forum state.
o Partnerships:
 For diversity purposes: a partnership is considered to be a citizen of
every state where an individual partner is domiciled.
 It is permissible for a court to have PJ over a partnership if one of the
partners is served within the forum state. (If that state is where one of
the partners is domiciled or where that partner himself is domiciled).
Consent and Waiver of Personal Jurisdiction

 Consent
o a D can consent to personal jurisdiction:
 By failing to raise the issue; OR
 By agreeing to jurisdiction before the lawsuit
 Waiver:
 Waiver typically results from a party’s failure to raise an issue within
a specified time or in a proper manner.
 To avoid waiving PJ there are procedures that the D must follow
 Some courts require the D to make a “special appearance”
 If a party fails to comply with court orders, court can deem that party
to have waived PJ.
o a party CAN NOT consent to or waive a court’s SMJ
Notice and Service
 Service= method of delivering the process
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 Process = the complaint and summons

 Summons = official document from the court commanding the D to
appear or suffer a default judgment
o Service is performed by an agent of the P after the complaint is filed in court
o Service of process must BOTH
 Be of a manner authorized by statute or court rule; AND
 Constitutionally sufficient
o Notice must be reasonably calculated, under all of the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.
 Statutes and Rules governing service
1. Under Rule 4(c)(1) a P must serve a complaint and summons
4(c)(2) by any person who is at least 18 years old and not a party to
the suit
2. Or 4(c)(3) at P’s request, the court may order that service be made by
a United States marshal or deputy marshal or by a person specially
appointed by the court.
o Rule 4(e) lists 4 methods of service:
 For individuals 4(e)(2):
1. In-hand service
2. Leaving complaint and summons at the D’s home with
“someone of suitable age who resides there”
3. Delivery to an agent of the D authorized to receive service
4. Follow the rules established by the state in which the district
court sits, or the state in which process is made
 For corporations 4(h):
 Deliver the summons and complaint to an officer or managing
or general agent, or an agent authorized by appointment or
statute.
 Most states require a corporation who is registered to do
business in the state to designate an agent for service, or to
designate the secretary of state as agent for service.
o A court does not have PJ over the D just because process has been properly
served. Service may be improper even if there is a valid basis for exercising
PJ over the D.
 Waiver of Service of Process
o Rule 4(d), P may notify the D of the action and request waiver of service
Venue
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 Venue asks: which court should hear the case?

 For a court to be a proper forum, all 3 requirements must be met:
1. SMJ- the court can hear that type of case
2. Personal jurisdiction- the court has the power to adjudicate cases against the
defendant
3. Venue – the court is a convenient forum with some connection to the case
 § 1391 (b): 3 basic ways there might be venue in a judicial district(pg 46 of sup):
 (1) A judicial district in which any D resides, if all D’s are residents of
the state in which the district is located
 For individuals: reside in the district where the person is
domiciled
 For Corporations: Corp is a resident of at least the district where
it has its principal place of business, any district where it has
substantial operations, and probably any district in its state of
incorporation.
 (2) A judicial district in which a “substantial part” of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
 Substantial Part: defined:
o Broad interpretation: look for important parts of the
sequence of events giving rise to the claim
o Narrow interpretation: look only at the acts of the D and
ask whether the event was a point of dispute between the
parties
 (3) If there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any D is
subject to the court’s personal jurisdiction with respect to such action
 When will this section be invoked?
o Only when outside of the U.S.
 Specialized venue statutes: § 1441 (a): a case removed from state court is removed to
the district that covers the geographic area in which the state court sits.
o If case is removed to district court then venue is proper in the geographical area in
which the state court sits
 Transfer of venue and Forum Non Conveniens

o Transfers and Dismissals: Improper Venue
 A defect in venue is waived if not raised by the D
 Raised in 1st responsive pleading
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o Either Rule 12 motion OR answer

