1st

1. Does the Court have jurisdiction over the parties? (personal jurisdiction)
a. Type of PJ?
i. Is it over a person and their actions?
1. No → Keep going
2. Yes → In Personam
ii. Is it about property that is in the forum?
1. No → Keep going
2. Yes → In Rem
iii. Is it over an out of state defendant that has property in the state?
1. No → Keep going
2. Yes → Quasi In Rem
b. Traditional Basis (statutory analysis) (Pennoyer)(must need one to move on to C)
i. Was D present in forum? (Burnham)
1. No→ keep going.
2. Yes → PJ on General Jurisdiction
ii. Is D domiciled in in the state?
1. No→ keep going.
2. Yes → PJ on General Jurisdiction
iii. Did D give consent to PJ in the forum? (Hess)
(contract, appearing for case, agent, implied consent)
1. No→ keep going.
2. Yes → PJ on General Jurisdiction
iv. Did the D waive the defense of lack of PJ.
1. No→ keep going.
2. Yes → PJ on Specific Jurisdiction
v. Did the D commit an act that a Long Arm Statute would give the state PJ?
1. No→ keep going.
2. Yes → PJ on Specific Jurisdiction
c. Constitutional Analysis
i. Does the D meet the SHOE test with the forum?
1. MUST MEET
a. Minimum Contacts (D’s contact with the forum)
i. Was it foreseeable that D would be sued in forum?
1. No → no minimum contacts
2. Yes → yes minimum contacts
ii. Did the D purposely avail himself to the forum? (Hustler; Calder)
(voluntarily reach out to the forum)
1. No → no minimum contacts
2. Yes → yes minimum contacts
**WHITE: PA+MC+F; BRENNAN: PA but no foreseeability**
 iii. Did the D’s purposely avail himself through the stream of commerce?
(Asahi MacIntyre Dissent)
1. Brennan: Contact and PA
2. Oconnor: Contact and PA, PLUS target the forum
ii. Does the D meet the Goodyear Test?
1. Was the P’s claim related to the D’s contact with the forum? Relatedness
a. SJ: if D’s contacts/actions are not systematic and continuous (Goodyear), then
the actions must be done in the state to be the cause of the claim
b. GJ: is D ‘at home’ in the forum? Goodyear
i. Individual:
1. Domicile
ii. Business:
1. Place of incorporation
2. Principal place of business
3. Common nucleus of operative fact (decision making)
2. Would PJ offend Fair Play and Justice?
a. Fairness & Convenience (nearly impossible to remove jurisdiction on these
grounds) only evaluated for SJ Burger King
b. “You can travel
2. Does the Federal Court have jurisdiction over the issue?
(Subject Matter Jurisdiction)
a. Is this a Diversity Jurisdiction issue? §1332
AM: what state is proper to bring case?; Purpose is to lessen the bias against outsiders in state courts;
plaintiff’s claim is always based on state law; Defendant cannot removal to Diversity in home state
i. Are the plaintiff(s) and defendant(s) domicile diverse?
AM: Complete diversity is a statutory requirement
1. Natural Citizen
a. One domicile
2. Business
a. State of corporation
b. PPB (Hertz) (AM: Nerve center is simple and easy to apply. It tells parties
where diversity applies and avoids the sideshow of discovery)
3. Yes → keep going
4. No → no diversity jurisdiction, remand to state court
AM: If party wants to destroy diversity, must seek discovery to establish domiciles of all parties
Diversity is established on date of file, not date of incident
ii. Is the Amount in Controversy over $75,000?
AM: The $$ is created to keep small claims out of federal court.
1. Yes → Have Diversity Jurisdiction
2. No → see Aggregation (3). , no after 3 then no Diversity; remand to state court
AM: Be hesitant to dock on punitive damages because morrison always argues them
b. Is this a Federal Question issue? §1331
AM: Federal question allows federal courts to decide cases and exercise expertise and uniformity; no
limits of AIC in this section; look for basis of complaint not
i. Does the federal law create the cause of action? (Holmes)
1. Federal law is the reason the issue is even a case
 2. RULE OF THUMB: if the source of the plaintiff’s enforceable legal right against the defendant
is federal law, then you satisfy this step
OR
ii. Is this an “arising under” jurisdiction?
