Civ Pro Outline

I. Jurisdiction
a. Subject Matter jurisdiction (does the court have the authority to hear a case)
i. Diversity Jurisdiction (Parties on opposite sides of the v. are from different states)
1. Types:
a. Complete: ordinary requirement
i. All parties on opposite sides must be from different states
b. Partial
2. Requirements
a. Parties are citizens of different states AND
i. Domicile test: at the time suit is filed the person moves to a
new state where they intend to reside indefinitely
ii. Corporations:
1. State in which it is incorporated
2. Principle Place of Business
a. Hertz: nerve center (highest level of officers
direct and control the corp)
b. For partnerships/nonincorporated territories
look at where all parties are domiciled
b. Amount in question is greater than $75K
i. Amount must be claimed in good faith
ii. Aggregation
1. A single PL can aggregate claims even if unrelated
2. Co-PLs cannot aggregate to 75k
a. Tagalong exceptions: PL1 files suit for 150k the
other can tagalong for their claim of less than
the required amount
b. Counterclaims cannot be aggregated
3. Claims cannot be spread across different defendants
4. Sometimes in Class action cases the once one PLs
amount is met the amount for the other PLs might be
reduced
5. Undivided interests between co-PL (i.e. a house) is not
divided by number of parties
ii. Federal Question Jurisdiction
1. A suit arises under the law that creates the cause of action
a. Well pleaded complaint rule: the cause must arise from the claim itself
(not anticipated claims or defenses)
b. States can hear federal claims, they simply have the choice of where to
file
2. Federal claim must be substantial
a. Necessarily raised
b. Actually disputed
c. Substantial
 d. Capable of federal resolution without messing up state authority
iii. Removal
1. Who def who resides in a different state/or same state with a federal issue
(multiple defs all have to agree)
2. When within 30 days of receiving complaint, or after complaint is amended
to include a federal issue
3. Where must be removed to the district embracing the place where the
action is pending
4. Process file notice of removal (with specific grounds on which it is based,
with a copy of complaint and summons)
b. Personal Jurisdiction (does the court have the authority to control the def)
i. Specific
1. Purposeful contacts
a. For intentional torts contacts include:
i. publishing libelous articles
ii. Writing and editing libelous articles regarding the activities of a
state or resident of that state
iii. Unlucky tourist (reasonably foreseeable travels/passthroughs)
b. Contracts as contacts
i. Look at fair and reasonableness factors
ii. If the def had purposefully directed activities towards the
forum state, he must present a compelling case for
unreasonableness
iii. Stream of commerce: foreseeability alone that a product;
there must be a purposeful direction towards the forum state
2. Claim arose from those contacts
a. Significantly related to standard: ***check***
3. Fair and reasonable to the defendant to expect them to appear in that court
a. State interest in the adjudication
b. PL interest in state forum
c. Efficiency of state forum (witnesses, evidence, etc.)
d. Inconvenience to the Def
e. Substantive process
ii. Internet and Personal Jurisdiction
1. A nonresident def may be subject to personal jurisdiction if
a. The def has purposefully availed itself of forum benefits with respect to
the matter in controversy
b. The controversy is related to or arises out of the def contact with the
forum
c. The exercise of jurisdiction would comport with fair play/sub justice
2. Tests:
a. Calder: PJ is proper based on the effects of out of state conduct in the
forum state***
 i. simply (a) knowing that the PL is in the forum state, (b) posting
negative statements about the PL's forum related activities and
[c] referring to the forum in one's writing does not satisfy the
Calder test (effects test)
b. Express aiming: narrows the calder test
i. Def committed an intentional tort
ii. The PL felt the brunt of the harm in the forum state such that
the forum state was the focal point of the def injuries
iii. The def expressly aimed the tort conduct at the forum state
1. Def must have known the pl would suffer the bulk of
the harm there and
2. There must be specific activity which point towards the
expressed aim by the def
iii. General Personal Jurisdiction
1. Requirements
a. Defs contacts are sufficiently extensive
b. To consider the def “at home” or “domiciled” in the forum state
i. At home- corporations
1. Continuous and systematic transactions (major)
2. PPB/Incorporated in
ii. Domiciled- individuals
2. Claims
a. Any which the PL has against the Def
b. Federal or state court
3. In rem and quasi jurisdictions (narrower than in personam)
a. In Rem: if you own land in the state and there is controversy over that
land you are subject to the in rem jurisdiction of the state
i. Controversy of land against anyone in the world
1. Actions against property
2. Property must be located within the forum state
ii. Jurisdiction over property with purpose of declaring ownership
or interest in that property (Probate/bankruptcy)