 Parties may prospectively consent to venue
 Ex. Forum selection clauses the typically grant both personal
jurisdiction and venue
o To transfer/dismiss a case for defect in venue OR dismiss under forum
nonconveniens, you must first determine if the case was filed in a PROPER
venue: Where is there venue?
(1) A judicial district in which any D resides, if all D’s are residents of the
state in which the district is located
(2) A judicial district in which a “substantial part” of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated
 transfer/dismissal of venue:
o If venue is IMPROPER: Transfer/dismiss under 1406
 Court shall dismiss, or transfer in the interest of justice and
convenience, which it almost always will be
 Transfer must be to another district in the same court system (fed
to fed; FL to FL etc), and must be to a court where P could have
filed suit
o If venue is PROPER, ask whether D wants to transfer to another federal
courtCan the D transfer the case?
 If yes, and D CAN transfer, then transfer under 1404
 D must show:
 Venue and jurisdiction would be proper in the other court
 Transfer is in the interest of justice and services the
convenience of the parties
 private interest factors:
1. P’s choice of forum, unless the balance of
convenience is strongly in favor of the D’s
2. D’s choice of forum
3. Whether the claim arose elsewhere
4. convenience of the parties
5. convenience of the witnesses
6. ease of access to the sources of proof
 Public interest factors:
1. The transferee’s familiarity with the
governing law
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2. The relative congestion of the calendars of

the potential transferee and transferor
courts
3. The local interest in deciding local
controversies at home.
 If, D CAN NOT transfer to another court, D can move to DISMISS
under forum non-conveniens
 D must show:
 Transfer is in the interests of justice and serves the
convenience of the parties (public and private interest
factors)
 A D may NOT be able to transfer and can instead move to DISMISS
under forum nonconveniens because a federal court cannot transfer to a
foreign court and a state court cannot transfer to a court in a different state.
 When the more convenient forum is outside the US or for a state
court, in a different state the court therefore must dismiss the case
under forum nonconveniens and allow the P to refile in that other
jurisdiction.
 Forum non conveniens

o The possibility of a change of law should not be given substantial weight in a
forum non conveniens analysis
 A case can be dismissed under forum non conveniens even if foreign
law is much less favorable to the P. The court will deny the motion to
dismiss only if the foreign remedy “is so clearly inadequate or
unsatisfactory that it is no remedy at all.”
o Dismissal under forum non conveniens will ordinarily be appropriate where
the trial in the P’s chosen forum imposes a heavy burden on the D or the
court, and where the P is unable to offer any specific reasons of convenience
supporting his choice.
o When federal forum non conveniens is granted, the state law of the
transferor(the person who is wanting the transfer, usually the D) is applied
by the transferee court(the new court).
Pleading
 Pleadings are the documents that begin the lawsuit and set out the parties’ basic
legal and factual assertions
The Complaint
 How to draft a complaint:

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o Identify the elements of P’s cause of action

o Plead specific facts relating to each element
 How to determine the factual sufficiency of the complaint under Rule 8

o Identify the elements of P’s cause of action
o Accept as true the well-pleased factual allegations regarding these elements
 Courts will not accept legal conclusions or mere statements of the ultimate
element of the cause of action as true
o Determine whether the factual allegations state a plausible claim
 The facts must raise reasonable expectation of illegality
 Rule 8(a): pleading must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief”
 what is needed in complaint

o A complaint need only state a claim upon which relief can be granted. It does
not necessarily have to contain facts that can support a cause of action.
 P does not need to set out factual or evidentiary basis behind his
assertions
 Rule (8)(e) Alternative Pleading :Party may set froth two or more statements of a
claim or defense alternately or hypothetically.
 what must a P plead in a complaint
o P’s need not plead facts, they need not plead law, they need to plead claims
for relief.
 Pleadings in federal court need not allege facts corresponding to each
element of a statute. Factual details and legal arguments come later.
 Complaint just needs to put D on notice about what P is
complaining of so can make a proper defense
 Heightened Pleading
o FRCP 9: A party must state with particularity that of circumstances of fraud
or mistake
 Must state the who, when, where, etc. of the fraud
 Otherwise the D may not have fair notice of the nature of the suit
 plausible grounds: pleading must allege “plausible grounds to infer an agreement.”
This means there must be enough facts to raise a reasonable expectation of illegality.
o define plausible/ legal conclusions-not taken as true
 When the court is deciding whether the complaint should be
dismissed for failure to state a claim, all factual allegations in the
complaint are assumed to be true
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 Pure legal conclusions do not qualify as “true”

o For a claim to be plausible:
 P’s claim needs to be more likely than all of the other alternatives.
Responding to the complaint

 3 possible responses:
o (1) Do nothing
o (2) File a rule 12(b) motion to dismiss
o (3) File an answer
Rule 12(b)(6) Motion to Dismiss

