CIVIL PROCEDURE PREWRITES

PERSONAL JURISDICTION ...................................................................................................... 2

GENERAL JURISDICTION – INDIVIDUAL – NON-RESIDENT ............................................................... 3
GENERAL JURISDICTION – CORPORATE OFFICER – NON-RESIDENT ............................................. 3
GENERAL JURISDICTION – CORPORATION – DOMICILE ..................................................................... 3
GENERAL JURISDICTION – CORPORATION – NERVE CENTER .......................................................... 3
SPECIFIC JURISDICTION – INDIVIDUAL OR CORPORATION .............................................................. 4
FORUM CONVENIENCE ISSUES ................................................................................................................. 5
SUBJECT MATTER JURISDICTION ................................................................................ 6
DIVERSITY CITIZENSHIP ............................................................................................................................. 6
COMPLETE DIVERSITY – INDIVIDUAL ..................................................................................................... 6
COMPLETE DIVERSITY – CORPORATION ................................................................................................. 6
COMPLETE DIVERSITY – NON-INCORPORATED BUSINESS................................................................ 7
COMPLETE DIVERSITY – ALIENS ............................................................................................................... 7
FEDERAL QUESTION ..................................................................................................................................... 7
VENUE ................................................................................................................................ 8
SERVICE OF PROCESS ..................................................................................................... 8
NOTICE............................................................................................................................... 8
ERIE DOCTRINE ................................................................................................................ 9
APPLYING FEDERAL RULES TO A STATE CLAIM ................................................................................... 9
SUPPLEMENTAL JURISDICTION ................................................................................. 10
JOINDER .......................................................................................................................... 11
PARTY JOINDER – PRE-FILING OF COMPLAINT................................................................................... 11
PARTY JOINDER – POST-FILING OF COMPLAINT ................................................................................ 11
CLAIM JOINDER – PLAINTIFF ................................................................................................................... 11
CLAIM JOINDER – DEFENDANT – COUNTER-CLAIMS ........................................................................ 11
CLAIM JOINDER – DEFENDANT – CROSS-CLAIMS............................................................................... 12
PARTY JOINDER – DEFENDANT – 3RD PARTY/IMPLEADER ................................................................ 12
PARTY JOINDER – INTERVENTION ......................................................................................................... 12
PARTY JOINDER – CLASS ACTION ........................................................................................................... 12
PLEADINGS ..................................................................................................................... 13
PLEADINGS – PLAIN STATEMENT – RULE 8 .......................................................................................... 13
PLEADINGS – PLAIN STATEMENT – RULE 9 .......................................................................................... 14
PLEADINGS – RULE 11................................................................................................................................. 14
PLEADINGS – MOTION TO DISMISS – 12(B) ............................................................................................ 14
PLEADINGS – DEFENDANT ANSWERS .................................................................................................... 14
PLEADINGS – AMENDMENTS .................................................................................................................... 14
PLEADINGS – DISMISSAL ........................................................................................................................... 15
SUMMARY JUDGMENT .................................................................................................. 16
MOVANT DOESN’T BEAR RISK OF NON-PERSUASION ........................................................................ 16
MOVANT BEARS RISK OF NON-PERSUASION ....................................................................................... 16
PRECLUSION DOCTRINE............................................................................................... 17
CLAIM PRECLUSION.................................................................................................................................... 17
ISSUE PRECLUSION .................................................................................................................................... 17
JUDGMENT AS A MATTER OF LAW .............................................................................. 18
MOTION FOR A NEW TRIAL ........................................................................................... 18
 Personal Jurisdiction

Speaking broadly, exertion of personal jurisdiction relies on meeting statutory and constitutional tests.

Per federal rules of civil procedure (FRCP) 4(k)(1)(A), US district courts’ personal jurisdiction
requirements are the same as that of state courts with general jurisdiction of the state in which the
district court sits. Therefore, the issue is whether the courts of state could assert personal jurisdiction.
State jurisdiction depends on whether its long-arm statute is satisfied, and if so, whether the statute
denies due process.

• Long-arm statute supports/does not support exercise of PJ over non-resident

o If specific requirements under long-arm statute, the claim must arise from one of the list
of categories of connection with State.
▪ Analyze whether EACH component is met or not met, relating to facts
o If regarding goods sold in State, it is reasonable to assume that goods knowingly sold to
State residents will be used by Residents in the state.

Meeting State’s statutory requirement is not enough; exertion of personal jurisdiction must also
comport with Due process requirements. Due process requires that defendant either consent to
personal jurisdiction, be domiciled in the state, be served within the state (which, for a corporation,
requires an in-state agent for service of process, however no US Supreme Court case has
determined whether such an agent is sufficient for general jurisdiction), or have contacts with the
state adequate to support personal jurisdiction. If such contacts exist, the link between the contacts
and the claim must be examined. These contacts must be attributable to the defendant, and must
particularly be attributable to defendant’s own purposeful efforts. Contacts must also be strong
enough to at least permit the defendant to anticipate contact with the state. If adequate contacts are
found, defendant may be subject to specific personal jurisdiction. However, even if adequate contacts
exist, if—after weighing the interests of the forum state and plaintiff as well as those of the
defendant—the forum is so inconvenient for the defendant that it would greatly hamper defendant’s
ability to defend the case, assertion of personal jurisdiction by the forum would deny due process. For
this analysis, examine connections between defendant, forum, and litigation to see if contacts have
been made with the forum that comport with “traditional notions of fair play and substantial justice”
(i.e. litigation fairness). The burden of proving this requires showing that the forum was so
inconvenient as to render it constitutionally unfair to require that defendant litigate in the forum.

