CIV PRO OUTLINE: DESAN, FALL 2007
I. Due Process & Access to the Legal System
*Procedure is (1) essential, (2) substantive (stealth substance), and (3) can be disputed
A. Things affected by civil procedure
1. parties & their roles
- Access to courts
- Court power over parties
- Nature of exchange – cooperative vs. adversarial
- Scope of the lawsuit – what issues can be resolved
2. decision making
- Allocation of decision making b/t judge and jury or b/t different institutions
- What is decided at which stages of litigation
- How the state is orchestrating the process
3. who’s making the process
- Who came up with the system
- How it changed over time
B. The system changing over time
1. Rule expanded to take on more parties including controversial exceptions
2. Deferring to experts more, away from public/jury: increased judicial control, more in-depth
pre-trial
3. System increasingly dominated by federal government
C. Goldberg v. Kelly
1. Step 1- Is it a deprivation of property?
a. Footnote 8, Materials p. 6: It may be realistic today to regard welfare entitlements as
more like “property” than “gratuity.” Much of the existing wealth in this country takes
the form of rights that do not fall within traditional common law concepts of property…
Many of the most important entitlements now flow from govt… only the poor whose
entitlements… have not been effectively enforced.
b. Purposeful, textual, and analogic arguments for why welfare should be considered
property
2. Step 2- If so, how much process is due?
a. Consider the extent to which the person may be “condemned to suffer grievous loss” &
weigh the recipients interest in avoiding that loss against the government’s interest in
summary adjudication.
3. Rudimentary Due Process, according to Brennan:
a. notice, oral hearing, opportunity to confront/cross examine witnesses, option of
counsel, decision on record, impartial decision
D. Fuentes v. Shevin
1. Court says a writ of replevin is deprivation of property; even if it’s conditional and temporary
a. Established that exigency wasn’t necessary to establish property
b. How much process is due? A pre-termination hearing.
2. Contrast with Mitchell, a private attachment case where the court didn’t think pre-termination
hearing was necessary (but in LA where Mitchell was, the procedure for attachment had many
more safeguards against erroneous deprivation)
E. Current Due Process Requirements
1. Three-prong balancing test (Matthews v. Edlridge)
a. government interest
b. risk of erroneous deprivation *big part of Matthews
c. private interest (discounted if risk of error in part b is low)
F. Costs of Litigation & Access to Courts
1. Private Costs (atty/expert fees) & Public costs (filing, clerk fees)
2. How do people pay/who pays: American tradition says every man for himself
a. Consequences of the American rule
i. discourages:
-small claims, because costs outweigh amt. of claim
-weak/unsure claims
-legitimate but complex claims that require a lot of lawyering
-poor claimants
-injunctive relief cases
ii. encourages:
-nuisance suits settle when they shouldn’t because it’s cheaper for def.
-people with in-house counsel benefit
-repeat players benefit
-wealthy people benefit
-settlements are encouraged
-attorneys look for ways to add high damages to claims
3. Jeff D: more and more fee-shifting statutes are coming up w/r/t injunctive relief situations.
Here, question was whether the dist. Ct. was required to reject the proposal that waived
attorney’s fees- if you allow waiver you’re hurting future potential plaintiffs who won’t be
able to get a lawyer (court said it was within dist. Court’s discretion to allow it)
4. Counsel in Parental Rights Cases: Lassiter
a. retail approach; decide on a case by case basis whether counsel should be appointed
b. sup ct set a high standard for cases that require appointed counsel; this case seemd
egregious. Some states passed laws; maybe better to focus on legislature than court
II. The Federal Rules of Civil Procedure
A. Before the Rules
1. 1789: Static Conformity
a. Fed. Cts. Were to follow the rules of the state they were in
b. As time went on, the states changed rules but the federal courts were stuck
2. Conformity Act of 1872
a. Federal Courts now followed the current, up to date rules of the state they sat in
3. 1934: Congress delegates authority to Supreme Court to make uniform rules
28 USC §§2072-2074
B. Making the Rules
1. Congress passes the Rules Enabling Act (delegated the power to the Supreme Court to make
the rules)
a. Const. Art. I, §8: “Necessary & Proper Clause”
b. Art. III (FRCP necessary to carry into effect these powers in Art. III)
2. Supreme Court creates the Rules Advisory Committee
3. Rules Advisory Committee drafts the FRCP
a. notice & comment period
b. rules reviewed by Congress
c. if Congress does nothing, they go into effect
C. Substance v. Procedure
1. Sibbach: statutory challenge
a. Sibbach did not argue Constitutionality, she challenged based on the statute
b. Sibbach argued that the rulemakers couldn’t make procedural rules that affected
substantive rights; Wilson argued that they could make any procedural rules
c. The court held that a rule could affect a person’s rights without being a matter of
substantive law; and that is okay under the REA & Constitution.
