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Civil Procedure Outline

I. Pretrial Checklist
A. Territorial Jurisdiction
B. Service of Process
C. Subject Matter Jurisdiction
D. Venue
E. Choice of Law

II. Territorial Jurisdiction

Raw Power Doctrine: Every state possesses jurisdiction and sovereignty over persons & property w/in its
territory

A. In personam

Definition: Every state has raw power over persons w/in its territory

1. Checklist to determine whether a state court can exercise personal juris. over a defendant
a. Was the defendant personally served in the forum state?
i. Yes – Raw Power Doctrine; “transient juris.” is constitutionally sufficient (Burnham)
ii. No – then continue
b. Is the defendant a resident of the forum state?
i. Yes – yes, state courts always have personal juris. over their citizens, even if they are
not residing in the forum state at the time the suit is brought
ii. No – then continue
c. Does the state trying to exert juris. have an applicable long-arm statute?
i. Each state passes their own statute that is in compliance or stricter that 14 th
Amendment to Constitution
ii. No – no personal juris.
iii. Yes – then continue
d. Is it constitutional for the state to exercise jurisdiction through due process under the 5th
and 14th Amendments?
i. Is the court attempting to exercise general or specific jurisdiction?
1. General – based on defendant’s relationship w/ the forum state
a. domicile & personal service (Pennoyer v. Neff)
b. service of your agent (Harris)
2. Specific – gives juris. for claims that arise out of the forum state
a. Stream of Commerce (Gray Radiator, split decision) v. Asahi
b. Defendant sends product/targets specific state (McGee)
c. Foreseeable you may be served in that state (World-wide
Volkswagen)
ii. What are the defendant’s Minimum Contacts (i-iv to est. general juris.; v to est.
specific juris.) (Int’l Shoe)?
1. Estimate of the inconveniences to parties?
2. Activities systematic and continuous? (Goodyear)
3. Quality and nature of activities?
4. Has defendant prevailed on the benefits and protections of the territory?
5. Does the claim arise out of the defendant’s activities in that territory?
e. Is this fair under Burger King’s “Fairness Factors”? (specific jurisdiction)
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“All assertions of territorial juris., in order to comply w/ the due process clause, must not violate
traditional notions of fair play and substantial justice”

“Unilateral activity of any person associated w/ the lawsuit, other than the defendant, has no
bearing on territorial juris. and assertion of due process”

i. Burden on the defendant

ii. Forum state’s interest in adjudicating the dispute
iii. Plaintiff’s interest in obtaining convenient & effective relief
iv. The interstate legal system’s interest in obtaining the most efficient resolution of
controversies
v. Shared interest of several states in furthering fundamental & substantive social policies
2. Other considerations
a. Federal courts could have nationwide juris., but under the FRCP 4(k)(1), the federal court’s
juris. is limited to where the court of general juris. of the state would have juris.
b. Minimum contacts = defendant reasonably could foresee/anticipate being served in forum
c. Special Appearances – defendant goes into court solely to challenge PJ (Rule (12)(b)

B. Pure in rem

Definition: Property is the subject of the lawsuit.

C. Quasi in rem type 1

Definition: Property is the subject of the lawsuit; must notify all parties interested in the property;
resolves dispute about who owns the property.

D. Quasi in rem type 2

Definition: Property is NOT the subject of the lawsuit; just attach property to get jurisdiction.

1. Checklist to determine whether a state court can exercise quasi in rem type 2 juris. over a defendant
a. Does the defendant have property within the forum state?
i. No – no quasi in rem type 2 juris.
ii. Yes
1. Is the property the subject of the plaintiff’s claim?
a. Yes – no quasi in rem type 2 juris.
b. No – then continue
b. Did the plaintiff obtain an attachment against the defendant’s property pursuant to state
law?
i. No – no quasi in rem type 2 juris.
ii. Yes – then continue
c. Does the exercise of quasi in rem type 2 juris. meet constitutional requirements?
i. Test by applying the same standards as for determining personal juris.: Minimum
Contacts & Burger King’s “Fairness Factors” to evaluate the defendant’s relationship
w/ the forum state & see if it supports general juris.
1. No – attachment should be quashed
2. Yes – trial can proceed
2. Other additional notes
a. Limited Appearance – dispute can only be settled by the value of the property in the
territory’s juris. (Harris)
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III. Service of Process

A. Due Process Issue
a. 5th & 14th Amendments “constitutional sufficiency of notice”
b. Mullane – applies to in personam, in rem, & quasi in rem
B. FRCP – Rule 4. Summons
a. Summons must give the defendant all the information he needs to appear in court; consistent
w/ procedural due process; fault to appear = default judgment against defendant
b. (c) In all in personam cases, and some in rem, notice must be reasonably calculated to reach the
defendant as to satisfy the Due Process Clause
c. (e)
i. (1) Served by a United States (deputy) Marshall or person specially appointed (not
plaintiff)
ii. (2) Serving an Individual by delivering a copy of the summons & complaint…
1. “put it in their hot little hand”;
2. Place of abode w/ someone of suitable age who resides there; or
3. Agent authorized by appointment
d. (h) Serving a Corporation
i. Same as serving an individual; or
ii. By delivering a copy of the summons & complaint to an officer, managing or general
agent, or any other agent authorized
e. (k) Territorial Limits of Effective Service
i. Defendant must be subject to the court of general jurisdiction in the state where the
federal court sits; or
ii. If federal question, international companies must have minimum contact
IV. Subject Matter Jurisdiction