Personal jurisdiction can be either specific (requiring that the claim arise from defendant’s contacts
with the forum) or general (allowing for suit against the defendant for any claim, even if the claim does
not relate to defendant’s activities within the forum). Therefore, if Defendant is subject to specific
personal jurisdiction in State, Defendant can only be sued for claims arising from Defendant’s
activites in State. If, instead, Defendant is subject to general jurisdiction in State, Defendant can be
sued there for any claim. For individuals, general jurisdiction may be established by any of the four
traditional bases of jurisdiction listed above, and also if defendant’s contacts are sufficiently
“continuous and systematic” as to allow for suits unconnected to the forum. However, for corporate
defendants, the only way to establish general jurisdiction is to show that the forum is where the
corporation is “at home” per Goodyear and Daimler, which refers to either the state of incorporation or
the corporation’s principal place of business (essentially equivalent to a corporation’s “nerve center”).
A corporation’s “nerve center” is where corporate officers direct, control, and coordinate corporate
activities (often, this is the corporation’s headquarters).
GENERAL JURISDICTION – INDIVIDUAL – DOMICILE
Natural person is subject to general jurisdiction in State if domiciled there. Domicile refers to the
place that one calls home while actually residing there.
• Defendant lives in DomState
o Supporting analysis to indicate domicile in DomState
• Therefore, DomState is his domicile
• State does/does not have general jurisdiction over Defendant because State is/is not his
domicile.

GENERAL JURISDICTION – INDIVIDUAL – NON-RESIDENT

General jurisdiction over a non-resident exists if the defendant is served with process while in the
forum state, consents to personal jurisdiction, or waives their defense against personal jurisdiction.
Specifically, Burnham held that general personal jurisdiction over an individual can be grounded
solely on in-state service. Even Brennan’s contacts analysis applied to all transient defendants.
• Defendant was/was not properly served in State
o REFER TO SERVICE OF PROCESS PREWRITE (supporting analysis to indicate
proper/improper service in State OR to indicate no service in State)
• Defendant did/did not consent to personal jurisdiction in State
• Defendant did/did not waive their right to personal jurisdiction defense in State
• Therefore, State does/does not have basis for exerting general jurisdiction over ∆

GENERAL JURISDICTION – CORPORATE OFFICER – NON-RESIDENT

It is not clear that in-state service on a corporate officer confers personal jurisdiction over a
corporation. General jurisdiction over Defendant can be established if its place of incorporation or its
principal place of business (i.e. “nerve center”) are in the forum.
• Defendant is/is not incorporated in State
• Defendant does/does not have its corporate “nerve center” in State
• Therefore, State does/does not have basis for exerting general jurisdiction over ∆

GENERAL JURISDICTION – CORPORATION – DOMICILE

Defendant is subject to general jurisdiction if its place of incorporation is in the forum.
• Defendant is/is not incorporated in State
• Therefore, State does/does not have basis for exerting general jurisdiction over ∆ based
on place of incorporation

GENERAL JURISDICTION – CORPORATION – NERVE CENTER

General jurisdiction over Defendant can also be established of its principal place of business (i.e.
“nerve center”) is in the forum. Under contacts analysis, general jurisdiction exists when a defendant
corporation’s contacts in the forum are so extensive that it can be sued on anything there. General
jurisdiction has been upheld where everything a corporation does is within the forum state. Here,
Defendant’s activities are/are not confined to State, allowing/not allowing for that as a basis for
establishing general jurisdiction.

Defendant’s sales are primarily in SaleState(s). However, assuming that a corporation has activity in
multiple states, it doesn’t matter where most of its business is transacted for contacts analysis, but
rather where corporate activities are managed. Therefore, having most business in SaleState(s) does
not prove that there are adequate contacts in SaleState(s) to support general jurisdiction. Goodyear
established that adequate contacts are only where contacts are so “continuous and systematic” as to
render the corporation “at home” (which usually refers to the “nerve center”). Often, the location of the
headquarters is consistent with a corporation’s “nerve center,” since that is where all top management
activity takes place and all top executives work and carry out managerial duties. Here, the
headquarters of Defendant are in HQstate. Furthermore, the location of the headquarters is an
attributable and predictable contact, in large part because the corporation chooses its headquarters.
Therefore, while Defendant may not carry out all its business activities in HQstate, HQstate is
nevertheless where most important business directives are decided. Additional facts regarding
“nerve center” analysis. It seems irrational to state that a corporation with clear headquarters would
not be liable for anything there. Here, HQstate is/is not the same as State. Therefore, Defendant
satisfies/does not satisfy the contacts test for general jurisdiction in State.

SPECIFIC JURISDICTION – INDIVIDUAL OR CORPORATION

• Was cause of action due to contacts with State?
o Single Contact – K (primarily for individuals)
▪ Defendant’s contacts with State were limited to a single contact, which was
claim/breach/performance. Therefore, general jurisdiction cannot be satisfied.
However, several cases indicate single sale is sufficient for specific jurisdiction.
o Did Defendant physically enter State?
▪ Yes, since Defendant entered the state, there is a strong case for a deliberate
connection to State attributable to Defendant (i.e. targeting).
• Facts showing Defendant entered/conducted business in State
▪ No, Defendant did not physically enter the state
o Did Defendant perform/breach contractual duties in State?
▪ If performance under contract in State, this is not necessarily sufficient. True test
is whether the claims made in the complaint relate to the State.
▪ Manufacturing – where delivery of defective material is done constitutes the
place of breach, not the site of defective manufacture.
• Facts showing Defendant performed on contract or conducted
business giving rise to claim in State
▪ Therefore, claim can be said to arise from a breach in State of a contract closely
connected to State.

