AN OVERVIEW OF CIVIL PROCEDURE

INTRODUCTION

Civil Procedure is a topic that sometimes strikes fear into the hearts of students preparing for the bar
exam. Or maybe that feeling is boredom. Part of that fear (or boredom) is caused by the fact that Civil
Procedure, unlike other topics, is somewhat removed from the average person’s everyday life
experiences. Maybe you have bought a car, a house, etc., and thus you might have some familiarity with
“Contracts.” Or maybe you have been in a car accident, have slipped and fell in a store, or choked on a
poorly prepared torte in a bakery, so a subject like “Torts” (not the kind you eat) has some relatability to
you. And in the unlikely event you’ve never contracted for anything or had an accident or choked on a
torte, maybe you know someone who has. Furthermore, even if you wound up in court on a breach of
contract or tort claim, you probably didn’t have to deal with many of the procedural aspects of the case.
(That was the lawyer’s job, which you are soon to be.) To make the subject easier, what we’ll do is try to
take you through a typical case from start to end to get you started on the path to understanding “Civil
Procedure.”

THE CASE

So let’s assume that you’ve just passed the bar exam, and you decide to actually go out and practice law.
You buy a bright new shiny sign that says “Law Offices of…” and proudly hang that sign on the office
you just rented. You go to your desk and wait for your very first client. Lo and behold, Paul walks into
your office 15 minutes after you opened up. How lucky! You also notice that Paul has bandages on his
head and chin, and Paul is talking funny because his mouth has been wired shut. Paul explains to you that
he fell while getting off a tour bus, face-planting himself into a brick wall and breaking his jaw. Paul
believes his fall occurred because the bus exit required a passenger to step nearly two feet from bus to
ground, and because the bus driver pulled up too far from the curb, making the step from the bus to street
level (rather than bus to curb level) more steep and leaving little room between the street and the curb.
Paul required emergency medical care, and his bills totaled $75,000.01. He further explains that he lives
in Chicago, Illinois, the accident occurred while on a tour of Chicago, and that he sent his payment to the
tour operator’s sole office and headquarters in Indiana. Paul then gives you an accident report and
brochure from the tour operator, and you note that the accident report states that the driver was a resident
and domiciliary of Wisconsin and that the fine print on the brochure discloses that the tour operator was
incorporated in Delaware. You then decide to take some digital pictures of Paul, because, well, the
injuries appeared rather gruesome. After properly signing Paul to a contingency fee arrangement, Paul
leaves. After a quick search on the Internet, you discover that the bus was manufactured by an Illinois
company. You then might wonder, “What the heck do I do now?”

WHO CAN I SUE?—JOINDER OF DEFENDANTS

The first step of any case is to figure out who you can sue. Half of this determination involves the
substantive area of torts, which we won’t cover here. For now, let’s assume that Paul could state a cause
of action against the Tour Operator, the Bus Driver, and the Bus Manufacturer. Basically, to join parties,
2 CIVIL PROCEDURE OVERVIEW

the Federal Rules have to allow joinder, and there must be subject matter jurisdiction over the claims. The
subject matter jurisdiction question is far more interesting. We’ll talk about that later.

Do the Federal Rules permit Paul to join his claims against these three potential defendants in a single
action? Yes. Under the Federal Rules, joinder is generally allowed when the claims against the defendants
arise from the same transaction or occurrence and one common question of law or fact is raised. In our
case, all of the claims arise from the accident—Paul tripping and falling when he exited the bus—and
there are plenty of common questions of law or fact (for example, Paul’s contributorily negligence).

Now, there are all sorts of other kinds of joinder. There’s claim joinder, where a claiming party may join
other claims he has against the defending party. There’s class actions, where multiple parties are joined
together either as plaintiffs or defendants, with one party (or maybe more) representing the entire class.
Those will be discussed in your lectures down the road. Just remember that very, very generally, the goal
is to allow or require all related claims to be tried together. We’ll also discuss third-party joinder below.

WHERE TO FILE—SUBJECT MATTER JURISDICTION, PERSONAL JURISDICTION, AND

VENUE

Once you figure out who to sue, the next step is picking a court. To be able to sue a defendant in a
particular court, venue must be proper, and the court must have subject matter jurisdiction over the action
and personal jurisdiction over the defendant.

Venue. All courts, whether state or federal, have statutes that tell a plaintiff where he must file suit. Most
of the time, venue is based on the residence or where the cause of action arose. As noted above, state
courts are organized by counties, whereas federal courts are organized by circuits, which are subdivided
into judicial districts. In federal courts, venue is proper in: (i) a judicial district in which any defendant
resides, if all defendants are residents of the state in which the district is located; or (ii) 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. There is a fallback provision if there is no
district that satisfies (i) or (ii), but it will seldom come into play.

The first venue provision is a bit odd. Most states will allow venue to be placed in any county in which
any defendant resides. However, in federal court, all defendants must reside in the same state for that
provision to be effective. Something to keep in mind.

Now, you may be asking yourself, “how do I determine where the defendant resides?” For individuals,
it’s rather simple—residence for venue purposes is his domicile. For corporate-type entities, residence for
venue purposes is determined where it is subject to personal jurisdiction with respect to the action.

Note too that there are transfer provisions. Transfer to a different district court may be had when the
plaintiff did not file in a proper venue or, even if venue is proper, when the parties or witnesses would be
greatly inconvenienced by the trial in the chosen forum.
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A quick detour to discuss the word “jurisdiction.” The word “jurisdiction” might be one of the most
confusing words in Civil Procedure, probably because the word “jurisdiction” can refer to different
concepts (even though it is often used by itself), and it is often up to the reader to figure out what type of
“jurisdiction” is being discussed. “Subject matter” jurisdiction generally refers to the court’s power to
hear and adjudicate a kind of case. As noted above, subject matter jurisdiction can be “limited,” meaning
that the court only has authority to hear and adjudicate certain types of cases, or “general,” meaning that
the court can hear and adjudicate all types of cases. “Jurisdiction” can also refer to “personal jurisdiction,”
which basically refers to the court’s power to hear and adjudicate a claim against a defendant. (Personal
jurisdiction over a plaintiff is not really an issue because a plaintiff consents to the court exercising
personal jurisdiction over him by filing suit.) Further adding to the confusion is that personal jurisdiction
may be “general,” meaning that the court can hear and adjudicate all claims against the defendant. So
you have the term “general jurisdiction” being used in both a subject matter (although the phrase “general
subject matter jurisdiction” is more common) and personal jurisdiction context. Ugh. Personal jurisdiction
also may be “specific,” meaning that the court can hear and adjudicate only the claim that arises from the
defendant’s action in the state.