Definition: federal courts have only limited juris. under Art. III & it cannot be waived (FRCP 12(h)(3))

1. 28 USC § 1332. Diversity of citizenship; amount in controversy; costs

a. Checklist for Diversity
i. Is there complete diversity, every plaintiff is of a different state than every
defendant? (Strawbridge v. Curtis)
1. If individuals, based on domicile (physical presence in state & intent to
reside in state indefinitely) (Mas) (13321(d))
2. If corporations, citizen where incorporated and principle place of business
(AKA where headquartered/nerve center) (Hertz) (1332(c)(1))
a. No – no SMJ
b. Yes – then continue
ii. Does the amount in controversy exceed $75,000?
1. No – no SMJ
2. Yes – then you have a properly pleaded diversity case
iii. Additional notes
1. Aggregation of single plaintiff’s claims to meet $75,000 minimum permitted
2. Legal Certainty Test – requires a defendant opposing SMJ to prove a “legal
certainty” that plaintiff cannot claim in good faith an excess of $75,000 in
damages (Red Cab)
2. 28 USC § 1331. Federal Question & Art. III
a. Checklist for Diversity
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i. Well-pleaded complaint rule: short & plain statement that shows the plaintiff is
entitled to relief under federal law and ignores anticipated defenses using federal
law.
ii. Does the case “arise under federal law” (Constitution, treaties, or laws of US)?
1. Yes – then the court has SMJ
2. No – see considerations below
iii. Does the court have supplemental jurisdiction (juris. over claims brought between
existing parties for which there is no federal subject matter juris. if those claims
were considered independently)? 28 USC § 1367
1. Did the court have original juris. over the first claim?
a. No – no supplemental juris. (includes persons made parties by Rules
14, 19, 20, & 24)
b. Yes – then continue
2. Does the supplement claim arise from “common nucleus of operative fact”
so they form part of the same case or controversy under Art. III of the
Constitution (United Mine Workers v. Gibbs)?
a. No – no supplemental juris.
b. Yes – probably, but continue
3. Pendent Claims (Gibbs)
a. Arises in fed. Q cases
b. Focus is on adding additional claim (state)
c. Determined from vantage point of plaintiff
4. Ancillary Claims (Owens Equipment)
a. Courts can hear claims between parties who lack complete diversity
A. Arises in diversity cases
B. Focus is on adding additional party (impleader)
C. Determined from vantage point of defendant
D. Plaintiff cannot amend complaint to include impleader if
not complete diversity
5. (c) – The district courts may decline to exercise supplement juris. over a
claim if… (pg. 231)
3. Spectrum
a. American Wells: case brought directly under federal law; fed. statute must allow for private
parties to bring suit
b. Smith v. Kansas Title: case doesn’t have to be brought under fed. law, but case will turn on
interpreting fed. statute
4. Objections to Territorial Jurisdiction
a. Res Judicata (Baldwin)
i. Make a special appearance, if court finds there is territorial juris., you can appeal in
that district
ii. Don’t appear in court; court makes summary judgment; plaintiff comes to your state
& tries to enforce judgment through Full Faith & Credit Clause; make a collateral
attack against the summary judgment in home forum
b. Special Appearance (Ireland)
i. Burden on defendant to prove they don’t have minimum contacts
c. State’s equivalent = local Rule 4
V. Venue
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A. Federal Venue
a. 28 UCS § 1391(b) – Venue Statute *only when plaintiff initially filed in federal court
i. (1) – requires all defendants reside in the same state
1. If the defendant is an individual, we only care about where the defendant is domiciled.
If all defendants reside in the same state, plaintiff can sue in any district where one of
the defendants lives.
2. If the defendant is a corporation, it has residence in any district where it would be
subject to personal jurisdiction.
ii. (2) – venue exists in districts where substantial events gave rise to the claim
iii. (3) – “fallback provision”: if there is no district in which the action may have otherwise been
brought, any judicial district in which any defendant is subject to the court’s personal
jurisdiction is acceptable
b. 28 USC § 1404(a). Change of Venue; 28 USC § 1631. Transfer to cure want of jurisdiction
i. Checklist for transferring from one proper venue to another in federal court
1. (b) Do all parties agree to the transfer and the new venue?
VII. May be overruled by court!
2. (a) Transfer is up to the court’s discretion. Weigh the public & private factors – “for
convenience of parties and witnesses, in the interest of justice”
3. (a) Is the transferor court a district in which the action might have been brought, i.e.,
was the defendant subject to personal jurisdiction there and does the venue lie there?
VII. No – no transfer (transferee court must have PJ, defendant cannot waive PJ
in transfers)
VIII. Yes – continue
ii. Is the transfer for only convenience and not forum shopping? (Van Dusen)
VII. No – no transfer
VIII. Yes – yes transfer
2. Whose law will apply?
VII. There would be no change of law. The transferee forum must apply the law
of the transferor court, regardless of who initiates the transfer. (Ferens)
3. (b) Any civil suit can be transferred at the court’s discretion when motioned by any
party.
4. (c) A district court may order any civil action to be tried at any place w/in the division in
which it is pending.
c. 28 USC § 1406. Cure or waiver of defects.
i. (a) District court shall (1) dismiss cases filed in the wrong venue or (2) transfer them to any
district in which it could have been brought (transferee court must have PJ, defendant cannot
waive PJ in transfers)
ii. (b) Parties must interpose timely and sufficient objection to venue
iii. (c) Includes courts in US territories
iv. Transferee court doesn’t need to apply transferor court’s laws
B. State Venue
a. 28 USC § 1441. Removal of Civil Actions
i. (a) Defendants may remove a civil case from state to federal court but cannot move from federal
to state.
ii. (b) Defendants cannot remove if the case is already in the state in which he resides because it
would ruin § 1332 diversity (not at risk of being “home-towned” by plaintiff).
b. Each state has its own rules
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i. Typical provision = plaintiff can bring suit where defendant resides or in district where incident
occurred
c. Forum Nonconviens
i. Each state has its own
ii. If suit is filed in state court, but is incredibly inconvenient there are 2 options…
1. Move to dismiss for lack of convenience (Piper Aircraft Co. v. Reyno-footnote 6)
VII. Public Factors = administrative difficulties flowing from court congestion; the local
interest in having local controversies decided at home; the interest in having the
trial of a diversity case in a forum that is at home with the law that must govern the
action; the avoidance of unnecessary problems in conflict of law; and the unfairness
of burdening citizens in an unrelated forum with jury duty
VIII. Private Factors = relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling; and the cost of obtaining
attendance of willing, witnesses; possibility of view of premises, if view would be
appropriate to the action; and all other practical problems that make trial of a case
easy, expeditious, and inexpensive
OR
2. Defendant must waive all objections to territorial jurisdiction in new forum (file entry of
appearance)
VII. Not a transfer! Violation of federalism; Dismissal w/ a restriction!!!
VI. Choice of Law
A. Waiver and Consent to Process (Carnival Cruise)
a. Every Constitutional right can be waived, if done knowingly, except SMJ (FRCP 12(h)(3))
B. State v. State Law
a. Checklist
i. Look at the forum state’s choice of law rules
1. Most states apply the substantial laws of the state where the incident occurred
2. Most state apply their own procedural laws regardless of where the incident occurs
ii. Full Faith and Credit Clause (Art IV(1) and 5th & 14th Amendments)
1. Do the Significant Contacts Test:
a. Look at all parties’ connection to forum court, not just the defendant’s
(Shutts)
b. Is the choice of law arbitrary or fundamentally unfair?
C. State v. Federal Law
a. Do multiple analyses to solve choice of law issue
i. Is there a FRCP that directly conflicts with state statutes at issue? (Hanna analysis)
1. No – move on; there is no valid federal provision, meaning a federal statute or
provision within the Constitution.
2. Yes, identify which Rule
a. Is the FRCP arguably procedural (i.e. is the rule within Congress’s power to
regulate the procedure of federal courts)?
i. No – move on
ii. Yes, the federal rule governs under the Supremacy Clause and does
not violate 28 UCS § 2072. the “Rules Enabling Act” (does it abridge,
enlarge, or modify substantive rights?)
ii. State twin aims of Erie & determine whether the issue is substantive or procedural?
a. Twin aims of Erie Doctrine
i. Discourage forum shopping
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ii. Avoid inequitable administration of the law (10th Amendment)