• Were contacts with State attributable to Defendant?

o Were contacts the result of Defendant’s actions or that of a third party?
▪ Facts to show 3 rd party was/was not responsible (World-Wide)
o Did Defendant make purposeful contacts with State?
▪ Facts to show Defendant did/did not make purposeful contacts
o If corporation, is it foreseeable that Defendant could be haled into court in State, and not
just that its products could reach the State?
• Stream of commerce
o More recent cases divide on whether reasonable anticipation of product entering State
(i.e. stream of commerce) is sufficient to establish personal jurisdiction (Asahi, McIntyre).
However, both cases are plurality opinion, so they are not binding.
o Manufacturer depends on resale by distributors/retailers, and may know where the
distributor operates (or at least doesn’t know, but proceeds anyways and takes the risk
that its products will be sold in State). Therefore, manufacturer can be taken to intend
sale of its products in State. This is the rationale for stream of commerce.
o Nicastro plurality equated stream of commerce with foreseeability, i.e. that it is
unremarkable that the item reached the forum. However, even if it is true that it would not
 be extraordinary that Defendant’s product would enter State, that is not the test. The test
is whether State was targeted by Defendant.
o Breyer and Alito in Nicastro held that single sales cannot support personal jurisdiction.
However, this is wrong. Several cases (e.g. McGee) have supported single sales as
sufficient for personal jurisdiction.
o Asahi Split
▪ Based on Brennan’s opinion, a component manufacturer could be held liable for
sale of an assembled product incorporating the component. This is because
whether a component manufacturer stays in business depends on whether the
assembled product can be sold. Therefore, the manufacturer intends that the
product be sold, and takes advantage of the stream of commerce. This is shown
by Gray v. American Radiator.
▪ Based on O’Connor’s opinion, there were no advertisements or salespeople in
State by the component manufacturer. Therefore, the component manufacturer’s
contacts would not count as the contacts by the assembled product sale.

FORUM CONVENIENCE ISSUES

Convenience problem exists if litigating in the forum would be difficult to the point of unfairness for the
defendant. This was first established in Burger King. This was next applied in Asahi, in which there was
a unanimous opinion that requiring Asahi to litigate in the US would be constitutionally unfair. This is
because Asahi is not merely a foreign corporation, it was an alien corporation. In Asahi, the contract
that was the subject of the litigation was negotiated and performed outside the US, and therefore, the
indemnity clause could not be applied to Asahi. While this is relatively clear, in most cases there are
other factors balancing the interests of the plaintiff.

If defendant is being sued in his home district about an event giving rise to the claim that took place
in the home district, then there are no issues of convenience. There should be no difficulty in obtaining
witnesses, accessing evidence, or dealing with a foreign legal system (i.e. unfamiliar law).

If defendant is being sued away from his home district, the interests of the plaintiff and the forum
must be balanced against the interests of the defendant. Access to witnesses and physical evidence,
avoidance of disruption of corporate business, forum’s interest in litigating issues closely connected to
the forum, injury of plaintiff, and avoidance of unfamiliar law are all potentially relevant. However, the
test is whether these factors create inconvenience that is so problematic as to be constitutionally unfair.

Facts and analysis regarding convenience factors

If Defendant argues that convenience is an issue due to failure to access witnesses that refuse to
voluntarily come to State, Defendant would likely fail on the argument. Such witnesses would be
“unavailable” within the meaning of FRCP 32, so their testimony could be brought in by deposition, and
under FRCP 45, they could be subpoenaed in WitnessState to attend a deposition.
 SUBJECT MATTER JURISDICTION

State courts can hear cases on any subject matter. Federal courts’ ability to hear cases is limited to
subject matters outlined in Article III of the Constitution. Specifically, Article III puts forth that subject
matter jurisdiction for federal courts can be established by showing either federal question or diversity
of citizenship. However, note that meeting the requirements for federal subject matter in federal court
doesn’t mean that you have to file suit there (can also sue in state courts), except for a limited number
of specific areas (e.g. bankruptcy, patents, etc.).

DIVERSITY CITIZENSHIP
Subject matter jurisdiction on the basis of diversity requires, per §1332, that there be complete diversity
of citizenship and an amount in controversy over $75,000. The figure of $Damages for damages seems
reasonable. It certainly cannot be said “to a legal certainty” that this amount is not at issue, and unless
that standard is met, the plaintiff’s damage claim establishes the amount in controversy. We can also
consider aggregation.
• If there is one π and one ∆, aggregation is always allowed
• If there is one π and multiple ∆s, aggregation is not allowed unless joint claims against ∆s
• If there are multiple πs and one ∆, aggregation is only allowed for joint rights issues, such as
shared property, but not, for example, different suits arising from the same car accident
• If there are multiple πs and multiple ∆s, aggregation is generally not allowed
• ***π’s claim cannot be combined with ∆’s counter-claim to establish amount in controversy
Therefore, the amount in controversy is met/unmet.

COMPLETE DIVERSITY – INDIVIDUAL

To establish complete diversity per §1332(a), no plaintiff may be a citizen of the same state as any
defendant (Strawbridge). An individual is a citizen of the state of his or her domicile. An individual’s
domicile is, by default, the place where the individual was born unless domicile has changed.
Changing domicile requires residence at a new place (obviously other than her previous domicile)
with the simultaneous subjective perception of the new place as the individual’s current home.
Furthermore, one always has a domicile, and retains one’s older/original domicile until a new one is
established (Mas v. Perry).
• Facts to show Defendant is/is not a domiciliary of State
o Born in State? If yes, has Defendant moved?
o Works/lives (with family)/has home in State?
o Uses government services/has government-issued license, etc. in State?
o Spends most of the week in State?
o Shows intent to be present in the State long-term (as “home”)?

Complete diversity therefore exists/does not exist because Defendant(s) and Plaintiff(s) do/do
not share domicile of at least one State.

COMPLETE DIVERSITY – CORPORATION

Corporations are citizens of their states of incorporation and of their principal places of business, with
the latter referring to the “nerve center,” or where key corporate decisions are made (Hertz).
• Facts to show Defendant is/is not domiciliary of the State
Complete diversity therefore exists/does not exist because Defendant(s) and Plaintiff(s) do/do
not share domicile of at least one State.