d. Established a bright-line test between substantive and procedural law
i. rules are allowed as long as they don’t make substantive law
ii. gives the judge greater authority
iii. fences off a large area for the rules
2. Mistretta: Constitutional challenge
a. How do you sort out the rules in the twilight zone between substantive and procedural
b. rules are allowed so long as they don’t:
i. undermine the integrity of the judicial branch
ii. arrogate powers of other branches
c. more accommodating when there is substantive rulemaking that doesn’t offend
functional standard
i. the authority of the court to make sentencing rules is pretty substantive, but it’s
allowed
III. Personal Jurisdiction (aka Territorial Jurisdiction)
A. Traditional Basis & Progression
1. U.S. Const., Art. IV, §1: Full Faith & Credit Clause
2. U.S. Const., Amend. XIV, §1: Due Process
3. 28 USC 1738: Full faith & credit, look to state statutes
4. Pennoyer v. Neff: jurisdiction defined by state territorial limits
a. In personam jurisdiction: over person
b. In rem: over the property in dispute
c. Quasi-in rem: over person based on property; can only be effected
against in-state property (no res judicata value)
5. Interstate Commerce creates pressure; move from Pennoyer → Due Process
a. Harris v. Balk: intangible property travels with the person
b. Hess v. Pawloski: consent is inferred from use of highways
B. In-State Service on Defendants (1 of the following is necessary)
1. Service upon defendant while voluntarily present in forum state
2. Domicile within the forum state
a. current dwelling place + intent to remain indefinitely
b. if no current domicile, last established domicile is used
3. Residence within the forum state
a. Sup. Ct. hasn’t ruled on this issue, but the argument exists
4. Consent to be sued within the forum state/waiver of personal jurisdiction challenge
a. filing action
b. contract
c. implied consent/non-resident motorist statutes
d. general appearance
e. waived by failing to raise objection in first motion/answer
C. Out-of-State Service on Defendants
1. Constitutional Due Process: Two-Prong Test
a. Minimum Contacts: “such that the [suit] does not offend “traditional notions of fair
play and substantial justice” (Int’l Shoe: WA wanted to collect unemployment taxes
based on commissions paid to WA-based salesmen)
i. Systematic & Continuous Contacts → General Jurisdiction
(a) If suit is not related to contacts, they must meet this more rigorous test
(Helicopteros; no jurisdiction based on several unrelated purchases in
forum)
ii. Few, but related contacts → Specific Jurisdiction
(a) Purposeful availment necessary (McGee: broad
approach to purposeful availment; suing an Ins. Co.)
-Deliberately initiated business contacts within the state (McGee)
(b) Unilateral activity of plaintiff doesn’t count (Hanson v.
Denckla; stricter than McGee); chattel not to be treated as an agent.
(Note in McGee the insured didn’t move to another state, the contract
to insure him was made while he was in the forum state.)
