CIVIL PROCEDURE PAGE 1

CIVIL PROCEDURE
DOES THE COURT HAVE JURISDICTION OVER THE PARTIES?
- Two steps:
o Satisfy long-arm statute if applicable
o Satisfy Due Process
- For Due Process must get ONE of:
o Domicile in state
o Present in state when served
o Consent to jurisdiction
o MAYBE put product into the stream of commerce that caused harm in forum state (Asahi)
Split of authority as to whether this is enough
o Approximation of presence in state sufficient for jurisdiction:
Contacts factors:
Minimum contacts with forum state, resulting from purposeful availament
Foreseeability that D would be haled into court there
Weighed against Fairness factors:
Relatedness between the minimum contacts and the harm done
Forum not so inconvenient as to put D at a severe disadvantage
States interest in providing a forum for its citizens.
- If Due Process satisfied, the forum need not be convenient.
o Exception: If location puts D at a SEVERE disadvantage in the litigation.
- In rem jurisdiction
o Contact must still meet the Due Process test
o Property at issue is present in the forum state
DOES THE COURT HAVE AUTHORITY OVER THE SUBJECT MATTER?
- Diversity jurisdiction
o Requirements:
Amount in controversy EXCEEDS $75K AND
Complete diversity
o Domicile for diversity purposes:
Individual
Arrival in state
With intent to remain indefinitely
Corporation
ALL states where incorporated AND
The one state where principal place of business is located
o Use nerve center (HQ) unless all muscle activity all in one state
Unincorporated association
Citizen of every state where a member is a citizen
Decedents, minors and incompetents
Where they are citizens, not executor/guardian/etc.
o Amount exceeding $75K
Not counting costs
Must be a good faith estimate
Not OK unless it is clear to a legal certainty that P could not recover more than $75K.
Actual award of less than $75K is irrelevant for subject matter jurisdiction, BUT P may be liable
to pay the Ds costs even if she wins.
Injunctions measure value by EITHER:
Value to P
Cost to D to comply
Aggregation
One P can aggregate all the claims against one D.

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If suing more than one joint tortfeasor, need not divide number among number of
tortfeasors.
Class actions: Split of authority:
o 9th Circuit: OK if only REPRESENTATIVES claim is over $75K
o Other courts: EVERY class members claim must be over $75K.
Federal question jurisdiction
o Well-pleaded complaint must be based on a right or interest grounded in federal law
P is enforcing a federal right
o Whether federal DEFENSES will be raised is irrelevant
o No diversity/amount in controversy requirements
Supplemental Jurisdiction
o When underlying claim is a Federal Question
Claims joined by PLAINTIFF
That arise from the same common nucleus of operative fact as the underlying claim
Court has discretion to hear or not hear:
Was federal question dismissed early in the proceedings?
Is the state law claim complex?
Would state law issues predominate?
o When underlying claim can be either FQ or Diversity
Claims joined by ANYONE BUT THE PLAINTIFF
That arise from the same nucleus of operative fact as the underlying claim
Court has discretion to hear or not hear.
Removal
o Only Ds may remove
o ALL Ds must agree to remove
o Must remove to federal district that embraces state court where it was originally filed
o For diversity cases only: Cant remove if ANY D is a citizen of the forum state.
o Must remove no later than 30 days after service of the first removable document.

IS THE COURT THE PROPER PLACE TO RESOLVE THIS DISPUTE?

- Venue
o In diversity cases:
Where all Ds reside, OR
Where a substantial part of the claim arose, OR
If no district meets these, where all Ds are subject to personal jurisdiction
o In all other cases:
Where all Ds reside, OR
Where a substantial part of the claim arose, OR
If no district meets these, where any D can be found.
- Residence
o Individuals residence = domicile
o Corporations reside in EVERY district where they would be subject to personal jurisdiction.
- Improper or inappropriate venue
o Transfer
o Forum Non Conveniens
Where transfer is impossible b/c its a foreign country or state system
Factors court will look at:
Public factors
o What law applies
o What community should be burdened with jury service
o Need for fact finder to visit site of events
Private factors
o Where witnesses and evidence are

