[Ariel Chou]

Civil Procedure
Overview
Right Court Learning about the Case Multiparty Cases
 Personal Jurisdiction  Service of Process  Party Joinder
 Subject Matter Jurisdiction  Pleadings  Class Action
 Venue  Discovery
Adjudication Appellate Review Preclusion
 Injunctions  Final Judgment  Claim Preclusion
 Pretrial  Interlocutory  Issue Preclusion
 Trial  Standard of Review

Part1 – Right Court

 Personal Jurisdiction
 Subject Matter Jurisdiction
 Supplemental Jurisdiction
 Removal
 What Law to be applied
 Venue
Personal Jurisdiction (PJ)
1. Satisfy a state statute; and
2. Satisfy the Constitution (Due Process)
- Contact
- Relatedness
- Fairness
Statutory Analysis Each state is free to have its own statutes for in personam jurisdiction
 Most states have statutes granting their courts in personam based on:
1) D is present in forum state and is personally served with process
2) D is domiciled in the forum
3) D consents to jurisdiction
Constitutional Analysis Sufficient Nexus with the Forum: Does D have “such minimum contacts with
the forum so jurisdiction does not offend traditional notions of fair play and
substantial justice”?
Contact Relatedness Fairness
Purposeful availment General vs. Specific Burden/convenience
Foreseeability State’s interest
P’s interest

Contact 1. The contact must result from purposeful availment (D’s voluntary act)
2. The D must also know or reasonably anticipate that her activities in the
forum render it foreseeable that she may be “haled into court” there
Relatedness Specific forum: If the claim is related to the D’s contacts with the forum, a
court is more likely to find that jurisdiction as to that claim is fair and
reasonable  can only be sued there for a claim arising from those activities
General forum: If the D engages in systematic and continuous activity in the
forum state such that the D is “essentially at home” therein. (domiciled) 
can be sued there for a claim that arose anywhere in the world
Corporation’s “home” Corporation is always “at home”:
1) Where incorporated
2) Where it has principal place of business (PPB)
3)
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Fairness
(Only in specific PJ)
Subject Matter Jurisdiction (SMJ)
 State courts have general SMJ
 Federal courts have limited SMJ (Diversity of citizenship & Federal question)
 Additional Claims (Supplemental jurisdiction)
Diversity of citizenship (and alienage)
Complete Diversity
Alienage Jurisdiction
Citizenship of a natural person
Citizenship of a corporation
Citizenship of an unincorporated
associations
Citizenship of decedents, minors, or Such persons must sue or be sued through a representative.
incompetents
Amount in controversy
Aggregation
[Ariel Chou]
Burden on D and witness:
1) Whether the claim arises from the D’s contact with the forum
2) Convenience – a forum is constitutionally acceptable unless it is “so
gravely difficult and inconvenient” that the D is put at a severe
disadvantage (relative wealth of the party is not determinative)
State’s interest:
The forum state may want to provide a courtroom for its citizens, who are
allegedly being harmed by out-of-staters.
P’s interest:
P’s interest in obtaining convenient and effective relief, the interstate judicial
system’s interest in efficiency, and the shared interest of the states in
furthering social policies.
1) No P may be a citizen of the same state as any D; and
2) The amount in controversy must also exceed the sum or value of $75,000,
exclusive of interest and costs
A federal court has subject matter jurisdiction over disputes between a citizen
of a US state and an alien (citizen of a foreign country)
1) Physical presence there; and
2) The intention to make that your permanent home
 Treat DC as a state
 Timing – test for diversity is when the case is filed
1) Every state or country where incorporated; and
2) The one state or country of its principal place of business (PPB)
 PPB – where managers direct coordinate and control corporate activities,
a.k.a. “nerve center”, HQ
Partnership – citizenships of all its partners
Limited liability company (LLC) – citizenships of all its members
The representative’s citizenship is irrelevant, still use the citizenship of the
decedent, minor, or incompetent.
Must exceed $75,000
 Does not include costs/interest on the claim (can recover costs/interest as
the claim)
 Whatever P claims in good faith is okay, unless it is clear to a legal
certainty that she cannot recover more than $75,000
 What P wins is irrelevant to jurisdiction
 If P wins less than $75,000 he may be required to pay D’s litigation cost
(not include attorney’s fee)
Adding 2 or more claims to meet the amount requirement
1. P may aggregate all claims against a single D (can be factually unrelated)
2. P who has an action against several Ds can aggregate her claims against
them only if the defendants are jointly liable to P – total value of the claim
(number of parties is irrelevant)
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Equitable Relief
Exclusions
Federal Question
P’s complaint arises under federal
law
SMJ Over Additional Claims
General Rule
Supplemental Jurisdiction
Limitation on Supplemental
Jurisdiction
(only applies to diversity case)
Discretionary Factors
Removal
What is removal
When?
Who must join in the removal
What case can be removed
Remove to federal court that
embracing the state court
[Ariel Chou]
If either is met, the amount in controversy is satisfied:
1) P’s viewpoint: Are damages P suffered more than $75,000?
2) D’s viewpoint: Would it cost D more than $75,000 to comply with the
injunction?
Even if the requirements for a diversity or alienage case are met, federal
courts decline to hear some cases:
1) Divorce
2) Alimony
3) Child custody
4) To probate in the state
Is P enforcing a federal right?
- Yes: the case can go to federal court under FQ jurisdiction
- No: the case cannot go to federal court under FQ
Each additional claim has to be tested on:
- Diversity citizenship
- Federal question
If NOT,
- Supplemental Jurisdiction
Test: The claim must share a “common nucleus of operative fact” with the
claim that invoked federal SMJ.
 When it arises from the same transaction or occurrence (T/O) as the
underlying case
Claims by P cannot invoke supplemental jurisdiction.
Exception: There are multiple Ps, and one of them does not meet $75,000, in
this case, the supplemental jurisdiction will be allowed even though it is
asserted by P.
Even if we meet the requirements for supplemental jurisdiction, the court has
discretion to decline jurisdiction:
1) The state law claim is complex
2) The state law issues would predominate in the case
3) The underlying claim is dismissed early in the case
Removal transfers the case from a state trial court to a federal trial court. If
removal was improper, the federal court can “remand” the case back to state
court.
D must remove within 30 days of service of the first paper that shows the case
is removable.  within 30 days of service of process
 30 days starts anew with service to later Ds
All Ds who had been served with process
D can remove a case that meets the requirements for diversity or FQ.
Exceptions (only applies to diversity case):
a) No removal if any D is a citizen of the forum unless P acted in bad faith by
originally joining instate D to prevent removal (but the case might become
removable if the claim against the instate D is dropped)
b) No removal more than 1 year after the case was filed in state court
D removes to the federal district “embracing” the state court where the case
was filed.
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How do Ds remove a case D files “notice of removal” in federal court, stating grounds of removal
 D attaches all documents that were served on her in state action. She
serves a copy of the “notice of removal” on adverse parties and then in the
state court.
P can move to remand If P thinks removal was improper for some reason other than lack of SMJ, she
must move to remand to state court no more than 30 days after filing of the
‘notice of removal’ in federal court. If you do not, you waive it.
 P can move to remand if removal was improper because of lack of SMJ
 Instate D problem is not considered as lack of SMJ (so 30-day rule applies)
In federal court, what law applies?
 The Erie Doctrine
 Federal Common Law
The Erie Doctrine Federal Court in a Diversity case:
Apply own procedural law but must apply the substantive law of the state in
which it is sitting
Step 1 – Federal Statutes or Federal Is there some federal law on point that directly conflicts with state law?
Rules of Civil Procedure The Supremacy Clause – Apply the federal law as long as it is valid
Step 2 – Substantive or Procedural? If there is no federal statute or rule on point, is the issue substantive or
procedural?
4 issues that are “substantive”:
1) Elements of a claim or defense
2) Statute of limitations
3) Rules for tolling statutes of limitations
4) Conflict (or choice) of law rules
Step 3 – Factors to test whether If there is no federal statue or rule on point and the issue is not 4 issues listed
substantive above, the federal judge must determine whether the issue is “substantive”:
a) Outcome determinative: Would applying or ignoring the state rule affect
outcome of the case? If yes  substantive  use state law
b) Balance of interests: Does either federal or state system have strong
interest in having its rule applied?
c) Avoid forum shopping: If the federal court ignores state law on this issue,
will it cause parties to flock to federal court? If yes  apply state law
Federal Common Law Erie means there is no “general federal common law”, so the general common
law of contracts, torts, and property is state law. However Erie did not change
the authority of federal courts to create “federal common law”.
Interpretation of federal statute or The federal courts create substantive rules of federal law when interpreting
constitution the meaning of federal statutes or the federal Constitution.
Creating Rules to Fill Gaps in Federal The federal courts may also create substantive rules of federal law based on
regulatory schemes the determination that Congress has expressly or by implication authorized the
federal courts to do so for the purpose of filling in gaps or silences in a federal
regulatory statute.
Venue
General Rule Venue in civil actions in the federal courts is proper in:
1. A judicial district where any D resides, if all Ds reside in the same state
2. A substantial part of the claim arose
Residence  Individual: where domiciled
 Business Entities: Any judicial district in which it is subject to the court’s
personal jurisdiction