b. Quasi in rem
i. Type one: dispure among two people who may or may not
have an interest in the land/asset
1. Jurisdiction over property with interest of declaring
particular ownership and interest
2. Only between parties of the suit (foreclosure, etc.)
ii. Type two: asset becomes aspect of some unrelated litigation
(collateral)
1. Jurisdiction over property for purposes of providing
remedy in an unrelated action
2. Ex: VA Def commits tort against FL PL PL sues in
Florida and attaches FL land of Va Def
 3. Types of attachmetns:
a. Post judgment attachment: collect judgment
the def refuses to pay
b. Prejudgment: security in case of liquidation of
assets
iii. Requires minimum contacts of the property to the state trying
to control it
1. Must be related to subject matter of the litigation
2. Person must also have minimum contacts
a. Exercise of personal property is essentially
exercise of jurisdiction of a person
4. “transient presence” jurisdiction: non resident can be served while temporarily
visiting a state
a. No matter length of stay
b. But not while answering a subpoena
c. Also must be somewhat reasonable/intentional entrance into the state
5. Consent and Waiver
a. Consent:
i. Affirmative decision of party not to raise jurisdiction issue
(courts don’t generally raise sua sponte)
ii. Conduct: filing a claim gives consent for any counterclaim that
could be raised
iii. “forum selection clause” in contracts
b. Waivers:
i. Typically failure to raise an issue in the specified time/proper
manner (20 days after service (rule 12))
ii. Failure to comply with court oders
c. NOTE: cannot waive or consent to improper subject matter jurisdiction
iv. Long arm statutes: how much personal jurisdiction a court should have
1. Rules:
a. Limited by constitution
b. Can be statutory or rule based
2. Types of provisions
a. Enumerated: language of the long arm statute
b. Specialized: designed to apply to a narrow range of cases
c. Common law jurisdiction: rule based exclusions (like transient rule)
3. Interpreting long arm statutes
a. First look at state provisions
b. Then look at constitutional validity (often will be “as applied”
constitutionality)
4. Rule 4(k)(1)(a): federal long arm provision
a. Personal jurisdiction exists over “a def who is subject to the jurisdiction
of a court of general jurisdiction in the state where the district court is
located”
 b. Certain federal statutes can broaden this authority (bankruptcy cases)
c. Bulge Rule: if a def has been join pursuant to rule 14 (third party claim)
or rule 19 (necessary party) the party is subject to personal jurisdiction
so long as he is served within 100 miles of the courthouse
v. Requirements for notice and service of process (governed by due process of 14 th and 5th
amendments) RULE 4 FRCP
1. Constitutional standard
a. Use the form of service most likely to reach the def
i. Reasonable notice to all known parties
2. Statutes and rules governing
a. What: complaint and summons 4©(1)
b. Who serves: PL or any person above 18 and not a party
c. When should service be made: within 90 days of filing
i. Can be extended
ii. Can be refiled if deadline is missed
d. Types of service:
i. Hand service (wherever the person is found)
ii. Leave at dwelling with someone of suitable age and discretion
who resides there
iii. Agent of the def authorized by appointment or law to receive it
iv. State rules of process (several alternatives, last case scenario)
e. Serving Corporations
i. Delivery copy to manager or general agent
ii. Authorized appointed agent
iii. Rules of state or federal court where service is made
f. Serving foreign parties
i. Serve designated central authority
ii. Method of service of that country
iii. Personal delivery (unless prohibited)
iv. Mail with a signed receipt
v. Seeking instructions from an appropriate authority for letter of
request
vi. Court order or alternative means of service
g. PL can ask def to waive service of process
i. Send notice of action with two copies of waiver form,
complaint, and prepaid return envelope
ii. Def avoids cost of formal service and gets 60 days to answer
instead of 21
3. Can be served anywhere but still need due process satisfaction for personal
jurisdiction
4. If you believe you have not been served properly then
a. Make a special appearance to challenge
b. Wait until a default judgement is made against you and challenge
collaterally
II. Venue
a. Basic venue: particular court within a court system where a PL can file
i. Purpose and standard
1. Convenience of location and connection to at least one party
2. No constitutional restriction
3. Turns on convenience for suit (whereas personal jurisdiction looks at state as a
whole)
ii. General statute:
1. Civil action may be brought in
a. A judicial district in which any def resides, if all defs are residents of the
state of the district;
b. judicial district in hich a substantial part of the events or ommissions
giving rise to the claim occurred;
c. if no district is applicable, then any district where any def is subject ot
personal jurisdiction
2. resident:
a. individual: domicile
b. corporation: sufficient contacts
3. sometimes there ae special venue statutes which apply to certain federal cases
4. also note that personal jurisdiction is waived as soon as you file an answer
b. Challenges to venues:
c.