(c) Minimum contacts necessary in quasi in-rem suits;
makes quasi in-rem useless now (Shaffer v. Heitner)
(d) Stream of Commerce not enough; must have effort to
market in forum state (Worldwide VW; Asahi-but remember Asahi
court split on the issue of minimum contacts)
-some issue over whether they made the full product or just
component (distinguishing Asahi)
-contacts are such that defendant “should reasonably anticipate
being haled into court there.”-WWVW
(e) Existence of contract AND choice of law provision goes
a long way (Burger King: franchise suit)
b. Reasonableness
i. Must not be unreasonable burden on the defendant (Asahi; Japanese Corp.)
ii. 5 Facors: (1) the burden on the defendant, (2) the forum state's interest in
resolving the dispute, (3) the plaintiff's interest in receiving convenient and
effective relief, (4) the interstate judicial system's interest in obtaining the most
efficient resolution of controversies, and (5) the shared interest of the several
states in furthering fundamental social policies.
2. Statutory Authority: Federal Long Arm FRCP 4(k): Territorial Limits of Effective Service
for diversity AND federal question cases -service within the state is fine, and also:
a. State Long-Arm must apply FRCP 4(k)(1)(a), or …
i. 4(k)(1)(b): Bulge rule; Rule 14 Impleader or Rule 19 Necessary Party can be
brought in as long as they are within 100 miles of the court
ii. 4(k)(1)(c): if subject to federal interpleader jurisdiction under §1335
iii. 4(k)(1)(d): if authorized by federal statute
iv. 4(k)(2): if the person is not subject to jurisdiction in any state & exercising
jurisdiction would be constitutional
v. Cases: Bensusan (didn’t commit “in-state” tort for purpose of long-arm) &
Omni Capital (court declined to infer a grant of jurisdiction from fed statute)
vi. language of long arm: first thing to do is ask how the supreme court within the
state interprets its long-arm; when it includes “in-state tortuous act” there is
discrepancy over whether act must have been in-state or just the injury
b. Manner of service must be correct
i. individuals
- personal
- substitute of suitable age and discretion at the residence
- agent appointed for service of process
- local state law where the court sits OR where defendant is served
- if foreign, follow treaty
ii. corporations
- serve officer or authorized agent (test is whether it is someone likely to
pass the papers on to the attorney responsible for managing the suit)
c. Amenability to suit
i. federal question cases: if jurisdiction would be constitutional, regardless of
whether the state would hear it; but still need long-arm to cover
ii. diversity cases: jurisdiction depends on whether the state court would have
heard the case
D. Challenging Personal Jurisdiction
1. Motion to dismiss for lack of personal jurisdiction: Rule 12(b)(2): may be joined with other
motions or included in a responsive pleading (Ins. Corp). If it is not made in initial motion or
answer, it is waived.
2. Special appearance, but you can not discuss merits of the case
3. Limited appearance for quasi-in rem: you can contest merits but limit to property in state
4. If you lose motion to dismiss: most courts allow you to proceed on merits w/out losing right
to appeal on jurisdiction @ the end; some courts allow interlocutory appeal.