Subject matter jurisdiction. As stated above, federal courts are courts of limited subject matter
jurisdiction—there has to be some statutory basis for a federal court to have subject matter jurisdiction.

The first statutory basis is subject matter jurisdiction based on a federal question being presented in the
plaintiff’s complaint. The shorthand frequently used is “federal question jurisdiction,” but I’ll use “federal
question (subject matter) jurisdiction” here in order to keep everything clear. Federal question (subject
matter) jurisdiction simply requires that the case arise from the laws, treaties, etc., of the United States.
That makes exam questions based on federal question (subject matter) jurisdiction easy to spot: the
examiners will have to give you the federal law. If there isn’t a federal law provided, there probably isn’t
federal question (subject matter) jurisdiction.

The second statutory basis is subject matter jurisdiction based on the diversity statute. Diversity (subject
matter) jurisdiction requires (1) that the amount in controversy exceed $75,000; and (2) that each plaintiff
is from a different state from every defendant. This is called the “complete diversity requirement.”

The “amount is controversy” is really just how much is the claim worth. So, how to determine that figure?
Here are simple rules to remember: (1) the plaintiff’s good faith allegation in his complaint controls the
amount in controversy. (2) A single plaintiff may add together all of the claims he has against a single
defendant to satisfy the amount in controversy requirement. There’s no requirement that the claims be
related to each other in any way. (3) A single plaintiff may not add together separate claims he has
against separate, multiple defendants. However, if the defendants are jointly liable to the plaintiff, the
total value of the claim controls.

The “complete diversity requirement” is a rather simple rule, by itself. (Each plaintiff must be from a
different state from every defendant.) The hard part is determining state citizenship. An individual’s state
citizenship is determined by his domicile—the state where he is physically present and intends to remain
permanently or for an indefinite period. A corporation can have more than one state citizenship. A
corporation is a citizen of every state in which it is incorporated and the one state in which it has its
4 CIVIL PROCEDURE OVERVIEW

principal place of business, which is the place from which the corporation’s high level officers make
decisions affecting the corporation. In real life, a corporation is never incorporated in more than one state,
but it’s possible in theory.

So let’s apply these to our case. There’s no federal question involved in the case because Paul’s claim will
be based on state tort law. When you have a question dealing with diversity (subject matter) jurisdiction,
the easiest and best thing to do is simply diagram the case, like this:

Paul (IL) $75,000.01 Tour Operator (IN-ppb; DE-incorp)

Bus Driver (WI)
Bus Mfg (“IL Co”)

The facts state that Paul is from Chicago, Illinois, and that the Tour Operator’s sole office is in Indiana.
Paul is thus a citizen of Illinois, and you can assume that the Tour Operator’s high level officers are
located in Indiana (because that is where its sole office is located). On the exam, you might actually have
to make such assumptions. What else can you do? Just use the facts given to you and come to a logical
conclusion. The Bus Driver is from Wisconsin. The facts also state that the Bus Manufacturer is “an
Illinois company.” From that, you can assume it is incorporated in and has its principal place of business
in Illinois. (Again, the facts give you no other connections to any other state for the Bus Manufacturer.)
The claim is against joint tortfeasors, so the claim is joint against all defendants. That makes the amount
in controversy more than $75,000. So is there diversity (subject matter) jurisdiction as to all three
defendants? No…although the amount in controversy has been met, both Plaintiff Paul and the Bus
Manufacturer are considered to be citizens of Illinois. So you can’t sue all three on behalf of Paul in
federal court.

Does that mean you can’t sue on behalf of Paul anywhere? No! First, you could sue on behalf of Paul
somewhere in Illinois state courts—there will be some court available in Illinois state court to hear the
case. Or, you can drop the Manufacturer from the case and sue in federal court. The case would be:

Paul (IL) $75,000.01 Tour Operator (IN, DE)

Bus Driver (WI)

Now, this probably wouldn’t be smart…maybe the jury will find that the Bus Manufacturer is mostly
liable to Paul for his injuries. (Even if the Bus Manufacturer isn’t in the case, the Bus Driver and Tour
Operator may present evidence that the accident was the fault of the Bus Manufacturer.) But we don’t
need to be tactically smart (yet). Let’s assume, for hypothetical purposes, that we don’t join the Bus
Manufacturer to the case. Will the Tour Operator and Bus Driver be stuck with this configuration? No!
But we’ll discuss that later. For now, let’s just note that there’s diversity (subject matter) jurisdiction for
the Paul v. Tour Operator and Bus Driver configuration.

Finally, a discussion of diversity jurisdiction would not be complete without mention of the Erie doctrine.
While the doctrine may strike fear in law students taking Civil Procedure, it’s a fairly straightforward
concept for bar exam purposes. The Erie doctrine states that a federal court, in the exercise of its diversity
jurisdiction, is required to apply the substantive law of the state in which it is sitting, including the state’s
 CIVIL PROCEDURE OVERVIEW 5

statutes of limitation and conflict of laws rules. (There of course are exceptions to the Erie doctrine, such
as if there is a federal law that preempts the state law.) However, the federal court must apply federal
procedural law. Erie is a lot more “exciting” in law school classes, when a professor can probe students
on what happens when there is no federal law on point or when a particular statute is both substantive and
procedural. All important things to know for practice, but the questions on the bar are generally more
straightforward.