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Transfer of Venue
Private & Public factors
Effect of Forum selection clause
Law applicable upon transfer
Forum Non Conveniens
[Ariel Chou]
1. If original venue is improper, a court must dismiss, or in “the interests of
justice”, transfer the case to a venue in which it could have been brought
2. If venue is proper, the court may nonetheless transfer the case for the
convenience of the parties or witnesses to any court where it could have
originally been filed (i.e. have SMJ, PJ, and the venue is proper)
 Alternatively, all parties may consent to transfer to a particular district
Because transfer overrides P’s choice of forum, the burden is on the person
seeking transfer. Private & public factors showing that the transferee is the
center of gravity:
Public factor: what law applies, what community should be burdened with jury
service, the desire to keep a local controversy in the local court
Private factor: convenience, like where the evidence and witness are
If parties entered a contract saying that a dispute will be litigated in a
particular district, the court will almost always transfer to that district. The
parties are agreed that the private factors support litigation in that district,
unless exceptional public interest factors dictate otherwise.
 There is no right to transfer, it is always discretionary
If original venue was proper, apply the law of the state in which the transferor
court (original court) sits.
If original venue was improper, apply the law of the state in which the
transferee court (sent court) sits.
There is another court that is the center of gravity (public & private factors)
The court does not transfer to the more convenient court, but instead dismiss
or stay the case.
 Transfer is impossible, since the more convenient court is in a different
judicial system
 If P is resident of the present forum, FNC dismissal is almost never granted
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Part 2 – Learning about the case
 Commencement of Action
- File a complaint
 Service of Process
- Process
- Return of service
- Service of other documents
Commencement of Action
Commencement of Action
Service of Process
Process
Who can serve process
How is process served
Waiver by mail
Return of Service
(Proof of Service)
Service of Other Documents
Pleadings
Complaint
Stating the claim
[Ariel Chou]
 Pleading  Discovery
- Complaint - Duty to disclosure
- D’s Response (Motions & Answer) a) Initial disclosure
- Counterclaim b) Expert disclosure
- Crossclaim c) Pretrial disclosure
- Additional Claims - Discovery Tools
- Amended Pleadings - Signing in Discovery
- Supplemental Pleadings - Duty to Supplement
- Rule 11 - Scope of Discovery
- Enforcement of Discovery Rules
An action is commence by filing a complaint with the court.
D is entitled to notice that she has been sued
1) Summons and 2) a copy of the complaint – together it is called process
Any nonparty who is at least 18 years old
Personal service
 Papers are given to D personally
Substituted service
 D’s usual abode
 Serve someone of suitable age and discretion who resides there
Service on D’s agent
 D’s agent is okay if receiving service is in scope of agency
Other methods permitted by state law
 Other methods for serving process that are permitted by state law of the
state where the federal court sits or where service is made
Mail to D a copy of the complaint and two copies of a waiver form with a
prepaid means of returning the form. If D executes and mails waiver form to P
within 30 days, D waives formal service of process. P has to file it in court and
the waiver is then effective.
 US-based D who doesn’t waive service on such request will become liable
for costs of service unless he had good cause for failing to waive service
The person who serves process files a report with the court detailing how
service was made. If the sever was a civilian, the report is by affidavit.
Other documents get served, but we don’t need a summons or to do it so
formally. by delivering or mailing the documents to the part’s attorney or pro
se party.
 Service is deemed complete when they are mailed, the receiving party has
30 days in which to respond to the document served, but for mailed
document, the party will get extra 3 days.
1) Statement of grounds of SMJ
2) Short and plain statement of the claim, showing entitled to relief
3) Demand for relief sought
You must plead facts, supporting a plausible claim (to determine plausibility,
the judge uses her own experience and common sense.  completely
subjective to the judge’s stance)
 Fraud, Mistake, and Special Damages must be pleaded with even more
detail with particularity or specificity
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D’s Response Rule 12 requires D to respond in 2 ways:
1) By motion
2) By answer
Timing  D must do this within 21 days after service of process
 If you waived service, you get 60 days from when P mailed you the waiver
form
 90 days if outside US
Motion Motions are not pleadings, but requests for a court order
(Pre-answer) a) Motion for more definite statement
b) Motion to strike
c) Motion to dismiss – Rule 12(b) defenses:
1) Lack of SMJ
2) Lack of PJ
3) Improper venue
4) Improper process
5) Improper service of process
6) Failure to state a claim
7) Failure to join indispensable party
 2,3,4,5 are waivable defenses, and they must be put in the first Rule 12
response or else they are waived.
Answer This is pleading:
1. Respond to allegations of complaint
a) Admit
b) Deny – Failure to deny constitutes an admission
c) State that you lack sufficient information to admit or deny
o This has effect of a denial, but you have a duty to investigate things in
your control)
2. Raise affirmative defenses
Counterclaim A claim by D against P, this is part of D’s answer, 2 types of counterclaims:
1) Compulsory
2) Permissive
Timing After D serves a counterclaim, P has to respond under Rule 12 within 21 days
Compulsory Counterclaim If the claim arises from the same T/O as the P’s claim, it must be pleaded as
counterclaim. Otherwise, it will be waived and thereafter barred.
Permissive Counterclaim Any other claim D has against P may be asserted as a permissive counterclaim
if it meets the jurisdictional requirements for filing a claim in federal court. You
are not required to file it in this case, you may sue on it in a separate case.
Crossclaim This is a claim against a co-party (not opposing party)
It must arise from the same T/O as the underlying action.
This is not compulsory, you may assert it here or sue separately.
Additional Claims Once you file a counterclaim or crossclaim you can join an additional claim to it
– even if that claim has nothing to do with the others – again have to meet the
federal SMJ requirements
Amended Pleadings 1. Right to amend
2. If there’s no right to amend, seek leave of court
3. Variance
4. Amendment after the statute of limitations has run
Right to Amend P has a right to amend once within 21 days after D serves his first response
D has a right to amend once within 21 days of serving his answer

