Civil Procedure Outline

Miscellaneous

Must determine Proper Court (see chart)

Three factors-Personal Jurisdiction, Subject Matter Jurisdiction, and Venue.

Judgments from one state are enforceable in another=Full Faith and Credit clause (US Const.

Art. IV)

Due Process-5th (federal) and 14th (State) amendments

Personal Jurisdiction PJ=The circumstances under which a court (state or federal) has authority to make decision

binding on these particular parties

I) Personal Jurisdiction

A) Divided into Basis and Service

B) Policy Considerations for PJ

1) Protects D against the burdens of litigating in a distant forum

2) Ensure that states don’t over reach their authority over non-citizens

II) Basis=What Person or Property is subject to Court power

A) State Long Arm Statute-Determines what the State has Jurisdiction over (subject to

constraints of US Const. Due Process)

1) Varies by State

(a) WA has specific areas that are allowed

(i) Transaction of business in the state

(ii) Commission of a tortious act in the state

(iii) Real or Personal property in the state

(iv) Insuring someone in the state

(v) Sex in the state which resulted in a child

(vi) Living in a marital relationship in the state, even if you left, as long as the

other person (plaintiff) remains

(b) AZ goes “as far as Due Process allows”

B) US Constitution-

1) Domicile-citizen of the state

2) Consent-If defendant agrees to consent in some way

(a) Contracts which specify PJ: i.e., going on a Carnival Cruise

(b) Appoints an agent for service of process in the state

(c) Makes General appearance in the matter (rather than a special appearance for PJ

purpose only)

(d) Found and served in the state. Burnham (split decision – Scalia thought this was

sufficient; Brennan wants contacts/fairness analysis)

3) International Shoe test (absent Ds)-Due Process under 14th amendment

(a) Specific Jurisdiction-action arises from contacts with state – purposeful

availment, foreseeability, stream of commerce (if not, use general Jx analysis)

(i) International Shoe-Established two prong test (Min. Cont. & Purp. Avail.)

(A) Minimum Contacts-with the forum state

1. Foreseeability-

a. Contacts must be significant enough that D might “reasonably

anticipate being haled into court” in forum (WWVW)

b. Contacts do not have to be widespread, ongoing, or extensive if the

D might expect to be brought to court

c. Policy-Protection of D against unreasonable suits in distant forum

2. Purposeful Availment-

a. D must take some action in the Forum in which he deliberately

engages in significant activities within the state or creates a

continuing obligation between himself and residents of the forum

(Hanson, WWVW)

b. Activity that provides clear notice that D is subject to suit & can

act to alleviate that risk (WWVW)

c. Unilateral activity by a third party who has relationship to D is

insufficient (Hanson)

d. Policy-D takes advantage of opportunities offered by state in the

contact and avails itself of state’s laws thus state has an interest in

dealing with action arising from those contacts

3. Stream of Commerce-If discussing, must argue both sides

a. Goods delivered with expectation that they will be delivered in the

forum state.

b. Courts split on this issue

i. Brennan dissent in WWVW-says S of C is enough

ii. Asahi: (if u prove O’Conner, you prove Brennan)

iii. O’Conner-S of C meets Minimum Contacts if there is

“purposeful direction” towards the forum state such as being

designed for the state, advertising in the state, establishing

channels for regular advice to customers in forum state

iv. Brennan-S of C is sufficient-knowledge that goods will end up

state is sufficient for Minimum Contacts

(B) Fairness-“Traditional notions of Fair Play and Justice”

1. Burden on the Defendant-This is the primary consideration. Considers

distance, cost, difficulty of access to witnesses, etc.

2. State’s interest in adjudicating-enforcing the laws in their state,

provide forum for residents, $ and property

3. Plaintiff’s interest in providing convenient and effective relief

4. Interstate judicial systems interest in having efficient resolution of

complaints

5. Social Policy-shared interest of the state in furthering social policy

(b) General Jurisdiction-Action does not arise from contacts with the state

(i) Must be “continuous and systematic” contacts with forum state-Helicopteros

(ii) Mere purchases are insufficient (even if continuous)-Asahi

(iii)In Helicopteros, purchases in state, training in Texas, business meetings in

state, not “continuous and systematic”

(iv) In Perkins-business office in state, w/officers, held meetings, and made

business decisions in state = continuous and systematic

(c) In Rem/Quasi In Rem-Must be evaluated in the same manner as In Personam

(Contacts/fairness)-Shaffer v. Heitner-attaching property insufficient to have PJ

though property in state may be sufficient to establish minimum contacts

dependent on what the property is and if it is related to the issue

(i) Policy-fairness in still requiring D have minimum contacts rather than just

seizing property without due process.

