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CIVIL PROCEDURE
PROF. MARTIN
FALL, ‘11

A) SEIZURE OF PROPERTY, PRELIMINARY INJUNCTIONS, & TEMPORARY

RESTRAINING ORDERS – RULE 64 & 65
a. Rule 64: Property seized to prevent irreparable harm to the Π in advance
of the trial, or the possibility that Π won’t collect after a successful trial.
i. Attachment: seizure of Δ’s property to give Π security that the
judgment he hopes to obtain will be collectible.
ii. Garnishment: property held by a 3rd person, but belonging to the Δ
is made subject to the Π’s claim.
1. Ex: bank deposits, wages, etc.
2. Requires proper service on the 3rd person.
b. Injunction: directs Δ to do or refrain from doing specific acts.
i. Rule 65(a)(1): requires that no preliminary injunction be given
without notice.
ii. Rule 65(b): provides for temporary restraining orders when the
harm feared by Π may be done before the court can hear and
decide the case.
1. May be done without notice;
2. Good for 10 days;
3. Must be followed immediately by an application for a
preliminary injunction.
4. Δ may move for dissolution of the T.R.O. upon 2 days
notice to Π.
iii. Rule 65(c): both forms of injunction require the Π to deposit a
security bond for damages to the Δ in case Π was wrong.
iv. Rule 65(d): the order granting an injunction shall be clear and
binding only upon the parties to the action and their agents, or
parties in concert with actual notice of the order.

B) THE COMPLAINT – RULE 8, 11 & 12

a. The initial pleading in a lawsuit filed by the Π.
b. Rule 8(a): Elements of the complaint:
i. “Short and plain statement of the grounds for the court’s
jurisdiction…”
ii. “Short and plain statement of the claim showing that the pleader is
entitled to relief…”
iii. “A demand for the relief sought…”
c. Purposes of the complaint:
i. Notice to Δ;
ii. Notice to the court;
iii. Facilitate decision on the merits.
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d. Rule 12(e): More definite statement: can be filed when responsive

pleading is allowed and is “so vague or ambiguous that the party cannot
reasonably prepare a response…”
e. Contradictory allegations by Π allowed against Δ if Π genuinely unsure of
what happened.
f. Rule 11 Sanctions:
i. 11(c) – courts may sanction lawyers or parties responsible for
violation.
ii. 11(b)(3) – must have evidentiary support.
iii. 11(c)(1)(A) – party may make a motion for sanctions.; alleged
violator then has 21 days to withdraw or correct challenged
pleading.
iv. 11(c)(1)(B) – court may impose sanctions on its own; parties then
given opportunity to defend.
v. 11(b)(2) – sanctions not appropriate when “a non-frivolous
argument for extension, modification, or reversal of existing law or
the establishment of new law.”

C) MOTIONS TO DISMISS – RULE 12

a. Rule 12(a)(1)(A): answer must come within 20 days or Π can move for
default judgment under Rule 55(a).
b. Rule 12(b): Following defenses available by motion:
i. Lack of subject-matter jurisdiction (by any party at any time);
ii. Lack of personal jurisdiction;
iii. Improper venue;
iv. Insufficient process;
v. Insufficient service of process;
vi. Failure to state a claim upon which relief can be granted
(demurrer); and
vii. Failure to join a party under Rule 19.
c. Filing a pre-answer motion per Rule 12(b) is an alternative to answering
the complaint, but;
i. If a party prevails on a motion, they may not have to answer; if
they do not prevail, they still have to answer.
ii. Each of the defenses above may also be filed in the answer.
d. Rule 12(b)(6): Demurrer; if there is a contested issue of material fact, then
the motion must be denied.

D) DEFAULT JUDGMENT – RULE 55

a. Rule 55(a),(b): Default judgment entered when party against whom a
judgment is sought fails to plead or defend.
i. Entered either by clerk if damages are readily available or by judge
following hearing.
b. Factors to consider for setting aside entry of default – Rule 55(c):
i. Whether Π will be prejudiced;
ii. Whether Δ has a meritorious defense;
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iii. Whether Δ’s culpable conduct led to default.

c. Rule 60(b): Setting aside default judgment:
i. Only applicable after judgment has been entered;
ii. Standard much stricter than setting aside entry of default.
1. Mistake, inadvertence, surprise, or neglect;
2. Newly discovered evidence;
3. Fraud or misrepresentation;
4. Judgment is void;
5. Judgment satisfied, released, or discharged;
6. Any other justifiable reason.