What happens if you file the case (Paul $75,000.01Bus Driver and Tour Operator) in state court? Are
the defendants stuck in state court? No. One of the defendants may attempt to “remove” the case to
federal court, provided that there is federal subject matter jurisdiction over the case. Here, the case—Paul
 $75,000.01  Bus Driver and Tour Operator—satisfies the requirements for diversity (subject matter)
jurisdiction as described above. So the case may be removed, provided that both the Bus Driver and Tour
Operator join in removal. (Note too that there are timing restrictions on removal that will be discussed in
your lecture.) But what if you join the Bus Manufacturer to the case as a party-defendant? Can the case
still be removed? No. As noted above, there is no diversity (subject matter) jurisdiction because complete
diversity is not present, so there’s no basis for federal subject matter jurisdiction. (There’s also a
restriction on removal—removal isn’t possible if one of the defendants is a forum state. So the presence
of the Bus Manufacturer would bar removal even if complete diversity existed.) If removal was not
appropriate (for example, there is no federal subject matter jurisdiction), the federal court will “remand”
the case back to state court.

Personal jurisdiction. Another consideration in choosing a court is whether the court will have personal
jurisdiction over all defendants. As noted above, personal jurisdiction can be either “general” or
“specific.” General (personal) jurisdiction means that the court can hear any case against a defendant that
falls within its subject matter jurisdiction. There will be general (personal) jurisdiction if the defendant is
domiciled within the state. For a corporate-type entity, the test is whether the entity is “essentially at
home” in the state. Look for the states under whose laws the entity is organized and where the entity’s
principal place of business is. Specific (personal) jurisdiction means that the court can hear only the case
that arises from the defendant’s purposeful conduct within the forum. Whether there is specific (personal)
jurisdiction over a defendant depends on the defendant’s contacts with the state in which the court is
sitting. This is true whether the court is a state court or a federal court—the test is the same. Very
generally, the test is whether the defendant has such purposeful contacts with the state such that the
exercise of personal jurisdiction over him in that state would be fair and reasonable. You’ll see more rules
and information on the minimum contacts test in your course, and you need to know it for the exam.

Looking at our case again, there is personal jurisdiction over all potential defendants. The Bus Driver is
from Wisconsin. Thus, a court in Wisconsin would have general (personal) jurisdiction over him. But
what if Paul wants to sue the Bus Driver in Illinois? The Bus Driver also was driving the bus for a tour in
Chicago, Illinois. Paul claims that the bus driver did not pull up close enough to the curb. Although
causing the fall was completely accidental, the act of driving the bus in Chicago is purposeful conduct,
and the Bus Driver should have known that, if he negligently drove the bus in Illinois, he might be sued in
Illinois.
6 CIVIL PROCEDURE OVERVIEW

The Supreme Court has held that a corporation must be “essentially at home” in a state to be subject to
general (personal) jurisdiction in the state. As examples, it gave the state of incorporation and the place
from which the corporation’s high level officers direct and control the corporation’s activities as places
where it is essentially at home. In our case, the Tour Operator was incorporated in Delaware and has its
headquarters in Indiana, so it is subject to general (personal) jurisdiction in those states. However, like the
Bus Driver, the Tour Operator conducted tours within Illinois, and thus it would likewise be subject to
personal (specific) jurisdiction in Illinois. The Bus Manufacturer would be subject to general (personal)
jurisdiction in Illinois because the facts state that it is an Illinois corporation. From that statement, absent
any other facts, you can assume it was both incorporated in and has its principal place of business in
Illinois. (That type of shorthand actually sometimes appears on the exam…you have to work with the
facts that are given to you.)

Logically, you also might think that a federal court might look at whether there is personal jurisdiction
over a defendant differently than a state court would, because the federal system encompasses the entire
United States. But that’s not the case. A federal court is required to decide whether it has personal
jurisdiction over a defendant in the same manner as a state court would. So, a federal court in Illinois
would look at any personal jurisdiction issue in the same manner as an Illinois state court would.

But in any event, all of the defendants would be subject to personal jurisdiction in Illinois, even though
Paul could not sue all three in federal court in Illinois because of the lack of complete diversity.

LETTING THE DEFENDANT KNOW YOU’RE SUING HIM—DRAFTING THE COMPLAINT

AND SERVICE OF PROCESS

After it is decided who and where to sue, the next step is drafting the complaint and serving process on
the defendant.

Now, drafting a complaint usually isn’t a major issue on the exam. There are three facts of which you
should be aware. First, federal courts have adopted “notice pleading,” meaning that, as to the substance of
the claim, all that is required under the Federal Rules is “a short and plain statement of the claim showing
that the pleader is entitled to relief”; however, the Supreme Court has held that the pleading must set forth
sufficient facts to make the claim “plausible.” Second, the grounds for the court’s subject matter
jurisdiction also must be stated, and there must be a demand for relief, meaning that the pleading has to
tell the court what you want it to do. And third, some claims (such as those based on fraud), must be
stated with “particularity.”

The complaint also must be filed within the statute of limitations period. As explained above, in diversity
cases, whether the case has been filed within the statute of limitations is a state law question, so specific
statute of limitations periods don’t really appear on the national exam. A related, but important, concept is
the relation back doctrine. A party sometimes amends a pleading, and the question sometimes arises
whether the amended pleading satisfies the statute of limitations period. For statute of limitations
purposes, an amendment to a pleading that arises from the same conduct, transaction, or occurrence that
was set forth (or was attempted to be set forth) in the original pleading generally is deemed filed on the
date that the original pleading was filed. (This is true in federal court and a good number of state courts.)
 CIVIL PROCEDURE OVERVIEW 7

Sometimes, the original complaint is filed within the statute of limitations period, and a new defendant is
added by amendment by the plaintiff after the statute of limitations has expired. Is that OK? The answer is
“yes” if the amendment concerns the same conduct, transaction, or occurrence as the original pleading
and if, within the period for filing a complaint and serving process, the party to be brought in by
amendment: (i) has received such notice of the action that she will not be prejudiced in maintaining her
defense on the merits; and (ii) knew or should have known that, but for a mistake concerning the proper
party’s identity, the action would have been brought against her. So let’s say you timely file a complaint
and serve process (see below), naming “Tour Operator” as a defendant. But let’s also say there is no such
legal entity, but rather that “Tour Operator” is really “TO, Inc.” Can you amend and serve process on TO,
Inc.? Sure. The amended complaint obviously concerns the same conduct, transaction, or occurrence as
the original pleading, and TO, Inc. was served with process, thereby providing it with notice of the action,
and it knew or should have known that it was the true defendant in the case, and but for the mistake
concerning its identity, the action would have been brought against it.