2. Procedural – apply federal law
3. Substantial – apply law of the state in which the federal court sits under the Rules of
Decision Act (28 USC § 1652)

State Law Applies Federal Law Applies

Statute of limitations Right to jury trial
Duty of care Service of process
Conflict of law FRCP
FRCP 3(a) procedural
Burden of proof
except when it affects the SOL
Res judicata Class actions
Choice of law
Motion for new trial
Burden of Proof

iii. Outcome Determinative Test: the outcome of the case should not be different if tried in
federal versus state court (York)
1. Would the application of a law affect the outcome of a case?
a. No – procedural, apply federal law
b. Yes – substantive, apply state law
iv. The court must balance consideration of outcome determination w/ considerations of
strong federal policy (Byrd)
1. Is there a strong federal policy, such as the United States as a party or a uniformity
issue? (Clearfield Trust)
a. Yes – apply federal law
b. No – apply state law
b. Other considerations
i. State courts can give advisory opinions to federal courts, but reverse not true
ii. Abstention cases – federal judges don’t try to figure out state law when too uncertain or
complex
c. Reverse Erie Doctrine (Dice)
i. State courts must hear federal civil cases
ii. Rule 60(b)(6) – reopening a case & relieving parties of final judgment
1. Cannot reverse federal court decisions based on interpreting state law based on
state court decisions ruled afterwards; “tough noogies” doctrine
State Law Applies Federal Law Applies
Procedural Substantive
Interlocutory
Right to jury trial
appeals
D. General Statute of limitations Federal Common Law
a. US Law after Erie
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END OF
PRETRIAL CHECKLIST
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VII. Pleadings & Motions