Case filed in wrong venue Case filed in correct venue

Motion to transfer 28 USC 1406: cure or waiver 28 USC 1404: change of
to defects venue
Motion to dismiss 28 USC 1406 and FRCP 12(b) Forum non conveniens
(3) (common law)
i. 1406: change in the interest of justice
1. Can only transfer within the same court system
2. Fed courts can transfer to any other DC or remand to state
ii. 1404 transfers:
1. Strong presumption in favor of PL
2. Test:
a. Case could have been originally filed in the proposed district, AND
b. Interest of convenience and fairness (where action took place,
witnesses, evidence, party location, court familiarily with law, court
docket length)
iii. Forum non conveniens: only when the current forum is so clearly inadequate that
there might as well be no appropriate remedy for the def (cannot just cite preference
of law)
III. Pleading
a. Basic pleading
i. General rules of pleading (Rule 8)
1. Claim for relief must contain
 a. Short plain statement of the grounds for court jurisdiction, unless the
court already has it and it would be redundant
b. Short plain statement of the claim showing entitlement to relief,
i. Notice pleading
ii. Rule 9(b) describes specific facts required but outside of that
so long as the court can figure it out you’re good
c. Demand for relief sought
ii. Heightened Pleading
1. Some pleadings which significantly damage a persons reputation require more
specific pleading/allegation
2. But the court cannot just expand the cases or apply heightened pleading
whenever they feel like it
iii. Twombly: heightened pleading must nudge facts from possible to plausible and cannot
be conclusory
1. Iqbal: more complex cases need more specific pleading (reasonable inference
of liability)
b. Responding to a complaint (21 days)
i. Options
1. Do nothing (default option)
a. Judgment rendered against you for the relief demanded in the
complaint
b. Not a win or loss, just listed as a failure to respond (Rule 55(a))
i. Separate hearing sometimes to figure out damages
2. Moving to dismiss (rule 12)
a. Most common defenses (does not attack the merits of the case)
i. Pre answer motion (have 14 days to file answer after ruling on
motions)
b. Types:
i. 12(b)(6): failure to state a claim
ii. 12(f) strike an “insufficient defence or redundant or immaterial
matter”
iii. 12[e]: request of a more definite statement of a vague or
ambiguous pleading
c. Four corners rule: court does not look beyond the well pleaded
allegations of a complaint in determining a motion, unless
i. Def has answered she can file a 12(c] motion for judgment on
the pleadings
ii. Parties can present matters outside the pleadings to support or
oppose a 12(b)(6) motion
d. Waiver trap: must waive personal jurisdiction issues and all rule 12
issues in first response to the court or they are waived
3. Answering complaint (within 14 days of ruling against motions)
a. Rule:
i. Admit or deny facts or claim insufficient knowledge
 1. Cannot use “couched language”- must be clear
2. Can be general denials
ii. Assert defenses and counterclaims
1. Must be properly raised in a timely fashion
a. Rule 8[c]: timely and lists affirmative defenses
and residual clause
i. Does the matter constitute a necessary
element of the PL cause of action
ii. What party has better access to
relevant evidence
iii. Policy considerations
2. Satisfy applicable pleading requirements of rule 8
3. Be able to satisfy a 12(b)(6) motion
c. Care and candor in pleading
i. Rule 11(b): representations to the court are assumed to be of the best of the
knowledge, information and belief, formed after reasonable inquiry
1. Not presented for improper purpose
2. Claims, defenses, other legal contentions are warranted and nonfrivolous
3. Factual contentions have evidentiary support
4. Denials of facts are warranted on evidence or reasonable belief
ii. Reasonableness:
1. Affecting factors for investigations:
a. Statute of limitations and time restraints
b. Complexity of facts
c. Control over facts and evidence (parties)
d. Lawyer reliance on client for facts
e. Referral case (weaker but sometimes relevant)
f. Inquiry resources available
g. Extent to which lawyer was on notice that further inquiry is
appropriate
2. Good faith arguments for changes in the law (often civil rights cases)
a. Judged by objective reasonableness standard (reasonable attorney in
like circumstances)
3. Proper purpose: avoid harassment or delay of suit
a. Papering—Improper
b. Scandalous or impertinent matters
c. Non friv motions when the parties have agreed to drop the motion
d. Orchestrating a media event to embarrass
e. Also court can sanction based on some discretion
iii. Sanctions: should be limited to deter bad faith lawyer behavior
d. Amended Pleading
i. Rule 15:
1. Before trial
a. As a matter of course within
 i. 21 days of serving it, or;
ii. 21 days after service of a motion to the PL or
iii. a responsive pleading is made
b. Other amendments: with opposing party’s consent or court leave
(given freely when justice requires)
c. Time to respond: within the original time frame or 14 days later
(whichever is later)
2. During and after trial
a. Based on objection at trial: when objection to evidence not within the
issue raised in the pleading and where amendment does not prejudice
the objecting party
b. For issues tried by consent: issue not raised by the pleading is tried by
the parties’ expressed or implied consent, party may move at any time
(even after judgment) to amend to conform to evidence (does not
affect the outcome of the case)
ii. Amending with leave
1. Judge’s discretion based on
a. Stage of litigation
b. Reason for amendment/diligence in original pleading