COMPLETE DIVERSITY – NON-INCORPORATED BUSINESS

Non-incorporated businesses (e.g. LLPs, partnerships) are citizens in all places are their members
are citizens. Complete diversity therefore exists/does not exist because Defendant(s) and
Plaintiff(s) do/do not share domicile of at least one State.

COMPLETE DIVERSITY – ALIENS

In cases involving aliens, complete diversity requires that the suit be between a US citizen and an
alien not domiciled in the same state. Both cases where an alien sues an alien, and where a US
citizen domiciled in a foreign country sues an alien do not satisfy the requirements for complete
diversity. Examine facts. Complete diversity therefore exists/does not exist because Defendant(s)
and Plaintiff(s) do/do not share domicile of at least one State.

FEDERAL QUESTION
Subject matter jurisdiction is established if the claim “arises under” federal law, as per §1331. More
precisely, the federal question must be central to the suit in that a federal statute confers a private
right to action. Furthermore, the complaint must be “well-pleaded,” meaning that it is not sufficient that
the claim simply raises issues of federal law; rather, the claim must appear on the face of plaintiff’s
complaint. One test for this is whether violation of a federal law is required to prove the claim. The
federal element must form part of the plaintiff’s own case, and federal question jurisdiction cannot be
established through anticipated defenses based on federal law.
• Facts to show claim “arises under” federal law
• Facts to show claim is “central to the suit”
• Facts to show claim is “well pleaded”
• Facts to show federal law is an essential part (indeed, basis) of the claim

***Federal question jurisdiction may be applied on state actions that raise issues of federal law if: (1)
there is a substantial interest of the federal government in interpreting its own laws, and (2) it does
not upset the balance of labor between federal and state courts. Look to Grable. Additionally, where a
case based on state action turns on construction of language of federal law, the case may be heard in
federal court (K.C. Title Trust).

***Note that federal courts do not probate decedents’ estates, particularly where challenging an
executor’s administration lies at the heart of the federal concern. However, if diversity can be shown,
the case can still be examined in the off-chance that the issue is not excluded in federal court. In such
a case, the relevant citizenship is that of the decedent, not the executor of the will.

***Also note that federal courts do not evaluate domestic relations issues, even where diversity exist,
but do enforce alimony or child support for relationships that were established in state courts
(assuming there is diversity). Additionally, federal courts will hear child abuse cases.
 VENUE

Section 1391a applies to venue considerations for civil actions in all US district courts. 1391b offers
three possible venues: (1) a district where any defendant resides, if all reside in the same state; (2) a
district where a substantial part of the events or omissions giving rise to the claim occurred; and (3) if
neither of those is available, a district where any defendant is subject to personal jurisdiction when
the action is commenced. Facts and analysis for each subpoint.

If either 1391b1 or 1391b2 can be satisfied (doesn’t necessarily have to be the venue currently being
argued for, just has to exist as proper venue), then 1391b3 is not available.

Under 1391c1, residency for people is where they are domiciled. Under 1391c2, a business is taken
to reside in all districts where it is subject to personal jurisdiction in the case.

SERVICE OF PROCESS

A state may assert personal jurisdiction over a defendant only if the defendant is subject to the state’s
personal jurisdiction and is properly served with process. Both subjection to personal jurisdiction and
service must satisfy both an authorizing statute and the Constitution. Regarding service, FRCP 4(e)
and 4(h)(1) permit federal process to be served by any method permitted under the law of the state
where the federal court sits.

The constitutional requirement for service is that the method employed would be one that would be
used by someone actually seeking to communicate with the defendant. According to Mullane, in hand
service on an individual is always adequate.

NOTICE

The test to be applied is whether this is the best notice practicable under the circumstances. Would
someone who really desired to communicate with Party have used this method? These questions
must be asked in circumstances where no other party to the litigation has interests similar to Party’s.
If Party’s interests are to be protected, it must do the protecting itself.

A doubtful method of service may be acceptance if it is no less likely to give actual notice than any
other method, which is/is not the case here, because facts and analysis. This service does/does
not satisfy due process, and there would be adequate/inadequate.
 ERIE DOCTRINE

APPLYING FEDERAL RULES TO A STATE CLAIM

Is there an Erie, or more precisely, an REA issue? The REA requires that a rule be arguably
procedural (which is a constitutional requirement per Hanna), that is, addressed to the
fairness/efficiency of litigation and that it not abridge, enlarge, or modify any substantive right. If the
rule does not address fairness/efficiency of litigation, it is substantive. Here, Rule/Law clearly is/is
not procedural. Facts and analysis.

Even Stevens in Shady Grove said that federal courts need not investigate the motives for states’
adopting what on their face are purely procedural mechanisms. Thus, it is not clear that the motive for
adopting the rule is relevant.
 SUPPLEMENTAL JURISDICTION

Generally, applies when claims wanting to be added to a case do not meet the requirements for
subject matter jurisdiction on their own. Supplemental jurisdiction cannot itself bring a case into
federal court. Specifically, it applies in cases of (1) party joinder, (2) claim joinder, or (3) bringing a
state claim for a case that is already in federal court. For example, Gibbs allowed for a state law claim
to be brought into federal court when there was no diversity or federal question basis; the Court ruled
that this can only be allowed for claims that share a “common nucleus of operative fact” with the claim
that established federal subject matter jurisdiction. Essentially, both claims must belong to the same
“constitutional case.”