 Motion to Dismiss
o Court considers only the pleadings
o Court accepts all well-pleaded factual allegations as true, and asks if they present
a plausible claim
 Failure to state a claim upon which relief can be granted

o Factual insufficiency- the P has failed to pleas sufficient facts to support each
element of her cause of action (Iqbal, warranty claim in Matos)
o Legal insufficiency- accepting the P’s factual allegations as true her legal theory
for relief is invalid (punitive damages claim in Matos)
 For a MTD:A court must ask whether the complaint contains either direct or
inferential allegations respecting all the material elements necessary to sustain
recovery under some viable legal theory. Inferences drawn in favor of non-moving
party
 P must allege the elements of the cause of action
 Rule 12(f) Motion to strike
 A district court may strike from a pleasing an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter
 Rule 12(e) Motion for more definite statement
 Allows a party to move for a more definite statement of a
pleading to when the complaint so vague or ambiguous that the
party cannot reasonably prepare a response.
 Waiver Trap
o Rule 12(g), a party that makes a motion must not make another motion
raising a defense or objection that was available to the party but omitted
from its earlier motion.
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 Must consolidate all defenses into ONE motion

 Waiver Trap-Rule: D cannot simply “reserve” a defense, they must
actually argue that defense in D’s initial response (pre-answer motion
or answer). Any arguments not raised in this initial response will be
waived.
 Party CAN NOT waive SMJ
o BUT, these CAN be waived: PJ, venue, and bad service
of process MUST be waived all at once!
 An argument for a later motion is not sufficient to prevent
waiver of the omitted defense.
The Answer: Answering the Complaint
 How can you respond:

1. Affirmative defenses
 Admit the factual allegations of the P as true, but state the P nevertheless
cannot recover
 Must be included in answer (Rule 8/ Ingraham)
 Purpose: to prevent unfair surprise
 D must include factual support (REIS Robotics)
 P can file a 12(f) motion to strike if they are factually or legally insufficient
(REIS robotics)
2. Admit or deny factual allegations
 D must specifically admit, deny or state that it lacks information with respect
to each allegation (rule8)
 Failure to respond to an allegation is treated as an admission
3. Counterclaims and cross claims
 Timely affirmative defenses/preventing unfair surprise: If an affirmative defense is

not included in the answer, it is waived
Amending Pleadings
 Changing the allegations of the complaint or answer
Rule 15
 Amending WITHOUT leave of Court (do not need court’s permission):
o a party may file an amended pleading without leave (permission) ONLY once
 Any second amended pleading will require leave of court (permission)
or consent of the other party.
o Rule 15(a)(1)(A)
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
Amending as a matter of course is allowed if it occurred within 21
days after the pleader served the original pleading
 BUT 15(a)(1)(B): exception if a responsive pleading is required:
o In cases of a complaint, which requires a responsive
pleading, after D has filed an answer OR filed a 12(b),
12(e) or 12(f) motion, the P has 21 days after either of
those two events to amend as a matter of course.
 Amending WITH leave of court
o If Rule 15(a)(1) does not apply, a party may amend only with the other
party’s written consent or with leave of court. The court should freely give
leave when justice so requires
 Court will NOT grant leave to amend if:
 moving party is acting in bad faith
 The motion was filed to delay the case
 Amending the case will prejudice the other party’s ability to
prepare a response
 “Relation Back”: Rule 15(c) Amending claims and defenses after the limitations
period
o Statute of limitations is tolled by (started) the filing of the complaint or
service of process (depending on the jurisdiction).
o Rule15(c)(1)(B), an amendment relates back to the original filing whenever
the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth in the original pleading. The
determination of whether an amended complaint may relate back to the date
of the original complaint is whether the original complaint gave notice to the
defendant of the claim now being asserted.
 Rule 15(a) and Rule 15(c)(1)(B) are distinct, but RELATED to each other:
o Rule 15(a) addresses when a party may amend
o Rule 15(c)(1)(B) “Relation Back” addresses how the statute of limitations will
apply to any new claims or defenses added in the amendment
 2 step analysis, how 15(a) and 15(c)(1)(B)”Relation Back” fit together:

o If amendment DOES NOT relate back to the time of filing?
 If yes, then court should deny leave under 15(a)
o If amendment DOES relate back to time of filing?
 Then court should grant under 15(a) BUT must make sure that:
 Party is not acting in bad faith
 Motion was not filed to delay the case
17
 Amending would not be prejudicial to the other party