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WHAT LAW GOVERNS THE DISPUTE?
- Erie Doctrine
o Federal courts must apply state substantive law to nonfederal causes of action
o Federal procedural rules can be applied
- Steps of analysis:
o Is there a federal law on point that directly conflicts w/ state law?
YES Apply the federal law as long as it is valid (FRCPs are presumed valid so long as it is
arguably procedural)
o If no federal law is on point, but the judge wants to follow federal practice/customs, she can only do so if
it is truly procedural and not substantive. If substantive, must apply state law.
Steps to analyzing if its substantive:
Would it determine the outcome of the case?
o If yes probably substantive
Does either federal or state system have a strong interest in applying its rule?
Will applying the federal rule cause people to flock to state court (forum-shopping)?
Well-established as substantive in these situations:
Statutes of limitations
Rules for tolling statutes of limitations
Choice of law rules
WAS SERVICE PROPER?
- Ways of service:
o Papers given to P personally
o Process left at Ds usual place of abode with a person of suitable age and discretion who resides there
o Service on Ds agent
o Process mailed to D, who returns waiver of formal service form
If refuses to waive, may be charged with cost of personal service
o Any way permitted by state law in either:
The state where the federal court sits OR
The state where service is being made.
o Immunity from service when D in state only to appear in another case.
ARE THE PLEADINGS PROPER?
- Complaint
o Statement of subject matter jurisdiction
o Statement of the claim
o Demand for relief
o Special matters that must be pleaded with particularity:
Fraud
Mistake
Special damages
- Defendants response
o Answer
Respond to allegations of complaint (admit, deny, or lack sufficient info)
Raise affirmative defenses
o Rule 12(b) motion
Waived if not raised in first response:
Lack of personal jurisdiction
Improper Venue
Insufficiency of process
Insufficient service of process
Other ones
Motion for a more definite statement (must be filed before a responsive pleading)
Motion to strike

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Lack of subject matter jurisdiction

Failure to state a claim
Failure to join indispensable parties

Counterclaim
o Compulsory
Arises from the same T/O as Ps claim
o Permissive
Against the same P, but from a different T/O
o Supplemental jurisdiction (if needed) for compulsory
Cross-claims
o Offensive claims against a co-party
o Must arise from the same T/O as original claim
o Not compulsory
o Supplemental jurisdiction (if needed)
Amendments and supplemental pleadings
o P can amend once before D answers as a matter of right
o D can amend once w/in 20 days of serving his answer
o Further amendments at discretion of court to allow
o Amendments relate back to original filing date
BUT if you are changing the D, only relates back if you sued the wrong D but the right D knew
about it.
Rule 11
o Certification
Must sign all papers certifying that:
To the best of her knowledge AND
After a reasonable inquiry
The legal contentions are either warranted by law or a nonfrivolous argument for
changing the law.
Paper is considered re-certified every time it is presented to the court
o Sanctions
Party alleged to have violated Rule 11 gets a 21-day grace period to fix the problem.

ARE THE PROPER PARTIES AND CLAIMS BEFORE THE COURT?

- Joinder of parties
o Compulsory joinder necessary parties should be joined if possible
Necessary parties:
W/o them, court cant grant complete relief
Absentees interest may be harmed if she is not joined
Absentee claims an interest that could subject a party to multiple obligations.
Joint tortfeasors are not necessarily necessary parties!
o Permissive joinder if joinder of necessary party not feasible, court must either proceed without absentee
or dismiss.
Whether to proceed or dismiss:
Is there an alternative forum available?
What is the actual likelihood of prejudice?
Can the court shape relief to avoid that prejudice?
- Joinder of claims
o Class actions
Requirements:
Class so numerous that joinder is impracticable
Common questions of law or fact
The claims of the representative are typical of the class claims
Representatives will fairly and adequately represent the interests of the class
If damages class action:

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o
o
o

Common questions must PREDOMINATE

Class action must be the best way to handle dispute
Must provide notice to all reasonably identifiable class members, with ability
to opt out