“Service of process” is how you get a copy of the complaint to the defendant, which gives him notice of
the action. Before a court can order a defendant to give up property, perform an act, etc., the Constitution
requires that the defendant be given notice so that he can come to court and argue that the court shouldn’t
take his property or require him to perform an act. In our case, before the Tour Operator can be ordered to
pay for Paul’s injuries, you have to give the Tour Operator a chance to come into court and say, for
example, that the accident was really Paul’s fault for not being more cautious getting off the bus.

The service of process requirements are formulistic. Both federal and state rules will tell you what must
be included with process, who may serve process, when process must be served, and how service must be
made. In federal and most states courts, you have to follow these rules precisely in order for service to be
effective.

What. In federal court, and in most states, you have to have a summons prepared, which basically tells the
defendant that he has to respond to the complaint within the time specified and to the court specified, or
risk what’s called a default judgment. Then you serve (see the “how” below) the defendant with the
summons and a copy of the complaint. The summons and complaint are sometimes called “process.”
Basically, summons + complaint = process.

Who may serve. In federal courts, any nonparty over the age of 18 years may serve process. You don’t
have to ask the court for an order to allow him to serve process. In many states, a county sheriff will make
service of process; if you want to have a private party to serve process, some states might require you to
ask the court for permission beforehand. Now, this isn’t really testable, but it might be helpful to know:
Some people make their living (or a good chunk of it) by serving process. So it can be costly to have a
private party serve process.

When to serve. It’s the plaintiff’s responsibility to make sure that process is timely served. The time
period for serving process is 90 days. But this period isn’t written in concrete. If the plaintiff can show
good cause for the failure, the period must be extended by the court. (There is a conflict as to whether a
court can extend the period in the absence of good cause.)
8 CIVIL PROCEDURE OVERVIEW

How to serve. In most states and in federal court, you have to follow the rule exactly for service to be
effective. In federal court, you can ask the defendant to waive service by mailing him the summons, a
copy of the complaint, and a form that asks him to waive service and explains the ramifications of
waiving (or not waiving) service. Ground down to the basics, if a defendant waives process, he gets extra
time to answer the complaint, but if he doesn’t, he’ll have to pay the costs of service unless he has a good
excuse. Remember, private process services can be expensive—way more expensive than a stamp. Thus,
in practice, requesting a waiver of process will probably be done in most (if not all) cases, and in most (if
not all) cases, the defendant will waive process.

If the defendant doesn’t waive service of process, or if you don’t ask him to waive service of process, the
Federal Rules set forth with specific detail on how to serve a defendant. Generally speaking, for an
individual like the Bus Driver, process must be given to him in hand, or he may be served by substituted
service by leaving the summons and a copy of the complaint at his “usual place of abode” (meaning
where he lives) with someone of suitable age and discretion who also resides there. Or you can serve an
agent authorized by appointment or by law. A business like the Tour Operator is served by serving an
agent or officer of the corporation. Finally, a federal court is allowed to follow state law methods when
serving an individual or a business.

WHAT WILL THE DEFENDANT DO?

So let’s assume you properly draft a complaint and have it served on the defendants (the Bus Driver and
the Tour Operator). Now, what will the Bus Driver and the Tour Operator do in response to the
complaint?

A defendant has a couple of different courses he can follow. A defendant may raise certain defenses by a
motion to dismiss, or he may assert the defense in his answer. However, the defendant has to be careful to
include certain Rule 12 grounds, because if they are not included they are waived.

Motion for a more definite statement. Under Federal Rule of Civil Procedure 12 (we’ll just call these
“Rules” from here on out), a party may move for a more definite statement before responding (by filing
an answer or reply) to a pleading (a complaint) that is so vague or ambiguous that a responsive pleading
cannot reasonably be framed. So if you don’t properly draft Paul’s complaint, the Bus Driver or the Tour
Operator may bring such a motion.

Motion to strike. Also under Rule 12, and before responding to a pleading, a party also may move to have
stricken any redundant, immaterial, impertinent, or scandalous matter.

Rule 12 defenses. A defendant may raise the following Rule 12 defenses by motion or in the answer: (i)
lack of subject matter jurisdiction; (ii) lack of personal jurisdiction; (iii) improper venue; (iv) insufficient
process; (v) insufficient service of process; (vi) failure to state a claim upon which relief can be granted
(in other words, even if plaintiff’s allegations are taken as true, relief could not be granted); or (vii) failure
to join a needed party for a just adjudication.
 CIVIL PROCEDURE OVERVIEW 9

Waiver. The defendant will waive grounds (ii) through (v) if he does not consolidate them into a Rule 12
motion or answer, whichever he files first. Let’s say that the Bus Driver believes that he wasn’t properly
served with process and he believes that the Bus Manufacturer should have been joined to the case. If the
Bus Driver brings a motion under Rule 12 to dismiss for failure to join a needed party for a just
adjudication, but he fails to include the failure to serve process properly, he waives that issue.

I hesitate to mention this now, because it hasn’t been a hot test topic, but the Rules seem to authorize an
amendment to the answer to include omitted defenses from the answer when the amendment is “of
course,” but this only works if the defendant proceeded by including the defenses in its answer and not by
raising them in a Rule 12 motion.

Joinder of parties. Now, let’s get back to whether the Bus Driver and the Tour Operator may force the
joinder of the Bus Manufacturer. There are two things to consider. First, whether the Bus Manufacturer it
a party needed for just adjudication, and, second, whether the Bus Driver and the Tour Operator may
bring a third-party action against it. These are separate, but somewhat related concepts. As you will see
below, the Bus Manufacturer cannot be compulsorily made a party-defendant, but it can be made a third-
party defendant. To a degree, it’s a matter of labels, and under what Federal Rule of Civil Procedure the
Bus Manufacturer will be joined. (Yes, I know that’s confusing, but hopefully the following explanation
will clear it up.)