(d) Presence-Burnham

(i) Court split on whether mere presence is sufficient

(ii) Scalia-Presence is traditionally sufficient which makes test clear and makes

decisions easy

(iii) Brennan-minimum contacts analysis-tradition is not good enough-mere

transient presence is not good enough absent minimum contacts

(e) Waiver-if PJ not raised at outset=consent to PJ

III) Service

A) US Constitution-14th amendment-Due Process=Mullane-notice reasonably calculated to

reach interested parties

B) FRCP 4-provides rules for how to provide notice

1) May have slightly different rules in individual states

2) 4(a)(1)-summons requirements

3) 4(c)(2)-Who can give service=summons + copy of the complaint by person over 18

not a party to action

4) 4(d)(1) Waiver of service-if waiver is requested: P sends complaint with form 5 by

reliable means, form 6 is what D sends back saying whether they agree, they get a

longer time to respond to the complaint. If D fails to respond to the waiver (60 days),

P must use normal forms of service, which D has to pay for.

5) 4(e)

6) 4(h) Serving a Corporation-same as individual or service on an officer, managing or

general agent, or any other agent authorized by appointment or law

Subject Matter Jurisdiction

Assuming Personal Jurisdiction is found or waived, the question becomes: What court does

plaintiff go to in that state?

Three burdens for SMJ in Federal Court

1. SMJ cannot be conferred on Federal court by consent of the parties=it either has it or it

doesn't

2. Lack of SMJ is not a defense that can be waived (in other words, it can be brought at any

time by anyone)

3. There is a presumption against F-SMJ thus P must show why there is F-SMJ

Characteristics=

Limited to what is authorized by statute or constitution-parties can’t consent to

jurisdiction or waive jurisdiction

If there is SMJ, then court has Original Jurisdiction (District Court)

Some actions are Exclusive to Federal-admiralty, patents, etc.

Most are concurrent=even if Federal can hear case, State can as well

IV) Two types of Federal Subject Matter Jurisdiction

A) Diversity Jurisdiction-Diversity of parties to the action

B) Federal Question (Arising Under) Jurisdiction

V) Diversity Jurisdiction

A) US Constitution, Article III, Section 2-allows Federal to hear actions regarding:

1) Between Citizens of Different States

2) Between Citizens of Different States and foreign citizens

3) Tashire-Constitution only requires minimal diversity (at least one party on each

side from different states)

B) 28 USC 1332-

1) Strawbridge/Mas require complete Diversity (no P and D from same state) (more

restrictive than Const. requirement under Tashire)

2) Requires minimum $ amount of more than 75,000

3) Citizenship

(a) Mas-defines Citizenship for individuals under 1332(a)

(i) US Citizen

(ii) Domicile

(A) Residence in state

(B) Intent to remain or return if absent

(iii) To establish new domicile:

(A) Must establish new residence

(B) Must intend to remain in new state

1. Subjective, but relevant factors may be DL, home ownership,

registering to vote.

(b) Hertz-defines Citizenship of corporation under 1332(c)(1)

(i) State of Incorporation-may be more than one

(ii) Principal Place of Business

(A) Nerve Center test

(B) HQ where officers make decisions for the company

VI) Federal Question (Arising Under)

A) US Constitution, Article III, section 2-judical power extends to all cases ARISING

UNDER Constitution, the Laws of the US, treaties, etc.

1) Osborn-Federal law must be an ingredient

B) 28 USC 1331-Language is also “arising under” but interpreted differently

1) Mottley-Well-pleaded complaint-only federal issues to be considered are those

arising in the complaint

2) American Well Works-If federal law creates the claim

3) Smith-State law claim, but requires construction or application of federal law

4) Merrill Dow- exception to Smith-policy based-to avoid cluttering courts with state

negligence claims

5) Grable-test to determine if Federal Jurisdiction

(a) Does it arise from a state claim?

(b) Does it raise a stated federal claim?

(c) Is it disputed and substantial?

(d) Can it be addressed without disturbing the federal/state power balance? (policy)

(e) Policy Issues:

(i) Expertise of Federal court

(ii) Uniform interpretation of Federal Law

(iii)Interest of court in not cluttering court calendar

VII) Removal

A) 28 USC 1441 Pg. 238

1) Allows removal by Defendant from State to Federal court

2) Policy=gives D some say in where case is heard to avoid bias

3) Court must have Subject Matter Jurisdiction (Personal Jurisdiction is assumed since if

no PJ, case could not be heard in state court regardless)

4) Any arising under claim is removable, any diversity claim is removable if none of the

D live in the forum state

Venue No federal constitutional right to venue in a specific place.

Federal statute provides particular venue provisions for specialized actions. i.e. cases against

national banks, cases involving collection of federal taxes, etc.

VIII) 28 USC 1391 Pg. 234-says how to handle federal venue in different cases

A) 1391(a)-SMJ based on Diversity Jurisdiction only actions

1) Must be brought in district where any defendant resides if all D in same state; or

2) District in which substantial part of events occurred or substantial part of property is

located; or

3) District in which any D is subject to Personal Jurisdiction at time action is

commenced, if there is no district in which the action may otherwise be brought

(almost never applies)

B) 1391(b)-SMJ based on “arising under”/federal question, at least in part

1) Essentially the same as above, though with different wording in 3-same effect

C) 1391(c)-defines Corporation residence for Venue as district where it is subject to PJ.