§1367(a) grants supplemental jurisdiction over a claim if this “common nucleus of operative facts”
standard is met (the Gibbs test). There must an overlap of crucial facts. Facts and analysis. 1367(b)
must then be considered to see if supplemental jurisdiction is killed. Preliminarily, 1367(b) only
applies to plaintiffs and diversity of citizenship cases. If federal question or defendant at issue,
1367(b) doesn’t apply and supplemental jurisdiction is valid. For diversity cases, even under
supplemental jurisdiction, there must be complete diversity. However, if there is diversity of
citizenship but the amount in controversy is not met for the supplemental claim, this is OK. Facts and
analysis. Certain types of claims are expressly barred by 1367(b). These include claims by a plaintiff
against: parties joined under Rule 14 (third party), 19 (indispensable party), 20 (multiple defendants in
the initial complaint), or 24 (intervening party). Facts and analysis. 1367(b) also kills supplemental
jurisdiction for claims by persons proposed to be joined as plaintiffs under Rule 19, or seeking to
intervene as plaintiffs under Rule 24, if such claims are not completely diverse. Facts and analysis.

1367(c) provides for declining of supplemental jurisdiction if the court determines the claim: (1) raises
a novel or complex issue of state law; (2) substantially predominates over the claim over which the
district court has original jurisdiction; or (3) the district court has dismissed all claims over which it has
original jurisdiction.

SPECIFICALLY FOR JOINDER OF PARTIES

Although the link of “same transaction or occurrence” under Rule 20 seems the same as “common
nucleus of operative facts” under 1367, more care is required for subject matter jurisdiction than the
rule. Facts and analysis. However, the well-pleaded complaint rule requires that the determination
be made based solely on the plaintiff’s pleading. Therefore, if there is a sufficient factual basis in the
pleading to claim a common fact issue, this would satisfy 1367. Facts and analysis. One could also
argue that because the laws of different states are involved, there may be a basis for discretionary
refusal of jurisdiction. However, this cannot preclude jurisdiction. In any supplemental jurisdiction
case where original jurisdiction is based on 1331, there will be at least two bodies of law involved—
the federal claim and the supplemental state claim. Therefore, this is not a barrier to supplemental
jurisdiction. Supplemental jurisdiction exists/does not exist, since all requirements are
satisfied/not satisfied.

RULE 21 ALLOWS FOR DROPPING OF NON-DIVERSE PARTIES

 JOINDER

1. FOR ANY JOINDER CLAIMS, FIRST CHECK AND SEE IF THERE IS INDEPENDENT
SUBJECT MATTER JURISDICTION.

2. IF NOT, SEE IF THEY CAN BE BROUGHT IN WITH SUPPLEMENTAL JURISDICTION.

3. UNLESS POSITIVE NO SMJ OR SUPP. JUR., PROCEED TO JOINDER RULES

PARTY JOINDER – PRE-FILING OF COMPLAINT

Rule 20 allows for addition of multiple parties with “several” claims during drafting of the complaint by
plaintiff. It is read very broadly. It has been held to apply in situations involving claims arising under
the laws of different states with no common issue except assignment of liability among multiple
defendants. Per 20(a)(1), co-plaintiffs may join together if their claims: (1) arise from the same
transaction or occurrence, and (2) raise at least one common question. Per 20(a)(2), co-defendants
may join together if their claims also: (1) arise from the same transaction or occurrence, and (2) raise
at least one common question. Facts and analysis.

PARTY JOINDER – POST-FILING OF COMPLAINT

Under Rule 19, a court may force a party into a case if the party is held to be “required” and was not
included by the plaintiff in the complaint. There are three disjunctive tests to see if the party is
“required.” Meeting any one of the tests is sufficient to bring the party into the case: (1) court cannot
accord complete relief without the party, potentially causing inefficient future litigation; (2) the party’s
interest may be harmed if she is not joined; or (3) the party’s interest may subject the defendant to
multiple or inconsistent obligations, resulting in prejudice against existing parties if party is not bound
by judgment. Facts and analysis of whether one of the three tests applies.

After one of these tests is met, joinder is considered feasible if (1) there is personal jurisdiction over
the joining party and (2) joining the party does not invalidate subject matter jurisdiction. Here, there
is/is not personal jurisdiction over JoiningParty. Furthermore, bringing in JoiningParty does/does
not invalidate subject matter jurisdiction for the case. Normally, supplemental jurisdiction is not
available for Rule 19 parties, except where adding a party to a counter-claim or cross-claim. This is
because under Rule 13(h) is not included as a trigger for 1367(b). Moreover, 1367(b) applies only to
plaintiffs, not any party making a claim. If joinder of the party is not feasible because there is no
personal jurisdiction or if there is no subject matter jurisdiction, the court can choose to either proceed
without the “required” party or dismiss the entire factors. If the court dismisses the case, the party is
considered “indispensable.” Note that joint tortfeasors are never “indispensable” parties. Whether to
dismiss is based on Rule 19(b) factors.

CLAIM JOINDER – PLAINTIFF

Rule 18(a) allows the plaintiff to assert any claim that she has, even if they are completely unrelated.
However, each claim must have an independent basis for subject matter jurisdiction.

CLAIM JOINDER – DEFENDANT – COUNTER-CLAIMS

Rule 13 allows a party to make counter-claims, filed with your answer, against an opposing party who
has filed a claim against you. Under Rule 13(a), a compulsory counter-claim is one that arises from
the same transaction or occurrence as the opposing party’s claim, and must be asserted in the case
or you will have waived the claim. Facts and analysis. On the other hand, under Rule 13(b), a
permissive counter-claim is defined as one that does not arise from the same transaction or
occurrence, and can be asserted in either the answer or in separate suit. Facts and analysis. In both
cases, subject matter jurisdiction must be evaluated. Facts and analysis. A counter-claim only
requires an answer when it is labeled as a counter-claim (not required if mistakenly labeled an
affirmative defense, per Rule 73).