Compulsory joinder under Rule 19. Compulsory joinder simply asks whether all parties that are
absolutely needed have been made a part of the case. Let’s assume that the Bus Driver and Tour Operator
believe it was the faulty design of the bus that caused Paul’s injuries. However, in our case, the Bus
Manufacturer is missing, because, as noted in our subject matter discussion above, the joinder would
destroy complete diversity. Can they require Paul to join him to the suit as a party defendant? In other
words, the case structure would be Paul (Plaintiff) vs. Bus Driver, Tour Operator, and Bus Manufacturer
(Defendants). And you should also note that a party can compulsorily be made a plaintiff. The question of
whether a party must be joined is a three-step process.

The first question is whether the absentee (such as the Bus Manufacturer) should be joined. An absentee
should be joined when (i) complete relief cannot be granted without the absentee being made a party; or
(ii) the absentee has such an interest in the subject matter of the lawsuit that will go unprotected if he’s
not a party or his absence will leave other parties subject to multiple or inconsistent obligations. Some
courts, if they find that the absentee should be joined, use the very unhelpful label of “necessary party” to
describe the absentee. In our case (and this is going into substantive tort law a little bit), joint tortfeasors
generally aren’t considered to be such a party. That’s because any of the tortfeasors are “jointly and
severally” liable, meaning that any one of them can be required to pay the full amount. Be aware that state
law can change this result. So Paul can get complete relief (assuming he wins), and the Bus Manufacturer
isn’t bound by any judgment in the Paul vs. Bus Driver & Tour Operator case (we’ll discuss that with
claim and issue preclusion more below), so any interest isn’t unprotected, and Bus Driver and the Tour
Operator wouldn’t be subject to multiple or inconsistent liability, because joint tortfeasors may be
required (depending on state law) to pay 100% of the plaintiff’s damages.
10 CIVIL PROCEDURE OVERVIEW

The second question is whether the absentee can be joined. Let’s assume that Bus Manufacturer met the
definition above. (Under the general tort law rule, he wouldn’t, but let’s just assume for now.) This
question asks whether the court has personal jurisdiction over the absentee (like Bus Manufacturer) and
whether the joinder of the absentee destroys subject matter jurisdiction or venue. In our case, we have
already determined that joining the Bus Manufacturer would destroy subject matter jurisdiction, so we
would have to say that the absentee cannot be joined. But note that, if there is personal jurisdiction over
the absentee, and if the joinder of the absentee doesn’t destroy subject matter jurisdiction or venue, the
answer is simple: you just join him to the case. Problem solved!

The third question is, if the absentee can’t be joined, if the action can proceed without him. Let’s take the
Bus Manufacturer again. Let’s assume he meets the definition outlined in step one above—he’s a
“necessary party.” We can’t join him because his presence as a party defendant would destroy complete
diversity. So now the court has to decide, whether “in equity and good conscience,” the action can
proceed without the absentee. The court will consider a slew of things—the prejudice to the parties,
whether the prejudice can be reduced somehow, whether there’s a forum somewhere else that has subject
matter jurisdiction and personal jurisdiction over all parties, etc. So it’s possible that the court might
decide it can proceed without the absentee. Remember that label above, “necessary party”? A court may
proceed without an absent “necessary party” if it determines, in equity and good conscience, it can do so!
That means a “necessary party” isn’t absolutely, positively necessary in all cases. (That’s a reason the
Federal Rules eliminated the phrase, because you’d think a necessary party should be necessary. The label
just means that it’s necessary to consider joining him.) If the court determines that it cannot proceed
without the absentee, some courts will label the absentee as an “indispensable party.” An indispensable
party is truly indispensable—the case must be dismissed.

Impleader under Rule 14. Now, the question you may have is “There’s no way to join the Bus
Manufacturer to the case?” Sure there is. It’s just not under Rule 19 (compulsory joinder). Rather, joinder
of the Bus Manufacturer may occur under Rule 14 (impleader). Under Rule 14, a defending party may
implead a nonparty (like the Bus Manufacturer), but only if the nonparty is or may be liable to her for any
part of a judgment that the plaintiff may recover against her. That fits the description of the Bus
Manufacturer. Because he’s a joint tortfeasor, he may owe the Bus Driver and the Tour Operator
contribution if you prove Paul’s case. The case structure would be:

Paul (plaintiff)  $75,000.01  Bus Driver and Tour Operator (defendants/third-party

plaintiffs)  Bus Manufacturer (third-party defendant) for contribution.

And note that subject matter jurisdiction isn’t an issue here. If the indemnity or contribution claim by the
defending party against the third-party defendant does not meet the requirements for diversity of
citizenship or federal question jurisdiction, it will invoke “supplemental jurisdiction.” Supplemental
jurisdiction requires that the supplemental claim (here, the third-party claim against Bus Manufacturer)
arise from the “common nucleus of operative fact” as the main claim (here, the claim of Paul v. Bus
Driver and Tour Operator). That’s obviously met here—all claims arise from Paul’s mishap with the brick
wall. There are also some restrictions in 28 U.S.C. section 1367(b) on the use of supplemental jurisdiction
(those will be discussed in your course), but note that, as a general rule, they mostly apply only to claims
by plaintiffs. In our case, the restriction is that a plaintiff may not use supplemental jurisdiction to support
 CIVIL PROCEDURE OVERVIEW 11

a claim against a third-party defendant when such use would be inconsistent with the requirements of
diversity jurisdiction. But the Bus Driver and the Tour Operator are defendants, not plaintiffs, so the
restriction doesn’t apply. I know this is confusing, and supplemental jurisdiction will be explained in
more detail later in your course. For now, just remember that if there’s one claim over which the federal
court has subject matter jurisdiction (either based on diversity of citizenship jurisdiction or federal
question jurisdiction), defendants can frequently invoke supplemental jurisdiction to have claims heard
that do not satisfy the requirements for diversity or federal question jurisdiction, so long as the
supplemental claim satisfies the “common nucleus” test.

Could you assert a claim against Bus Manufacturer? No, as explained above, there is no diversity
jurisdiction, and supplemental jurisdiction is not available because the claim would be by a plaintiff
against a party joined under Rule 14.