E) THE ANSWER – RULE 8

a. The Δ’s response to the Π’s complaint is called an answer.
b. Options for responding to allegations:
i. Admit the allegation;
ii. Deny the allegation;
iii. Δ lacks knowledge or sufficient information to for a belief as to the
truth of the allegation;
iv. Admit part, deny part.
c. Rule 11 sanctions can apply to the answer.

F) AFFIRMATIVE DEFENSES – RULE 8(C)(1)

a. Nineteen affirmative defenses which must be explicitly pleaded in the
answer if the Δ is to raise them.
b. If not pleaded in the answer, they are permanently waived.
c. Burden of proof shifts from the Π to the Δ once Δ raises an affirmative
defense.

G) COUNTERCLAIMS – RULE 13
a. Authorizes a Δ to assert claims back against the Π who has claimed
against him; other side of the “v.”
b. Rule 13(a): Compulsory Counterclaim – Δ’s counterclaim arises out of
the same transaction or occurrence as the claim against him.
i. If Δ does not raise compulsory counterclaim it is permanently
waived.
c. Rule 13(b): Permissive Counterclaim – Δ’s counterclaim is completely
unrelated to the original claim.
i. Allows Δ, once brought before the court, to settle all claims against
his opponent without having to file a separate claim.

H) VOLUNTARY DISMISSAL – RULE 41(A)(1)

a. Π in federal court may voluntarily dismiss his complaint without prejudice
without leave of court any time before the Δ:
i. Serves an answer;
ii. Moves for summary judgment;
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b. A second dismissal operates as an “adjudication on the merits”, and bars Π

from bringing claim a third time due to claim preclusion.
c. After an answer or summary judgment the Π may voluntarily dismiss only
with the court’s approval and on the court’s terms.

I) AMENDMENTS ON PLEADINGS – RULE 15

a. The complaint may be amended once as a matter of course:
i. Before the answer is filed;
ii. Within 20 days after serving the pleading if an answer is not
required.
b. If the above requirements are not met, the pleading may be amended only
by leave of court or by consent of the opposing party.
c. Request to amend shall be refused:
i. When the amendment will result in undue hardship for opposing
party;
ii. When the amendment was unduly delayed.
d. Relation Back: Rule 15(c) – if the claim or defenses asserted in the
amended pleading “arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading,” the amendment
relates back to the date of the original pleading.

J) JOINDER OF CLAIMS – RULE 18

a. A party seeking relief from an opposing party may join with his original
claim any additional claims he has against that opposing party.
b. Rule 42(b): court may sever unrelated claims and conduct separate trials
whenever it has a good reason to do so.

K) PERMISSIVE JOINDER OF PARTIES – RULE 20

a. Π’s may join together in a party if:
i. They assert any right to relief arising out of the same transaction or
occurrence; and
ii. There is a common question of law or fact to all Π’s.
b. Π’s may sue multiple Δ’s if:
i. Claims arise out of the same transaction or occurrence; and
ii. There is a common question of law or fact to all Δ’s.

L) COMPULSORY PARTY JOINDER – RULE 19

a. Necessary Compulsory Joinder – parties must be joined if:
i. Service can be validly made; and
ii. Their joinder would not destroy diversity.
b. To be a necessary party, person must meet one of the following criteria:
i. Incomplete Relief: complete relief cannot be afforded without
person’s presence.
ii. Impaired Interest: a judgment in the person’s interest will either:
1. Impair an interest the person has; or
2. Impose inconsistent obligations on existing parties.
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c. Indispensable Compulsory Joinder – absentee is so vital that the action

should be dropped if joinder is not possible; need to consider the following
factors:
i. Prejudice: the extent of prejudice to the absentee or to those
already parties.
ii. Framing of judgment: the possibility of framing the judgment so as
to mitigate such prejudice.
iii. Adequacy of remedy: the quality of the remedy that can be granted
in his absence.
iv. Result of dismissal: whether the Π will have an adequate remedy is
the action is dismissed.
d. If an indispensable party cannot be joined, then the case must be
dismissed.
i. Dismissal of a case for non-joinder is dismissal without prejudice.

M) IMPLEADER – RULE 14
a. Gives Δ a right to bring into the suit new parties (3 rd-party Δ’s) against
whom he has claims related to the primary action.
b. Parties may be impleaded if they are contributorily negligent, if they are
liable for all damages that they have to pay the Π, or for indemnity against
an insurer.
c. The same event has to give rise to the claim of the Π against the Δ AND
the claim of the Δ against the 3rd-party Δ’s.
d. 3rd-party Δ’s do not destroy diversity.