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Seek Leave of Court After time lapses, if there is no right to amend, seek leave of court
It will be granted if “justice so requires”, factors to consider:
1) Delay
2) Prejudice
3) Futility of amendment
Variance When evidence at trial does not match what was pleaded
- Inadmissible; or
- If the other party does not object, then conform later
Amendment after the statute of Relation back – you treat the amended pleadings as though it was filed when
limitation has run – “Relation Back” the original was filed, so it can avoid a statute of limitation problem
To join a new claim:
An amendment to a pleading that arises from the same C/T/O was set forth in
the original pleading generally is deemed filed on the date that the original
pleading was filed
To change a defendant after the statute has run:
1) It concerns the same C/T/O as the original
2) The new party knew of this case within 90 days of its filing
3) He also knew that, but for a mistake, he would have been named originally
Supplemental Pleadings These set forth things that happened after the pleading was filed.
You have to make a motion to file a supplemental pleading and require
permission of the court.
Rule 11 Applies to all documents except discovery
Signing – Certification When the lawyer or pro se party signs documents, she certifies that to the best
of her knowledge and belief, after reasonable inquiry:
1) The paper is not for an improper purpose
2) The legal contentions are warranted by law or non-frivolous argument for
law change
3) The factual contentions and denials of factual contentions have
evidentiary support (or likely to after further investigation).
 Continuing certification – you make this certification every time you
“present” a position to the court
Sanction The court has discretion to impose sanctions against a party who presents a
paper to the court in violation of the above requirements
1. The court, on its own initiative, may enter an order describing the matter
that appears to violate Rule 11 and direct the proponent to show cause
why sanctions should not be imposed
2. The opposing party may serve a motion for sanctions on the proponent,
and if the proponent does not withdraw or correct the matter within 21
days, opposing party may then file the motion for sanctions with the court
Discovery
Duty of Disclosure Rule 26 requires parties to disclose, without being asked, information to other
parties about their case.
Initial disclosure Unless a court order or stipulation of parties says otherwise, within 14 days of
the Rule 26(f) conference, a party must provide to other parties:
1) Identities of persons who have discoverable info that you may use to
support your claims or defenses
 Failure to identify the person: The party cannot use that witness in the
case, unless the failure to identify was substantially justified or harmless
2) Documents and things that you may use to support your claims or
defenses (copies, descriptions of documents, electronically stored
information (ESI), photographs, recordings, and tangible things)
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 Failure to disclose: You cannot use that material in the case unless the
failure to disclose was substantially justified or harmless
3) Computation of Monetary Relief and documents/ESI supporting it –
anyone claiming monetary relief must provide a “computation” supported
by documents or ESI of the amount sought
4) Insurance Coverage – D must disclose any insurance that might cover all or
part of the judgment in the case
Disclosure on Expert Witnesses (EW) Later in the case, at a time directed by the court, each party must identify
expert witnesses “who may be used at trial”:
1) Identity of EW
2) The written report prepared by the EW
- Opinions EW will express
- Bases for the opinions
- Facts used to form the opinions
- EW’s qualifications
3) How much EW is being paid
Deposition of EW A party may take the deposition of EW
a) That party should subpoena EW to compel her attendance
b) That party must pay the EW a reasonable fee per hour set by the court
Pretrial required disclosure At least 30 days before trial, a party must disclose detailed information about:
(Trial evidence) 1) Witness – Identity of witnesses to testify live or by deposition a
2) Evidence – Documents/ESI/things to be introduced at trial
Discovery Tools 1. Depositions 2. Interrogatories 3. Requests to produce 4. Medical exam
5. Request for admission
Depositions A person gives live testimony in response to questions by counsel.
The questions are usually oral, but can be written (if written, they are read by
the court reporter). Deponent testifies under oath. The deposition is recorded
or stenographically and a transcript can be made.
 Non-party: subpoena
 Party: notice of deposition
 A subpoena “duces tecum” requires the deponent to bring requested
material with him
 Unless a nonparty agrees, the farthest she can be required to travel to
have her deposition is 100 miles from where she resides or employed
Limitations on deposition a) Cannot take more than 10 depositions
b) Cannot depose the same person twice without court approval/stipulation
c) Cannot exceed 1 day of 7 hours unless court orders or parties stipulate
Use of depositions at trial All subject to rules of evidence:
1) Impeach the deponent
2) Any purpose if the deponent is an adverse party
3) Any purpose if the deponent (regardless of whether a party) is unavailable
for trial unless that absence was procured by the party seeking to
introduce the evidence
Interrogatories These are written questions, to be answered in writing under oath
 Only to parties
 The party has 30 days from service (extra 3 days if mailed) to respond with
her answers or objections
 If the answers to interrogatories can be found in business records and the
burden of finding them would be equally burdensome to find the answer,
the responding party can allow the requesting party to have access to the
records.
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Limitations on interrogatories
Use of interrogatories at trial
Requests to produce
Medical Exam (Physical or Mental)
Request for Admission
Parties sign substantive answers to
discovery under oath
Duty to Supplement
Scope of Discovery
Privilege
Work product
Asserting privilege or work product
[Ariel Chou]
Maximum number of interrogatories (including subparts) you can send to a
party is 25, unless there is a court order or stipulation for more
At trial, you cannot use your own answers to interrogatories, others are okay
per rules of evidence.
These request that someone make available for review and copying
documents or things, including ESI, or to permit you to enter designated
property to inspect, measure, etc. The person must respond in writing within
30 days of service, stating that the material will be produced or asserting
objections.
 Only to parties
You must get a court order by showing that the person’s heath is in actual
controversy and “good cause”
 If you request and obtains the report, you waive any privilege you might
have concerning testimony about all examinations or that medical
condition. So you would have to produce reports of your own doctors