A. History of Pleadings

a. Twombly Oversimplification: when you allege facts that you are entitled to relief, you must allege facts
from which it can plausibly be inferred that the defendant was negligent/violated the law
B. Complaints
a. Rule 1. Scope and Purpose. Of the FRCP
b. Rule 2. One Form of Action. Civil Action.
c. Rule 3. A civil action is commenced by filing a complaint with the court.
d. Rule 7. Types of Pleadings Allowed (purpose = isolate facts & issues in dispute)
e. Rule 8. General Rules of Pleading (Access Now)
i. (a)(1) First paragraph – which court?
1. Court of general jurisdiction = state district court = all good
2. Court of limited jurisdiction = state SMJ & why your case belongs
ii. (a)(2) Second paragraph – factual background; “short and plain statement of the claim showing
that the pleader is entitled to relief” (no conclusions)
1. Only state facts entitled for relief; no evidence; not too long; too risky to include too
much detail; need to prove everything later
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2. 2002: conceivability standard – facts must show conceivable inference that allegations
occurred (Swierkiewicz v. Sorema)
3. 2007: plausibility standard – facts support plausible claim, not just possible claim
a. saves on the cost of discovery & opens access to the court (Twombly)
b. Subjective – based on judge’s own experience & common sense
4. Rule 9. Pleading Special Matters (heightened pleading standard)
a. (b) fraud & mistake – must allege particular circumstances & mens rea; “strong
inference = at least as strong as the alternative” (Tellabs)
b. (g) special damages must be specifically stated
5. Lay out part of statute violated
a. Don’t include other cases until brief opposing dismissal; need to state a claim to
get past Burden of Pleading
iii. Answers in Rule 12 – pleadings
f. Burdens
i. Burden of Pleading – don’t put anything in your complaint that you aren’t prepared to prove;
related to complaint – must overcome 12(b)(6) motion to dismiss
ii. Burden of Going Forward – “motion for directed verdict;” “judgment not withstanding the
verdict;” if you later ask the judge to overturn a jury verdict, you must have made a motion for a
directed verdict; related to motions
iii. Burden of (actual) Persuasion – one person jury; plausible factual allegations
g. Rule 11. Signed Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions (lawyer
must research facts before filing complaint)
i. (a) Attorney signs every pleading, written motion, & other paper
ii. (b) Attorney or unrepresented party certifies he or she has made a reasonable inquiry, and
1. There is no improper purpose;
2. The legal contentions are warranted;
3. Factual contentions have evidentiary support or will likely have evidentiary support after
investigation or discovery; and
4. Denials of factual contentions have evidentiary support.
iii. (c) Sanctions
1. (4) Sanctions are discretionary and are meant to deter, not punish.
2. (2) A motion for sanctions gives the other party a “safe harbor” of 21 days to fix the
problem.
h. Rule 15. Amended and Supplemental Pleadings.
i. (a)(1) Plaintiff has the right to amend their complaint w/out judge/s permission w/in 21 days of
serving it, and Defendant has the right to amend w/in 21 days of responding.
ii. (a)(3) Other amendments require that all parties give written consent OR the court grants a
“leave to amend.” The courts should liberally give leave unless the amendments severely
prejudice one party.
iii. (c) Relation Back Doctrine: amended complaints relate back to the original date filed (avoid
statute of limitation issues); claims must arise from the same transaction; plaintiff may only
amend the name(s) of parties if there was a mistake concerning the proper party’s identity and
the right defendant knew about it
iv. (d) supplement pleadings: allow you to add something that happened after the case was filed,
but must ask for the court’s permission
i. Rule 17. Plaintiff and Defendant; Capacity; Public Officers
i. (a)(1) An action must be prosecuted in name of real party in interest
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ii. (b) capacity to sue or be sued

C. Answers
a. Rule 12. Defenses and Objections
1. (A)(i) – Defendant must respond within 21 days after being served w/ summons &
complaint
2. (A)(ii) – Defendant waives service after 60 days of not responding under Rule 4(d)
3. Defendant can respond by making a motion or a pleading.
ii. Motions = not pleadings, they are a request for a court order.
1. (c) motion for judgment on the pleadings; parties compare factual allegations in the
claim & answers in the answer; if disputed facts not material, judge dispenses the law
2. (e) motion for a more definite statement (must be submitted before responding to
plaintiff’s complaint) *rare & specialized
3. (b) 7 defenses = motions to dismiss/demurer OR in answer as affirmative defenses
1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
i. Substantial
1. Is the claim that is asserted legally recognized?
ii. Procedural
1. Rule 8: “short and plain statement;” puts the defendant on
notice; and liberal “plausibility” standard
7. Failure to join a party under Rule 19
4. (h) motions (b)(2-5) must be in the initial Rule 12 response or they are waived!
5. (h) motions (b)(6+7) can be raised any time throughout trial
6. (h)(3) SMJ can never be waived; can be raised at any time, even on appeal
7. (g) Motions in this rule can be joined w/ any other motion in this rule
iii. Pleadings = answers; must answer w/in 14 days of motion being denied
1. Rule 8, cont.
2. (b)(1) – defendant must admit or deny each allegation in short & plain terms; OR
3. (b)(5) – if defendant lacks the knowledge or information, he/she can say, “I don’t know”
4. (b)(6) – if the defendant fails to deny an allegation, it will be admitted as truth (except
damages)
5. (c) affirmative defenses (EX: estoppel, fraud, laches, res judicata, statute of limitations,
waiver, etc.); must be alleged @ beginning of answer & def. has burden to show
because they are injecting a new fact
6. 12(b) – more affirmative defenses
7. (d) inconsistency allowed if done in good faith & jury decides who is responsible
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D. Isolating the Legal Issues