II) Transfer

A) 28 USC 1404(a)-Pg. 236

1) Guidelines for considering transfer under 1404(a)

(a) Convenience of the parties

(b) Convenience of the witnesses

(c) Interest of justice.

B) 28 USC 1406(a)-Pg. 236

C) Misc.

1) Transfer requires venue and PJ. In court transferred to.

(a) However, Goldlawr=no PJ required for court transferred from.

2) Forum selection clause in contract may be considered when a transfer is requested but

does not automatically control

1404 1406

Change Venue Change Venue

Filed in proper venue Filed in wrong venue

Test (convenience, fairness, justice)

Transfer to location w/venue Transfer to location w/venue or dismiss

Choice of Law=law of jurisdiction

transferred from=transferor (at discretion of

judge)

Choice of Law=law of jurisdiction

transferred to=Transferee

Policy for Choice of Law=prevent abuse of

changing venue to get better result

Policy for Choice of Law=to prevent abuse

of intentionally filing in wrong court to get

better result under law

Forum Non Conveniens

In State actions, FNC=move to new state

In Federal actions, FNC=move to new country

Piper Aircraft Co. v. Reyno=In considering, court must balance private and public factors (with

deference usually given to P’s choice)=

1. Private Factors=

a. relative ease of access to sources of proof

b. Availability of compulsory process for attendance of unwilling

c. The cost of obtaining the attendance of the willing

d. Possibility of view of premises

e. All other practical problems that make trial of a case easy, expeditious and

inexpensive

2. Public factors-

a. administrative issues flowing from court congestion

b. Local interest in having localized controversies decided at home

c. Interest in having a diversity case in a forum that is at home with the law that

must govern the action

d. Avoidance of unnecessary problems in conflict of laws or the application of

foreign law

e. The unfairness of burdening citizens in an unrelated forum w/jury duty

3. Must be an Alternative Forum available somewhere for the dispute, if not, no FNC

dismissal

Jurisdictional Challenges Some Jurisdictions allow challenge of PJ by Special Appearance, but most now follow FRCP

Rule 12-Pg. 18-20

1. 12(b)-How to present defenses-by motion or by pleading

2. Specific Defenses in 12(b)

a. Subject Matter Jurisdiction-can be brought any time by anyone-12(h)3

b. Personal Jurisdiction, improper venue, and insufficient service or process

i. Must be filed at outset or waived-12(h)(1)

ii. If one is filed by motion prior to pleading, all must be or they are waived-

12(g)

c. Failure to state claim or Join party may be filed later subject to 12(h)(2)

Pleading IX) Complaint

A) Rule 1: Governs civil actions in US District Courts

1) Policy: “to secure the just, speedy, and inexpensive determination” of action.

B) Rule 3-Civil Action commenced by filing a complaint

C) Rule 5-Governs Service of Pleadings and other papers

1) Who must be served: 5(a)-every party

2) How to serve: 5(b)-

(a) By personal service

(b) Leaving it at:

(i) At office w/clerk or in conspicuous place

(ii) Or, if no office, at residence

(c) Mailing to the person's last known address

(d) Leaving it w/court clerk if no known address

(e) Sending it by electronic means if person consents in writing

(f) Any other means that the person consented to in writing

3) Filing w/Court: 5(d)-within “reasonable time”

D) Rule 7-Defines what pleadings are allowed: Pg. 13

E) Rule 8-Rules of Pleading

1) 8(a)-Complaint

(a) 1-short, plain statement of grounds for court's jurisdiction (unless court already

has jurisdiction)-usually a statement of subject matter jurisdiction in Federal

Court (some states also require PJ info)

(b) 2-short, plain statement showing pleader is entitled to relief

(c) 3-demand for the relief sought

2) DiGuardi- FRCP 8(a)(2) does not require showing of facts, only a short and plain

statement of a claim upon which relief can be granted

3) Conley- claim should not be dismissed unless D can prove "no set of facts in support

of his claim"

(a) however, the court has further held that the complaint must provide sufficient

notice to D of what the claim is.

4) Bell Atlantic

(a) FRCP 8(a)(2) language-short and plain statement of the claim sufficient for relief

(b) Majority says 8(a)(2) requires some facts to show P is entitled to relief

(c) Says it must be sufficient facts to raise right to relief above the level of

speculative, must be plausible, but not necessarily plausible.

5) Ashcroft

(a) Idea that a court must accept as true all of the allegations contained in a complaint

is not applicable to legal conclusions-i.e. “threadbare recitals of the elements of a

cause of action”

(b) Only a complaint that states a plausible claim for relief will survive a motion to

dismiss.

F) Rule 9(b)(g)

1) 9(b)-must state facts to show fraud or mistake, but malice/intent/etc. may be alleged

generally.

(a) Policy-The very nature of fraud seems likely to lead to an appropriate conclusion

regarding malice, intent, knowledge, etc. without other additional specific

information. Such information may be difficult to supply in such a case thus, the

general conclusion is adequate.

2) 9(g)-requires that any special damages sought must be specifically stated.

(a) Policy-to provide notice to defendant that such special damages are being sought.