concerning this medical condition.
 Only to parties or someone in the party’s custody or legal control (narrow)
This is a written request that someone admit things.
 If D fails to deny specifically in writing within 30 days, it is deemed to be
admitted
 D can say she does not know the answer ONLY if she states that she made
reasonable inquiry, and cannot find enough to admit or deny
 Only to parties
Rule 11 does not apply to discovery documents
Every discovery request and response is signed by counsel certifying:
1) It is warranted
2) It is not interposed for improper purpose
3) It is not unduly burdensome
After you respond to discovery, suppose circumstances in the real world
change. In light of these new circumstances, your response to a required
disclosure, interrogatory, request for production, or request for admission is
now incomplete or incorrect, you must supplement your response without
request to the other party.
Standard: Anything relevant to a claim or defense and proportional to the
needs of the case.
Something harmful to you need not be disclosed in required disclosure, but
may well be discoverable using the regular discovery tools.
(E.g. Asking for D’s net worth in Compensatory damages vs Punitive damages)
You can object to discovery on the basis of evidentiary privilege
“Trial preparation materials” (material prepared in anticipation of litigation)
are generally protected from discovery.
Qualified Work Product: Can be discoverable if the party could show
1) substantial need; and
2) not otherwise available
Absolute work product: Cannot be discoverable if they are opinion work
product that includes mental impressions, opinions, conclusions, and legal
theories.
If you withhold discovery or seek a protective order based on privilege or work
product, you must claim the protection expressly and describe the materials in
details.
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Enforcement of Discovery Rules
Protective order
Partial response to discovery
request
Sanctions to partial response
No response to discovery request
Sanction to no response
“Merits” sanction
Special Rules on ESI
[Ariel Chou]
Privilege Log
 You do this in a document that lists the materials protected by date,
author, recipient, and privilege or protection claimed. It must be in enough
detail to allow the judge to determine whether the material is protected.
Inadvertent Disclosure
 If you inadvertently produce privileged or protected material, you should
notify the other party promptly. The other party then must return,
sequester, or destroy it pending decision by the court about whether there
has been a waiver.
3 ways courts get involved in discovery disputes:
1. Protective Order
2. Partial Response to Discovery Request
3. No Response to Discovery Request
If the responding party thinks a discovery request subjects to annoyance,
embarrassment, undue burden, or expense, you can move for a protective
order. If the court agrees, it could:
1) deny discovery; or
2) limit it; or
3) permit it on certain terms
 She must certify that she tried in good faith to work it out without court’s
involvement (she asked the other side to meet and confer)
The responding party answers some questions but objects to others, the
requesting party will make a motion to compel answers, and the court will
decide whether the objections were legitimate.
The party seeking sanctions must certify that she tried in good faith to get the
info without court involvement.
2-Step:
1. You move for an order compelling the party to answer the unanswered
questions, plus costs of bringing motion
2. If the party violates the order compelling him to answer, then:
Merits sanction + costs + could be held in contempt for violating a court order
The responding party fails completely to attend her deposition, respond to
interrogatories or to respond to requests for production.
1 step: No need to get an order compelling answers – Merits sanctions + costs
Choices available to judge:
- Establishment order (establish facts as true)
- Strike pleadings of the disobedient party (as to issues re the discovery)
- Disallow evidence from the disobedient party (as to issue re the discovery)
- Dismiss P’s case (if bad faith shown)
- Enter default judgement against D (if bad faith shown)
If a party fails to product ESI because it was lost in the good faith, routine
operation of an electronic info system, there will be no ‘merits’ sanction unless
the loss was intention.
 If a party fails to take reasonable steps to preserve ESI, the court can make
orders curing the harm to other parties
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Part 3 – Multiparty Litigation
 Proper Ps and Ds
 Necessary and Indispensable Parties
 Impleader
 Intervention
 Class Action
Proper Ps and Ds Co-plaintiffs & Co-defendants test:
1) Arise from the same T/O
2) Raise at least one common question
Then, with these parties, assess whether the case invoke diversity or FQ
Necessary and Indispensable Parties The court might force a non-party (absentee) to join in the case.
Necessary Party A is necessary if:
1) Without A, the court cannot accord complete relief among existing parties
2) A’s interest may be harmed if he is not joined
3) A claims an interest that subjects a party to a risk of multiple obligations
Feasibility of joining necessary party A’s joinder is feasible if:
1) There is PJ over A
2) Joining A will not goof up diversity jurisdiction
If not feasible to join necessary If A cannot be joined, then:
party 1) Proceed without A; or
2) Dismiss the entire case
Court will take into account:
a) Is there an alternative forum available?
b) What is the actual likelihood of harm to A?
c) Can the court shape relief to avoid that harm to A?
Indispensable party If the court decides to dismiss, we call A indispensable party
Impleader D can shift the liability that he will owe to P to the 3rd-party D (TPD), so if D is
found liable to P, he will try to make TPD to pay all or part of his own liability
 hence this is usually for indemnity or contribution.
 There is a right to implead within 14 days of serving your answer, after
that, you need court permission.
Steps for impleading the TPD 1) D files a 3rd-party compliant naming the TPD; and
2) Serve process on the TPD (there must be PJ)
 SMJ assessment has to be done
Intervention The nonparty brings herself into the case – it must be “timely”
Intervention of right: A’s interest may be harmed if she is not joined and is not
adequately represented
Permissive intervention (discretionary with court): A’s claim or defense and
the pending case have at least one common question, usually allowed unless it
will cause delay or prejudice
 SMJ assessment has to be done
Class Action Representative sues on behalf of group
Requirements for class action Initial requirements:
1) Numerosity – too many class members for practicable joinder
2) Commonality – there is some issue in common to all class members
3) Typicality – rep’s claims are typical of those of the class
4) Adequacy – the class rep will fairly and adequately represent class
Second requirements, the case must fit within 1 of 3 types:
1) Prejudice: Class treatment necessary to avoid harm either to class
members or to the non-class party