N) CROSSCLAIM – RULE 13
a. A crossclaim is a claim asserted by one party against a co-party; same side
of the “v.”
b. A crossclaim must arise out of the same transaction or occurrence as
original claim or counterclaim, or must relate to property at issue in
original claim.
c. Rule 13(h): If a party asserts a counterclaim or crossclaim, it can add
parties as long as party joinder rules (19 & 20) are not violated.

O) INTERVENTION – RULE 24
a. Allows certain persons who are not initially part of a lawsuit to enter the
suit on their own initiative.
b. Intervening Π can destroy diversity.
c. Intervention as of Right: a stranger to an existing action has an automatic
right of intervention under Rule 24(a) if he meets all of the following
criteria:
i. Interest in Subject Matter: must claim “an interest relating to the
property of transaction which is the subject of the action.”
ii. Impaired Interest: must be “so situated that the disposition of that
action may as a practical matter impair or impede his ability to
protect that interest.”
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iii. Inadequate Representation: must show that this interest is “not

adequately represented by existing parties.”
d. Permissive Intervention: a person who has a “claim or defense” involving
a common question of law or fact with a pending action may be allowed to
intervene at the discretion of the court.
e. Three interpretations of the definition of “interest”:
i. Cascade Natural Gas Corp.: Three parties can intervene as of right
because they would be adversely affected by a merger that
diminished the competitive environment in CA.
ii. Donaldson v. U.S.: Donaldson could not intervene because he had
an insufficient interest in his employer’s routine business records.
iii. Trebovich v. United Mine Workers: Intervention was allowed
when the Secretary of Labor’s interests were different than
individual union members’ interests.

P) CLASS ACTION – RULE 23

a. The class action is a procedure whereby a single person or small group of
co-parties may represent a larger group, or “class”, of persons sharing a
common interest. It may be used where the joinder of all the potential co-
parties is not feasible, either because the class is simply too large or
because of insuperable difficulties of personal jurisdiction, venue, or
diversity.
b. There are four prerequisites to any class action:
i. Numerosity: the class must be so large that joinder of all the
members is not feasible;
ii. Common question of law or fact;
iii. Typicality: the claims or defenses of the representatives must be
“typical” of those of the class;
iv. Adequate representation: the representatives must “fairly and
adequately” represent the interests of the class.
c. Once the four prerequisites are met, there are three types of class action
suits allowed under Rule 23(b):
i. If individual actions by or against members of the class would
create a risk of either:
1. Inconsistent decisions forcing an opponent of the class to
observe incompatible standards of conduct; or
2. The impairment of interests of members of the class who
are not actually a party to the individual actions.
ii. If the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole.
iii. If these two requirements are met (most common type of class
action):
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1. The questions of law or fact common to members of the

class predominate over any questions affecting only
individual members; and
2. A class action is superior to other available methods for the
fair and efficient adjudication of the controversy.
d. Rule 23(e): Settlements for class actions:
i. Court approval is required;
ii. Notice to all members of the class is required.

Q) DISCOVERY – RULE 26, 30, 33-36

a. Rule 26: Initial disclosures:
i. Information that needs to be voluntarily shared, such as name,
address, phone # should be shared within 14 days after discovery
begins.
ii. “Any matter, not privileged, which is relevant.”
b. Rule 34: Request for production of documents:
i. Permits parties to demand an opportunity to inspect and copy
documents and other tangible things possessed by other parties.
ii. Rule 34 also authorizes entry onto property for purposes of testing
and measuring.
c. Rule 33: Interrogatories:
i. Permits any party to send written questions to another party that
must be answered under oath.
ii. Rule 33(a) now limits the number of interrogatories to 25 per party
absent stipulation or court order.
d. Rule 30: Depositions:
i. Permits the questioner to compel the witness to answer questions
rather spontaneously and allows the interrogating party to follow
up on the answers.
ii. Rule 30(a)(2)(A) imposes a numerical limit of ten depositions per
side.
iii. Rule 30(c) states that if there are objections, “the questions shall
proceed with the testimony being taken subject to objections.”
e. Rule 35: Physical or Mental Examination:
i. Physical or mental examinations are the only discovery tool for
which stipulation or advance court approval is necessary.
ii. Only applies to parties, not 3rd-party witnesses.
iii. Only made on motion, must be for good cause.
iv. Rule 35(a) provides that when the physical or mental condition of
a party or person under the legal control of a party is “in
controversy” a court may order the person to submit to an
examination by “suitably licensed or certified examiner.”
v. The counsel for the party being examined is ordinarily not
permitted to attend.
f. Rule 45: Discovery from Non-parties:
i. More limited than discovery from parties.
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ii. Rule 45(c) requires that parties avoid unfairly burdening