G) Rule 10-Governs Form of Pleadings-Pg. 16

X) Dismissal-

A) Voluntary Dismissal-Rule 41(a)

1) May dismiss without a court order by filing a notice of dismissal before D files their

answer or makes a motion for summary judgment; or

2) a stipulation of dismissal signed by all the parties

3) Doing so the first time=no prejudice

4) Doing it again in the same action=decision on the merits

B) Involuntary Dismissal-Rule 41(b)

1) Court may dismiss if P:

(a) Fails to prosecute

(b) Fails to comply w/rules

(c) Fails to comply w/Court Order

2) Any involuntary dismissal acts as adjudication on the merits except

(a) Lack of jurisdiction

(b) Improper venue

(c) Failure to join a party under rule 19

XI) Responding to the Complaint

A) Responding by Motion or Answer-Rule 12

1) 12(a)-Time line for responding

(a) 21 days generally

2) 12(b)-Defenses

(a) All defenses must be asserted in responsive pleading except the following which

may be done by motion or pleading:

(i) Lack of SMJ

(ii) Lack of PJ

(iii) Improper venue

(iv) Insufficient process

(v) Insufficient service of process

(vi) Failure to state a claim upon which relief can be granted

(vii) Failure to join a party under Rule 19

3) 12(e)-Motion-requests clarification of pleading before answer

4) 12(f)-Motion to strike

(a) Insufficient defense

(b) Any redundant, immaterial, impertinent, or scandalous matter.

B) Answer-Rule 8(b)

1) 8(b)(1)-must admit or deny each claim

2) 8(b)(2)-denial must fairly respond to the substance of the allegation

3) 8(b)(3)

(a) General denial-used if party intends in “good faith” to deny all parts of a

pleading-including jurisdictional grounds, etc.

(b) Specific Denial-

(i) Must specifically deny allegations; or

(ii) Generally deny all, except those specifically admitted

4) 8(b)(4)-may deny part, but must admit part that is true

5) 8(b)(5)-if party lacks knowledge to admit or deny they must say so=denial

6) 8(b)(6)-failure to deny=admit

C) 8(c)-Affirmative Defenses-D admits to something, but asserts a defense which negates

liability

XII) Default Judgment

A) 54(c)-default judgment must not differ in kind from or exceed the amount requested in

the claim. Otherwise, up to the courts discretion.

B) 55(a) Default is not automatic. P must file an affidavit w/the clerk to enter default.

C) 55(b)-if for a set amount, P can file directly with clerk to enter default judgment.

Otherwise, must file with court and provide notice if D has appeared.

D) 55(c)-default can be set aside for good cause under 60(b)

E) 60(b)-default judgment can be set aside if there was excusable neglect or mistake, new

evidence, fraud by opposing party, judgment is void, or any other reason that justifies

relief.-Not limited to default judgments only-may apply to any judgment

F) Wilson-Default Judgment allowed when party fails to plead or otherwise defend

1) Majority-letters from D were not sufficient appearance to require notice

2) Dissent-letters indicated an intent to defend-should decide on merits

XIII) Amended Pleadings

A) Rule 15(a)-generally pleadings are allowed to be amended once within 21 days of

serving it or, if a response is required, within 21 days of the response.

1) 15(a)(2)-allows for amendments outside of that time period with party consent or

court’s leave. Court should grant leave “freely” when “justice so requires”.

B) 15(b)-amendments during and after trial-pleadings may be amended to include issues

brought out during trial

1) Based on objection that evidence does not relate to issue in pleading-court may allow

pleading to be amended. Court should allow when:

(a) Amendment will aid in presenting the merits of the case

(b) Objecting party fails to satisfy the court that allowing the amendment would

prejudice that party’s action or defense on the merits.

2) If issue is tried by express or implied consent (failure to object) treat as if in the

pleadings. Party may then move to amend to include this issue and it should be

allowed.

C) 15(c)-relation back of amendments-allows amendments of claims to include issues

individually barred by the statute of limitations in some cases-Pg.23

1) 15(c) attempts to balance the policy for Statute of Limitations ensuring that suits are

brought in a timely manner with the policy that supports liberally allowing

amendments in the interest of justice.

2) 15(c)(1)(B)-Amendment arises out of transactions or occurrence as original pleading

3) 15(c)(1)(C) -in this case, still must meet (B) above and w/I 120 day period of rule

4(m)

(a) Notice/no prejudice

(b) knew or should know they are the right defendant

(i) rule 4(m) time period applies to when D knew of (i) and (ii), not when the

amendment is filed

4) Marsh-

(a) 15(c)(1)(B) is based on the idea that once a defendant is notified of an action

based on a specific occurrence, they have received sufficient notice for all claims

which might be related to that occurrence.

5) Beeck-

(a) 15(c)(1)(C)-not allowed to change party after statute of limitations unless that

party had notice before & should have known they were the proper party

XIV) Truthfulness in Pleadings

A) Rule 11(b)-requires that pleadings be truthful and honest to the best of the attorneys

ability and:

1) It is not being presented for any improper purpose

2) Claims, defenses, and other legal contentions are supported by existing law or by a

non-frivolous argument to change the law

3) Factual contentions have evidentiary support or will likely have evidentiary support

after discovery/investigation

4) Denials are warranted on the evidence or lack of information.