Answer. The defendants also will be required to file what’s called an answer. Basically, the answer
contains responses to the plaintiff’s allegations contained in the plaintiff’s complaint. The answer must
also raise any affirmative defenses. The defendants also must plead a compulsory counterclaim they have
against the plaintiff and may plead any permissive counterclaim against the plaintiff. Essentially, a
compulsory counterclaim is one that arises out of the same transaction or occurrence as the plaintiff’s
claim, and a permissive counterclaim is one that doesn’t arise out of the same transaction or occurrence.
A compulsory counterclaim must be pleaded in the current action, or it is barred under the “compulsory
counterclaim rule.” The defendant also may plead related cross-claims against other defendants. If the
defendant fails to file an answer or a motion to dismiss within a certain time, there’s a possibility that he
may have a “default judgment” entered against him, which basically means that a judgment will be
entered for the plaintiff against the defendant without a trial being held. These concepts will be explained
in more detail in your lecture.

GETTING THE CASE MOVING—PRETRIAL CONFERENCES DISCOVERY

So now let’s assume that you filed the case and had process served, and the Bus Driver and Tour Operator
filed their answer and made any available motions. Let’s ignore the Bus Manufacturer as a third-party
defendant from here on out; it probably would not be tactically wise for you to proceed without asserting
a claim against the Bus Manufacturer, but such a claim would have to be asserted in state court. (It would
be wise to sue all of the defendants in state court. We brought the Bus Manufacturer in just to illustrate
compulsory joinder and impleader.)

Pretrial conferences. The court will hold a number of pretrial conferences to ensure that the case
proceeds to trial quickly and efficiently. One such conference is a discovery conference required by Rule
26(f). That rule requires that, as soon as practicable and before the Rule 16(b) scheduling conference
discussed below, the parties confer to consider their claims and defenses, the possibility of settlement,
initial disclosures, any issues concerning the preservation of evidence, and a discovery plan. Afterward,
the parties will submit the discovery plan to the court. If any disputes as to discovery arise at that time,
they should be brought before the judge. Another type of conference is a scheduling conference required
by Rule 16(b). The scheduling order will limit the time for joinder, motions, and discovery. The order
may also include dates for pretrial conferences, a trial date, and any other appropriate matters. This
12 CIVIL PROCEDURE OVERVIEW

schedule cannot be modified except by leave of court upon a showing of good cause. The court also may
hold pretrial conferences as necessary to expedite trial and foster settlement, and there will be a final
pretrial conference right before trial to ensure that the trial proceeds smoothly.

The conduct of discovery will be mixed in with these conferences. The aim of discovery is to uncover as
many relevant facts and issues as possible, assemble evidence, and gather witnesses so there are no
surprises during the trial. Discovery may be had of “any nonprivileged matter that is relevant to any
party’s claim or defense.” There also might be a cost/benefit analysis in determining whether a particular
matter must be disclosed; that’s up to the judge. Discovery includes documentary evidence (written
documents and other media that can preserve information) and individuals with knowledge of any
discoverable matter. It should be noted that so long as the information sought is calculated to lead to the
discovery of information that would be admissible at trial, the information itself does not have to be
admissible. When an attorney makes a discovery request to the opposing party that request can take many
forms such as oral discovery, written discovery, and document production.

Initial disclosures. Before the formal discovery process begins, Federal Rule of Civil Procedure Rule 26
requires the disclosure of certain types of information without a request being made. The information is
rather basic: (i) the names, addresses, and telephone numbers of people who likely have discoverable
information that the disclosing party may use to support claims or defenses; (ii) copies or a description of
documents, electronic information, and things that are in the disclosing party’s control that may support
claims or defenses; (iii) the computation of damages claimed by the disclosing party and the supporting
materials on which the computation is based; and (iv) copies of insurance agreements under which an
insurer might be liable for the injury. As examples in our case, we could probably get copies of the Bus
Driver’s and Tour Operator’s insurance policies, and we’d have to provide copies of our medical bills and
doctors’ reports.

Depositions. When we talk about oral discovery, we are generally referring to depositions. A deposition
is the out-of-court examination of a witness who is under oath and in the presence of a court reporter or
recorded on video or sound equipment. Parties do not need to be subpoenaed (a court order requiring a
person to appear and give testimony), but non-parties must be. Each party has the right to take the
deposition of any witness, but depositions are not required. So one of the defendants might want to take
Paul’s deposition, to have him answer questions under oath before trial. That might seem a little odd. If
the defendants do a good job during the deposition, they’ll know exactly what Paul is going to say at trial.
A trial is more like a rehearsed play than it is like improvisational theater.

Interrogatories. Another common discovery method is the use of interrogatories. Interrogatories are
written questions from one party to another. That means you cannot send interrogatories to witnesses (you
must depose them, as described above). Interrogatories have a broader scope because the answers should
represent the collective knowledge of the party receiving the interrogatories—the actual person named in
the lawsuit, her attorneys, and also her employees or agents. Furthermore, it is expected that the party
receiving the interrogatories will also conduct reasonable research or investigation in order to properly
formulate responses to the questions.
 CIVIL PROCEDURE OVERVIEW 13

Request for admission. Another form of written discovery is requests for admission. Unlike
interrogatories, requests for admission are in the form of statements which the receiving party admits,
denies, or objects to and states the reason for the objection. The purpose is to have the receiving party
acknowledge the existence of facts that are not in doubt and that should not have to be proven at trial (for
example, a party would admit to driving a black car eastbound on Main Street on a particular day,
assuming it’s not a westbound one-way street because that might go to liability). You also might use a
request for admission to get your opponent to admit that a document is genuine. Doing this saves time at
trial; otherwise, you have to call a witness at trial to prove that the document is authentic. In our case, you
might request that a diagram of the street is an accurate representation, or you might want to have the Bus
Driver admit that he was the driver of the bus at the time of the accident.

Request to produce. Related to written discovery is document production. A party has the right to obtain
production of a variety of items in the possession or control of the other party. (You can also obtain items
from a nonparty, but that requires a subpoena.) A request for production can include actual physical items
(such as writings, charts, drawings, or other documents), as well as electronically stored information (like
data, images, or recordings). The party seeking items to be produced must specify what they wish to see
with sufficient specificity that a person of ordinary intelligence would know what item is being requested.
The responding party must produce the materials and hand them over either in the way they are kept in
the normal course of business or organized and labeled in a way that responds to the request made.