o Court will NOT grant leave to amend if any one of the above is found
 Adding parties after the limitations period/ when will amendment adding a party
“relate back”
o Rule 15(c)(1)(C) amendment adding a party will relate back:
1. Amendment arose out of conduct, transaction or occurrence
2. The party to be brought in by the amendment (prospective D)
received such notice of the action that it will not be prejudiced
AND
3. prospective D knew or should have known that the action would have
been brought against it, but for a mistake concerning the proper
party’s identity
 You DO NOT look at it from the P’s view. P’s knowledge is
irrelevant. ONLY matters whether or not the D had notice of
the suit.
 asks what the prospective D knew or should have known, NOT
what the P knew or should have known at the time of her
original complaint.
 Rule 15(c) statute of limitations problems can arise in 2 different ways:
o When a party files a motion to amend
o When a party moves to dismiss claims that have already been added by
amendment
Joinder
 Joinder of claims:
o Claims are joined when the P files a complaint with multiple causes of action
o Rule 18(a) a party may join as many claims and he wishes against an
opposing party.
 Joinder of Plaintiff’s
o Multiple P’s may voluntarily join together in an action if they satisfy 2 tests:
o P’s claim against the D must:
1. arise from a single transaction, occurrence, or series of
transactions or occurrences
2. There must be a question of law or fact common to all P’s which
will arise in the action
 Joinder of Defendant’s
18
o If one or more P’s have a claim against multiple D’s, these D’s may be joined
based on the same 2 tests:
o Claim against the co-defendants must:
1. arise from a single transaction, occurrence, or series of transactions or
occurrences
2. There must be a question of law or fact common to all D’s which will
arise in the action
 Joinder of the parties is improper under rule 20 when claims involve separate and
unrelated occurrences.
Counterclaims
 Counterclaim is a claim that a pleader has against an opposing a party.

 permissive counterclaims claim that a party does not have to bring, a party may
assert any available counterclaim, even if it is unrelated
 compulsory counterclaim a claim that a party has to bring
 Compulsory counterclaims MUST be raised or they will be deemed
waived in later litigation
 Counterclaim is compulsory only if the claim is ripe. The claim must
be mature in the sense that a cause of action exists for which a lawsuit
may properly be commenced and pursued.
 Rule 13(a) a counterclaim is compulsory if:
1. It exists at the time the pleading including the claim would be filed
2. It arises out of the same transaction or occurrence
3. Which does not require adding a party over whom the court cannot acquire
jurisdiction
Crossclaims
 a claim against a “coparty” a D claiming against another D or P claiming against
another P
 Rule 13(g): a crossclaim must arise out of the same transaction or occurrence that is
the subject matter of the original claim or counterclaim
19
o Cross claims are NEVER compulsory

o A party may not raise an unrelated crossclaimcrossclaims MUST arise
from the same transaction or occurrence
o In a cross claim only 1st claim has to be related
Impleader
o Rule 14, a D may as a third party plaintiff, serve a summons and complaint
upon a nonparty (third party defendant) who is or may be liable to the D for
all or part of P’s claims against the D.
 Can not join a person who is solely liable to the Pthird party MUST be
liable to the D.
 Impleader: The D is saying: “even if I am legally liable, someone else
should have to pay.”
 Original D, now a third party plaintiff is saying that even if he
is liable to the original P, the third party defendant (new D to
lawsuit, by impleader) should be liable as well.
 IMPORTANT: if original D says “I didn’t do it, someone else did”
that is NOT impleader.
 If original D is found not liable, and had already impleaded a third
party then those claims against the third party D are dismissed as
well.
o Many impleader claims are brought for contribution
 Joinder and Jurisdiction

o For a claim to be properly joined in a suit, 2 requirements must be met:
 (1) Joinder rules apply:
 Rule 13: Compulsory and permissive counterclaims
 Rule 14: Impleader
 Rule 18: Joinder of claims
 Rule 20: Joinder of parties
 (2) court must also have jurisdiction over every single claim (PJ and
SMJ)
 Personal Jurisdiction: PJ over any third party D brought into
the case by crossclaim or impleader
 Subject Matter Jurisdiction: a federal court must have SMJ over
each claim
o If jurisdiction is based on diversity, a party may not bring
in another party that would destroy diversity
20
o If jurisdiction is not based on diversity, the court must have