a. Rule 56. Summary Judgment

i. (a) Any party may move for SJ
ii. (a) The court shall grant SJ if the movant shows there is no genuine dispute as to any material
fact & movant entitled to judgment as a matter of law (usually defendant)
iii. (c) supporting factual positions – can attach affidavit, under oath, under penalty of perjury,
personal knowledge (not hearsay); does not look at the pleadings; similar to preliminary
hearings in criminal law (usually defendant)
iv. (e) if party fails to support or address a fact, the court may consider the fact undisputed for
purposes of the motion (usually plaintiff)
b. Rule 68. Offer of Judgment
i. (d) if offeree does not accept a settlement, then offeree “looses,” offeree must pay winner’s
attorney fees accrued incurred after the offer was made (nod to British rule)
E. Standing
a. Rule 17. Real Party in Interest
b. To have standing, plaintiff must allege a “direct injury suffered or threatened” and not merely that he
suffers in some indefinite way in common w/ people generally
c. EX: taxpayer can’t sue for US spending tax dollars on something not permitted by 10 th Amendment
i. (e) If a party fails to support or address another party’s assertion of fact, the court may
“consider the fact undisputed for purposed of the motion.”

VIII. Additional Parties

a. Rule 13. Counterclaim and Crossclaim. – claims between existing parties
i. Counterclaims = claim against an opposing party; defendant files counterclaims in his or her
response
 (a) Compulsory Counterclaim – defendant must bring in this suit here & now or
otherwise forfeit bringing the claim bc it arises out of the same transaction as plaintiff’s
claim
 (b) Permissive Counterclaim – defendant can bring an unrelated counterclaim, but could
also bring it in another court because it does not arise out of the same transaction as
the plaintiff’s claims; no supplemental juris. for permissive
ii. Crossclaim
 (g) Party can bring a claim against a co-party that arises out of the same transaction or
property that is the subject matter of the original action OR indemnify a co-party;
permissive, not compulsory; different than impleader
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iii. Check for SMJ - $75,000 minimum & complete diversity