5. Enforcement of judgment: plaintiff must sue in new state and prove he received the 1st jgmt
a. Const. Art. IV §1: Full Faith & Credit between states
b. 28 USC §1738 for federal to uphold state court
c. Const. Art. VI: Supremacy Clause for state to follow federal court
6. Collateral attack: defendant may contest whether the first court had jurisdiction if he defaulted
in the first case and the issue was not litigated in the 1st court; court may not consider merits
E. Notice & Opportunity to be Heard
1. U.S. Const. Due Process Amendments V & XIV, §1
2. Notice must be reasonably calculated to reach the interested parties (Mullane)
a. Ask if property was deprived, and if so how much notice was due
b. Mullane said notice was sufficient if:
i. if it is reasonably certain to inform those affected, or…
ii. where conditions don’t reasonably permit such notice, the form that is chosen
isn’t substantially less likely to bring home notice than other of the feasible and
customary substitutes
iii. Mullane said newspaper was okay for people who’s interests couldn’t be
ascertained, or people who were anticipated future beneficiaries; others needed
letters- people with addresses on file who had concrete current interests
d. In-rem and Quasi in-rem cases: modern statutes require more than attachment or even
garnishment, either publication or mail to defendant
e. substitute service when not given to person
i. left with person of suitable age and discretion at the dwelling place of defendant
ii. some states allow you to affix the summons to the door of the dwelling
iii. first class mail with waiver request; defendant must sign waiver and return
3. Rule 4: Summons
4(c)(1): summons served to defendant with copy of the complaint
4(c)(2): service done by person 18 years or older
4(d): Waiver: send defendant complaint & summons and ask them to waive within 30
days (60 if int’l); incentive for defendant to accept: longer to respond (60 instead of
20 days); disincentive to deny waiver: have to pay for its costs
4(e): if you have to serve someone formally, follow the state law of the court law or leave
it at home with someone of suitable age and discretion
4. Opportunity to be Heard: see Due Process section
F. Venue:
1. 28 USC §1931
a. if any defendant resides in that district, and all defendants reside in that state
b. if a substantial part of the events/omissions giving rise to the claim occurred in that
district
c. if all defendants are “reachable” in that district and there is no other district to bring
suit in
2. Corporations: in districts where it has sufficient minimum contacts (place of
incorporation/principle place of business/any dist. where there’s substantial amt. of business)
3. Unincorporated organizations: treated like corporation for venue; not treated like corporation
for determination of citizenship
4. 28 USC §1404(a): district court can transfer suit for purposes of convenience to any other
district in which it may have been brought originally
IV. Subject-Matter Jurisdiction
A. Generally Speaking
1. Plaintiff must affirmatively support jurisdiction in her complaint
2. Subject-matter jurisdiction is never waivable, even after the case is on appeal
3. Court can decide sua sponte that it lacks jurisdiction –FRCP 12(h)(3)
4. Collateral attack allowed when defendant defaults on first judgment and jurisdiction issue is
never litigated; otherwise the first court’s decision on jurisdiction holds
A. Federal Question
1. Constitutional Framework: Art. III, §1 & 2: federal ingredient
2. Statutory Provision: 28 USC 1331 implements Art. III (“arising under the Constitution, laws,
or treaties of the United States)
a. Well-Pleaded Complaint Rule: federal question must be in the complaint, not enough
for it to be an anticipated element of the defendant’s case (Mottley)
i. reasoning: don’t want jurisdiction depending on something contingent;
federalism concerns; reduce burden on federal courts; plaintiff master of
complaint & can craft it based on whether he wants fed question
ii. problems: doesn’t mix well with a system of deemphasized pleading
(Dioguardi)
iii. Note: Declaratory judgment: base jurisdiction on what the complaint WOULD
look like if brought by a defendant
b. Character of federal issue
i. Holmes’ Creation test: Did the federal law create the cause of action (Elliscu:
failed to meet creation test)
ii. Smith test: important federal issue to be resolved
B. Diversity
1. Constitutional Framework: Art. III, §2
2. Statutory Provision: 28 USC 1332, 1359
a. Must have complete diversity (no P from same place as any D) & Amount in
controversy must be $75,001
i. Citizenship, follow personal jur. rules for domicile (analysis done in Mas v.
Perry)
(a) Corporations domiciled in primary place of business and/or nerve
Center (admin office)
(b) Unincorporated groups domiciled any place a member is domiciled
ii. Amount: Can aggregate claims by one plaintiff, can’t aggregate claims of
multiple plaintiffs together
(a) Viewpoint of valuation: cost to plaintiff vs. value to defendant: courts
accept it if either valuation would exceed $75,000
(b) Permissive counterclaims don’t count for diversity jurisdiction;
compulsory counterclaims mean in some states that defendant may
invoke diversity jurisdiction
(c) To defeat jur., def. must prove to a legal certainty the amount is less
b. Interpleader exception to complete diversity: when a person owing money to one of
several parties tells them to fight it out among themselves and they will pay the winner
c. Court may decline to exercise diversity jurisdiction in some cases
C. Supplemental Jurisdiction
1. Rule 18 + 28 USC 1367: First look for original federal jurisdiction over anchor claim, then
sweep in related claims with “common nucleus of operative facts” (Gibbs)
a. §1367(a) will let P sue D1 on federal question and then add a state claim against D2 &
D3, even if D2 & D3 are not diverse.