CLAIM JOINDER – DEFENDANT – CROSS-CLAIMS

In addition, under Rule 13(g), cross-claims can be filed against a co-party. These must arise from the
same transaction or occurrence as the underlying claim, and are never compulsory. Cross-claims
only apply to parties that were joined by plaintiff under Rule 20. Doesn’t break diversity of the case.

PARTY JOINDER – DEFENDANT – 3RD PARTY/IMPLEADER

Under Rule 14, a defendant can bring in (i.e. implead) a 3 rd party because they may be liable to
defendant for plaintiff’s claim against defendant. This can occur through either: (1) indemnity (shifts
entire responsibility of plaintiff’s claim to the third party) or (2) contribution (shifts partial responsibility
of plaintiff’s claim to the third party). Generally, joint tortfeasors owe indemnity or contribution. Facts
and analysis.

After the third party is brought into the case, other claims can also be brought. Under 14(a)(3), the
plaintiff can also assert a claim against the third-party defendant. In response, under 14(a)(2)(C), a
third-party defendant may assert against plaintiff any defense that the original defendant raised
against the main claim. Additionally, under 14(a)(2)(D), the third-party defendant can assert a claim
against the plaintiff, if the claim arises from the same transaction or occurrence as the initial claim.

PARTY JOINDER – INTERVENTION

Under Rule 24, a non-party may bring herself into the case (i.e. intervention). Intervention must be
timely, and the intervening party must decide to be a plaintiff or defendant. Under 24(a)(2), there can
be intervention by right. This can be exercised if the intervening party’s interests may be harmed if
they are not joined, unless it can be shown that existing parties will adequately represent the
intervening party’s interests. Under 24(b)(2), permissive intervention is allowed where the intervening
party can show that their claim or defense has at least one common question with a pending case.

PARTY JOINDER – CLASS ACTION

Per Rule 23, in a class action suit a representative sues on behalf of a group. Under 23(a), there are
four pre-requisites for a class action suit: (1) parties are too numerous for practicable joinder; (2)
there is a question in common to all class members (generally, look for common answers, so as to
decide things for all class members at once); (3) representative’s claim must be typical of those of the
class members; and (4) representative will adequately represent the interest of the class. Facts and
analysis. Furthermore, under 23(b)(3), it must be shown that common questions predominate over
individual questions (generally refers to a common source of injury/claim) and that class action is the
superior way to resolve the suit.

Additionally, notice of pendency must be provided to a 23(b)(3) class, such that individual notice to all
members reasonably identifiable as members of the class be provided. Under 23(c), this notice must
also allow for opting out of the class, and communicates that they will be bound if they do not opt out.
The representative bears the cost of giving this notice. As a result, all class members except those
who opt out of a (b)(3) are bound by the class judgment.
In order to evaluate the diversity of citizenship for a class, look only to the representative’s citizenship.
For amount in controversy, you also look at whether the representative’s claim exceeds $75k; if so, it
satisfies the requirement (even if class members have less than $75k).

PLEADINGS

PLEADINGS – PLAIN STATEMENT – RULE 8

Rule 8(a) requires short and plain statements of the Court’s jurisdiction and of the claim for relief, as
well as a demand for relief sought. Are facts presented in pleading to show that Court has
jurisdiction? While the paragraph does not explay why Plaintiff thinks any of those statements are
true, Plaintiff isn’t required to explain the basis of her statements, only to make them.

Morever, Rule 8(a) requires a short and plain allegation of the claim. Generally, pleadings are to be
read so as to favor the pleader. In the same vein, the statement of facts alleging the claim serves to
put the defendant on notice that a claim exists against him and specify the nature of the claim;
requiring the plaintiff to include specific details would defeat the purpose of the complaint. This is
supported in Swierkiewicz, where it was held that specific facts did not need to be conveyed to the
defendant in an employment discrimination case; communication of just the bare facts showing the
claim were deemed to be sufficient. At minimum, though, the time and place are usually material.
Facts relating to time and place. Here, facts relating to time and place are/are not clearly
pleaded, posing/not posing a problem.

Furthermore, Iqbal holds that factual allegations must “plausibly” permit the conclusion that the
elements of the claims present, with reasonable reliance on logical inferences being permitted.
“Plausible” means that the complaint “hangs together.” Essentially, conclusory allegations that cannot
be reasonably derived from the statement of facts are not sufficient. Twombly further stipulates that
reliance on facts produced in discovery cannot be a basis for pleading; the facts of the pleading must,
taken as they are, be sufficient to support the claim made. Note, however, that Rule 11 does permit
allegations purporting that facts will be produced in discovery. This seems contradictory at first, which
wouldn’t make sense since federal rules should not conflict with each other. However, it is not
contradictory as long as said allegations do not hinge on producing evidence in discovery to satisfy
an element required to prove reasonableness. More often, evidence in discovery can be taken to
satisfy Rule 11’s requirement for reasonable factual basis for a complaint where, for example, there is
reason to believe that the claim has reasonable basis, but the precise facts needed to prove the claim
are in possession of defendant. State relevant facts. Facts do/do not support a claim within
bounds of reasonable inference, assuming pleadings be read in in favor of the pleader.

Swanson further narrows this issue by holding that in order to satisfy the “plausible” standard from
Twombly and Iqbal, the facts alleged need not be probable, only possible. The test, rather, is whether
the defendant could recognize what it is they should have done to avoid the claim (i.e. whether the
claim “hangs together”). Ultimately, a court will use its experience and judgment in determining
whether the pleading is “plausible.”