AM: The CLAIM must arise under, not the defense
1. Well-pleaded complaint
2. Disputed question of federal law requires resolution
3. Plaintiff can still invoke this if fed law didn’t create the issue because if it was in state courts, it
would require resolution of a substantial question of federal law in dispute between the parties
iii. *** REMEMBER: Substantial federal question, Serious and important issue of federal question, If
federal court is not overwhelmed
iv. ANSWERS:
1. Yes→ Federal Question
2. No→ no FQ, remand to state court
c. Supplemental Jurisdiction §1367(Allows fed courts to hear claims over which it would have no independent basis for
SMJ)
i. Note: already in fed ct, but there is an add’l claim that is not FQ or diverse
1. Is this Pendant? - Plaintiff may bring all other causes of action against D so long as they derive
from a common nucleus of operative facts (same transaction/occurrence).
a. Court has discretion not to hear supp claim if:
i. FQ dismissed early in proceedings; or
ii. State law claim is complex or state law issues would predominate
2. Is this Ancillary? - Anyone but plaintiff may bring claims against anyone arising out of the same
transaction of occurrence.
ii. FQ: supplemental claims must be same nucleus of operative fact; D: no supplemental if it would
destroy diversity
iii. DO §1367 ANALYSIS IN OUTLINE (rooted in gibbs, but expands to diversity issues and allows
for dismissal….. Words are different so Congress must have meant something different because
they used different words)
1. §1367(a)
2. §1367(b)NO Supplemental if diversity and one of the
a. Claims by plaintiffs that are not permissive Plaintiffs,
b. Claims against anyone joined to the case by rules 14,19, 20, 24
c. Claims where exercising Supplemental jurisdiction would destroy diversity
3. §1367(c)
a. Yes → Sj
b. No → No SJ, may have to remand
AM: Including a supplemental claim is important because it allows the court to promote efficiency and helps
claims that might be future cases to avoid the res judicata doctrine.
d. Removal Jurisdiction §1441 (watch for defendants doing this to forum shop)(the original claim must
have been able to be in Fed Court originally)
AM: All defendants must join together; removal only by original defendant(s) (no 3rd party); cannot apply to
defendant adding a federal counterclaim;
The rule for removal jurisdiction is like §1367 in the sense that it is too rigid and courts will not change BUT
Congress can fix this issue.
i. Is the defendant removing to Fed Court within 30 days and all defendants agree? (§1446(b))
 1. Yes → Move to ii
2. No→ no removal
ii. Does this removal follow the §1441 analysis in outline?
1. Yes → have Removal
2. No → No removal; will stay in state court
AM: Plaintiff has 30 days to remand under 1447(c) and federal judge, not state judge decides removal!
Plaintiffs never can remove because the plaintiff chose the court and cannot reverse their choice.
IF AIC is not met, cannot put the case in FC.
e. Venue
i. Plaintiff’s Choice §1391
1. Is it where the defendant resides? (any of them)
2. Is it where a substantial part of the claim arose?
3. Is it a last resort- any district where D is subject to PJ?
ii. Defendant’s Options §1404; 1407
1. Is the current venue improper? §1406
2. Is another court more appropriate? §1404
iii. Courts Option- Forum Non Conveniens
1. Is transfer impossible?
a. Yes → case must be dismissed
b. No → then transfer is ok
f. Aggregation
i. 1 P/1D: yes--2P/1D: no
ii. 1P/2D: no-- if 1P has AIC, but others don’t, can add Ps ad co-plaintiffs

2nd
1. Has the plaintiff given proper notice?
a. Delivery
i. Has P sent a delivery of summons and complaint to D? Fed law 4
1. Was it within 160 days and by a non-party over 18?
ii. If D did not receive actual notice, did P make reasonable efforts to serve D with notice?
iii. If P wants, did they send a waiver with the summons and complaint?