supplemental jurisdiction over any state-law claims.
Supplemental Jurisdiction
 3 requirements for supplemental jurisdiction (Gibbs and Kroger)

o (1) Constitutional Power
 Gibbs test: the party must raise a “substantial” federal claim, and the
state law claim must arise out of a “common nucleus of operative
facts”
o (2) Statutory authority
 Kroger: when SMJ is based on diversity, a P can not assert a claim
(against a 3rd party D) that would destroy complete diversity;
however, the statute allows a D to assert a claim against a non diverse
party
o (3) Discretion:
 Gibbs: Even if it has the constitutional and statutory power to exercise
supplemental jurisdiction, the court may exercise its discretion and
decide not to hear the state law claim if:
o The federal claim drops out early
o State law issue predominate
o Novel or complex issue of state law; or
o Risk of jury confusion
 28 U.S.C 1367 Supplemental Jurisdiction (SJ)

o When P’s claim by itself has an independent basis for federal SMJ and new
parties or new claims have been added which have no independent basis for
SMJ, they may be “tacked on” to the core controversy.
 Rule 1367:
 (a) grants SJ over all added claims that are part of the same
case or controversy as the claim that has an independent basis
for SMJ
 (b) No SJ if
1. The independent basis of SMJ is diversity
2. The claim is asserted by the plaintiff AND
3. Claim is against a nondiverse party brought in by
joinder (not an original D)
 (c) provides the court with discretion to decline to exercise SH
if one of 4 factors is met
21
1. The federal claim drops out early

2. law issue predominate
3. Novel or complex issue of state law; or
4. Risk of jury confusion
 constitutional basis for supplemental jurisdiction: party must raise a “substantial”

federal claim, and the state law claim must arise out of a “common nucleus of
operative facts.”
 statutory authority for supplemental jurisdiction/adding non diverse D through
impleader)
o When SMJ is based on diversity, a P cannot assert a claim against a 3rd party
D that would destroy complete diversity even when the non diverse
defendant has been impleaded through supplemental jurisdiction
 Supplemental jurisdiction applies to Rule 14 impleader of third
parties for claims against third party plaintiffs, and claims by third
party defendants but NOT claims by the original plaintiff
Discovery
 Rule 26(b)(1): a party may discover any matter that is:

1. Not privileged
2. relevant to any party’s claim or defense AND
3. reasonably calculated to lead to discovery of admissible evidence, even
if not itself admissible
 Privileges
o Attorney –client privilege
 Communication
 Made between privileged persons
 In confidence
 For the purpose of obtaining or providing legal advice
o Work Product Doctrine (rule 26(b)(1))
 Protects documents prepared in anticipation of litigation
 Initial disclosures (Rule 26(a))
 Applies to evidence the party intends to actually introduce at trial
 Required under the rules, applies regardless of the other party’s
conduct
 Party can not decline to disclose just because it believes that
another party hasn’t given them much
 Parties agree to timing at the “meet and confer”; if unable to agree,
22
 Rule 26(a)(1)(E): disclosures must be made on information that is

reasonable available to the party; lack of investigation is no excuse.
 Rule 26(b)(5) when information is withheld due to privilege, the party must:
o Expressly make the privilege claim
o Describe the nature of the thing not disclosed in a manner that allows other
parties to assess the claim of privilege
 Rule 26(e): a party who has made a required disclosure or responded to a discovery
request must supplement or correct that response if:
o The initial response was incomplete or incorrect;
o In a material respect; AND
o The corrective information has not otherwise been made known to the
opposing party
 Party has to make disclosures based on info reasonably available to them at the time
 Rule 37(c) provides for sanctions for a failure to disclose.
 Timeline of Initial Disclosures