2. Statute of limitations is tolled while claim is pending and at least 30 days after dismissal
3. Diversity cases:
a. “same nucleus” rule still applies
b. Claims that don’t get supplemental jurisdiction
i. claims made by plaintiff against any third party defendant
ii. claims by or against compulsory joinder (Rule 19) necessary parties
-If they’re really necessary, dismiss. If not, proceed without.
iii. claims made by plaintiff against permissively joined defendants under Rule 20
-if P sues D1 under diversity and tries to join D2 even though D2 claim is
not >$75,000
iv. Claims by or against interveners under Rule 24
c. Claims still allowed
i. Rule 13(a) compulsory counterclaims
ii. Rule 13(h) joinder of additional parties to compulsory counterclaims
iii. Multiple plaintiffs joined under Rule 20 – as long as one Pl. satisfies amount
-rule allows it w/r/t amount, but complete diversity still required
iv. Joinder of Pl.’s for Rule 23 class action, as long as named Pl. satisfies
diversity, unnamed Pl. don’t have to
-allows w/r/t complete diversity and w/r/t amount in controversy
v. Rule 13(g) cross claims of one defendant against another
vi. Rule 14 Impleaders (but not claims brought by original plaintiff against third
party)
4. Cases
a. Aldinger: okay because anchor claim was based on federal question
b. Kroger: not okay because it was a diversity case, Pl tried to claim against Rule 20 party
5. Court may decline to hear the issue under §1367(c) if:
a. Raises novel issue of state law
b. State law claim substantially predominates over anchor claim
c. Dist ct has dismissed the anchor claim
d. Other exceptional circumstances
D. Removal: 28 USC §1441
1. Defendant may remove case to federal ct. if there was original federal jurisdiction
a. Plaintiff may not remove
b. Some kinds of cases just can’t be removed (See §1445)
c. When a “separate and independent” claim is joined with non-removable claims, the
whole case can be removed under §1441(c) if the removable claim is fed. Question
-does not apply to diversity cases, so plaintiff can keep it in state court by joining
a non-diverse party
-probably useless because supplemental jurisdiction would apply, and if it didn’t
because it wasn’t out of the same nucleus, then it probably wouldn’t be
constitutional
2. Federal Question case
a. citizenship of defendants doesn’t matter
b. still follows WPC rule; defense doesn’t provide federal basis
c. Artful pleading doesn’t prevent removal if federal law completely pre-empts state law
(Caterpillar defendant argued preemption but ct found no COMPLETE preemption)
3. Diversity Case
a. No defendant can be from the state in which the suit was filed
b. Diversity and amount rules still applicable
4. Removal Procedure
a. All defendants must agree to remove
b. §1446: Def. files petition in state court within 30 days; gives notice to court and to
plaintiff. Dispute over removal heard in federal court. Defendant carries burden.
c. §1447: Plaintiff has 30 days to ask to be remanded.
d. Defendant’s 30 days starts from the first chance to remove. If the 30 days have a
passed, a new defendant doesn’t count as “something new” if the removal option was
there before he arrived. You get one shot at removal.
i. Can’t remove after 1 year, even if the opportunity for removal is new
V. State or Federal Law: Erie & Afterward
**Summary of what to do with Erie problems:
(1) Pure substance: go with state law (Erie)
(2) Twilight zone between substance and procedure: Apply Hannah I and ask if it would affect choice of forum
and/or be inequitable
(3) Federal Rules on point: Hannah II says follow FRCP as long as it is valid under the Rules Enabling Act
A. Act I; Federal Common Law on Substance Prevailed: Swift
1. Federal courts followed state substantive law only when there was statute or state
constitutional matter, otherwise relied on federal common law. State law governed procedure.