c. Prejudice to other party (undue prejudice)
d. Prior amendments of the amending party
e. Viability of amendment
f. Reason amended version was not the original
2. Amending after the trial begins without consent it very difficult
a. But the court has discretion to amend if the parties expressly or
impliedly consented to litigating the issue and it would not cause
prejudice
i. Consent is valid if the parties had a fair opportunity to to
defend and are not denied the ability to put on additional
evidence
1. Implied if party had notice that an issue might be
raised and did not object under rule 15(b) to proof
offered on the issue
ii. Court can also allow amendment over an objection
1. No prejudice
2. Opposing party may be offered a continuance
b. Rule 15 does not apply to collateral issues
iii. Amending after the statute of limitations period
1. Most amendments are backdated to the original document of which it amends
a. Must relate back to the original issue/proceeding
b. Same nucleus of operative facts
2. Must still no impose undo prejudice on the opposing party
iv. Amending parties after the statute of limitations period
1. Rule 15(c] can amend pleadings to relate back to original date if
 a. Claim against new def involves the same conduct/transactions
b. The new def received notice of the lawsuit such that it would not be
prejudiced by being named, AND
c. The new def knew or should have known it would have been sued
originally if not for mistaken identity
2. New def must receive notice of complaint within the 90 day service limit after
complaint is filed
a. Document with enough specificity that a def can reasonably know that
they could/should have been named
3. Types of mistakes:
a. Misnomer: mistake concerning the proper identy of the party (Typo or
something)
b. Deliberate mistake: if a party deliberate chose not to name a party
then there is no mistake and no amend (even in case of ignorance of
true party)
IV. Joinder and supplemental claims
a. Joinder of claims and parties
i. Rule 18: PL assert all claims against the def in a single lawsuit even if unrelated
1. Rule 42(b): allows judge to order separate trials for unrelated claims
ii. Rule 20(a): allows PLs to sue together if their claims arise out of the same
transaction/occurrence (or series of), and if their claims involve any question of law or
fact common to all PLs
1. Same idea for joining defs or establishing alternative def
2. Even if remedies sought are different
b. Counterclaims
i. Rule 13(a)(1)(A): counterclaim is compulsory if it arises out of the transation or
occurrence that is the subject matter of the opposing party’s claim
1. Otherwise waived
2. Exception:
a. Compulsory claim need not be asserted if it is the subject of a pending
action or
b. Jurisdiction is based only on attachment
ii. If not compulsory the counter claim still may be permissive
c. Crossclaim: claim against a co-party
i. Rule 13(g): a pleading may state as a cross claim by any one party against a co-party if
the claim arises out of the same transaction that is the subject matter of the original
action or counterclaim or the action relates to property that is the subject matter of
the original suit
1. Unlike counterclaims crossclaims must be related
ii. Rule 13(h) addition of new parties to a counterclaim or crossclaim if satisfied by joinder
rules of rule 19/20
d. Impleader: joinder by defending party
i. Rule 14: under narrow circumstances allows def to expand a lawsuit by asserting a
claim of its own against a person not originally a party
 1. Third party defendant: must reimburse def if jury decides
2. Even if the parties liability arise out of different legal theories
ii. Process:
1. Serve new party (as under rule 4)
2. Third party asserts counter and cross claims
a. May bring in additional parties
3. May be added without leave for the court within 14 days of answer
iii. Third party may assert claims against the PL so long as it arises from the same
occurrence as the main claim
1. PL can assert claims against third party
2. Triggers rule 13/14 counterclaim rules
3. Multiple third parties become co-parties (for cross claims)
e. Complex joinder
i. Rule 19: three step framework for analyzing joining absentee parties
1. Step one: is the absentee a required party
a. If absent, no relief can be granted
b. Person claims an interest in the subject of the action and disposing of
the action in their absence might
i. Impede the persons ability to protect that interest
ii. Leave the existing party vulnerable to substantial risk of
incurring multiple or inconsistent obligations because of that
interest
2. Step two: is the joinder feasible
a. Personal jurisdiction issues
b. If joinder destroys complete diversity—not feasible
c. Venue issues
3. Step three: dismiss or continue suit
a. If not feasible, can/should the case continue:
b. Four factor test
i. Risk of prejudice to the absentee
ii. Ways to lessen prejudice through judgment
iii. Adequacy of judgment in absence
iv. Can PL had adequate remedy if dismissed for nonjoinder
ii. Intervention
1. Rule 24: party can move to make itself a party when
a. Intervenor has an interest relating to property or transaction of the
issue
b. Risk of intervenors ability to protect that interest would be impaired if
the case is decided without her
c. No other party joined in the case who can represent her interests
2. Rule 24(b): permissive intervenors broader than joinder rules
a. Broader application of rule 20
b. Alternate route if 24(a) fails
i. Given right to intervene by statute or agency
 ii. Claim or defense that shares with main action in a common
question of law or fact