nonparties and alert them in the subpoena itself to the right to seek
a protective order.
g. Rule 36: Requests for Admission:
i. Permits any party to send requests to any other party asking for an
admission of the truth of any matter within the scope of Rule
26(b).
h. Rule 37(a): Motion to Compel:
i. If the party is not cooperating, the opposing can get a court order
compelling disclosure or discovery.
i. Rule 26(e): Duty to Supplement:
i. When a party acquires additional responsive information after
responding to discovery, they have a duty to turn it over to the
other party.

R) ATTORNEY WORK PRODUCT & ATTORNEY-CLIENT PRIVILEGE – RULE 26(B)

a. Rule 26(b)(1): Attorney Work Product:
i. Also known as Trial Preparation Materials
ii. Bars production of certain materials developed in anticipation of
litigation.
iii. Rationale for work product rule:
1. Parties must prepare thoroughly for cases;
2. Parties should not skew their own notes for fear of
disclosure;
3. Opposing party has other means of discovery: depositions,
interrogatories, document production.
iv. Rule 26(b)(3): “documents and tangible things…prepared in
anticipation of litigation by or for another party or by or for that
other party’s representative” can only be obtained in discovery if:
1. The requesting party demonstrates that they have
substantial need for the materials; and
2. Cannot obtain substantially equivalent information through
other means without undue hardship.
v. Mental impressions, conclusions, opinions, and legal theories of
attorney or party’s representatives are never disclosed.
b. Attorney-Client Privilege:
i. Bars inquiry into communications between a client and their
counsel in the course of legal representation.
ii. Rationale:
1. Attorney should know everything about client;
2. Client should trust attorney;
3. Client should have every incentive to be honest with
attorney
iii. Exemptions (in MA):
1. Doctors (M.D., Ph.D. Psychologists)
2. Attorneys
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3. Clergy
4. Self-Incrimination (5th Amendment)
5. Spouses
6. Government Immunity
c. Expert Testimony:
i. An expert witness is a person whose testimony, because of their
specialized knowledge, skill, experience, training, or education,
will assist the trier of fact in understanding the facts and reaching
conclusions on the contested issues.
ii. Parties often hire experts to help them understand the issues in a
case, even though they do not plan to use experts as witnesses at
trial.
iii. Rule 26(a)(2): parties are required to disclose the names of their
testifying experts at least 90 days before trial, together with a
report concerning their opinions and the bases of those opinions,
their qualifications, compensation, and other relevant information.
Said expert witnesses may be deposed, as well.
iv. Non-testifying experts do not have to be disclosed.
v. A party may only seek discovery concerning non-testifying experts
upon a showing of “exceptional circumstances.”
vi. The party seeking to take the expert’s depositions or submitting
interrogatories pays the expenses involved.

S) DISCOVERY SANCTIONS – RULE 37

a. Various degrees of sanctions:
i. Reimburse opponent for expenses relating to failure to cooperate.
ii. Court can strike portions of pleadings, exclude evidence, decide
issues against disobedient party.
iii. Dismiss complaint or declare default judgment.
b. Motion to Compel
i. Ball is in the opponent’s court – if party doesn’t comply with
discovery request, they must meet and try to work it out.
ii. Next, they may move to compel discovery under Rule 37(a)(2).
iii. If it is granted and the party still doesn’t comply, then one of the
sanctions above may be authorized.