Additionally, McCormick holds that inconsistent facts or alternative theories are OK for pleadings.
PLEADINGS – PLAIN STATEMENT – RULE 9
Although generally pleadings require a short and plain statement of facts, in cases of fraud or
mistake, Rule 9 requires that the pleading be made with “particularity.” In case of fraud, statements
claimed to be fraudulent, respect in which statements were fraudulent, and where, when, and by
whom statements were made must be pleaded. More generally, the crucial issues are those of
knowledge and intent. If these can be shown by the facts, then the pleading is satisfactory per Rule 9.
State relevant facts. Facts do/do not support a claim within bounds of reasonable inference.

PLEADINGS – RULE 11
Rule 11 requires that existing law support the claims, and that there be a reasonable investigation of
the factual basis for a pleading. What is reasonable depends on the circumstances. The rule applies
not just to the initial pleading, but to any subsequent reliance on the challenged document. First, was
there a reasonable factual basis when pleading was made? Second, did that reasonable
factual basis later get revoked? Therefore, pleading is/is not vulnerable under Rule 11.

PLEADINGS – MOTION TO DISMISS – 12(b)

Preliminarily, defendant must respond within 21 days of receiving the pleading to avoid risking
default; however, if defendant waived service of process under Rule 4(d), then defendant has 60 days
in which to respond, starting from the date plaintiff mailed the waiver form. Relevant facts to show
defendant responded/did not respond within 21 days.

Per 12(g) and 12(h), some Rule 12 defenses must be raised in the first Rule 12 response, otherwise
they are waived. These are motions to dismiss for personal jurisdiction, improper venue, improper
process (summons + copy of complaint), and improper service of process. Facts showing these
do/do not apply. Other Rule 12 defenses can be raised for the first time at any point during trial;
these are motions to dismiss for failure to state a claim—12(b)(6)—and for failure to join an
indispensable party. Facts showing these do/do not apply. Rule 12(b)(1) provides for a motion to
dismiss for subject matter jurisdiction, which is never waived (can even use it if the trial goes on
appeal).

Therefore, find for/deny the motion to dismiss based on analysis.

PLEADINGS – DEFENDANT ANSWERS

Under Rule 8(b), defendant must respond to the complaint by either admitting, denying, or stating that
they do not know. Failure to explicitly deny the complaint constitutes an admission on any allegation
except for damages. Affirmative defenses involve raising a new fact (e.g. statute of limitations, statute
of frauds) and must be pleaded (i.e. put into the answer) otherwise they are waived.

PLEADINGS – AMENDMENTS
***CONSIDER ANY RULE 11 ISSUES THAT MIGHT COME UP***

In order to amend a pleading or answer, under 15(a) plaintiff has 21 days to respond after a
defendant’s Rule 12 motion has been served. Similarly, defendant has a right to amend once within
21 days after serving her answer. Alternatively, either party can ask the court for leave for amend.
Facts showing amendment would/would not be within 21 days of relevant situation.

15(b) applies where the evidence at trial does not match or goes beyond what was pleaded (for
example, plaintiff gives evidence of a separate claim, or defendant provides requisite evidence in
support of an affirmative defense that had not been previously raised). It is the affirmative obligation
of the party to object to admission of such evidence, and where this does not occur, the evidence is
taken into consideration and later added to the pleading or answer as if it were initially given.
Specifically, under 15(b)(1), the party putting on that evidence may ask for permission to amend to
add it. Relevant facts and analysis.

15(c) applies where plaintiff seeks to amend after the statute of limitations runs. If trying to add a new
claim, per 15(c)(1)(B), plaintiff can get “relation back” for a new claim if the new claim arises from the
“same conduct, transaction, or occurrence” as the original complaint. In other words, would the
defendant, investigating the original claim, necessarily have examined what turned out to be the
subject matter of the additional claim? Facts to show new claim is/is not from the same T/O.
Therefore, the new claim would/would not be able to be added in an amendment to the
complaint. If trying to change the defendant, per 15(c)(1)(C), plaintiff can only get “relation back” for
changing the defendant if plaintiff sued the wrong defendant, but the right defendant knew about it.
For example, if a suit was filed against a subsidiary of a larger corporation, the complaint could be
amended to designate the larger corporation as the defendant if the larger corporation had reason to
know about the suit.

15(d) allows for supplemental pleadings adding a claim based on something that happened after the
case was filed.

PLEADINGS – DISMISSAL
Rule 41(a)(1) allows plaintiff to dismiss the complaint by notice of dismissal at any time before
defendant files answer or motion for summary judgment. Motion to dismiss DOES NOT COUNT
under this rule. This because in an answer, defendant challenges plaintiff’s factual allegations, same
with motion for summary judgment, but 12(b)(6) motion to dismiss does not challenge facts
(essentially states EVEN IF all facts are true, defendant wins the case). This is not limited to federal
courts and also applies to state courts. Dismissal under Rule 41 is usually considered to be “without
prejudice,” meaning nothing has been legally resolved (settled). Claim remains open, factual
allegations remain open, and plaintiff is still open to try to recover in a later suit. Dismissal with
prejudice means that the case is over, and plaintiff cannot retry.

Rule 41(b) provides for involuntary dismissal if there is lack of jurisdiction, improper venue, or failure
to join parties under Rule 19.
 SUMMARY JUDGMENT

Summary judgment is granted if there is no dispute as to a material fact, and the movant is entitled to
judgment as a matter of law. A dispute of material fact precludes summary judgment. All evidence is
viewed in the light most favorable to the non-moving party. The judge considers matters outside the
pleadings, but doesn’t weigh items of evidence against one another. Rather, she only determines if
what is offered counts as evidence. If the movant has the risk of non-persuasion, the movant must
show that there’s no dispute over the material facts of the movant’s claim (or defense), which requires
evidence a jury would not be permitted to disbelieve (i.e. disinterested, unimpeached,
uncontradicted). If the movant does not have the risk, the aforementioned approach may be followed,
or the movant may show that there is no dispute that the non-moving party has no evidence
supporting some essential element of its claim/defense, which requires combing the record. Even if
the moving party makes its initial showing, the non-movant is allowed to attempt to show the
existence of a factual dispute by, for example, pointing out neglected elements or relying on affidavits.