3. Petition for intervention must be timely
a. Petitioner bears burden of showing interest would be impaired without
allowance to join
b. Motion to intervene must show reasons for intervention necessity
c. May not join on all claims, just relevant ones, where their rights are
also limited
iii. Interpleader
1. Party facing conflicting claims to the same property can interplead the various
claimants to obtain a judgment of ownership that will bind all claimants
a. Combines proceedings into one mega proceeding
2. A party may file an interpleading action if
a. It has possession of money or property of at least $500
b. There are two or more diverse claimants to the money or property,
AND
i. Only minimal diversity required
ii. Nationwide personal jurisdiction over US domiciled claimants
(statutory interpleader
c. The PL has deposited the money or property in the court or given a
bond for compliance with the courts evidential order for payment of
the money or property
3. Rule 22: requires claimany to
a. Be subject to subject matter jurisdiction and personal
i. Complete diversity and excess of 75k
b. Only general venue statute applies (federal)
f. Supplemental jurisdiction: provides the court broad authority that has original jurisdiction to
hear related claims as well
i. Rules
1. Arise out of same case or controversy (nucleus of facts)
ii. Pendant Jurisdiction: Federal court can hear a state issue and federal issue (even when
federal issue is weaker) so long as the claims arise from the same nucleus of operative
facts
1. And when federal issue is central to the case and not a minor issue
2. Reasons to decline jurisdiction
a. Federal claim drops out early
b. State issue predominant
c. Novel or complex issues of state law
d. Likelihood of jury confusion (dismiss and try separately)
iii. Cross/counter claims are allowed under federal rules
1. When an action is based on diversity the court cannot exercise jurisdiction over
the PLs claim against a third part without independent basis for jurisdiction
over that claim
a. Complete diversity of citizenship between parties
 b. Ancillary jurisdiction: court can hear a claim normally outside subject
matter jurisdiction if it substantially related to a second claim within
the courts jurisdiction in circumstances involving
i. Impleader
ii. Cross claims
iii. Counterclaims
iv. Intervenor as of right
V. Discovery
a. Informal investigation and scope
i. Informal investigation
1. Prior to filing, PL must do some preliminary fact finding inquiry (reasonable)
a. Interview PL and witnesses
b. Research circumstances
c. Legal research
2. Former employees/parties can be interviewed so long as theres no reason to
believe that a statute or privilege is protected
a. If no suit is filed yet there is no protected interest
ii. Scope
1. Rule 26(b)(1):
a. Parties can obtain discovery regarding any nonprivileged matter
relevant to the party’s claim or defense and proportional to the needs
of the case considering
i. Amount in controversy
ii. Parties’ relative access to relevant information
iii. Parties’ resources
iv. Importance of discovery in resolving issues
v. Burden v. benefit of discovery
b. does not need to be admissible
i. tangible or intangible data is discoverable
ii. each party must pay its own costs for providing discovery
(unless otherwise ordered)
2. Privilege vs protected discovery
a. Privilege: attorney-client communication about the case
i. Communication
ii. Between privileged persons
iii. In confidence
iv. For the purpose of obtaining or providing legal assistance for
client
b. Protected: attorney work product by attorney and any of her agents
i. Must show undue prejudice for without work product
ii. Includes documents during action or in anticipation of litigation
1. Specific claim: produced with the specific claim
supported by facts that would lead to the litigation in
mind
 2. Ad Hoc: a broader approach if it is part of the overall
responsibility of the attorney to remain in compliance
then there is protection
3. Primary purpose: primary motive for such work is for
prep for possible litigation (circumstantial showing)
no ordinary business purpose
iii. Expert work product: someone qualified to give an opinion
1. Only trial experts are subject to discovery (generally)
2. If expert has direct involvement in the events of the
case then they cannot serve as experts
b. Discovery tools
i. Required disclosures: exchange of information that may be used to support claims or
defenses
1. Promote settlement and defang discovery requests
2. Rule 26(a)(1): parties must provide four categories of information
a. the name and, if known, the address and telephone number of each
individual likely to have discoverable information—along with the
subjects of that information—that the disclosing party may use to
support its claims or defenses, unless the use would be solely for
impeachment;
b. (ii) a copy—or a description by category and location—of all
documents, electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or control and may
use to support its claims or defenses, unless the use would be solely for
impeachment;
c. (iii) a computation of each category of damages claimed by the
disclosing party—who must also make available for inspection and
copying as under Rule 34 the documents or other evidentiary material,
unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and
extent of injuries suffered; and
d. (iv) for inspection and copying as under Rule 34, any insurance
agreement under which an insurance business may be liable to satisfy
all or part of a possible judgment in the action or to indemnify or
reimburse for payments made to satisfy the judgment.