T) SUMMARY JUDGMENT – RULE 56

a. Summary Judgment is granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, show
that there is no genuine issue as to any material fact.”
i. Fine line lies between permissible inference and impermissible
speculation.
b. Granted only if trier of fact could not find for the opponent in the matter.
c. Not to actually resolve genuine factual dispute, just used to determine
whether one exists.
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d. Moving party forces opponent to produce critical information early; a

discovery tool to force the opponent’s hand early.
e. Often denied in three types of cases:
i. Negligence case: facts can be proven, but issue of negligence left
for jury to decide.
ii. Broad reaching policy decisions: case precedent stronger when
backed up by full trial and opinion.
iii. Fraud cases: mental state more properly determined by jury.
f. Difference between Summary Judgment and Rule 12(b)(6):
i. Rule 56: matters outside the pleadings are presented to the court,
i.e., affidavits or deposition testimony. Disputes must be on an
issue that is material to the right to relief
ii. Rule 12(b)(6): look only at the pleadings
g. If more discovery is needed:
i. Rule 56(f): the judge can order a continuance of motion for
summary judgment to allow for more discovery.
h. Burden of Persuasion: the Π bears the burden of persuading trier of fact
that their allegations against Δ are true.
i. Preponderance of the evidence standard.
ii. Moving party must show that there is no genuine issue of material
fact.
i. Burden of Production: party responding to a motion for summary
judgment must only produce enough evidence to convince the judge that
the case should go forward, that there exists a genuine issue of material
fact.
j. “No genuine issue” 56 (c)- summary judgment can only be granted if
there is “no genuine issue as to any material fact.”
U) JUDGMENT AS A MATTER OF LAW; DIRECTED VERDICTS & JNOV
a. Used to be called motion for directed verdict.
b. A party can make this motion after the opposing party has been fully heard
on the issue, but before submission of the case to the jury.
c. Standard under Rule 50(a)
i. Enables the court to determine whether there is any question of
fact to be submitted to the jury and whether any finding other than
the one requested would be erroneous as a matter of law.
ii. Judge must find that “there is no legally sufficient evidentiary basis
for a reasonably jury to find for the opposing party.”
d. Renewing motion for judgment after trial:
i. Can be requested up to 10 days after the entry of judgment.
ii. The motion must have been made during trial.
1. You can’t wait until the case goes to the jury and then
decide to file.
iii. Used to be called Judgment Notwithstanding the Verdict (JNOV).
1. Because you are asking the judge to ignore the verdict and
rule the other way.
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2. This movement is usually made orally; there isn’t time to

do research and make a brief.
3. These are not usually granted.

V) RIGHT TO A JURY TRIAL

a. Rule 38(a): preserves right of jury trial as in the 7th Amendment.
b. 7th Amendment: only applies to federal civil cases and only in federal
court (for purposes of Civil Procedure).
i. Preserves right to the jury trial in actions at law, not actions in
equity.
1. Law = $$
2. Equity = Injunction, Declaration, Specific Performance,
etc.
c. Judge decides the law; Jury determines the facts.
d. Today, right of jury trial more liberal:
i. If issue calls for jury trial (law vs. equity);
ii. If issue underlies both law and equity, you get a jury.
e. Rule 47: Selection of jurors has 3 stages:
i. Preliminary statement: ingratiate yourself, but not argumentative
ii. Voir dire: questions jurors under oath.
iii. Challenges:
1. Peremptory: three challenges.
2. For cause: unlimited.
f. Jury must be unanimous in civil cases, as in criminal.
g. Can be less than 12, but more than 5.

W) MOTIONS FOR A NEW TRIAL

a. Options for a losing party:
i. Motion for Judgment as a Matter of Law
ii. Appeal
iii. Motion for a New Trial
b. Rule 59: New trial appropriate, if:
i. Serious error occurred during trial
ii. Verdict was against the clear weight of the evidence
1. If jury was clearly moved by passion or prejudice;
2. There is no way that a rational jury could reach that
conclusion;
iii. Motion made no later than 10 days after entry of judgment
1. Either party can make motion
iv. Motion made by any party or by the judge ‘sua sponte’
1. To promote fairness;
2. New trials do not promote efficiency
c. Rule 50(b): Motions for Judgment as a Matter of Law often filed together
with Motion for New Trial.
d. To take case away from jury:
i. Summary Judgment – no genuine issue of material fact
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ii. Judgment as a Matter of Law

1. Directed Verdict – before it goes to jury
2. JNOV – after it goes to jury
iii. Motion for New Trial
e. Rule 60(b): Relief from Judgment:
i. Mistake, inadvertence, surprise, or neglect;
ii. Newly discovered evidence;
iii. Fraud or misrepresentation;
iv. Judgment is void;
v. Judgment has been satisfied, released, or discharged;
vi. Any other justifiable reason.