b. Rule 14. Third Party Practice AKA “Impleader”
i. Defendant joins a new party for one of two reasons
1. Defendant believes the new party owes them indemnity; shifts the entire liability
2. Defendant believes the new party owes them a contribution; shifts partial liability
ii. (a)(1) Implead is a verb; defending party may, as third-party plaintiff, implead a nonparty who
may be liable for all or some part of the complaint against defendant (discretionary, not
mandatory)
iii. (a)(3) plaintiff can sue third party defendant if claim arises out of same nucleus of operative fact
as original complaint and vise versa, third party defendant can sue plaintiff; not compulsory
c. Rule 18(a). Joinder of Claims.
i. No supplemental juris.!
ii. The plaintiff can bring as many claims–legal, equitable, or maritime–as he has against the
defendant assuming the court has SMJ (more efficient; don’t have to be related)
d. Rule 19. Required Joinder of Parties (general notion of efficiency); Related to 12(b)(7)
i. Parties added through joinder do not get supplemental jurisdiction!
ii. Court brings in the new party
iii. Is the 3rd party a joint tortfeasor?
1. Yes – not necessary
2. No – go on
iv. Is the 3rd party necessary? Must meet at least one of the three criteria
1. Without the 3rd party, the court cannot accord complete relief among the parties.
2. The 3rd party’s interest may be harmed if not joined (most common).
3. The 3rd party’s interest may subject the defendant to multiple or inconsistent
obligations.
v. Is the joinder of the 3rd party feasible? Two steps
1. Does the court have personal jurisdiction over the 3rd party?
a. No – not feasible
b. Yes – go on
2. Would joining the 3rd party ruin SMJ in a diversity case?
a. No – the 3rd party joins
b. Yes – not feasible
3. What happens if joining the 3rd party is not feasible?
a. 3rd party is not indispensable, & proceed w/ the case w/out the 3rd party
b. 3rd party is indispensable, so dismiss the case under 19(b)(7) (usually not done
unless there’s no alternate court plaintiff can bring the case to)
e. Rule 20(a). Permissive Joinder of Parties
i. Parties may join together if their claims raise at least one common question, arising out of the
same transaction, & there is no problem w/ SMJ
ii. Parties added through joinder do not get supplemental jurisdiction!
iii. Tool available to the plaintiff when drafting their complaint to add multiple plaintiffs &
defendants
f. Interpleader
i. Permits a person in the position of a stakeholder to require 2 or more claimants to litigate
among themselves to determine which, if any, has a valid claim where separate actions might
result in multiple or inconsistent obligations (EX: bank has gold 2 people believe is theirs)
ii. Rule 22. Interpleader
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1. Requirements = (1) complete diversity under Strawbridge & 1332; (2) 4(K) Service in
territorial juris. in state where federal court sits; (3) 1391 venue; and (4) over $75,000 in
controversy
iii. 28 USC § 1335. Interpleader
1. The district courts shall have original juris. over civil action of interpleader when…
a. Minimal diversity (2 or more diverse claimants)
b. Nation-wide service of process (2361)
c. Relaxed Venue (1397)
iv. 28 USC § 2361. Interpleader
1. During proceedings, plaintiff can ask court to enjoin other parties in suit (must be
served) who have a claim against the plaintiff
v. 28 USC § 1397. Interpleader
1. Any civil action may be brought in the judicial district in which one or more of the
claimants reside.
g. Rule 23. Class Actions
i. Is the class action trying to get into federal court?
1. § 1332 – codified after Hansberry; minimal diversity & $5 million minimum
ii. (a) all these requirements must be satisfied
1. Numerosity – so numerous that Rule 20 joinder of all members is impractical (rule of
thumb = more than 19 plaintiffs)
2. Commonality – there are questions of law or fact that are common to the class that call
all be satisfied by one answer
3. Typicality – the claims or defenses of the representative parties are typical of the claims
or defenses of the class
4. Adequacy – the representative parties will fairly and adequately protect the interests of
the class
iii. (b) must meet all requirements for at least one type of the following class action
1. (1) prosecuting separate actions would create a risk of different results in different
states; can’t opt-out “mandatory”; EX: Mississippi River shifting, property disputes
2. (2) party opposing class action has acted or refused to act on grounds that apply
generally to the class; seeking final injunction or declaratory relief; can’t opt-out
“mandatory”; EX: women flying front lines Air Force
3. (3) common issues predominate over non-common issues; no exclusion over damages
(usually for money); certified if class action is the superior way to resolve the dispute;
easiest classification to get
4. (c)(2) notice – the court must give individual notice to all members who can be
identified through reasonable effort; members who don’t opt-out will be bound by
judgment; representative(s) pays to give notice(c)(2) Notice
a. (b)(1-2) court may direct notice to the class
b. (b)(3) nominal plaintiff/stakeholder must pay for the cost of notice upfront;
option to opt out bc res judicata (action required)
5. (c)(1) – case is not a class action until the court certifies it; representative must make a
motion to certify the class
h. Rule 24. Intervention – new party can join as plaintiff or defendant
i. Parties added through intervention do not get supplemental jurisdiction!
ii. (a) intervention of right – court must allow party to enter (unconditional by federal statute or
required to protect its interest as practical matter); same as “necessary” parties from joinder
 15

1. Is the 3rd party a joint tortfeasor?

a. Yes – not necessary
b. No – go on
2. Is the 3rd party necessary? Must meet at least one of the three criteria
a. Without the 3rd party, the court cannot accord complete relief among the
parties.
b. The 3rd party’s interest may be harmed if not joined (most common).
c. The 3rd party’s interest may subject the defendant to multiple or inconsistent
obligations.
iii. (b) permissive intervention – court can allow (discretion; conditional right under federal statute;
shares main action’s common question of fact)