3. Parties must confer and discuss discovery plan at least 24 days before
scheduling conference (90 days after complaint is served/60 days after
appearance)
a. Can delay if necessary
b. Disclosures due 14 days later, then meet and confer
ii. Discretionary disclosures
1. Request for document production and things
a. Cost shifting factors
 i. Whether the requests is specifically tailored to discover
relevant information
ii. Can info be obtained elsewhere
iii. Relationship between cost and amount in controversy
iv. Between expense and party’s ability to pay
v. Can one party keep costs lower
vi. Significance to the litigation
vii. Advantage of info to each party
2. Depositions
a. Notice must include method of recording
b. Corporations must send someone who is qualified to respond
c. Objections are noted in the record then question is answered
d. Limited due to evidence issues (like hearsay)
3. Physical and Mental examination
a. Must be relevant to the case (related to a condition in controversy
b. Cannot be compelled against any witness
4. Request for admission
c. Tools to control discovery
i. Court should only compel discovery over a party’s objection given reasoned analysis
1. Sanctions only applied when the party fails to comply with discovery in bad
faith
2. Objections only go to court if can’t be settled by the parties (motion to
compel sanctions)
ii. Spoilation: if evidence is destroyed it must be proved that one party had control over
evidence and had duty to preserved
1. “culpable state of mind” (includes negligence)
2. Destroyed evidence is relevant to a party’s claim
iii. Protective orders: must certify good faith effort to resolve the dispute w/o court action
then show necessity to protect from annoyance, embarrassment, or undo burden
VI. Choice of Law (here down (at least) go over chapter summaries)
a. State law in federal courts: Erie Doctrine
i. Erie doctrine: federal courts exercising diversity jurisdiction apply federal procedural
law and state substantive law
1. Black and White taxi: said state constitutions and statutes should be followed
but not common law rulings
2. Erie: made it so common law of states also had to be followed
ii. Reasons for Erie:
1. Uniformity in state administration
2. Uniformity in court holding
3. Prevents forum shopping/unequal treatment under the law
b. Substance and Procedure under the Erie doctrine
i. Should the court apply state procedure laws as well
1. History: fed courts should abide by legal rules that would be outcome
determinative if in state court
 a. Substantial change
b. Ex: statute of limitations barring suit
2. General rule: if congress has authorized the court to write a rule and that rule
is procedural, under the supremacy clause it overrules state practice (even in
case of contradiction)
a. Example: rules of service
b. Also so long as there is no risk to forum shopping (outcome wouldn’t
substantially change)
ii. Basically federal rules are valid so long as they are procedural, and do not violate a
substantive right
1. And are not outcome determinative
VII. Trial and Pretrial
a. Pretrial case management
i. Rule 16[c](2) identifies matters for consideration at pretrial conferences as judge
authorized management
1. Simplifying issues
2. Amending pleadings
3. Obtaining admissions and stipulations
a. Judge cannot force stipulation
b. Must voluntarily agree (both parties)
4. Barring unnecessary/cumulative evidence
5. Scheduling
6. Referring matters to magistrate
a. Must have all parties consent
b. But can always ask mag for recommendations
7. Settling cases/disposing of matters
a. Under 41(b): can dismiss a lawsuit when a party has failed to prosecute
or comply with pretrial matters
8. Adopting special procedures/joining/separating issues
a. Local rules must comply with federal rules (Rule 83)
ii. Effect of pretrial orders
1. Amendment of a final pretrial order may be granted if the party seeking the
amend can show manifest injustice otherwise (rule 16)
a. Court considerations in motions to amend
i. Time
ii. Prejudice or surprise to the party opposing trial of the issue
iii. Ability of that party to cure any prejudice
iv. Disruption by inclusion of the issue
v. Bad faith of the party seeking amendment
b. Often if the motion to amend is before trial the court will allow (if not
in bad faith)
b. Dispositions without trial
i. Voluntary dismissal
 1. Rule 41(a): party can voluntarily dismiss a complaint without prejudice and
then sue on the same claim in the same or a different court
a. Any time before the def has filed an answer or motion for summary
judgment
i. Dismissal is automatic in these cases
ii. More of a notice than a motion
iii. Court only retains jurisdiction in collateral matters
iv. 12(b)(6) motions do not prevent voluntary dismissal
b. If past the point of no return the PL can get a court order to dismiss
without prejudice
i. But regardless, the PL can only file a motion for vol dismissal
twice
2. reasons for voluntary dismissal
a. marshal new evidence needed to state a claim
b. correct or redraft pleadings
c. action consolidation facilitation
d. preserve diversity jurisdiction (dismiss non diverse parties)
e. defeat diversity jurisdiction (refile in state court)
f. avoid unfavorable state law
g. delay/avoid adverse determination on merits
h. delay/avoid discovery
i. different judge
ii. Involuntary dismissal
1. Types
a. 12(b)(6) motion granted
b. PL failure to prosecute
c. Party failure to comply with rules
2. Rule 41: voluntary dismissal “operates as an adjudication on the merits”
a. With prejudice (barred by res judicata)
b. Unless dismissal was for jurisdiction or venue
3. Summary judgment: no genuine dispute of material fact and judgment as a
matter of law
a. Burden on nonmoving party to prove dispute in material fact
i. Movant must show no genuine dispute of material fact for
each element of the claim or defense
ii. Moving party does not need to present affirmative evidence to
counter PLs claims
b. Cannot say that they’re going to go find evidence of dispute
i. SJ assumes adequate time for discovery (56[c])
c. General standard is preponderance of the evidence which could be
found by a reasonable jury
4. Cousins of Summary judgment
a. 12b6
 b. 12[c]: motion for judgment on the pleadings (facts in the complaint
and answer)
c. SJ on movant and nonmovant materials (including discovery)
d. JMOL
c. Right to a jury trial
i. 7th amendment right (originally not for equity suits-specific performance)
1. In civil trials it only applies to federal cases
2. Parties can still decline/waive right
3. History of law and equity
a. Once merged rule was if both legal and equitable issues in a case only
under the most imperative circumstances can jury right be lost
i. Basically, must be a purely equitable issue
ii. Fancy wording of phrases not sufficient
b. Now, two-pronged test
i. Is the statutory claim entitled to legal remedy?