X) PERSONAL JURISDICTION
a. Courts ability to deprive person of life and liberty while affording due
process in accord with the Constitution.
b. Terms:
i. In Personam Jurisdiction: jurisdiction over the person (Δ); the
right of the court to adjudicate the rights or property of a person.
ii. In Rem Jurisdiction: jurisdiction over property or tangible item.
iii. Quasi In Rem Jurisdiction: court attaches the Δ’s property in
order to apply it to satisfying the claim.
c. Pennoyer v. Neff: every state possesses exclusive jurisdiction and
sovereignty over persons and property within its territory. No state can
exercise direct jurisdiction and authority over persons or property not
within its territory who had not been personally served with process while
in that state.
d. Jurisdiction over Non-Residents:
i. According to Neff, non-resident Δ’s must be personally served
with process within the state or must voluntarily appear before the
court.
ii. State court could also seize Δ’s property located in the state at the
outset of the action; if property was seized, service by publication
was acceptable – no personal service necessary.

Y) THE SHIFT TO “MINIMUM CONTACTS”

a. Factors to determine whether minimum contacts exist:
i. Volume of contacts – amount of activity;
ii. Purposeful availment;
iii. Balance of convenience;
iv. Location of witness & evidence;
v. Location of injury;
vi. Continuity of contacts;
vii. States interest in protecting citizens and business community, and
deterring misconduct;
viii. Transient jurisdiction;
ix. Domicile – primary residence to return to with the intent to remain.
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b. Solicitation of sales and business in another state does not qualify as

minimum contacts.
c. A “single occasion” may support a related claim if act substantial enough.
d. “Continuous and systematic” may support an unrelated claim is act is
substantial enough.

Z) LONG-ARM STATUES
a. Illinois Long-Arm Statute: (model for most states)
i. Any person, whether or not a citizen or resident of this State, who
in person or through an agent does any of the acts hereinafter
enumerated, thereby submits said person, and, if an individual, his
personal representative, to the jurisdiction of the courts of this
State as to any cause of action arising from the doing of any of said
facts:
1. The transaction of any business within this State;
2. The commission of a tortious act within this State;
3. The ownership, use, or possession of any real estate in this
State;
4. Contracting to insure any person, property or risk located
within this State at the time of contracting.
b. Rule 4(k)(1)(A): Personal Jurisdiction in Federal Court
i. A federal district court may exercise jurisdiction only to the extent
a state court of the state in which it sits could exercise jurisdiction.

AA) SPECIFIC VS. GENERAL JURISDICTION

a. Specific Jurisdiction:
i. Δ’s forum contacts are sporadic, but the cause of action arises out
of these contacts.
b. General Jurisdiction:
i. Cause of action does not arise from the Δ’s forum-related
activities, but Δ has minimum contacts and states jurisdiction is
reasonable.

BB) PRESENCE OF Δ’S PROPERTY

a. In Personam Jurisdiction:
i. Need to do minimum contact analysis and long-arm statute
analysis.
b. In Rem Jurisdiction:
i. Jurisdiction is proper when the litigation is about property that is
present in the state, of or pertaining to the action.
c. Quasi In Rem Jurisdiction:
i. There is property in the state, but the litigation is not about the
property, so the property is attached to the claim to achieve
jurisdiction.
ii. Requires the Δ to defend that property.
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iii. Only applies to things such as real estate, does not apply to
intangible things such as bank accounts, etc.
d. If a person from MA gets sued in ME by a person in ME, person from MA
has to appear in ME to file motion to dismiss based on lack of personal
jurisdiction.
e. Person from NY gets in auto accident with person from MA in MA.
Victim wants to sue, but where? NY or MA, you can always sue someone
within their domicile or where tortious act occurred.

CC) REQUIREMENT OF NOTICE

a. Due Process
i. Requires that the court have personal jurisdiction over the Δ.
ii. Requires that the Δ have notice of the lawsuit.
b. Special or Limited Appearance
i. Appearance in court for the sole purpose of challenging the courts
jurisdiction.
c. Service
i. For In Personam, you used to have service in the state (Δ had to be
in state), but now you can serve even if Δ is out of state.
ii. For In Rem and Quasi In Rem, publication in a newspaper is
enough.