 Rule 26(f)
o Parties must meet and confer “as soon as practicable” to discuss the case and
create a proposed discovery plan
 Rule 26(a) disclosures are made no later than 14 days after the meet and confer
 Pursuant to Rule 16, the court will schedule a scheduling conference and issue a case
management and scheduling order, which will set dates for subsequent discovery
and motion practice
 Under Rule 26(a)(1)(C), the initial disclosures may be delayed if:
o All parties stipulate to the delay
o A party objects in the proposed discovery plan reported to court
 The court can then order delay as part of scheduling order per Rule 16(b)
o The court otherwise issues an order authorizing delay
 Rule 33: Interrogatories
o May not ask questions about the law
o MAY ask how a party believes the law applies to the facts
o Interrogatory answers are used as evidence in the case.
 Rule 34: Requests for Production (E-Discovery, explicitly applies to electronically
stored information
o Party served with a request must produce all documents within its “possession,
custody, or control” after a “reasonable inquiry”
o The materials must be produced “as they are kept in the usual course of
business”
23
o Rule 26(b)(2)(B) now states that a party need not produce electronic data
when it is inaccessible because of undue burden or cost
 Rule 36: Requests for Admissions
o Asks a party to admit the facts, how the law applies to the facts, or the
authenticity of documents
o An admission constitutes conclusive evidence for purposes of that litigation
o Often used to authenticate documents and narrow the scope of the litigation
 Rule 30: Depositions: Depositions are the only way to get documents from a non-
party.
o Procedure:
 Issue a notice or subpoena
 Subpoena compels a 3rd non-party to appear at the deposition;
can also be used to obtain documents (subpoena duces tecum)
 Organizations must designate someone to testify about info
known or reasonably available
o Content:
 Formal testimony
 Opposing counsel may object in a non-suggestive way, but questioning
continues
o Use:
 As evidence in motions or hearings
 At trial to impeach, or when a witness is unavailable
 Tools for Controlling Discovery Abuse
o Rule 26(b)(2)(C) authorizes the Court to limit discovery because of undue
burden or expense
o Rule 26(c) authorizes the Court to enter a protective order because of undue
expense or embarrassment (usually sensitive info)
o Rule 37(a) allows a party to move for an order to compel discovery
o Rule 12 allows a party to narrow the scope of discovery by narrowing the
relevant claims and defenses
Choice of Law: State Law in Federal Courts
 The Erie Rule:

o Federal courts must apply state law to state claims. The federal court should
predict how the state’s highest court would rule if the case were decided
today.
 Under Erie, federal courts must apply state substantive law, but need
not apply state procedural law
24
 The Rules of Decision Act, 28 U.S.C. § 1652

o Provides that federal courts must apply state law except where otherwise
required by the United States Constitution, the laws of the United States, or
treaties. Thus, cases tried in federal court based on a federal question are
decided by federal law. However, the issue of whether state or federal law
applies in diversity cases may be less clear.
 Before Erie: The Swift doctrine permitted federal judges to displace state common law
with federal general common law in diversity cases.
 Ascertaining state law: Erie Issues
o General principle: The federal court must try to determine how the state’s
highest court would determine the issue if the case arose before it TODAY.
 What do courts look to:
 intermediate court decisions.
 prior federal diversity cases
 Federal court must change to conform with a new state
decision of the state’s highest court.
o The federal court may also “certify” a question of state law to the state’s
highest court if state law is unclear AND the issue is case dispositive
(determined by specific facts of a case)
 In a case with connections to multiple states, which state’s law should be applied?
o The Supreme Court extended the Erie principle to conflicts questions, and
required federal diversity courts to administer the conflicts law of the states in
which they were sitting
 Choice of Law and Transfer of Venue
o after a transfer, the court should apply the choice of law rules of the state in
which the case was originally filed if venue was proper prior to transfer
 Transfer under 1404 = choice of law rules follow the case
 Transfer under 1406 (venue improper) = choice of law rules do not follow
the case
o The federal court should apply the choice of law methodology of the state in
which it sits (Klaxon)
 Ex. If a FL court would apply GA law to the dispute then a federal court
sitting in FL must apply GA law.
 Federal court will apply federal procedural law
Pretrial and Judgment without a Jury/Questioning the Jury
 PreTrial
 Voluntary Dismissal
25
o Rule 41: a P may dismiss an action without prejudice by filing either:

 A notice of dismissal before the defendant serves and answer or a
motion for summary judgment OR
 A stipulation of dismissal by all parties (settlement)
o BUT, the P can only voluntarily dismiss the SAME claim ONCE!
 If voluntary dismissal is not proper under Rule 41 (because the D has already filed
an answer or motion for summary judgment, OR if P had previously filed the claim)
o The P MUST seek leave of court(permission) on whatever terms the court
provides
Summary Judgment
 Summary Judgment
o Court considers only evidence that is potentially admissible at trial
o Court makes all reasonable inferences in favor of the nonmoving party, and asks
if a reasonable jury could find for the non-movant
 Summary Judgment Framework

o Determine the legal elements of the claim or defense?
 What must the party prove to win?
o Determine if there is a genuine dispute of fact with respect to each element
 Could a reasonable jury reach more than one conclusion
 The moving party may
 Show that the party with the BOP has no evidence to support a
material fact AND/OR
 Present evidence
 Motions for Summary Judgment
o The party seeking summary judgment must show that there IS NO dispute of
fact with regard to only ONE element of the claim or defense. It can do so in
2 ways:
o The party trying to defeat summary judgment must show that there IS
dispute of fact with regard to only ONE element of the claim or defense.
 The court shall grant summary judgment if the movant shows there is no genuine
dispute as to any material FACT and the movant is entitled to judgment as a matter
of law.
 may be PARTIAL. It MAY dispose of only certain claims or defenses,
or certain aspects of a claim or defense.
 ONLY disputed facts will preclude(stop) a MSJ
 Material facts
 Those that might affect the outcome under applicable substantive
law
 No genuine dispute
26
 A genuine dispute exists when a reasonable fact-finder

COULD find for the non movant
o Motions must be supported by affidavits, declarations, or evidence that
would be admissible at trial
o Evidence relied on in a motion (or response) must be admissible at trial
 Usually gained through discovery
 Exception Rule 56(c)(4): affidavits or declarations that are made on
personal knowledge; state facts that would be admissible; and show affiant
is competent to testify on the matters
 You cannot use mere allegations or denials to defeat a MSJ because you need
evidence that will be admissible at trial. P CAN NOT simply use the complaint
 Summary Judgment vs. MTD

 In a MTD, the court is ONLY looking at the pleadings. DOES NOT
look beyond the pleadings
 In a MSJ, the court is NOT limited to the pleadings
 Looks at ALL the evidence that could be admissible at trial
 Then asks, what could a reasonable jury find?
 Moving party argues that the non-moving party has failed to
identify sufficient evidence to support a valid legal theory.
Directed Verdict/JNOV/Second-Guessing the Jury
 Judgment as a Matter of Law

o Court considers only evidence that has been admitted at trial
o Same test as with summary judgment
 Rule 50(a) Motion for Judgment as a Matter of Law (Directed Verdict)

o If a party has been fully heard on an issue during a jury trial and the court
finds that no reasonable jury could ding for that party, the court may resolve
the issue against that party
o Made AFTER non moving party has completed their case in chief or AFTER
moving party has made theirs BUT, must be made BEFORE the case is
submitted to the jury.
o If 50(a) motion is denied, then D can move for 50(b)
 Rule 50(b) Renewed Motion for Judgment as a matter of law (JMOL)

o Filed AFTER an adverse jury verdict ONLY AFTER the party has filed a
50(a)
o If the movant made a Rule 50(a) motion, the movant may file a renewed
motion for judgment as a matter of law
 The party must make a Rule 50(b) motion to preserve the issue for appeal
27
o The court may deny the motion and enter a judgment on the jury verdict,
order a new trial, or direct the entry of judgment as a matter of law.
Jury Instructions and Verdicts
 Jury Instructions
o Instructs the jury on the applicable law
o Given by the judge, but the parties may submit propose instructions
 Rule 49: Jury Verdicts

o General verdict: simply states who won the case and how much they are entitled
to recover
o Special verdict: asks the jury to return a special written findings on each issue of
fact
 Court submits questions on the facts; jury decided the factual questions;
court applies the law to those findings
o General verdict with answers to written questions: asks for general verdict and
submits questions on specific issues of fact
 Allows the parties to understand the basis for the jury’s decision, for
purposes of post-verdict motions and appeals
 Rule 59: New Trial