ii. Is the legal remedy akin to damages sought?
ii. Jury control
1. How to control
a. Directed verdict
b. Partial jury trial
c. Size of jury (DCs have 6 person jury)
d. Jury only decides issues of fact, not of law (and not every fact or claim)
2. Procedure
a. Claiming jury trial (rule 38(b))
i. Either party can demand jury
ii. Must file within 14 days of service of last pleading and be
served to all parties
b. Advance waivers: party can waive before dispute (eg. Contract)
i. Usually enforced (but courts are skeptical)
c. Selection
i. Voior dire: weed out bad ones
ii. Preemptory strike (not for cause)
iii. For cause strikes
1. Cannot stike for racial bias issues
d. Judgment as a matter of law
i. 50(a):
1. When in trial PL presents insufficient evidence to prove case
a. Same as SJ standard just during trial
b. Court determined in light of evidence presented by the def
i. Judge does not weigh evidence or credibility
1. Mere scintilla does not suffice
2. Nonmovant does not need a strong case just a case
ii. Compares strength as compared to nonmovants
2. Motion for directed verdict
 a. Can move anytime after nonmoving party finishes presenting case
b. Often moved by def (could be PL though)
ii. 50(b): renewals w/in 28 days
1. Must have previously filed 50(a) and was denied
2. Allows judge to set aside jury verdict and correct it
a. Judge often waits to avoid being overturned/appealed
i. If 50(b) motion is overturned on appeal no retrial is required
b. Jury usually comes to the same conclusion as the 50(a) motion (if valid)
iii. Procedural technicalities
1. Motions does not need to be in writing but must be clear (must also specify
why)
2. Can make as many 50(a) motions as your heart desires so long as the PL has
been fully heard
3. Appeal is de novo
a. Don’t need a 50(b) motion to appeal unless in federal court
e. Controlling the jury
i. Admissibility of evidence
1. Prevent confusion or bias
2. Evidence can be ejected or presented with special instruction
a. Bench trial can possibly hear inadmissible evidence
ii. Jury instructions
1. 52(a):parties make written requests for jury instructions at close of evidence or
earlier, reasonable time (some at end of pretrial conference)
a. No obligation of specificity in jury instructions
i. Must be instructed on proper state substantive law
ii. Proper construction of federal law without misleading or
misstating and not directing a verdict
iii. Must address all issues of the case
b. Judges do not have to accept all proposed instructions
i. Evidence instructions are allowed but often avoided
2. Rule 61: harmless error in jury instruction will not set aside verdict (unless
justice requires otherwise)
a. Rule 51: objections to jury instructions must be made at first
opportunity (unless plain error to sub rights, obvious and clear under
current law)
iii. Jury verdict
1. Types of verdict
a. General verdict (simple winner declaration and damages owed)
b. Special verdict: fact questions for jury
c. General verdict with written questions: hybrid
2. Issues:
a. When inconsistent answers are put in hybrid verdicts
i. Disregard general verdict and use interrogatory answers
ii. Send jury back
 iii. Order new trial
f. New trial and relief from judgment
i. Weight of the evidence errors
1. Jury verdict that goes against the weight of the evidence cannot stand
a. Rule 59: allows for order of new trial in case or serious error
i. Substance of verdict
ii. Or damages which “shock the conscience”
1. Reduce by remitter
a. Highest allowed value
b. Lowest amount supported by record
c. Court determined reasonable amount
2. Get a new trial
ii. Process errors
1. Types of process errors
a. Jury misconduct
b. Error in instruction
c. Errors in evidence ruling
d. Improper argument to jury
e. Lying by juror during selection process
f. Witness misconduct
g. Inconsistent verdicts the court cannot reasonably harmonize
h. New evidence
2. Tanner doctrine: what happens in the jury room stays in the jury room
3. Movement based on process error
a. Identify error
b. Did that affect the right to a fair trial
i. Extraneous evidence: can bring outside knowledge but cannot
do own research
ii. Must be proximate cause of harm to the moving party
iii. Relief from judgment
1. Rule 60: motion for relief from judgment (last option for recourse who wants
to challenge a judgment after time for post trial motion has passed)
a. Does not affect a judgment finality or suspend operation
i. Construed narrowly and rarely permitted
b. Protect reliance interests
i. Still must be brought in a reasonable time (one year after entry
of judgment)
ii. Narrower in scope than other forms of relief (new trial, JMOL,
Appeal) does not include weighing of the evidence or
process errors (except for like fraud or misconduct)
c. Broad discretion in entering relief from judgment
i. Not a sub for appeal
ii. Consider and protect good faith reliance on the judgment and
movant must show
 1. Meritorious claim and
2. Movant did not contribute to the defaulting judgment
rendered through knowing or inexcusable inaction
VIII. After final judgment
a. Appeals
i. Process
1. File notice of appeal
a. Within 30 days
b. Designate judgment, order, and part being appealed
2. Compile doc records of proceedings relevant to appeal
a. Record appendix
b. And briefs from both parties
i. Facts giving rise to the case
ii. Statement of issues