What Law Governs XV) 28 USC 1652

A) The laws of the several states, except where the Constitution or treaties of the US or Acts

of Congress otherwise require or provide, shall be regarded as rules of decision in civil

actions in the courts of the US, in cases where they apply.

B) Erie Test-Factors

1) Is claim based on state created rights and obligations (i.e. substantive law)?

(a) Erie

(i) Purpose of 1652 was to make certain that where federal law did not control,

Court would apply state law, unwritten as well as written

(ii) State law controls substantive issues, not procedural ones

(b) Hanna

(i) 2702- allows SC to set court procedure=FRCP

(ii) If FRCP & State conflict-FRCP wins

2) federal policy which makes it appropriate to apply federal v. state law?

(a) Byrd

(i) Federal interest in right to Jury controlled over state law

3) certainty or strong possibility that result would be different

(a) York

(i) Substantive v. procedural depends largely on whether law controls the

outcome

(b) to maintain uniformity and prevent forum shopping b/w state and federal courts

4) Policy Support

(a) Equal Protection under the Law

(b) Reduce Forum Shopping

Joinder XVI) Policy Considerations

A) For

1) Avoid Duplicative litigation

2) Avoids unnecessary expenses

3) Reduces load on the courts

4) Leads to more consistent results

B) Against-

1) Litigation more complex

2) Mandatory packaging may override Plaintiff's choice of forum and scope of litigation

3) Balance between plaintiff autonomy and efficiency

XVII) 1367-Supplemental Jurisdiction (SJ)

A) To be joined in an action, the court must have either Arising Under, Diversity, or

Supplemental Jurisdiction

B) 1367(a)-Gibbs Power Test

1) Common Nucleus of Operative Fact

2) Would ordinarily be expected to try all the claims in one proceeding

3) Have substance sufficient to confer SMJ (i.e. Diversity, Arising Under, or

Supplemental)

C) 1367(b)-Exceptions to 1367(a)

1) Only applies to Diversity cases

2) Only applies to claims by P

3) Only applies to claim against parties joined under:

(a) 14-third-party claims

(b) 19-Parties required to be joined

(c) 20-parties joined permissively

(d) 24-Intervention

4) Exception only applies where exercising supplemental jurisdiction would eliminate

SMJ under Diversity (i.e. eliminate complete diversity)

5) Owen-Policy supporting exception

(a) Logical Dependence-usually only applies to Impleader claims which are logically

dependent on whether the original claim is successful making it necessary to

consider indemnification issues

(b) Defensive Initiation-P should bring such claims at the outset, while D deserves

more latitude since they are in a reactionary position.

(c) The Clever Plaintiff-might foresee D's joinder of O and thus use that to avoid

diversity limitations

D) 1367(c)-Gibbs Discretion Test-District Court may decline to exercise SJ for any of

these:

1) Judicial economy-is it easier to hear claim in one case or more difficult?

2) Convenience-More convenient to try together or separate?

3) Fairness-Is it fair to try together or separate?

4) Novel or complex issue of state law

5) State law claim substantially predominates over the claims in which court has SMJ

6) All claims where the court had SMJ have been dismissed

7) Any other compelling reasons in exceptional circumstances

XVIII) Joinder by P

A) Rule 18(a) allows, but doesn’t require, party to assert any and all claims it has against

another even if unrelated.

B) Rule19-Required Joinder of Parties

1) 19(a)-Person who can be served and will not deprive court of SMJ if:

(a) In that person’s absence, court cannot accord relief among existing parties

(b) Person claims an interest relating to the subject of the action and is so situated that

moving forward without person may:

(i) Impair or impede the person’s ability to protect their interest

(ii) Leave an existing party subject to a substantial risk of incurring multiple or

inconsistent obligations

2) 19(b)-When joinder is not Feasible

(a) Court must decide whether, in equity and good conscience, the action should

move forward without the party or should be dismissed based on these factors:

(i) Extent to which the judgment may prejudice the existing parties or the party

not joined

(ii) The extent to which the prejudice can be lessened or avoided by:

(A) Protective provisions in the judgment

(B) Shaping the relief

(C) Other measures

(iii)Whether judgment rendered in persons absence would be inadequate

(iv) Whether P has an adequate remedy if the action is dismissed (alternate forum)

(b) Haas-Equity and Good Conscience test in 19(b)

3) 19 usually must be considered by P before the start of the lawsuit-if P does not do so,

then either D or Court can force joinder of that party and/or dismiss

4) Temple-Necessary v. indispensible (crucial)

(a) 19(a)-is party necessary?

(b) 19(b)-can action go forward without party? If not, Indispensible.