MOVANT DOESN’T BEAR RISK OF NON-PERSUASION

Since Party does not bear the risk of non-persuasion, it wins: (1) by showing that there is nothing in
the record supporting at least one element of OtherParty’s claim, or (2) by affirmatively proving that
the facts are other than what OtherParty alleged. Here, Party takes the first/second approach,
<state approach>.
• (1) OtherParty must persuade the jury that it is more likely than not that Party’s actions
caused the claim.
• (2) Where Party must affirmatively prove a dispute of fact and fails, OtherParty does not need
to offer affidavits or other material in response to the motion, since a response is unnecessary
if the motion is inadequate on its face.
Therefore, the motion should be granted/denied, because <explanation>.

MOVANT BEARS RISK OF NON-PERSUASION

Here, since the issue is an affirmative defense, Party has the risk of non-persuasion. Party must
show disinterested, unimpeached, and uncontradicted evidence showing there is no dispute over the
material facts of the claim/defense. OtherParty can win by either combing the record to show that
Party has no evidence that would let him support his claim, or by affirmatively demonstrating that the
facts are different from what Party alleges.

Generally, courts are reluctant to grant summary judgment to the party with the risk of non-
persuasion, especially in negligence matters. Since Party is contradicted by evidence from
OtherParty, Party would also face the court’s reluctance to grant summary judgment for the
aforementioned reason.
 PRECLUSION DOCTRINE

***Court in Case applies the preclusion law of the judicial system that decided Case 1. Moreover, if
Case 1 was in federal court based on diversity, the judge in Case 2 uses federal preclusion law;
however, federal law on that issue will presumably adopt the law of the state in which the federal
court sat (Semtek)***

CLAIM PRECLUSION
A party gets only one case in which to vindicate a claim (i.e. the same claim cannot be sued on
twice). Here, mutuality is/is not an issue given State law. Claim preclusion requires that both
cases be brought by the same claimant against the same defendant. Facts to show same
claimant/same defendant. Additionally, claim preclusion cannot occur if there are different causes of
action, or if the claims do not arise from the same transaction or occurrence. Essentially, there must
be an overlap of core facts. Facts to show there is/is not overlap of core facts. Additionally, the
first case must have ended on a valid final judgment on the merits. This does not necessarily mean
that the case went to trial; per Rule 41b, all judgments (including default judgments) are on the merits
unless they are based on jurisdiction, venue, or indispensable parties. Cases dismissed due to issues
with the statute of limitations are similarly held to not be “on the merits,” as are cases dismissed
without prejudice (or with “leave to amend”). Facts and analysis, if applicable.

ISSUE PRECLUSION
Because the cause of action of the second claim is different from that in the first case, only issue
preclusion is available. Preliminarily, modern courts allow for “non-mutuality” (where the preclusion
argument can be made by a non-party to the first suit) and do not require that parties have “mutuality”
(whereby preclusion claims would only be allowed by someone who is a party to the first case). Facts
and analysis to show mutuality or non-mutuality. As with claim preclusion, issue preclusion
requires a valid, final judgment on the merits. Additionally, courts deny preclusion regarding issues so
secondary as not to be worth contesting, also noting that the issue must have been litigated and
definitively decided in the first case otherwise there is no preclusion. Furthermore, the determination
of the issue must have been necessary to support the judgment, which is to say that the court would
have reached the opposite result if the issue had been decided in favor of the party who, in the real
case, lost on the issue. Facts and analysis.

A clear majority of courts allow non-mutual defensive issue preclusion by a person who was not a
party to the first case, but is a defendant to the second case.

While most state courts do not allow it, federal courts trend towards allowing non-mutual offensive
issue preclusion, where a person who was not a party to the first case is a plaintiff to the second
case. However, fairness factors must be evaluated here: (1) defendant in the second case had full
chance to litigate in the first case; (2) defendant in second case could foresee multiple suits; (3)
plaintiff in the second case could not have joined easily in the first case; and (4) no inconsistent
judgments.
PRECLUSION RELATED TO DEFENDANT’S COUNTERCLAIMS
If there is a compulsory counter-claim, and it has not been made, it is waived and the claim is
precluded. Counter-claim is compulsory if it arises from the same transaction or occurrence as the
original claim. Facts and analysis.

JUDGMENT AS A MATTER OF LAW

Under Rule 56, the standard for JMOL is, resolving all doubts and credibility questions in favor of the
non-moving party, and considering all the evidence, was there evidence that would permit a
reasonable jury to find that the non-moving party had offered evidence that would permit a verdict in
its favor. Procedurally, the movant is required to move for JMOL before the case is submitted to the
jury, and may renew the motion only if the renewed motion is filed with the court within 28 days after
the verdict is returned. Those requirements clearly were/were not satisfied.

Apply reasonable evidence standards from summary judgment. Where there is not an explicit
statement, although reliance on mere speculation is not permitted, the inference draw from
coincidence of events is not considered mere speculation and is permitted.

The jury need to believe the party with the risk of non-persuasion only by a preponderance.

Moreover, the judge is permitted to weigh items of evidence against one another and to consider
credibility. However, the judge may only substitute his view of credibility for that of the jury in a case
where the jury clearly fails to properly evaluate credibility to the degree established in Dadurian.

Consider RJMOL after verdict is given, if a JMOL was already submitted earlier (BarBri notes)

MOTION FOR A NEW TRIAL

Under Rule 59(a)(1), a motion for a new trial may be submitted within 28 days of delivery of judgment
for any of the reasons that federal courts have previously granted new trials. This includes generally
where the judge believes a mistake was made during trial, and it would better to fix the issue rather
than to send the case forward for appeal.