2. Reasoning that supported this Swift position
a. Federal Judiciary Act (Rules of Decision Act) of 1789
i. Federal courts must apply “law of the several states, except where Constitution
or treaties of the U.S. or Acts of Congress otherwise require or provide.”
ii. Originally, “laws of the several states” was interpreted to mean state
constitution & state statutory law; not state common law.
b. Law was seen as natural, that a “right” existed that courts had to “discover” by
applying reasoning across the board
c. Federal Courts were attracted to the idea of uniformity across the common law
i. This would be conducive to industrialization; favors corporate defendants
B. Act II; Erie Allows States to Regain Power over Substance
1. Rules of Decision Act applies to common law as well as constitution/statutory law. Federal
courts must apply the common law of the state in which they sit except where federal
statute or Constitutional issues are present
a. if the highest court hasn’t spoken on the issue, look to intermediate court decisions.
lower courts are not binding, but can be given some weight.
b. where no court has spoken, federal court tries to decide what they think the highest
state court would do; may look to how district in which the state is located has
interpreted the state law
c. obsolete state decisions are not binding; asking what the highest court would do today
d. On appeal, federal courts review de novo to determine what state law would provide
e. On appeal, federal courts look to the most recent state decisions, even those handed
down after the first decision of the lower federal court was made
2. Reasoning for the Change
a. Legal thought moves from formalism to realism; starts seeing common law as policy
that is created by the courts just like statutes are created by Congress, rather than a
search for some universal truth
b. Concerns about discrimination by non-citizens against citizens, because the rules of
jurisdiction and removal were seen as giving the defendant the choice of forum
c. Forum-shopping was becoming notorious; choosing federal court because the law that
would be applied was different
d. In addition to the change in this policy, there was a change in the complexion of the
court. Swift was a conservative court’s tool for protecting industry. Now, Roosevelt
appointees were on the other side trying to protect the local plaintiffs.
C. Act III; Federal Power over Procedure Comes Back
1. After Erie, it flips so that federal courts are now applying state substantive law, but federal law
dictates procedure (FRCP put into place same year Erie was decided, b/c of Rules Enabling
Act).
2. “Outcome determinative” test for applying state v. federal procedural rules
a. York.: apply state procedural rules when the choice would be outcome
determinative
b. protective of state power; takes the Sibbach “bright line” test and says it’s workable
c. The Terrible Trio
i. State rule requiring service before the statute of limitations runs trumps FRCP
requiring only filing before the statute runs (Ragan)
ii. State law that bars access to state courts for corporations not qualified to do
business within the state must also be followed by the federal courts in that
state (Woods)
iii. State law requiring losing plaintiff in shareholder derivative case to pay
defendant’s expenses must be upheld in federal court (Cohen)
3. Byrd gives federal rules a little bit more power: apply state law (1) if that state policy was
very important AND (2) if the choice would be outcome determinative
4. Hannah (I): when there is no FRCP on the issue:
a. Would it affect choice of forum? If yes, apply state law.
b. Would it be inequitable to hold federal litigants to different rule than state
litigants? If yes, apply state law.
5. Hannah (II): when there is FRCP on the issue, follow it- provided that it’s valid.
a. This relies on the bright line test of Sibbach and goes against Mistretta’s doubts
D. Federal Common Law
1. In federal question cases, federal common law (not state common law) applies
a. If it is a federally enumerated power, they can make law on it (Clearfield Trust)
2. Sources: may be judge-made or inferred from statutory text
3. Restricted to certain areas:
a. Where U.S. is a party (Clearfield)
b. Foreign relations
c. Interstate disputes (e.g. water rights)
d. Admiralty
e. Where existing body of law infers extension of federal law
VI. Starting a Suit: Pleadings
A. Generally
1. Pleading evolved from issue pleading → fact/code pleading → notice pleading
a. Now, instead of in the pleadings like it used to be:
i. Facts are learned through discovery
ii. Issues for trial are determined at a pre-trial conference (Rule 16)
iii. Disposal of sham claims through summary judgment (Rule 56)
b. The only purpose left is to provide all parties with adequate notice of the nature of the
lawsuit so they can begin preparation.