12

Class action – Procedural issue
(Court’s duty)
Settle and dismiss
SMJ for class action
Class Action Fairness Act
[Ariel Chou]
2) Class seeks an injunction or declaratory judgment because D treated the
class members alike
3) Damages: Common questions predominate over individual questions, and
class action is the superior method to handle the dispute (like mass tort)
1. Rep’s complaint will say “class action” but it is not a class action until the
grant of motion to certify a class action.
2. When it certifies the class action, the court must define the class and the
class claims, issues, or defense.
3. The court must also appoint a class counsel.
4. Class counsel must fairly and adequately represent the interest of the
class.
For type 3 class, the court must notify class members individually (rep has to
pay for such notices):
a) They can opt out
b) They will be bound if they don’t
c) They can enter a separate appearance through counsel
The parties can settle or dismiss a certified class action only with court’s
approval.
When assessing SMJ for class action, diversity case will be assessed on:
1) Rep’s citizenship
2) Rep’s claim must exceed $75,000
It lets a federal court hear a class action (of at least 100 members) if any class
member is of diverse citizenship from any D and if the aggregated claims of the
class exceed $5,000,000.
13

Adjudicating the Dispute
 Preliminary Injunctive Relief
 Pretrial Adjudication
 Conference and Meeting
 Trial, Judgement, and Post-Trial Motions
Preliminary injunctive Relief
Basic Idea
Temporary Restraining Order
Ex parte TRO
Preliminary injunction
Pre-trial Adjudication
 Voluntary Dismissal
 Default and Default Judgment
 Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6))
 Motion for Summary Judgement (FRCP 56)
Voluntary Dismissal
Voluntary Dismissal
Right to take a voluntary dismissal
[Ariel Chou]
Preliminary injunction: An order that maintains the status quo until trial
Temporary Restraining Order: Before getting a preliminary injunction, to
maintain the status quo until the hearing on the preliminary injunction
 If the court issues the TRO, applicant must post a bond (security) to cover
the other side’s costs and damages caused if it turns out the restraint is
wrongful.
 The TRO must state its terms in specificity, describe in detail what D must
do or refrain from doing, and state why it was issued, and why the
threatened injury to P was irreparable.
 If the court issues the TRO, the order must be served on D ASAP.
 D could move to dissolve or modify the TRO within 2 days of notice
 TRO is effective for no more than 14 days. If applicant shows good cause
before expiration, it can be extended for up to another 14 days, so a TRO
cannot extend beyond 28 days.
1) Applicant files a paper under oath clearly showing that if the TRO is not
issued, he will “suffer immediate and irreparable harm” if he must wait
until the other side is heard.
2) Applicant’s lawyer certifies in writing his efforts to give oral or written
notice to D or D’s lawyer.
The applicant has to show:
1) He is likely to suffer irreparable harm if the injunction is not issued
2) He is likely to win on the merits of the underlying case
3) The balance of hardship favors him
4) The injunction is in the public interest
 If the court issues the TRO, applicant must post a bond (security) to cover
the other side’s costs and damages caused if it turns out the restraint is
wrongful.
 The preliminary injunction must state its terms in specificity, describe in
detail what D must do or refrain from doing, and state why it was issued.
 In granting or denying the preliminary injunction, the court must make
specific findings of fact and separate conclusions of law.
P wants to withdraw a case
P can make a motion for voluntary dismissal anytime, which the court has
discretion to grant.
P has right to take a voluntary dismissal by filing a “notice of dismissal” before
D serves an answer, or a motion for summary judgment.
If P files a timely notice of dismissal, the case is dismissed “without prejudice”
which means P can refile the case.  but this is only limited to once
14

Default and Default Judgment
Default and Default Judgment
Default
(by clerk)
Default Judgment
(by clerk or by judge)
Motion to Set-aside
Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6))
Dismiss for failure to state a claim
Motion for judgment on pleading
(FRCP 12(b)(6))
Motion for Summary Judgment (FRCP 56)
Summary Judgment
Motion for Summary Judgment
How does the court decide
Timing
Conferences and Meetings (Rule 26(f))
Rule 26(f) Conference
[Ariel Chou]
D does not respond to the complaint in time (21 days after being served with
process, 60 days from mailing of waiver)
Notation by the court clerk on the docket sheet of case
P must demonstrate the D failed to respond in time, until default is entered, D
can respond by motion or answer.
 Effect of entry of default: cuts off D’s right to respond
The clerk of court can enter judgment if:
1) D made no response at all
2) The claim itself if for a sum certain in money
3) Claimant gives an affidavit of the sum owed
4) D is not minor or incompetent
If any of those is not true, P can apply to the court:
1) The judge will hold a hearing and has discretion to enter judgment
2) P cannot get more than what she pleaded
3) P cannot get different kind of relief than pleaded
D may move to have the court set aside a default or default judgment by
showing good cause.
 He must show a viable defense on the merit
Whether the case belongs in the litigation stream at all, if P’s complaint fails to
state a claim, the case can be dismissed.
The court solely looks at P’s allegations of fact in the complaint and ask:
- If these facts were true, would P win the case?
- Is there a plausible case? (judge’s experience and common sense)
If the same motion is made after D has answered, it is called a motion for
judgment on pleading
Summary judgement weeds out cases in which we don’t need trial, there is no
disputes of material facts.
Party moving for summary judgment must show:
1) There is no genuine dispute on material fact; and
2) That she is entitled to judgment as a matter of law
The court, then in its discretion (referring to the facts and evidence provided)
decide whether to enter into summary judgment.
a) The court views the evidence in the light most favorable to the
nonmoving party
b) Evidence proffered have to be under oath (affidavit, declaration,
deposition, interrogatory answers)
 Remember, complaints are not evidence
 “Partial” judgment is allowed on one of several claims.
Any party can move for this no later than 30 days after close of discovery
Unless court order says otherwise, at least 21 days before scheduling order,
parties “meet and confer” and discuss:
1) production of required initial disclosures
2) claims, defenses, settlements
3) preservation of discoverable information
4) a detail discovery plan within 14 days after the 26(f) conference
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 [Ariel Chou]
Scheduling Order Unless local rule or court order says otherwise, the court enters an order
scheduling cut-offs for joinder, amendment, motions, completion of discovery,
etc.  roadmap for how the litigation proceeds up to trial
Pretrial conferences The court may hold “pretrial conferences” to process the case and foster
settlement.
The final pretrial conference will be recorded and it will supersede the
pleadings, it will determine:
1) issues to be tried
2) evidence to be proffered at trial
3) witness to be presented at trial
Trial, Judgment, and Post-Trial Motions
 Jury Trial
 Bench Trial
 Motions at and After Trial
 Offer of Judgment
 Motion for Relief from Order or Judgment
Jury Trial
Jury Trial If we have a jury, it determines the facts and returns the “verdict”.
 Motion limine – A pretrial motion to decide whether the jury should hear
certain evidence
 7th Amendment preserves the right to jury in civil actions at law, but not in
suits at equity
Demand for jury trial Must demand the jury in writing no later 14 days after services of the last
pleading raising jury triable issue, if you don’t your waive the right to a jury
Selection of the jury In voir dire (jury selection process), each side might ask the court to strike
potential jurors.
 “For cause” – No limit
 “Peremptory” – 3 per side
Number of jurors Maximum 12, Minimum 6
Verdict Unless otherwise agreed, jury vote required for a verdict is unanimous
Jury instructions 1. Parties submit proposed jury instructions to the judge.
2. Before final argument and instruction, the court informs the parties of
what instructions it will give and of its rejection of any proposed jury
instructions
3. If objections are not made before the jury is “charged”, the party cannot
raise a problem with jury instruction on appeal
Exception: if a party did not object timely, a court can consider a jury
instruction if it contained plain error that affected substantial rights
Types of verdict General: who wins, what the relief is
Specific: Answers to specific questions about the facts in dispute
General verdict with special interrogatories: gives a general verdict but must
also answer specific questions
Entry of judgment General verdict – The clerk of court enters the judgment
Special verdict – The judge approves the judgment and the clerk enters it
Jury Misconduct  If the verdict shows that the jury did not follow instruction, or it is
internally inconsistent, no judgment can be entered
 The court can set aside the verdict and order a new trial
 A verdict will not be set aside if the misconduct was harmless
 A verdict may be “impeached” based upon external matters, but not with
intrinsic matters
16