DD) VENUE
a. Where the court will exercise subject matter jurisdiction.
b. Venue is for the benefit and convenience of the Δ.
c. Venue is proper where the claim occurred or where the property lies, but
must have venue in the appropriate district, not just state.
d. Personal Jurisdiction may restrict venue.
e. Personal Jurisdiction still has to be satisfied once venue is determined.
f. 28 U.S.C. § 1391: Venue Generally
i. Governs venue in the federal courts.
ii. Determines in which judicial district the suit can be brought.
iii. Venue is proper in a judicial district when:
1. Where any Δ resides if all Δ’s reside in the same place;
only need residence, not citizenship (domicile).
2. Where substantial part of events giving rise to action
occurred or property located.
iv. For corporations:
1. Venue is appropriate in any judicial district in which there
is personal jurisdiction at the time the action is commenced
if there is no district the action can otherwise be brought.
2. Venue automatically satisfied if you have personal
jurisdiction, only for Π v. Corporation.
g. 28 § 1406: Dismissal or Transfer
i. Dismiss or transfer trial if venue is improper.
ii. Courts prefer to just transfer.
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h. Forum Non Conveniens

i. Personal Jurisdiction exists and venue is proper, but forum is
extremely inconvenient for Δ.
ii. Majority of the time case is dismissed, but on rare occasions cases
are transferred:
1. Under 28 U.S.C. § 1404(a) – does not result in dismissal of
the case; if transferred it’s not a new action.
2. Restriction under 28 U.S.C. § 1404 – “Where it might have
been brought” is not an open invitation to bring suit
wherever you want.

EE) SUBJECT MATTER JURISDICTION

a. For subject matter jurisdiction, you need citizenship (domicile), not just
residency.
b. Diversity Jurisdiction:
i. Fear of bias by the Π’s state against Δ.
ii. If there is subject matter jurisdiction in a federal court, there is
subject matter jurisdiction in any federal court.
iii. 3rd-party Δ cannot destroy diversity.
iv. Intervening Π can destroy diversity.
v. Π’s and Δ’s are citizens of different states;
1. They would want diversity to minimize bias, Δ wants to
remove to “home court.”
vi. Corporate Citizenship:
1. The state where the company is incorporated and the state
where the headquarters are located both considered home
states; citizenship required (domicile), stricter than
residence.
vii. Amount in controversy is greater than $75,000 – 28 U.S.C. § 1332:
1. Π’s claim must be made in good faith;
2. Each Π must meet the amount; however separate claims of
the same Π may aggregate to meet the amount.
viii. Rule 12(h)(1): the Δ can waive their objection to personal
jurisdiction.
1. The objection to subject matter jurisdiction cannot be
waived.
2. Court can raise the issue if it is not waived by the parties.
ix. Motive is not important, person can move to another state in order
to create diversity.
x. Time of commencement of action is the time to determine
domiciliary status, not time of the event.
c. Federal Question Jurisdiction:
i. Must be pleaded by Π in complaint.
ii. Only look at claim to determine Federal Question Jurisdiction;
citizenship and monetary amount in controversy are irrelevant.
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iii. Cases arising under the Constitution, laws, or treaties of the U.S.
iv. The law of the forum may not necessarily be the law of the state.
v. All Π has to do is attempt to enforce any right under federal law.
d. Removal:
i. Only from state to federal court, not the other way around; if case
doesn’t belong in federal court, it is not removed to state court; it is
remanded to state court.
ii. Only Δ’s can remove; Π can never remove under any
circumstances.
iii. Must remove within 30 days of service.
iv. No removal is any Δ is a citizen of the forum.
FF) SUPPLEMENTAL JURISDICTION
a. Supplemental Jurisdiction:
i. Provides jurisdiction over other claims that arise from the same set
of operative facts as the principal claim asserted in federal court;
supplemental jurisdiction replaces the concepts of ancillary and
pendant jurisdiction.
b. Pendent Jurisdiction:
i. Π asserts a federal question claim against a non-diverse party in
federal court and adds on a related state law claim.
ii. Court would have jurisdiction over the state law claim.
c. Ancillary Jurisdiction:
i. Δ’s can assert claims against other parties even if the federal court
would not have jurisdiction over claims if asserted separately, so
long as the claims are part of the same case or controversy.
1. There must be original jurisdiction – Π cannot pull in
another Δ from the same state with a state claim.
d. Diversity Cases:
i. Supplemental jurisdiction not permitted over state law claims by
Π’s or interveners against any party if bringing the claim would
destroy diversity.
ii. This prohibition does not apply to Δ’s; Δ’s may assert state claims
against non-diverse parties.