2. Pleadings
a. Complaint
b. Answer
c. Reply (if there was a counterclaim)
3. Verification of Pleadings
a. Only necessary when required by statute or rule (Rule 11)
b. Verification requirement sometimes relaxed when hardship would result
4. Rule 11: Attorneys can’t file pleadings that are frivolous or meant to harass/delay opponent
a. Lawyers must sign pleadings to certify that to the best of the lawyer’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances-
i. not presented for any improper purpose (to harass, delay, or increase cost)
ii. warranted by existing law or by a non-frivolous argument for the extension,
modification, or reversal of existing law or establishment of new law
iii. allegations have evidentiary support or it is explicitly stated that they are likely
to have support after discovery
iv. denials of factual contentions are warranted by the available evidence or if
specifically identified, reasonably based on a lack of information or belief
b. Lawyer’s duty
i. “reasonable inquiry” depends on the case; duty to investigate that evidence
-Zuk: full discovery isn’t required, but attorney should take reasonable
steps; at least thorough interview of available witnesses
ii. Duty not to reaffirm bad pleading; don’t argue what you now know is wrong
iii. bad faith not required
c. Sanctions: Rule 11(c)(2): monetary/non-monetary based on min. effective deterrence
d. Time to fix it (“Safe harbor”)
i. Rule 11(c)(1)(A): party seeking sanction must first serve the motion on the
opposing party and give them 21 days to fix it. If after 21 days it isn’t fixed,
they can file it with the court.
ii. Need to file before the case is over (>21 days before it will be over)
e. Other parties held liable
i. attorney’s firm/employer
ii. anyone who signs the pleading for whatever reason, i.e. the client (even though
not required to sign in most cases)
f. Sanctions applicable even when the court lacks subject-matter jurisdiction
g. Sanctions applicable after voluntary dismissal
h. Rule 11 inapplicable to discovery (separate sanctions for that)
B. The Complaint: Service must occur within 120 days after filing [Rule 4(m)]
1. Pleading in the alternative allowed [Rule 8(e)]
2. FRCP says complaint starts the action for purposes of stat. of lim. But for diversity cases
follow state law; often starts at the time of service
3. Elements [Rule 8(a)]: (same rules for counterclaims too)
a. short & plain statement of the grounds on which jurisdiction depends
b. statement of the claim
i. general rules
-fewest possible technical requirements for the pleader
-Plaintiff need only state the facts, not the legal theory he is relying on
(Dioguardi)
-enough facts to put defendant on reasonable notice about what is being
alleged; don’t need to establish a prima facie case
-can’t just recite the conclusion that he is entitled to relief, need enough
facts to raise a right to relief (Twombly)
ii. structure
-Rule 10(b): each claim set forth in a separate count, and counts should be
broken into numbered paragraphs limited to “single set of circumstances”
c. demand for judgment for the relief sought
i. Judgment not limited to relief requested except in default judgment [Rule 54(c)]
4. Heightened Pleading for Special Matters (Rule 9)
a. Special Matters
i. Rule 9(b): fraud or mistake
ii. Rule 9(g): certain damages must be specifically mentioned
b. failure to plead a special matter → failure to be able to recover
c. If not listed in Rule 9, no heightened pleading required (Leatherman)
C. Motions Against the Complaint
1. Rule 12(b)
a. lack of subject-matter jurisdiction
b. lack of personal jurisdiction
c. improper venue
d. insufficiency of process
e. insufficiency of service of process
f. Rule 12(b)(6): failure to state a claim upon which relief may be granted (or 12c)
i. granted only if it appears beyond reasonable doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief
ii. almost always given opportunity to amend (dismissal without prejudice)
- amendment as of right: anytime before answer is served [Rule 15(a)]
- amendment by leave: plaintiff must get permission of court to amend
-permission will be given “freely when justice so requires;” don’t
want to make anyone lose on a technicality
-if dismissed on 12(b)(6), judgment is final so plaintiff can appeal
-losing 12(b)(6) isn’t reviewable, but it can be brought as summary j.