o Argues that the verdict, although legally permissible, is against the “weight
of the evidence”
o (1) There was a procedural error in the trial that could have affected the
verdict; OR
o (2) Discovery of new evidence that could have materially affected the trial
and could not have been discovered by due diligence before trial
 In considering a new trial the court asks whether the verdict “shocks the judicial
conscience.”
 There is no requirement that a party move for a new trial before the case is
submitted to the jury.
 Remittur: decreasing the jury verdict
 Additur: the amount by which the verdict would need to be increased to be supported by
the weight of the evidence.
Preclusion
 Claim Preclusion (res judicata)
o Applies to all claims that a party COULD HAVE brought in the prior
litigation
o Claim preclusion bars a claim if:
1. The claim is the same as the claim that was litigated in a previous case
 Transactional Test: same claim if it arises from the same
transaction/operative facts
28
 Evidence Test: same claim if the evidence needed to sustain the

claim would have sustained the previously litigated claim
 Primary Rights test: a P has a separate claim for each primary
right violated by the D.
2. The previously litigated claim resulted in a valid, final judgment on
the merits
3. The parties who litigated the previous claim were the same parties
who are litigating the current claim (or are in privity with those
parties).
 Issue Preclusion
o Applies to all claims that WERE BROUGHT and decided in the prior
litigation
o Issue preclusion Analysis
1. The issue in the two lawsuits is the same
2. The issue was actually litigated in the prior lawsuit
3. There was a full and fair opportunity to litigate the issue
4. The issue was actually decided by a valid and final judgment;
AND
5. The issue was essential to the judgment in the prior lawsuit
o If the issue could have been resolved differently, but the
judgment would still be the same then issue is NOT
essential to the judgment
o If issue could have been resolved differently in the first
lawsuit and the judgment would have been different then
the issue IS essential to the judgment
29

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Civil Procedure Outline - Schmitt

Subject Matter Jurisdiction

 Overview of SMJ (state or federal court?)

 Subject matter Jurisdiction

o 1332 (c): a corporation is a citizen of

Federal Question Jurisdiction

 For a P to sue in a given court, that court must have BOTH

1. Subject Matter Jurisdiction AND

 Pennoyer Framework for PJ (old framework)

 Specific Jurisdiction: a suggested analysis

 Personal Jurisdiction and the internet

over a nonresident corporation in a cause of action not related to those purchase

Consent and Waiver of Personal Jurisdiction

Notice and Service

 Service= method of delivering the process

 Process = the complaint and summons

 Venue asks: which court should hear the case?

 Transfer of venue and Forum Non Conveniens

o Either Rule 12 motion OR answer

2. The relative congestion of the calendars of

 Forum non conveniens

 How to draft a complaint:

o Identify the elements of P’s cause of action

 How to determine the factual sufficiency of the complaint under Rule 8

 what is needed in complaint

 Pure legal conclusions do not qualify as “true”

Responding to the complaint

Rule 12(b)(6) Motion to Dismiss

 Failure to state a claim upon which relief can be granted

 Must consolidate all defenses into ONE motion

The Answer: Answering the Complaint

 How can you respond:

 Timely affirmative defenses/preventing unfair surprise: If an affirmative defense is

 2 step analysis, how 15(a) and 15(c)(1)(B)”Relation Back” fit together:

 Amending would not be prejudicial to the other party

 Counterclaim is a claim that a pleader has against an opposing a party.

o Cross claims are NEVER compulsory

 Joinder and Jurisdiction

o If jurisdiction is not based on diversity, the court must have

 3 requirements for supplemental jurisdiction (Gibbs and Kroger)

 28 U.S.C 1367 Supplemental Jurisdiction (SJ)

1. The federal claim drops out early

 constitutional basis for supplemental jurisdiction: party must raise a “substantial”

 Rule 26(b)(1): a party may discover any matter that is:

 Rule 26(a)(1)(E): disclosures must be made on information that is

 Timeline of Initial Disclosures

Choice of Law: State Law in Federal Courts

 The Erie Rule:

 The Rules of Decision Act, 28 U.S.C. § 1652

Pretrial and Judgment without a Jury/Questioning the Jury

o Rule 41: a P may dismiss an action without prejudice by filing either:

 Summary Judgment Framework

 A genuine dispute exists when a reasonable fact-finder

 Summary Judgment vs. MTD

Directed Verdict/JNOV/Second-Guessing the Jury

 Judgment as a Matter of Law

 Rule 50(a) Motion for Judgment as a Matter of Law (Directed Verdict)

 Rule 50(b) Renewed Motion for Judgment as a matter of law (JMOL)

Jury Instructions and Verdicts

 Rule 49: Jury Verdicts

 Rule 59: New Trial

 Evidence Test: same claim if the evidence needed to sustain the

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