GG) STATE LAW IN FEDERAL COURTS

a. Necessary Analysis:
i. What court has Subject Matter Jurisdiction?
ii. Do you have Personal Jurisdiction over Δ?
iii. What venue is proper?
b. Hanna v. Plumer: Outcome-Determinative Test: would failure to apply
state rule promote forum shopping and inequitable application of law? If
so, apply state rule unless there is some strong countervailing federal
interest.
c. The Erie Doctrine: When a federal court has to determine a particular
issue and the question for that issue is what applies, state law or federal
law?
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i. 1938 rule in Erie: federal judge has to follow state law on matters
of substance; if issue is procedural, then follow federal law.
ii. Elements of a claim and elements of a defense are substantive.
iii. Burden of proof, statute of limitations, etc., are substantive.
iv. Two-Pronged Test:
1. Is there a federal directive on point, such as a federal rule
or statute that creates a procedural issue?
a. If yes, apply the federal directive as long as it is
valid; rooted in the Supremacy clause of the U.S.
Constitution.
b. If no, then matter is substantive, and state law
applies.
2. How do you know if it is substantive?
a. Outcome-Determinative: such as in Guaranty Trust
v. York, federal judge wanted to ignore state statute
of limitations, but statute of limitations is
substantive. If state law applied, case dismissed, if
federal law applied, case goes forward; can’t have
the state law and federal law produce different
outcomes, therefore judge must follow state law.
v. Two aims of Erie:
1. Avoid forum shopping;
2. Avoid inequitable administration of the law.
vi. How to apply Erie::
1. At outset of action, if the federal judge ignores state law,
will it cause litigants to forum shop?
2. If so, forum shopping is bad for justice system, so state law
is applied.

HH) CLAIM PRECLUSION (RES JUDICATA)

a. “You only get one bite at the apple,” so you better ask for everything.
b. Prohibits relitigation of a claim that has already been litigated and had
judgment entered.
c. Three Step Methodology:
i. Were both cases brought by the same claimant against same Δ?
ii. Did case #1 end in a valid judgment on the merits?
iii. Show both case #1 & #2 involve the same claim.
1. Majority: suit for injury precludes suit for property.
2. Minority: different claim for each right.
d. Rule 41(b): Dismissal of the case constitutes a judgment on merits,
unless:
i. Judge says it is not judgment on the merits;
ii. Dismissed for lack of jurisdiction;
iii. Dismissed for improper venue;
iv. Dismissed for failure to join a party under Rule 19.
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e. Default judgment only applicable to claim preclusion, not issue

preclusion, because no issues have been decided in default judgment.

II) ISSUE PRECLUSION (COLLATERAL ESTOPPEL)

a. Prohibits the relitigation of issues that were litigated by the parties and
decided in a previous lawsuit.
b. Five Step Methodology:
i. Did case #1 end in a valid judgment on the merits?
ii. Was the same issue actually litigated and determined in case #1?
iii. Was the issue essential to case #1?
iv. Against whom is issue preclusion sought? Must be a party in case
#1.
v. By whom is issue preclusion being asserted? Must be a party in
case #1.
c. Privity:
i. A judgment binds only the parties involved and those in privity
with them.
ii. A non-party who has succeeded to a party’s interest in property is
bound by any prior judgments against that party.
iii. A non-party who controlled the original suit will be bound by the
resulting judgment.
iv. The non-party’s interests were adequately represented by a party in
original suit.
d. Defensive Non-Mutual Collateral Estoppel:
i. B is driving A’s car, collides with C.
1. Case #1: C v. B; C loses and is determined negligent; there
is a final judgment entered.
2. Case #2: C v. A; A asserts issue preclusion as a defense
against C and wins, why?
a. There was a final judgment;
b. C’s negligence was litigated and determined;
c. C’s negligence was essential and was the reason B
won;
d. A wants to use issue preclusion;
e. A is not an original party, so it is non-mutual issue
preclusion.
e. Offensive Non-Mutual Collateral Estoppel:
i. B is driving A’s car, collides with C.
1. Case #1: C v. B; C loses and is determined negligent; there
is a final judgment entered.
2. Case #2: A v. C; A claims car is damaged because of C,
and A asserts issue preclusion which bars C from defending
his negligence; why? Same as above.
f. Four “Fairness Factors” to determine applicability of Non-Mutual
Collateral Estoppel, using facts from above:
i. C had a full chance to litigate and defend in case #1;
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ii. A could not have easily joined in case #1;

iii. C could foresee multiple suits;
iv. No inconsistent judgments, often found in multiple lawsuits.