1. Did D waive; thus getting 60 days instead of 21?
2. Did D not waive; thus ask the court to impose fees on D
2. What goes in the complaint? (GO TO THE OUTLINE)
a. Does the complaint have the statement of SMJ?
b. Is there a short and plain statement of claim?
c. Did the P include the demand for relief?(Rule 8(a))
AM: not the place to fix all injustices and answer all questions; heightened requirements for fraud or mistake
3. Defendant’s response?
a. Answer file
i. The defendant may answer: Admit/Deny/Insufficient evidence to A or D
b. Raise affirmative defenses
i. Must plead predicted defenses in response
c. Motion to Dismiss: May file Motion Fed Rule 12
AM: first defense; avoids answering; no claim, wrong on the law→ no valid claim;
 i. Lack of subject matter jurisdiction
1. (at anytime during the case)
ii. Lack of personal jurisdiction
1. (must be raised at the first response)
iii. Improper venue
1. (must be raised at the first response)
iv. Insufficient process
1. (must be raised at the first response)
v. Insufficient service
1. (must be raised at the first response)
vi. Failure to state a claim that can recover relief
1. (can be raised through most of the case)
vii. Failure to join an indispensable party
1. (can be raised through most of the case)
d. Frivolous complaints
i. F.R.11
4. Is there a counterclaim? Rule 13 (also see outline, ok now im back in attack sheet vic)
a. Compulsory (don’t worry about SMJ, it’s already given)
i. Use it or lose it; defendant must include in response
ii. Did it arise out of the same transaction or occurrence?
iii. Only if the defendant knows or should have known about the claim at that time
1. This is due to purpose of rule= lessen amount of cases (lump them all into one)
b. Permissive (MUST HAVE SMJ)
i. Counterclaims that are really unrelated to the opposing party’s claims (Rule 13(b))
ii. Don’t arise out of the same facts or legal issues
c. ALWAYS do 1367 –
i. under (a), must be part of the same c/c –
1. Exxon = broad b/c series of similar claims vs defs -
2. If smj is based only on diversity – go to (b)
ii. R13 not listed in (b) - still req same c/c, not trans –
d. Make sense – OK under old test & 1367 -
5. What about crossclaims?
a. Did it arise out of the same transaction and occurrence?
i. Sues on the same side of the v.
b. Can arise from:
i. Same transaction or occurrence
ii. Same property
c. Must have independent basis for jurisdiction
6. Amending Pleadings
a. Is it an amendment as a matter of course? 15(a)(1)
i. P has right to amend once before D serves answer.
ii. D has right to amend once within 20 days of serving answer.
b. Amendments by leave of court: 15(a)(2)
i. After the period for an amendment as of right has closed, a party must obtain the court’s permission or
consent of the adverse party to amend its pleading
ii. Relation back – treated as though filed when og filed
 1. AM: This cures statute of limitation problems 15(c)(1); same transaction, add new parties or
substitute old ones (cop case)
2. Amended pleadings relate back if concern same conduct or T/O as the original
7. How to apply Joinder?
a. Joinder of Parties
i. Parties who MAY be joined
1. Test:
a. Claims arise out of the same transaction or occurrence,
b. and raise at least one common question.
c. Still must assess SMJ.
ii. Necessary parties MUST be joined.
1. Test (if absentee meets any of these, ct may order joinder):
a. Without absentee, court cannot afford complete relief among the parties.
b. Absentee’s interest may be harmed if not joined; or
c. Absentee claims an interest which subjects a party to multiple obligations.
d. Joint tortfeasors are NOT necessary parties.
iii. If joinder is not feasible (destroy diversity) court may either proceed without party, or dismiss case calling
the absentee “indispensable.”