C) Rule 20(a)-Permissive Joinder of Parties

1) 20(a)(1)-P’s may join together in one action if:

(a) Same TorO; and

(b) Common questions of law or fact

2) 20(a)(2)-D’s may be joined in one action if:

(a) Same criteria as above

D) Rule 42-court may consolidate or separate trials

1) 42(a)-Consolidation, in whole or in part, if Common question of law or fact

2) 42(b)-May order separate trials, in whole or in part, for:

(a) Convenience

(b) To avoid prejudice

(c) Economy

E) P claim joinder Test

1) SMJ?

2) Party can be joined under 19 or 20?

XIX) Joinder by D

A) Rule 13-Governs what counterclaims and Crossclaims are allowed

1) 13(a)-Compulsory Counterclaim

(a) Must state any claims that arise out of same TorO except

(i) If it requires adding another party which the court does not have PJ over

(ii) Claim is already subject to another action

(iii) Court does not have PJ over party on the counterclaim

(b) Dindo-Policy-to prevent multiplicity of actions and to achieve resolution in a

single lawsuit of all disputes arising out of a common matter.

(c) Carteret-Policy

(i) The policy of the federal rules favors resolving all disputes between the

parties in a single litigation.

(ii) Rule 1-just, speedy, inexpensive determination of every action

(d) Policy for Compulsive Joinder

(i) Efficiency

(ii) Fairness

(A) Avoid double or inconsistent liability

2) 13(b)-Permissive Counterclaim-party may bring additional counterclaims which

aren’t compulsory

3) 13(g)-party may bring crossclaims against a coparty if the claim arises out of the

TorO or relates to any property which is subject matter of the original action

(a) May include indemnification claims

4) 13(h)-D may join parties to a claim or counter claim under rule 19 & 20 above

(a) If this joinder is at issue, must reference 13(h) before 19 & 20

B) D claim joinder test

1) SMJ?

2) Claim allowed under rule 13?

XX) Third-Party Practice

A) Rule 14

1) Rule 14 policy-Promotes efficiency by litigating the underlying claim and any claim

for indemnity or contribution in a single proceeding

B) Rule 14(a)-when D can bring in a third party (acting as third-party P)

1) 14(a)(1)-indemnity/contribution only

(a) Markvicka-indemnity claim in the same suit-does not have to wait until after

liability found

2) 14(a)(2)-Third-party D’s claims & defenses-much the same as normal D

(a) Must assert any defenses under rule 12

(b) Must assert any counterclaims under 13(a) and may assert any other

counterclaims under 13(b) or crossclaims under 13(g)

(c) May assert against P any claims that D(third-party P) has

(d) May assert any other defenses which arise out of the original TorO which is the

subject of action of P v. D

3) 14(a)(3)-P may assert claims against Third-Party D

(a) Any claim arising out of the TorO

(b) TPD must then assert any defenses, counterclaims, crossclaims, etc.

4) 14(a)(5)-Third-Party D’s claim against a Nonparty: TPD may assert claims against a

non-party who is or may be liable to TPD for all or part of any claim

5) 14(b)-P may bring in a TPD in relation to any claim asserted against it

XXI) Intervention

A) Rule 24

1) 24(a)-Intervention of Right

(a) unconditional right by statute

(b) an relevant INTEREST in the property or transaction at issue which may be

IMPAIRED and is not adequately REPRESENTED

(i) Atlantis-allowed party who had an interest which was unrepresented and

would be impaired by their exclusion.

2) 24(b)-Permissive Intervention

(a) conditional right by statute

(b) has claim or defense which shares w/main action a common question of law or

fact

(i) if common question of law and fact, court may allow

(A) 24(b)(3)-in exercising its discretion on this issue court should consider:

1. Whether the intervention will unduly delay or prejudice the

adjudication of the original parties rights

Trial (Summary Judgment/JML) and Appeal XXII) 7th Amendment-Right to a Jury

A) Seventh provides Jury for "suits in common law"

B) says right is "preserved" which means held over from the past, not created in new actions

1) Common Law

(a) Jurisdiction-10 forms that determined which court

(b) Decision maker-jury

(c) Remedy-varies, but typical is compensatory damages

2) Equity Court

(a) no SMJ in CL court (none of the 10 forms fits) or remedy doesn't fit (want

injunction, not Comp. Damages)

(b) Decision maker-Judge

(c) Remedy-varies, but typical is injunction

C) Rule 38-Right to a Jury Trial-must demand or waived

1) May specify which issues for jury or request in general=all issues

D) Terry-Must consider both the nature of the issue (claim) and the remedy sought to

determine if it is legal issue or equitable one

1) compare cause of action with that of English courts prior to merger of law & equity

2) Examine remedy and see if it is legal or equitable in nature

(a) Brennan concurring-“nature of the remedy is more important than the nature of

the right”

E) Beacon

1) if underlying claim has both legal & equitable remedies, the jury first decides the

facts, then the legal and equitable remedies may be decided separately.

F) Except in Atlas

1) where congress creates a right and creates an administrative agency to decide those

issues, no right to a jury

G) Except Tull

1) Not all elements of a trial are part of the fundamental right to a jury=

(a) There is a right to a unanimous jury

(b) There is no right to a certain number of jurors (6, 12, 9, etc.)