Bench Trial
Bench Trial (Nonjury)
Judge’s recording
Motions at and After Trial
1. Motion for judgment as a matter of law (JMOL)
2. Renewed motion for judgment as a matter of law (RJMOL)
3. Motion for a new trial
4. Remittitur and additur
Motion for Judgment as a Matter of Directed verdict – it applies in jury trial
Law (JMOL)
Renewed motion for judgment as a
matter of law (RJMOL)
Motion for a new trial
Remittitur and Additur
Remittitur – harsh to P
Additur – harsh to D
Offer of Judgment
Offer of Judgment
(like settlement)
Motion for Relief from Order or Judgment
Motion for Relief from Order or
Judgment
[Ariel Chou]
Where there is no jury and the judge determines the facts of the trial.
Judge must record her “findings of fact” in writing, and her conclusions of law
stated separately from the finds of fact.
If the judge grants JMOL, the case will not go to the jury, the judge simply rules
for a side because reasonable people could not disagree on the result.
It’s like summary judgment, except that this comes up at trial instead of before
trial. Like summary judgment, the court views the evidence in the light most
favorable to the non-moving party.
This is the same as JMOL but comes up after trial – If RJMOL is granted, the
court enters judgment for the party that lost the jury verdict
 You have to move for RJMOL within 28 days after entry of judgment
 Prerequisite to bring RJMOL, you must have moved for JMOL at a proper
time at trial
Judgment is entered, but some error at trial requires that we should start over
and have a new trial.
a) Judge gave an erroneous jury instruction
b) New evidence that could not have been gotten before with DD
c) Misconduct by juror or party or lawyer
d) Judgment is against weight of the evidence (serious error of judgment)
e) Inadequate or excessive damages
 You have to move for this motion within 28 days after entry of judgment
One ground for new trial is that the jury’s damages figure is excessive or
inadequate.  Standard: The damages figure shocks the conscience
P suffered minor damage, but the jury awarded inadequately large amount of
money damages. The court finds the damages figure shocks the conscience.
The court can order new trial or suggest remittitur:
P has choice: 1) take a lesser amount or 2) go through a new trial
P suffered serious harm, but the jury awarded only minor amount of money
damages. The court finds the damages figure shocks the conscience.
The court can order new trial or suggest additur:
D has choice: 1) pay a greater amount in damages or 2) go through a new trial
At least 14 days before trial, D could offer to pay P to settle P’s claim.
- P can accept and judgment will be entered for that amount
- P can reject it and go to trial and if she wins a judgment that is not more
favorable than the offer, P is liable to D for D’s costs incurred after the
offer was made.
Ask the district court to set aside an order or judgment it entered
1. Clerical error – anytime
2. Mistake, excusable neglect – reasonable time (within 1 year)
3. New evidence that could not have been discovered with DD for a new trial
motion – reasonable time (within 1 year)
4. Judgment is void (e.g. no SMJ) – within reasonable time
17

Appeal
 Final Judgment Rule
 Interlocutory (Non-Final) Review
 Standard of Review by Appellate Court
Final Judgment Rule
How to make an appeal on final
judgment
Interlocutory (Non-final) Review
Interlocutory orders reviewable as Orders granting, modifying, refusing preliminary or permanent injunctions
of right
Interlocutory Appeals Act
“Collateral order” Exception
Multiple claims / Multiple parties When there are multiple claims or multiple parties presented in a case, the
Class action
Extraordinary writ
Standard of Review by Appellate
Court
[Ariel Chou]
One can only appeal from final judgments – an ultimate decision by the trial
court of the merits of the entire case
Ask: Does the trial court have anything left to do on the merits of the case?
File notice of appeal in district court within 30 days after entry of final
judgment
Interlocutory judgments may be appealable even though not final:
1. Interlocutory orders reviewable as of right
2. Interlocutory Appeals Act
3. “Collateral order” exception
4. Multiple claims or multiple parties
5. Class action
6. Extraordinary writ
1) Trial judge certifies that it involves a controlling issue of law
2) as to which there is substantial ground for difference of opinion and the
3) court of appeals agrees to hear it
1) It is distinct from the merits of the case,
2) involves an important legal questions, and
3) is essentially unreviewable if parties must await a final judgment
district court may expressly direct entry of a final judgment as to one or more
of them if it makes an express finding that there is no just reason for delay.
Court of appeals has discretion to review an order granting or denying
certification of class action. Must seek review at the court of appeals within 14
days of order. Appeal here does not stay the proceedings at district court
unless the court of appeals or district court say so.
An original proceeding in the court of appeals to compel the trial judge to
make or vacate a particular order. Not a substitute for appeal; available only if
the district court is violating a clear legal duty.
When the district judge decides questions of law:
De novo – there is no deference to the district judge
When the district judge decides questions of facts:
The court of appeal affirms unless the findings are clearly erroneous
When the jury decides questions of facts:
The court of appeals will affirm unless reasonable people could not have made
that finding
On discretionary matters:
The court of appeals will affirm unless the district court abused its discretion
 Not every error (even an error of law) requires reversal on appeal.
 No reversal is required if the error is harmless.
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Preclusion
 Claim Preclusion
 Issue Preclusion
Claim Preclusion Under the doctrine of claim preclusion, once a final judgment on the merits
(Res Judicata) has been rendered on a particular cause of action, P is barred from trying the
same cause of action in a later lawsuit.
3 Requirements for claim preclusion 1) Case 1 and Case 2 were brought by the same claimant against the same
defendant
2) Case 1 ended in a valid final judgment on the merits
3) Case 1 and Case 2 asserted the same claim (same T/O)
Issue Preclusion Under the doctrine of issue preclusion, a final judgment for P or defendant is
(Collateral Estoppel) conclusive in a subsequent action on a different cause of action between the
same parties, as to issues actually litigated and essential to the judgment in
the first action.
5 Requirements for issue preclusion 1) Case 1 ended in a valid final judgment on the merits
2) The same issue was actually litigated and determined in Case 1
3) That issue was essential to the judgment in Case 1. That means the finds
on this issue is the basis for the judgment.
4) It can only be used against somebody who was a party to Case 1 or in
“Privity” with a party
5) Issue preclusion can be used by someone who was a party to Case 1.
Non-mutual defensive issue The one using it was not a party to Case 1 and is D in Case 2
preclusion
Non-mutual offensive issue The one using it was not a party to Case 1 and is P in Case 2
preclusion