1. Factors: Alternative forum, actual likelihood of prejudice, relief to avoid prejudice?
b. Joinder of Claims
AM: Gibbs allowed joinder of state claim despite strict limits on smj
i. Impleader
1. Is the defendant suing up the chain of liability to indemnify himself?Rule 14
a. Allows defendant to reach out and sue someone who is not yet a party of the case
b. Sets out the chain of how is responsible for the harm (manufacturer-distributor-retailer
2. D has right to implead within 10 days of serving answer. After that, need court permission.
3. P may assert a claim against TPD and vice versa as long as it arises from same T/O
ii. Intervention
1. Third party who wants to join the suit. Must make timely application.
a. Of right - A’s interest may be harmed if not joined, and interest not adequately represented.
b. Permissive intervention - A’s claim or defense and the pending case have at least one common
question. Court has discretion.
c. Requires SMJ.
iii. Interpleader - Stakeholder forces all claimants into a single lawsuit to avoid multiple litigation and
inconsistency. Avoid multiplicity (look for liability)
1. Rule 22 interpleader-
a. Diversity – stakeholder must be diverse from every claimant
b. Amount in controversy - Greater than 75k.
c. Venue - Same as all cases
d. Service of process - Same as all other cases.
2. Statutory - §1335
a. Diversity - One claimant must be diverse from another claimant.
b. Amount in controversy - $500 or more.
c. Venue - Anywhere district where any claimant resides.
d. Service of process - Nationwide service.
8. Is This an Erie Doctrine Issue?
 a. Look @ federal rule
i. Is it a constitutional provision
1. No → keep going
2. Yes → use the fed rule
ii. Is it a federal statutory provision
1. No → keep going
2. Yes → use the fed rule
iii. Is it a Federal Rule of Civil Procedure
1. No → keep going
2. Yes → use the fed rule
b. IF NO TO A, does implementing the federal rule change the typical state outcome?
i. Would it invite or deter people from the federal court in order to get the best outcome for themselves?
(forum shopping) (use outcome determinative test)
1. No → use fed rule
2. Yes → use the state law; stop the forum shopping
a. OUTCOME DETERMINATIVE TEST
i. if the outcome is substantively the same then the federal court can apply its own
rules instead of state rules
ii. If applying the federal rule would create a different result than the application of
state law would, then state law must be applied
9. Discovery Rules
a. Required disclosures – Must be produced even if not asked for.
i. Initial disclosures - W/in 14 days of R26 conference, identify persons or documents likely to have
discoverable information.
ii. Experts - Identify experts who may be used at trial and produce report
iii. Pretrial - w/in 30 days b/4 trial, produce detailed info about trial evid
b. Discovery tools - After Rule 26(f) meeting.
i. Types
1. Deposition - May be used for parties or nonparties. (1 day, 7hrs)
a. Nonparty - Use subpoena or subpoena duces tecum (to bring docs)
b. At trial, depo may be used to: impeach, any purpose if adverse party or deponent unavailable.
2. Interrogatories - may only be sent to parties.
3. Request to produce - May be sent to parties or nonparties.
a. If 3p - Use subpoena.
4. Physical or mental examination - Available through court order.
a. Must show health is in actual controversy and “good cause”
5. Request for admissions - Request to party to admit truth of any discoverable matter.
ii. Sworn statement - that attorney not using discovery for improper purpose.
iii. Duty to supplement - continuing duty to correct information.
c. Scope - Anything relevant to claim or defense.
i. Relevant - Reasonably calculated to lead to discoverable evidence.
ii. Privileged matter is not discoverable.
iii. Attorney work-product/Trial Prep Material - Material prepared in anticipation of litigation generally not
discoverable.
1. Factual information - may be discovered upon showing of substantial need and that information
not otherwise available.
 2. Opinion, conclusions, and theories are absolutely protected.
iv. Experts - If testifying, may be deposed, if not expected to testify, then no discovery absent exceptional
need.
d. Enforcement of discovery rules
i. Total or partial failure to provide discovery: motion to compel plus costs and certify good faith attempt to
obtain discovery.