2) In Tull, there is no fundamental right to determine who determines the civil penalty

(a) Court in Tull says judge is often in better position to determine damages

(b) Only applies when jury is not required for some other reason

XXIII) Selection of Jurors

A) Jury pool must include reasonable cross-section of the population.

1) Venire-Jurors summoned for duty

2) Voir dire-Process of jury selection from the venire

3) Challenge for Cause-Juror excluded for close connection w/any of the parties or

witnesses or "when they have such fixed opinions that they could not judge

impartially the guilt of the defendant."

4) Peremptory challenge-removal of Juror without a stated reason

(a) Entitled to 3 as per USC 1870

B) J.E.B.

1) Peremptory challenge must not be for prohibited reason i.e. race or gender

(a) 3 step test for Peremptory Challenge

(i) Opponent must establish prima facie case of discrimination

(ii) proponent must then offer "constitutionally permissible explanation"

(iii)court makes a decision on whether impermissible discrimination took place

C) Rule 47-Selection of Jurors

1) Allows for examining jurors, peremptory challenges under 1870 above, and excusing

jurors for cause.

D) Rule 48-Number of Jurors=at least 6 and not more than 12

1) Verdict must be unanimous unless the parties stipulate otherwise

E) Special Verdict v. General Verdict

1) Rule 49

(a) 49(a)-Special Verdict

(i) Written questions to jury to find on each specific issue of fact

(b) 49(b)-General Verdict

(i) General finding of fact

(A) May be accompanied by written questions which are not binding as

specific findings of fact

XXIV) Summary Judgment

A) Policy-

1) Prevent burden on courts/parties for dealing with meritless claims

2) Dispose of factually unsupported claims & defenses

B) Two situations for summary judgment

1) Parties agree on all the facts and their dispute is entirely about the law-

2) Parties disagree about the facts, but one side has so little evidence that no reasonable

jury could find for that side.

(a) Court should draw all reasonable inferences from the evidence for the non-

moving party, but must make a threshold determination.

C) Anderson-defines material and genuine

1) Material-facts which are relevant based on the substantive law

(a) "A 'material fact' is a fact upon which the outcome of the litigation depends, in

whole or in part."

2) Genuine-the evidence is such that a reasonable jury could return a verdict for the non-

moving party.

D) Summary Judgment v. Directed Verdict

1) Vary only in timing and the amount of evidence that has been presented.

E) Rule 56

1) 56(a)-Summary Judgment if:

(a) No Genuine Dispute as to Material Fact

(b) Entitled to Judgment as a Matter of Law

2) Celotex

(a) Differentiates on who has the burden of proof at trial and what they must show for

SJ

(i) Moving party w/burden of proof at trial (usually P)

(A) Prove all elements of claim w/credible evidence

(ii) Moving party w/o burden of proof (usually D)

(A) D can show P has insufficient evidence to prove an element

(B) Affirmative evidence which negates an element (disproves an element)

(iii)Non-moving party can prevent SJ if:

(A) They can show evidence of Genuine dispute as to Material fact

(B) 56(d)-affidavit showing that P can't provide evidence yet, but will be able

to soon-temporary delay only

3) 56(c)-how to show evidence for SJ

(a) Citing to the record

(b) Showing that record does not establish genuine dispute or that party can’t produce

evidence to support the fact in dispute

XXV) Judgment as a Matter of Law

A) Directed Verdict v. Judgment notwithstanding the verdict

1) DV=before submitting case to Jury

2) JNOV=after

(a) Standard for both="whether a fair-minded jury could return a verdict for the

plaintiff on the evidence presented."

B) Rule 50

1) 50(a)(1)-reasonable jury would not have a legally sufficient evidentiary basis to find

for the party

2) 50(a)(2)-motion must be made before submission to jury, renewed one within 28 days

of entry to judgment

3) 50(b)-motion may be renewed after jury verdict=JNOV 28 days

C) Lavender Test

1) 50(a)-Reasonable Jury

2) JML if Complete Absence of Fact

(a) Viewed in light most favorable to non-moving party

3) Preserve Jury functions for Jury not Judge

(a) Jury Functions

(i) Disregard facts that are inconsistent with other facts

(ii) Draw inferences

(iii)Assess credibility and believe what they choose about the evidence

(iv) Weigh evidence

XXVI) New Trial

A) Dadurian Test

1) Against (clear) weight of the evidence=new trial

(a) Court of Appeals review

(i) Abuse of Discretion=(Manifest injustice)

(ii) Policy-TC in better position to weigh evidence than C.A. which they don't see

and hear like the TC

B) Rule 61-Harmless Error

1) No harmless error is grounds for new trial

2) However, new trial may be granted where parties substantial rights are affected by the

error

C) Rule 60-Relief from Judgment

1) 60(b)-grounds for relief from Final Judgment

(a) Remittitur-D appeals saying, in part, damages too high-Court reduces damage

award

(b) Additur-P appeals-says damages too low-Court increases damage award-not

allowed in Fed. Court

XXVII) Appeal

A) No Constitutional Right to Appeal

1) Policy

(a) Means of ensuring that the law is interpreted and applied correctly and uniformly.