IX. Discovery
a. E-Discovery’s Threat to Civil Litigation (Hardaway’s article)
i. Problems w/ e-discovery
1. Discovery violates privacy (compare to EU systems)
2. Abuse of court process; “fishing expedition”
3. Excludes people from the courts due to the high cost (30-40% of litigation expense)
4. Many cases settled, so few appellate court decisions on this matter
5. FRCP 26 still unhelpful bc it broadens judicial discretion
ii. Solution
1. eliminate presumption that the producing party should pay for costs
2. favor a rule that would equally distribute costs between requesting & producing parties
iii. Zubulake Seven (7) Factor Test
1. The extent to which the request is specifically tailored to discover relevant information
2. The availability of such information from other sources
3. The total cost of production, compared to the amount in controversy
4. The total cost of production, compared to the resources available to each party
5. The relative ability of each party to control costs & its incentive to do so
6. The importance of issues at stake in litigation
7. The relative benefits to the parties of obtaining the information
b. Rule 26. Duty to Disclose
i. (a)(1) Initial disclosure – must give w/out being asked; discoverable information you will use to
support your case: the name, telephone number, copy of documents, electronically stored
information, and tangible things, & insurance agreements
ii. (a)(2) Expert Testimony – must give name of expert witness & report of what they say, but
cannot get privileged information (qualified work product, absolute, & attorney-client privilege)
iii. (b)(1) Scope – Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case, considering the
importance of the issues, parties’ relative access to relevant information, the parties’ resources,
and whether the burden or expense of the proposed discovery outweighs its likely benefit
1. Attorney-client privilege extends to all company’s employees bc lawyers represent their
clients zealously (Upjohn Co. v. United States)
2. Work product does not automatically mean privilege; work-product can be generated by
the party or representative of the party (doesn’t need to be a lawyer)
iv. (b)(3)(A)(ii) Documents & Tangible Things – Documents prepared in anticipation of litigation or
for trial are discoverable if the requesting party shows that is has substantial need for the
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materials to prepare the case and cannot, without undue hardship, obtain their substantial
equivalent by other means.
v. (b)(3)(B) Protection Against Disclosure – it must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a party’s attorney (Hickman v. Taylor)
vi. (c)(1) Protective Orders – A person… from whom discovery is sought may move for a protective
order… The motion must include a certification that the movant has in good faith conferred…
with the other affected parties in an effort to resolve the dispute… The court may… issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense…
c. Rule 27. Depositions to Perpetuate Testimony.
i. (a)(1) Petition – Procedure for taking depositions to perpetuate testimony before trail begins or
a complaint is filed.
ii. (d) – sanctions
d. Rule 28. Persons Before Whom Depositions May Be Taken.
i. (a)(1) Within the United States – a deposition may be taken before: (A) an officer authorized to
administer oaths either by federal law or by the law in the place of examination; or (B) a person
appointed by the court where the action is pending to administer oaths and take testimony.
e. Rule 29. Stipulations About Discovery Procedure.
i. Typically, lawyers for each side stipulate the time and place of depositions & subpoena
witnesses.
ii. If there’s a 30(c)(2) objection, the witness will still answer unless privileged information.
f. Rule 30. Depositions by Oral Examination.
i. Effective discovery technique – can be asked of anybody
ii. Deponent testifies orally under oath; recorded & live
iii. Strategies
1. When disposing witnesses for the other side, you are only there to get information to
prepare for trial. There is no one there to appreciate you tripping them up, and you
don’t want to alert them of techniques for trial.
2. You want to gather information to impeach the other side’s witnesses at trial.
3. Some lawyers use deposition to file the other side down (expensive).
iv. (c)(2) Objections – An objection… must be noted on the record, but the examination still
proceeds… A person may instruct a deponent not to answer only when necessary to preserve a
privilege…
g. Rule 31. Depositions by Written Questions.
i. Questions are in writing, can be asked to anyone, answered live orally
ii. Must serve a non-party w/ a subpoena (court order requiring their attendance)
h. Rule 32. Using Depositions in Court Proceedings
i. Rule 33. Interrogatories to Parties
i. Cheaper than depositions
ii. Interrogatories = short & simple questions only sent to parties
iii. Asked & answered in writing
iv. Typically used to gather background information
j. Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things.
i. Written request for access to reports not prepared in anticipation of litigation or not protected
by work qualified privilege
ii. Must subpoena non-party to get information
k. Rule 35. Physical and Mental Examinations.
 17

i. (a)(1) physical examination is for injuries caused by accident in controversy; must show good
cause
ii. Only applies to parties & person’s in party’s legal control/custody (child, not employee)
iii. Mental defense = incapacitated
l. Rule 36. Requests for Admission
i. (a)(3) With motions to compel discovery, a silence after 30 days = admission (circumvents this
time-consuming process)
ii. Only available for parties
m. Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions.
i. (b)(2)(A) For Not Obeying a Discovery Order – sanctions (i-vii)
ii. Basically you lose; courts rarely use “nuclear option/v/dismissal” unless it hinders the other side
from presenting its case; appellate courts may review for abuse of discretion

X. Judgment
a. Rule 50. Judgement as a Matter of Law in a Jury Trial; Related Motion for New Trial
i. (a) Judgement as a Matter of Law – motion for dismissal after discovery & the trial started; party
says to the judge, “don’t let this go to a jury, no reasonable person could find in favor of
opposing party;” wants directed verdict
ii. (b)
1. Directed Verdict #1/Judgment as a matter of law = defendant makes @ end of plaintiff’s
case
2. Directed Verdict #2/Renewed Judgment as a matter of law = either party makes after
both parties present evidence; only if denied motion for DV#1 during trial; losing party
must make motion w/in 28 days after entry of judgment
b. Rule 57. Declaratory Judgement.
1. Often coupled w/ injunctions, but injunctions not always coupled w/ declaratory
judgment
2. Can lead to res judicate
ii. In order for the USSC to have the power to adjudicate, must have:
1. “case” and “controversy” – Art. III US Constitution
2. Adverse parties – Muskrat v. US (1910)
3. High likelihood a contingency will occur – Nashville R.R. (1933) *high likelihood = death
& taxes
4. Declaratory Relief Act: 28 USC § 2201(a) – In case of actual controversy… any court in
the US… may declare the rights and other legal relations of any interested party seeking
such declaration… ; plaintiff must be an interested party
5. Concrete controversy & facts (United Workers, 1947)
c. Rule 59(a). New Trial.
i. A court may grant a new trial when trial judge determines he/she has made a mistake
1. Jury – for any reason a federal court has heretofore granted a new trial
2. Nonjury – for any reason previously granted PLUS by open judgment, take additional
testimony, amend findings of fact, & direct the entry of a new judgment
 18