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Whether D has conducted sufficient activity in State X to subject it to personal jurisdiction in the State X
 For a federal district court to have personal jurisdiction over a particular defendant, there must be a state statute
authorizing personal jurisdiction, and the exercise of such jurisdiction must be constitutional.
 For the exercise of personal jurisdiction to be constitutional, the nonresident defendant must either have
conducted continuous and systematic activity within the state such that it is considered to be “doing business”
within the state or such that it is “essentially at home” therein, thereby subjecting itself to personal jurisdiction
for all causes of action (“general jurisdiction”), or have sufficient minimum contacts with the state such that the
exercise of personal jurisdiction over it for the instant cause of action only would be fair and reasonable (“specific
jurisdiction”) – in other words, whether defendant had purposeful contacts with the forum such that he could
reasonably anticipate being haled into court in the forum state.
Whether complete diversity exists
 For diversity of citizenship jurisdiction to be proper, there must be complete diversity of citizenship – i.e. each
plaintiff must be of diverse state citizenship of every defendant – when suit is filed, and the amount in
controversy must exceed $75,000 based on the plaintiff’s good faith claim.
 A person’s state citizenship is determined by his domicile (the state in which he is physically present and in which
he intends to remain permanently), whereas a corporation is a citizen of every US state and foreign country in
which it is incorporated and the one US state or foreign country in which it has its principal place of business,
which the US Supreme Court has recently held to be the location where the corporation’s high level officers
direct, control, and coordinate the corporation’s activities (which in all probability will be the corporation’s
headquarters).
Whether a potential defense based on federal law provides the court with federal question jurisdiction
 For federal question jurisdiction to be proper, the case must arise under the Constitution, laws, or treaties of the
US. Whether a case “arise under” federal law is determined from the plaintiff’s well-pleaded complaint, but the
plaintiff cannot anticipate a potential defense that is based on federal law in order to provide the court with
federal question jurisdiction.
Whether to grant a motion for summary judgment
 In deciding whether to grant a motion for summary judgment the court must determine whether a genuine
dispute of material fact exists. In general, a summary judgment must be granted if, from the pleadings, affidavits,
and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law. If the moving party submits an affidavits or other evidence in support of
the motion for summary judgment, the nonmoving party must counter that affidavit with his own evidence from
affidavits, discovery, etc., on the matter.
Whether the court should give preclusive effect for the claim
 For claim preclusion to apply, there must have been a valid, final judgment on the merits, both parties must be
the same (or be in Privity with a party in the prior suit), and the new action must involve the same cause of action,
meaning that all claims must arise out of the same transaction or occurrence.
 Claim preclusion has 4 elements:
1) The parties are identical or in Privity
2) The judgment in the prior action was rendered by a court of competent jurisdiction
3) The prior action was concluded by a final judgment on the merits
4) The same claim was involved in both actions (the claim arises out of the same transaction or occurrence as
the previously litigated claim).
 The Supreme Court has found sufficient Privity in the following situations:
1) a party who agrees to be bound by the action
2) a substantive legal relationship between the two parties (i.e. preceding and succeeding property owners,
bailee and bailor, and assignee and assignor)
3) a party that was adequately represented in a class action or by a trustee, guardian, or other fiduciary
4) seeking to re-litigate through a proxy
5) when a special statutory scheme expressly forecloses successive litigation by non-parties (i.e. banktruptcy and
probate proceedings).
Whether the court should give preclusive effect for the issue
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 For issue preclusion to apply, the issues in both actions must be the same, there must have been a final judgment
as to that issue, the party against whom collateral estoppel is asserted must have had a fair opportunity to be
heard on the matter, and the posture of the case must be such that it would not be unfair or inequitable to apply
collateral estoppel.
 Issue preclusion may be invoked if:
1) A valid and final judgment was rendered in the first action
2) The issue is identical to the issue decided in the prior action
3) The issue was actually litigated, determined, and essential in the prior action
4) The party against whom enforcement is sought against had a full and fair opportunity to litigate the issue in
the first action.
Whether to grant a RJOML (procedurally)
 In determining whether to grant a renewed judgment as a matter of law, the court must determine whether the
party previously moved for a JMOL, and what the grounds for the previous motion were. Under the federal rules,
a judgment as a matter of law must be made at some point during the trial. A party also is limited to the grounds
raised in the initial JMOL.
 The party also must make the renewed motion for JMOL within 28 days of the judgment.
Whether to grant JMOL (substantively)
 To grant a motion for JMOL or a renewed motion for JMOL, the court must find that a reasonable jury would not
have a legally sufficient basis to find for the party on the issue. The court must view the evidence in a light most
favorable to the non-moving party and without considering the credibility of witnesses.
Whether to grant a motion for a new trial
 In determining whether to grant a new trial, the issue becomes how much weight to give to the jury’s verdict.
Generally, a new trial may be granted because of some serious error that occurred during the trial. In theory, a
new trial could be granted if the jury’s verdict is a clear miscarriage of justice, but the judge may not replace the
jury verdict with the verdict he would have reached.
Whether to grant a motion to compel discovery
 In determining whether to grant a motion to compel discovery, the court must consider the discoverability of the
requested material. Generally, discovery may be had of any matter not privileged that is relevant to the claim or
defense of any party, including the identity of persons having knowledge of relevant facts. On a showing of a good
cause, the court may order disclosure of information that is relevant to the subject matter of the lawsuit. The
costs of discovery and the needs of the case also will be considered. However, work product of lawyers and others
prepared in anticipation of litigation is discoverable only on a showing of substantial need and to avoid undue
hardship in obtaining the material from other sources.
Whether a case can be removed
 Generally, a defendant in a state court case may remove that case to federal court if it could have been filed
originally in federal court (i.e. a federal court would have had subject matter jurisdiction over the case). Removal
is accomplished by filing a petition for removal within 30 days of formal receipt of the complaint. However, a case
is not removable on the basis of diversity if any defendant is a citizen of the forum state.
 The main two bases for federal subject matter jurisdiction are federal question jurisdiction and diversity of
citizenship jurisdiction. Federal question jurisdiction is available when the plaintiff’s well-pleaded complaint sets
forth a claim that arises under federal law. Diversity of citizenship jurisdiction requires that complete diversity of
citizenship exists. Complete diversity exists if no plaintiff shares state citizenship with any defendant, and the
amount in controversy exceeds $75,000, excluding interest and costs, as alleged in good faith in the plaintiff’s
complaint.
Transfer of venue
 To transfer a venue, the court must determine whether venue has been properly laid, and if so, whether the
chosen forum would be convenient.
 When venue in the original action is proper, the federal court, in the interests of justice, may transfer the case for
the convenience of the parties and witnesses to another venue in which the action might have been brought,
considering the rules for venue, personal jurisdiction, and subject matter jurisdiction.