1. False denial of request to admit: recover costs/A’s fees of having to prove the issue
ii. Sanctions include:
1. Treat matter as admitted
2. Disallow evidence on an issue
3. Establish the issue adverse to the violating party
4. Strike the pleadings
5. Dismiss COA or entire action (bad faith)
6. Enter default judgment (bad faith)
7. Hold in contempt, except for refusal to submit to physical or mental exam.

3rd
1. Termination without Trial
a. Default and default judgment.
i. Default - if D fails to appear or respond.
ii. Default judgment - Must take default and get a judgment. Clerk can enter if:
1. Show no response by D, claim for sum certain, affidavit that amount owed, and that D is not a
minor or incompetent..
iii. Relief from default –
1. If after default, but before default judgment - Good cause (i.e. excusable neglect) and viable
defense.
2. After judgment - motion to set aside judgment.
b. Dismissal for failure to state a claim (Rule 12(b)(6)) - Take all allegations in complaint as true and decide if P
should still win.
i. After pleadings are closed (after D has filed answer), may file a motion for judgment on the pleadings
(same as 12(b)(6)).
ii. Ct does NOT look to evidence, only sufficiency of P’s allegations
c. Summary Judgment -
i. Test: Moving party must show that there is no dispute on a material issue of fact, and that he is entitled to
judgment as a matter of law.
ii. Court looks at evidence in a light most favorable to nonmoving party (to determine whether there is an issue
of fact)
iii. Evidence must be admissible (ie. Not hearsa). Note: affidavits are evidence.
d. If there is a jury, can it be disregarded?
i. Motion for judgment as a matter of law – takes case away from jury.
1. Made after opposing side has been heard.
2. Defendant can move twice, once after P has rested, and once after all evidence heard. P can only
move once (after all evidence)
3. Standard: Evidence must be such that reasonable persons could not disagree on the result.
 a. Court will take evidence in the light most favorable to the party opposing the
motion.
ii. Renewed motion for judgment as a matter of law.
1. Losing party may file; if granted = entry of judgment for him.
2. Standard: Court must conclude that jurors could not have reached the correct result. (same as (a))
3. MUST HAVE moved for a judgment as a matter of law at the close of all evidence to bring this
renewed motion for judgment. (otherwise, it is waived).
2. Is the decision binding for the future?
a. Res Judicata (Claim Preclusion)
i. Where there is a final judgment on the merits, res judicata precludes relitigating the cause of action/claim.
ii. Requires
1. Both cases must be brought by the same claimant against the same defendant.
2. Case 1 must have ended with a valid final judgment on the merits.
a. GR: any judgment except dismissals based on jxd, venue or indispensable parties
= “on the merits” unless ct said otherwise when it entered judgment.
3. Both must involve the same claim.
a. Maj. defines claim as any right to relief arising from same T/O;
b. Min. defines claim based on primary rights (i.e. property damage and personal
injury are diff claims even if caused in same txn)
iii. Exception: If some personal injury after recovery for property damage, then may bring claim.
b. Collateral Estoppel – Issue Preclusion
i. Precludes relitigation of a particular issue previously litigated and determined.
ii. Requires
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. The issue was essential to the judgment in case 1.
4. May only be asserted against one who was a party to case 1 (or represented by a party). DP
requirement.
iii. By whom can it be asserted? Mutuality v. Nonmutual.
1. Traditionally, only party or one in privity with party could argue collateral estoppel (mutuality)
2. Modern Trend is to allow one who was not a party in Case 1 to argue collateral estoppel.
(nonmutual assertion)
a. Nonmutual defensive collateral estoppel.
i. P sues D1 and loses. P sues D2, who can argue nonmutual collateral
estoppel.
b. Nonmutual offensive collateral estoppel
i. P sues D1 and D1 counterclaims and wins. D2 then argues collateral
estoppel against P. Or, P sues D1 and loses b/c contrib. negligent. D2
(new P) sues former P, arguing CE as to neg.
ii. Most courts do not allow.
iii. However, trend to allow if fair; Factors to consider if fair:.
1. Full opportunity to litigate the first case.
2. Whether multiple litigation was foreseeable.
3. Whether person could have been joined in first case.
4. There are no inconsistent judgments on the record.