(b) Means for the ongoing development and evolution of the law in the common law

tradition.

(c) Heighten the legitimacy and acceptability of judicial decisions

(d) means for the institutional sharing of judicial responsibility for decisions.

B) USC 1291-The COA shall have jurisdiction of appeals from all final decisions of the

district courts of the US except where a direct review may be had in the Supreme Court

1) Final decision=ends the litigation and leaves nothing for court to do but execute the

judgment=Final Judgment/Final Decree

C) If no final judgment=1292(b)-district court may certify an order for immediate appeal if:

1) there is "an order"

2) Involving a "controlling question"

3) "of law"

4) "as to which there is substantial ground for difference of opinion"; and

5) "that an immediate appeal from the order may materially advance the ultimate

termination of the litigation."

D) Rule 54(b)-Allows court to enter final judgment as to some matters of a case, which

allows an appeal, while other aspects of the case remain undecided i.e. summary

judgment against one party while others still await trial.

E) 1651-Federal Courts may issue all writs necessary or appropriate

1) Writs of Mandamus-Allows COA to issue orders to DC-extraordinary remedies-only

appropriate when:

(a) petitioner has no other adequate means to attain the relief he desires

(b) Petitioner has burden of showing that his right to issuance of the writ is clear and

indisputable

(c) Essentially, COA intervenes to prevent a judgment by a lower court in

exceptional circumstances

F) Liberty Mutual

1) No appeal allowed prior to summary judgment when there were not multiple claims

for purposes of 54(b) and where there was no immediate harm if appeal was delayed

2) Three examples of exceptions to final judgment rule

(a) 1292(a)(1)- Injunctions-

(b) Appointing receivers, directing sales, or other disposals of property

(c) rights and liabilities of parties to admiralty cases

Preclusion XXVIII) Claim Preclusion-Res Judicata

A) Claim preclusion=claimant may only sue on a single claim or "cause of action" once

B) One chance to vindicate all rights to relief encompassed in a single claim

C) Claim Preclusion Test

1) Valid, Final Judgment on the Merits in suit 1

(a) Valid-Court had authority in the case

(b) Final Judgment-No longer subject to change by the original judge or jury

(i) In Fed-final pending appeal

(ii) In State-varies-some not final until appeal over

(c) On the Merits

(i) Any judgment or dismissal except Rule 41(b)

(A) Lack of Juridiction

(B) Improper Venue

(C) Lack of Joinder of necessary parties under 19

(D) Voluntary Dismissal under 41(a)

2) Same Parties or Privities in suit 1

(a) Party-had opportunity to appear and litigate=Due Process under 5th & 14th

(b) Privities-Taylor exceptions

(i) Consent-Party agrees to be bound by outcome of suit 1

(ii) Substantive legal relationship-Preceding & succeeding property owners

(iii)Representation-Adequately represented by parties in suit 1

(iv) Control-had control over the course of litigation in suit 1

(v) Proxy-trying to sue on behalf of party to suit 1

(vi) Statute-expressly prohibits additional litigation

3) Same Claim

(a) Carter-primary rights involved in the individual claim

(b) Evidence-same evidence for the claim=same claim

(c) Legal theory-separate legal theories=different claims

(d) Restatement test

(i) All rights to relief within the same TorO or Common Nucleus

(ii) Policy for Restatement

(A) Efficiency

(B) Fairness

(C) Consistency

(D) Finality-courts are big on this one

XXIX) Issue Preclusion-Collateral Estoppel

A) Prevents relitigation of particular issues that were actually litigated and determined in the

first case.

B) Issue Preclusion Test

1) Valid, Final Judgment on the Merits-same as above

2) Against a party or privity in suit 1-same definition as above

(a) Defensive Non-Mutual Issue Preclusion

(i) Blonder-Tongue-Allowed as long as party it is used against was a party to suit

1

(A) Example-Allows party to use issue preclusion as defense against a suit

brought by a party to suit one on an issue which was decided against that

party in suit 1.

(ii) Policy- Effective use of resources for P, D, and court. Party is entitled to one

full and fair opportunity to litigate an issue, but not allowed to keep "rolling

the dice" against new parties hoping to get a different result

(b) Offensive Non-Mutual Issue Preclusion

(i) ONMIP Defined=P attempts to use issue decided against D in earlier case to

avoid re-trial of the same issue (thus, if earlier negligent, negligent now)

(ii) Parklane-Offensive preclusion allowed generally, but at judge’s discretion

based on :

(A) Where a plaintiff could easily have joined in the earlier action

(B) When it would be unfair to D for some reason such as

1. Foreseeability of further litigation by D/P=if small initial suit, D may

not mount strong defense if future litigation not foreseeable

2. Inconsistent Judgments-different previous decisions holding different

ways

3. Different procedures-some meaningful difference such as evidence

rules

3) Involves a claim actually litigated, decided, and essential to the judgment in suit 1.

(a) Litigated-evidence in the case on that issue

(b) Decided-jury or judge made a finding of fact on the issue

(c) Essential-it was a determining factor as to the outcome of the case