iii. Standard of review
iv. Argument of legal issues
3. Panel of judges assigned (like three or more—en banc (all judges))
4. Oral arguments (sometimes)
5. Panel discussion verdict
ii. What to appeal
1. Reviewability
a. Rule 61: issue must affect substantially right (prejudicial)
b. Rule 51: must have previously objected (preserved below)
c. Must present in briefs and appellate argument
2. Exceptions in preservation rule:
a. Issue was not raised but is a pure question of law and would result in
miscarriage of justice to not consider
b. No opp to raise objection below
c. Plain error rule
d. Proper resolution is beyond any doubt
e. Significant issues of general impact or public concern
iii. When to appeal
1. Finality principle:
a. Issue appealed must be complete and have final judgment rendered
b. Collateral order doctrine (detour of the finality doctrine) allows for
review of an order that relates to
i. Issue unrelated to the merits of the main dispute that can be
resolved without disruption to the main trial
ii. Complete resolution of the issue
iii. A right incapable of vindication on appeal from final judgment
iv. An important and unsettled question of controlling law
2. Final by direction
a. Rule 54(b):
 i. Fed dcs can direct entry of a final judgmentas to some of the
parties if there is no just cause for delay (of the appeal)
ii. Only if the finality requirement has already been satisfied
3. Exceptions to finality principle
a. Interlocutory appeal: appeal before the case is final
i. Injunctive relief: if the party will be harmed if not injunction
during the trial
ii. Discretionary review of certified questions: when appeal would
result in termination of the litigation (ad hoc basis for review)
iii. Mandamus: bold move for a bad judge abusing discretion
(better be right)
1. Must show risk of irreparable harm
2. Clear entitleme nt to relief
iv. Standards of review
1. De novo: no deference to judges decision (unless as persuasive authority)
a. Promotes uniformity of the law
b. Used for
i. Dismissals
ii. Summary judgment
iii. JMOL
iv. Some mixed questions of law and fact (historical facts are
established, rule of law is established, and issue of law as
applied to the facts)
2. Clearly erroneous: deference to trial judge based on comparative advantage
3. Abuse of discretion: deference given to the discretion of the court
b. Claim preclusion (res judicata)
i. Cannot relitigate claims based on
1. Transactional test: same operative facts
2. Evidence test: same evidence used to prove
ii. Valid final judgments on the merit
1. Validity: court must have jurisdiction (unless no party raises issue during case)
2. Finality: must be final judgment on merits
a. Otherwise, the two case could be consolidated
b. Final judgment is made even if a party is appealing
3. On merits: basically, any termination of suit that’s not jurisdiction or venue
a. Sometimes statute of limitations
iii. Nonparty preclusion
1. Different parties are not precluded from raising the same claim unless
a. Privity with prior party
b. Agrees to be bound by prior legal action
c. Adequate representation (class action, trustees, fiduciary)
d. Assumed control of original case
e. Proxy litigation
f. Lawful stat scheme precludes
 iv. Exceptions
1. Parties have agreed claim can be split into multiple actions
2. Court expressly reserved the right to second action
3. PL was unable to rely on a certain theory or seek certain relief (jurisdiction or
authority restrictions to maintain multiple theories, demands for multiple
remedies)
4. First judgment was plainly inconsistent with fairness or stat scheme
5. Continuing wrongdoing (sue once for total damages or sue periodically for
damages incurred)
6. Clear and convincing evidence overcoming claim preclusion principles
7. Also does not apply to cross claims, or claims where the non party PL did not
have a legal relationship with original PL
c. Issue preclusion (collateral estoppel)
i. Cannot relitigate issues which have already been decided
1. Requires
a. Same issue
b. Fully litigated (must have been actually and finally decided)
c. Necessarily decided
d. Same party
e. Had full opportunity to litigate matter in lawsuit 1
i. Stipulations: generally inadmissible outside the trial which it
was agreed (so not fully litigated)
1. Unless, there was full and fair opportunity or mere stip
of the record
ii. Full incentive to litigate
ii. Non mutual issue preclusion
1. Defensive issue preclusion: normal, def fends off liability asserting issue was
resolved in a prior action
a. Usually successful if the moving party was not the original party to the
case
2. Offensive issue preclusion
a. PL seeks to invoke preclusion to establish facts to prove its claim
b. Should not be used if PL could have joined prior action or def is put at a
disadvantage
iii. If a party switches court systems in second litigation, court often uses preclusion law of
original court

Review

- Pg 269- personal jurisdiction, specific minimum contacts, by Ford Motor case, but that was
questionable, for general jurisdiction its really more like nerve center test
- Rule 14: rule to bring in the 3rd party impleader; rule 22: interpleader, bring in all interested parties to
an asset or claim
- Supplemental jurisdiction: you can only join a third party if the court has jurisdiction over them (for
impleader?)