Mental or physical examinations. Obviously, since Paul’s allegation was that he was injured in the
accident, the defendants might want to have Paul examined by a doctor of their choosing to ensure that
Paul was really hurt in the accident and to verify the extent of his injuries. Such an examination is
possible under the Federal Rules (and probably in most, if not all, state courts), but a court order and
“good cause” is required. In all likelihood, the court in our case would order Paul to undergo a physical
examination.

Expert witnesses. Expert witnesses to be called at trial also must be disclosed. So if you have an expert in
accident reconstruction that you plan on having testify at trial, you must disclose it. You must also
provide the expert’s final report, but you don’t have to give over draft reposts.

Supplementation of discovery. What happens if a party later learns that a response to discovery is now
incorrect? Under the Federal Rules, a party must timely supplement required disclosures and prior
responses to interrogatories, requests for production, or requests for admissions if she learns that the
information disclosed was materially incomplete or incorrect and the new information has not been made
known to the other party in discovery or in writing.

ANOTHER METHOD DISPOSING OF THE CASE BEFORE TRIAL—SUMMARY

JUDGMENT

In addition to the motions to dismiss discussed above, a case might be disposed of before trial by means
of a motion for summary judgment. Like a motion to dismiss under Rule 12, a motion for summary
judgment is filed before trial, but, unlike a motion to dismiss, it is usually filed after some discovery has
occurred. The attorney filing the motion believes that the facts uncovered in the discovery process require
14 CIVIL PROCEDURE OVERVIEW

a judge to rule in his client’s favor because there are no material facts in dispute and that if the judge
applied the law to the facts, the ruling would be in their favor. When faced with a motion for summary
judgment, the other party must provide the judge with evidence that would be admissible at trial that
indicates there are disputed facts in the case. This means that a motion for summary judgment allows the
court to look at evidence (testimony at depositions, answers to interrogatories, documents from
production requests, and affidavits). However, the judge cannot weigh the credibility of the witnesses or
weigh the evidence; if both parties can produce evidence to support his claim or defense during the
motion for summary judgment, the court must deny the motion. Ultimately, if granted, this motion saves
parties the time and cost of continuing litigation, and it also removes cases that should not be in court
from the docket.

So now for an example. One of Paul’s claims is that the Bus Driver didn’t pull up close enough to the
sidewalk, and, as a result, Paul tripped over the curb when he exited the bus. Let’s assume that, if this
were to be established, that would constitute negligence on the part of the Bus Driver. Let’s also assume
that the Bus Driver testified during his deposition that he pulled up right next to the curb, and that there
are four eyewitnesses that also state that the Bus Driver pulled up right next to the curb. Paul, in his
deposition, states that the Bus Driver pulled up a foot-and-a-half from the curb. Paul further testified that
he stumbled a bit getting off the bus, then tripped over the curb. Can the judge enter summary judgment
against you and Paul because there are five witnesses for the Bus Driver versus one witness (Paul) for
Paul’s version of the facts? No. A jury might decide to believe Paul over the other witnesses, and thus
summary judgment would be inappropriate.

NOW WE (FINALLY) GO TO TRIAL—JURY TRIALS AND TRIAL MOTIONS

Once discovery is complete, a case moves to the trial stage. In a civil trial, a judge (bench trial) or jury
(jury trial) will weigh the evidence and decide the case. At trial both the plaintiff and the defendant will
have the opportunity to argue their cases. Much of what happens at trial is based on evidentiary rules, so
we will just be looking at a handful of important points in the trial process here.

Jury trials. In federal courts, the Seventh Amendment of the Constitution provides that: “In the suits at
common law, where the value in controversy shall exceed twenty dollars, the right of trial by the jury
shall be preserved.” In matters that are not covered by the Constitution, there may also be a statutory right
to trial by jury created by Congress. Note that in diversity suits, the federal court must permit a jury trial
even if the state court would deny a jury. (The Constitution trumps state law.) For the plaintiff to claim
the right to trial by jury, he must make a timely written demand. Otherwise, there will be a bench trial,
where the judge makes the decision in the case based on the facts.

In federal civil cases, the jury must have at least six (but not more than 12) jurors and they are supposed
to be selected at random from a cross section of citizens, called the venire. The people who are called
provide information about themselves and answer questions when they arrive at the courthouse. Some
may be excluded or excused based on the information they provide. Those who remain will be
questioned. During this process, called voir dire, the judge (using the questions submitted by the
attorneys) or the attorneys will ask questions of each potential juror.
 CIVIL PROCEDURE OVERVIEW 15

Jurors are supposed to listen to all the evidence presented and then come to a decision based on the law
that they are instructed to apply by the judge. The decision the jury reaches is called a verdict. The judge
will then enter a judgment that is binding on the parties, explaining how the case was resolved.

Motion for judgment as a matter of law. Before a case “goes to jury,” a motion of judgment as a matter
of law can be filed by either party. The party opposing the motion must have had an opportunity to
present his evidence on the issue. The moving party (the party filing the motion) must specify the
judgment sought plus the law and facts on which it is entitled to judgment. To grant the motion, the court
must find that a reasonable jury would have no legal basis to find for the non-moving party. What the
court is saying here is that there is no genuine dispute on a material issue of law, so there is no reason to
go any further in the process. (To flip it around, if there is a basis for a reasonable jury to find for the non-
moving party, the judge must deny the motion, even if she personally believes the evidence favors one
party.) A case tried before a judge may also be cut short—once both parties have been fully heard on an
issue in the case, the judge may render his judgment as to that issue in his role as the fact-finder. (For
example, if the judge believes, in her role as the fact-finder, that the plaintiff has failed to prove an
element of his case, there is no need to continue on with the remainder of the plaintiff’s case or the
defense’s case; he can issue judgment in the defendant’s favor.)