XI. Injunction
a. Rule 65

Summary & Complaint

14 Days (temporary decision) to serve def.
Temporary Restraining
Order (TRO) Trial
Irrepairable harm
Preliminary Injunction
Good faith & attempts @ giving Likelihood of winning on merits
notive Irrepairable harm On merits: permanent
Security bond Balancing harm(s) injunction
Set hearing for preliminary Public interest
injunction
freeze action until trial "maintain
the status quo"
losing party may appeal this

i. Remedy – can only get equitable relief if no legal relief

1. Law: monetary damages, real estate, & property, contracts, torts
2. Equity: injunctions, specific performance, recission, derivative, class
ii. Mandatory injunctions require supervision (compel someone to do something)
iii. Prohibitory injunctions order not to do something; courts more likely to enforce
th
b. 7 Amendment – as applied to civil cases in federal court
i. Preserves the right to a trial by jury, meaning who would have had a right to a jury in common
law England in 1791
ii. Terry Test
1. Is the claim asserted analogous to a claim that existed in 1791? (usually yes)
2. What is the remedy sought?
a. Legal remedy – usually compensatory damages (money) form contract, tort, and
property claims; get jury trial
b. Equitable remedies – usually injunction or specific performance; only get
equitable relief if there is no legal relief; don’t get jury
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XII. Res Judicata

a. Stare Decisis
i. What is it?
1. Legal question is answered in first case
2. Second case has same legal question & follows the legal precedent
ii. Characteristics
1. Different parties
2. Not absolutely binding (higher courts can reverse)
b. Law of the Case
i. Rule: an issue which has been litigated in one stage of case should not be re-litigated in a later
stage
ii. Example: #4 will not relitigate whether there was insufficient evidence to go to jury
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c. res judicata (claim preclusion)

i. Checklist:
1. Case 1 is done
2. Case 2 is pending
3. Does the judgment in case 1 preclude us from litigating case 2?
4. Was case 1 and case 2 brought by the same claimant against the same defendant?
a. Yes – res judicate
b. No – go to Collateral Estoppel
5. Did case 1 end in a valid judgment on the merits?
a. Yes – go on (includes default judgments)
b. No – includes judgments based on jurisdiction, venue, or indispensable parties
6. Did the claimant assert the same claim in case 1 and case 2?
a. Define claim
i. Majority & federal courts = arise from the same transaction or
occurrence
ii. Minority = “primary rights theory”; says you get a different claim for
each right invaded (EX: interest in body & interest in property)
b. Yes – claim precluded
c. No – court able to litigate case 2
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d. Collateral estoppel (issue preclusion)

i. Checklist
1. Case 1 is done
2. Case 2 is pending
3. For counterclaims, was it compulsory?
a. If yes, it should have been brought in case 1!
4. Does the judgment in case 1 preclude us from litigating case 2?
5. Are the parties the same? No – go on
6. Go through the Four Requirements & exclude 3(b) depending on the jurisdiction
a. If not all satisfied, “judge should deny motion to grant CE”
7. If defensive, done w/ analysis, state whether the issue is precluded or not
8. If offensive, use Parklane’s four “fairness factors”
ii. Defensive versus i. Offensive

iii. Four Requirements (Pre-Bernhardt) – all must be satisfied for judge to grant CE
1. Was the issue decided (see identical issue sub-requirements) in the prior adjudication
identical with the one presented in the action in question?
2. Was there a final judgement on the merits?
a. Final judgment varies by court
i. Majority – all appeals denied
ii. Minority – if trial court reaches a verdict
iii. No final judgment if case is settled; Rule 49 (general verdict)
3. Two parts (see examples below)
a. Was the party against whom the plea is asserted a party on in privity with a
party to the prior adjudication?
b. Mutuality Doctrine used in some jurisdictions: Was the party asserting collateral
estoppel a party in privity with a party to the prior adjudication?
4. Did the party against whom the plea is asserted have a full and fair opportunity to
litigate the issue in the prior adjudication?
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iv. Identical Issue Sub-requirements

1. Was the issue actually litigated?
a. Unlike claim preclusion, declaratory judgements do not count as litigated
2. Was it actually decided?
3. Was the issue necessary to the decision?

v. Requirement 3(a): Was the party against whom the plea is asserted a party on in privity with a
party to the prior adjudication?

vi. Requirement 3(b): Mutuality Doctrine (Bernhard v. Bank of America)

1. Overturned in federal court & a majority of the states, including Colorado
 23

vii. DEFENSE Mutuality Doctrine overturned by USSC: Blonder-Tongue Foundation (1971)

1. US files amicus brief to overturn mutuality doctrine to prevent plaintiff 1 from suing
everyone & causing inflation
2. Hardaway believes Mutuality Doctrine should be overruled in patent cases but not
necessarily other case

viii. OFFENSE Parklane Four “Fairness Factors” (argues against CE bc results in more litigation)
1. Could Plaintiff2 easily have joined? “nothing to lose” (most applied)
2. Little Incentive to Defend
3. Prior Inconsistent Adjudications
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4. 7th Amendment Violation – deprive party against whom CE is asserted of an important

procedural right (not including right to a trial by jury)
5. Examples