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 [Ariel Chou]
 The venue rules states that venue is proper in a judicial district in which:
i) Any defendant resides, if all defendants are residents of the state in which the federal district court is
located; or
ii) A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the
property that is the subject of the action is located.
 If there is no federal district that satisfies either (i) or (ii), the action may be brought in a federal district in which
any defendant is subject to the court’s personal jurisdiction with respect to the action. Furthermore, a federal
court will analyze personal jurisdiction as if it were a state court in the jurisdiction.
 Law applicable after transfer: The transfer of venue would not affect the law to be applied in resolving the
rescission issue. At issue is the effect that transferring venue has on the law to be applied in a case.
 Under Erie, a federal court sitting in diversity is required to apply the substantive rules of the forum state.
Additionally, under the venue statues, a transfer solely on convenience grounds carries to the transferee court the
originally applicable law, including any choice of law rules.
Procedures for removal to federal court
 The first step to removing a case is to file a notice with the federal district court and division in which the action is
pending, and copies of the notice must be sent to the opposing parties and to the state court. This notice must be
filed within 30 days after the defendant obtains, by service of other state methods, a copy of the complaint, and it
must contain the grounds for removal.
 If the ground for removal is that diversity exists, the action cannot be removed from state court after one year has
passed since its filing unless bad faith on the plaintiff’s part can be shown. Furthermore, all defendants properly
joined to the action must join in the removal.
Permissive joinder
 Under Rule 30, parties may be joined as Ps or be joined as Ds whenever:
i) Some claim is made by each P and against each D relating to or arising out of the same series of
occurrences; and
ii) There is a question of law or fact common to all the parties
Supplemental Jurisdiction
 Supplemental jurisdiction allows a court to hear claims that fall outside its original jurisdiction (primarily diversity
and federal question jurisdiction) if the “supplemental” claim arises from the same nucleus of operative fact as
the claim that invoked original federal subject matter jurisdiction.
 As a side note, there are some restrictions on the use of supplemental jurisdiction when the claim with original
jurisdiction is based on diversity of citizenship jurisdiction. First, the addition of a plaintiff by means of supplement
jurisdiction cannot destroy complete diversity. Second, although there is some dispute how the statue should be
interpreted, possibly prohibits the use of supplemental jurisdiction in diversity cases for claims by Ps against
impleaded parties, against compulsorily joined parties, against permissively joined parties, and against intervening
parties. Additionally, claims by compulsorily joined Ps or by Ps seeking to intervene may not be heard under the
court’s supplemental jurisdiction.
Appeal
 Ordinarily, only a final order – one that disposes of the whole case on the merits – is appealable. However, under
the Federal Rules, when multiple claims.
 However, there are a few exceptions to this final order rule.
 Exception 1:
Rule 54(b) Exception: Under the Federal Rules of Civil Procedure, an appeal is allowed when:
(i) the action has multiple parties or multiple claims
(ii) the court directs entry of a final judgment for some of the claims or parties
(iii) the court expressly determines that there is no just reason for delay.
If all the above elements are NOT met, then any appeal must wait until after a final judgment for the entire case.
 Exception 2:
Statutory Exceptions: Under federal law, a party may immediately appeal certain court orders as of right relating to:
(i) Injunctions

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(ii) Receiverships
(iii) Orders affecting the possession of property
(iv) Liability in an admiralty action; and
(v) Patent infringement orders which would be final except for an accounting
 Exception 3:
Certified Appeal Exception: Under federal law, an immediate appeal is allowed when:
(i) A federal district court judge certifies certain grounds for immediate appeal; and
(ii) The Court of Appeals agrees to permit the appeal.
The application for an appeal under this rule must be made within 10 days after the entry of the order.
A judge will typically certify an appeal when the order involves: (i) a controlling question of law, (ii) which there is
substantial ground for difference of opinion, and (iii) an immediate appeal may materially advance the ultimate
termination of the litigation.
 Exception 4:
Collateral Order Doctrine: The collateral order doctrine allows an immediate appeal when the interlocutory order:
1) Conclusively determines the disputed question
2) Resolves an important issue completely separate from the merits of the action; and
3) Is effectively unreviewable on appeal from a final judgment.
This doctrine will only apply to a small class of decisions. The Supreme Court has held that the collateral order
doctrine DOES NOT allow an interlocutory order concerning the enforcement of a forum selection clause because the
order is not effectively unreviewable on appeal from final judgment.
 Exception 5:
Writ of Manadamus and Prohibition: When there is an abuse of judicial authority by a trial court, a party may seek a
writ of mandamus or prohibition to have a federal appellate court review the trial court’s ruling. However, the writ of
mandamus (an application for the court to act) or writ of prohibition (an application for the court to end litigation) are
issued inly in exceptional circumstances. A party CANNOT use the writ of mandamus or prohibition to correct an
ordinary error by the district court. The party seeking mandamus/prohibition has the burden of showing that its right
to issuance of the writ is clear and indisputable.
- The writs have been invoked when a court acts outside its jurisdiction or when the court fails to follow court rules.
Such instances have included: (i) unwarranted judicial action threatened to embarrass the Executive Branch in
conducting foreign relations; (ii) it was the only means of forestalling intrusion by the federal courts on a delicate
area of federal-state relation; (iii) it was necessary to confine a lower court to the appellate court’s mandate; and
(iv) where a district judge displayed a persistent disregard of the Rules of Civil Procedure.
 Exception 6:
Pendent Appellate Jurisdiction: Under the doctrine of pendent appellate jurisdiction, a party may seek to have a non-
final order reviewed along with another appealable order currently pending before the appellate court. However, the
doctrine is only appropriate when: (a) a non-appealable decision is inextricably intertwined with an appealable
decision; or (b) when review of the non-appealable decision is necessary to ensure a meaningful review of the
appealable decision.
 Exception 7:
Certification of Class Action: Under the Federal Rules of Civil Procedure, an order granting or denying class-action
certification may be appealed when: (1) a petition for permission to appeal is filed within 14 days after the order is
entered; and (2) the Court of Appeal’s agrees to hear the appeal (the court has discretion). An appeal does not stay
proceedings in the district court unless the district court judge or the Court of Appeals so orders it.

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