THE TRIAL IS OVER AND YOU DON’T LIKE THE OUTCOME—POST-TRIAL MOTIONS

After the jury returns the verdict, the case is not yet over at the trial level. There are a couple of post-trial
motions that may be made, often together. First, a party may renew a prior motion for judgment as a
matter of law (which is helpfully called a renewed motion for judgment as a matter of law), provided, of
course, that he already moved for a judgment as a matter of law. (How can you “renew” something that
wasn’t done in the first place??) At this point, you might be asking yourself, “If the evidence tilted so
strongly for one party, why didn’t the judge just grant the motion in the first place?” Well, that’s because
a jury verdict is preferred over taking the case away from the jury, and a jury verdict is less likely to be
overturned on appeal. The judge may well have denied (or reserved) the prior motion for judgment as a
matter of law in the hope that the jury would come to the right conclusion. A party may also move for a
new trial based on serious errors that occurred during the trial (usually going to the admissibility of
evidence or the propriety of the instructions), because the verdict is against the weight of the evidence
(limited to cases where the judge finds the verdict seriously erroneous), because of juror misconduct, or
because the verdict is excessive or inadequate.

You also might ask the court for relief from judgment under Rule 60. If there are minor clerical errors in
the judgment, orders in the case, or the record, you can simply ask the court to correct the error. Rule 60
also provides for relief relating to more substantive issues. On motion and just terms, the court may
relieve a party from a final judgment or order due to (i) mistake, inadvertence, surprise, or excusable
neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to
move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the
judgment being void; (v) the judgment being satisfied, released, or discharged; or a prior judgment on
which it is based was reversed or otherwise vacated; or it is no longer equitable that the judgment should
have prospective application; or (vi) any other reason justifying relief from the operation of the judgment.
16 CIVIL PROCEDURE OVERVIEW

For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year;
for the other grounds, the motion must be made within a reasonable time.

ONE LAST STEP—APPEALS

Under the Federal Rules of Appellate Procedure, an appeal may be taken by filing a notice of appeal with
the district court. (There are some nuances that you will learn as part of bar review or your civil procedure
course, such as what happens when you also have filed a renewed motion for judgment as a matter of law
or a motion for a new trial.) What happens on appeal is very different than what happens at the district
court level. An appeal is a review of how the lower court applied the law, not the facts of the case. The
appellant (the party who initiates the appeal) must show that the trial court made a legal error (based in
law and not in fact) that affected the outcome of the case. The party who did not initiate the appeal (the
appellee) will argue that appellant’s appeal has no merit (that there was no legal error). In addition, if the
appellee believes that a different legal error was made—one that adversely affected him—he may file on
cross-appeal regarding that error. By necessity, such a review will require looking into whether the jury
made a mistake with regard to the sufficiency of the evidence for its factual finding(s). Once an appeal is
filed, each party will prepare and submit a brief (a document summarizing the facts of the case, the law
that was applied and/or the law that should have been applied, and supporting arguments) arguing his side
of the case. The party that lost in trial court will try to persuade the court that the law was incorrectly
applied, while the party that won will be arguing that the lower court was correct.

What the court of appeals will do is limited. It will make a decision solely on the record (the history of the
lawsuit which includes things like the complaint, pleadings, evidence and testimony). Appellate court
judges are not arbiters of fact. The attorneys will also appear in court for oral arguments, but the period is
generally short and may be taken up by questions from the presiding judge(s). Based on the record and
oral arguments, the appellate court will ultimately either affirm the lower court decision, overturn the
lower court decision, or remand the case to the lower court for a new hearing based on the appellate
court’s finding of law (that is, “this is the law you should have applied, now apply it”) and/or to conduct
more fact gathering that was deemed missing but integral.

THE SIGNIFICANCE OF A JUDGMENT—THE PRECLUSIVE EFFECT OF JUDGMENTS

Now that we’ve discussed what a final judgment is, we can tackle preclusion doctrines. Claim preclusion
(also known as res judicata) and issue preclusion (also known as collateral estoppel) are doctrines aimed
at fairness and judicial economy―we do not want to harass a party with multiple suits pertaining to the
same occurrence and we don’t want the judicial system to be bogged down by such claims. However, we
do want to make sure that parties have their day in court.

Claim preclusion. Claim preclusion looks at the big picture. Once a final judgment on the merits has been
rendered on a particular cause of action, the claimant is barred by the doctrine of claim preclusion from
asserting the same cause of action in a later lawsuit. The court is going to look at whether: (i) there is a
final judgment, (ii) the parties are the same as in the last suit and in the same configuration, and (iii) the
same cause of action is being asserted in the later case. The first item is pretty self-explanatory, however,
the last two require some explaining. Traditionally, claim preclusion only applies if the parties in the
 CIVIL PROCEDURE OVERVIEW 17

earlier case and the latter case are the same and they are in the same position (that is, the same plaintiff in
both cases is suing the same defendant in both cases). As far as defining a cause of action, a party
generally will be required to assert all claims arising out of the same occurrence that is the subject matter
of the claim asserted by the claimant. So you couldn’t split Paul’s claim for injury to his jaw and his claim
for lost wages due to his inability to work after the accident.

Issue preclusion. Issue preclusion digs a bit deeper. Under the doctrine of issue preclusion, a final
judgment on the merits binds the plaintiff or defendant in later lawsuits on different causes of action with
regard to those issues that were actually litigated and essential to the judgment in the first action. So, not
only can you not relitigate the same cause of action over again, you might not be able to relitigate an issue
that has already been decided in another case. However, the party requirement for issue preclusion is
different than the party requirement for claim preclusion. Assuming that it is fair to do so, a party to a
prior suit may be bound by issues decided in that prior case even though his opponent in the current case
was not involved in that prior case. In our case, let’s assume that the jury finds that Paul really wasn’t
injured. You then try to sue the Bus Manufacturer for negligent design of the bus. Assuming there are no
procedural barriers (such as the statute of limitations), will you be successful with the suit? Probably not,
but not because of claim preclusion. (Claim preclusion does not apply because the same parties in the
same configuration are not involved—the Bus Manufacturer was not a party defendant in the first case.)
However, the Bus Manufacturer can attempt to use that finding—that Paul wasn’t actually hurt in the
accident—to show that you (and Paul) will be unable to prove a tort case (because damages are an
essential element of such a claim). That’s assuming that the court finds that it is fair to allow a nonparty
like the Bus Manufacturer to use a prior judgment against a party like Paul.