Types:
Prejudice class treatment necessary to avoid harm to other members of class (race to
courthouse)
Injunction/declaratory judgment
Damages
Once certified as a class, court approval required for:
Settlement
Dismissal
Intervention
Absentee wants to join as either a P or D.
Court can realign if it thinks she joined on the wrong side.
Intervention as of right
Her interest may be harmed if she cant intervene, and shes not adequately represented
now
Permissive intervention
Her claim or defense and the pending case have at least one common question.
Supplemental jurisdiction (if needed) for intervenor
Wont usually get it if intervenor will mess up diversity, even for intervention as of
right.
Impleader
Claims involving a third-party defendant brought in by D
Must be for indemnity or contribution
Other claims
Supplemental jurisdiction (if needed) for these
Interpleader
Person with property wants to bring everyone who claims that property into one lawsuit
Court can enjoin anyone who doesnt participate from suing elsewhere
Rule 22 interpleader
Statutory interpleader

HAVE THE PARTIES PROPERLY PROPOUNDED AND REPLIED TO DISCOVERY?

- Types of discovery
o Depositions
o Interrogatories (to parties only)
o Requests to produce
o Physical or mental examinations (requires court order)
o Requests for admission
o Required disclosures
- Scope of discovery
o Anything reasonably calculated to lead to admissible evidence
o Privileged matter not discoverable
o Work product or trial preparation materials not discoverable
BUT can discover facts (not mental impressions) if theres no other way to get the info and there
is exceptional need
- Enforcement of discovery rules (sanctions)
o Total or partial failure to provide discovery: Motion to compel plus costs and certify good faith attempt to
obtain discovery.
o Sanctions include:
Treat matters as admitted
Disallow evidence on an issue

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Establish the issue adverse to the violating party

Strike the pleadings
Dismiss the cause of action or the entire action (bad faith)
Enter a default judgment (bad faith)
Hold in contempt
NOT available for refusal to submit to a physical or mental exam

CAN THE DISPUTE BE RESOLVED WITHOUT A TRIAL?

- 12(b)(6) failure to state a claim
o Assuming all allegations are true, would P be able to win a judgment? If no, dismiss.
- Dismissal
o Voluntary
P can dismiss once without prejudice second, probably cant refile even if first filing was in
state court.
o Involuntary
- Summary judgment
o The moving party must show:
No issues of disputed fact AND
Entitled to judgment as a matter of law
o Partial summary judgment may be granted
IF THERE IS A TRIAL, WHO WILL DECIDE THE MATTER?
- 7th amendment right to jury trial for:
o Actions at law
o NOT equitable actions.
o P must demand a jury trial
- Jury selection
o Each side has unlimited strikes for cause
Each side gets 3 no-cause strikes
Strikes MUST be used in a race and gender-neutral way
- If there is a jury, can its verdict be disregarded?
o Judgment as a matter of law
By D at close of Ps case
By P at close of all evidence
o Renewed motion for judgment as a matter of law
Must have moved for JMOL initially
o Motion for new trial
Grounds:
Prejudicial error at trial makes judgment unfair
New evidence that could not have been obtained by due diligence for the original trial,
Prejudicial misconduct of party, attorney, third party, or juror
Judgment is against the weight of evidence
CAN THE DECISION BE APPEALED?
- Final judgment before appeal can be taken
o Nothing left for court to do on the merits
- Exceptions to the final judgment rule
o Pretrial orders involving temporary remedies
o Final judgment on collateral matters
o Interlocutory orders of great importance that may be determinative of the ultimate decision
IS THE DECISION BINDING IN FUTURE CASES?
- Res Judicata
o Claim preclusion
o Already settled by a judgment on the merits

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Collateral estoppel
o Issue preclusion
o Issue must have been actually litigated and essential to the first judgment
Who is bound by the judgment?
o Can only assert collateral estoppel AGAINST someone who was a party to the original action (required
by due process)
o BUT some jurisdictions allow collateral estoppel to be asserted BY someone who was not a party to the
original case if the other party had a fair and full opportunity to litigate it in the first trial.
When used defensively: A sues B and C, separately, as joint torfeasors. In action A B, court
finds A was contributorily negligent. In A C, C wants to collaterally estop on issue that A
was contributorily negligent.
Can also be used OFFENSIVELY if not UNFAIR. Factors:
Party had full and fair opportunity to litigate in first case
Could foreseee multiple suits
New party could not have joined easily in first suit
There are no inconsistent judgments on record.