g. failure to join a necessary party under Rule 19
2. Timing
a. (b) through (e) above must be made before trial, per Rule 12(h)(1)
b. (f) and (g) may be made any time before/during trial
c. motion for lack of subject-matter jurisdiction may be made any time, even after trial
d. Rule 12(b)(6) can only be raised before the answer is filed, afterward it’s a 12(c)
3. Rule 12(e) motion for more definite statement: courts reluctant to grant b/c they can find out
through discovery. Test is whether it gives def. enough to formulate his answer and commence
discovery.
4. Rule 12(f) motion to strike “redundant, immaterial, impertinent, or scandalous” matters from
pleading. More important in jurisdictions that allow jury to see the pleadings.
5. Rule 8(e)’s requirement of simple, concise, and direct allows courts to prune
D. The Answer:
1. “shall state in short and plain terms his defenses to each claim asserted and shall admit or deny
the averments upon which the adverse party relies.”
2. Denials: Rule 8(b) …anything not denied is admitted [Rule 8(d)]
a. General denial: Rule 8(b) allows defendant to say he denies “each and every
allegation” in the plaintiff’s complaint
-but he better intend in good faith to contest ALL allegations
b. Specific denial: denial made to allegations of specific paragraph
c. Qualified denial: denial made of a portion of particular allegation
d. Denial of Knowledge of Info (DKI): may do this w/r/t complain on a basis of good
faith (effect of a full denial)
e. Denial based on Info & Belief (not in 8b): without first-hand knowledge but with
enough info. to believe in good faith that it is false; usually for corporate defendants
3. Affirmative Defenses
a. Rule 8(c) lists 19 specific defenses that must be explicitly pleaded, including:
i. contrib.. negligence
ii. fraud
iii. res judicata
iv. statute of limitations
v. illegality
b. Basic rule is that you need to plead any new matter/issue not in the complaint b/c of
notice-giving reasons
c. Rule 15(a)’s liberal rules about amending pleadings:
i. defendant has 20 days from service of the original answer to amend it
ii. after 20 days, defendant can amend with leave of court; which is to be given
freely when justice so requires
4. Timing
a. Service of answer must be within 20 days of service of complaint
-60 days is service was waived
-if it’s an out-of-state defendant, follow forum state law
b. If defendant files a rule 12 motion, he has 10 days after denial of the motion to answer
E. Amendment of the Pleadings: Rule 15 is really generous
1. As of right
a. For pleadings where response is required
i. Rule 7(a): may amend any time before the responsive pleading is served
-Motions don’t count as responsive pleadings
b. For pleadings where no response is required
i. 20 days after it is served
2. By leave of court
a. Amendments are allowed unless they would cause actual prejudice to other party
3. Relation back to the date of commencement 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.”
a. Question is whether D was placed on notice of this by reading the original complaint
b. Change of party: if they knew or should of known suit would be filed against them
but for a mistake on the part of the plaintiff
VII. Discovery & Pre-trial Conference
A. Forms of discovery
1. automatic disclosure: insurance, witnesses to be used, documents to be used
2. depositions: Rule 30
3. interrogatories (25 question limit unless otherwise ordered or stipulated): Rule 33
4. requests to inspect documents or property: Rule 34
5. requests for admission of facts: Rule 36
6. requests for physical or mental examination: Rule 35
B. Scope of Discovery: Rule 26(b)
1. any non-privileged matter relevant to the claim or defense of any party
-Blank v. Sullivan &Cromwell narrowed scope: before then, it just had to be relevant to
subject matter)
-doesn’t need to be admissible @ trial; just reasonably calculated to lead to admissible
evidence
2. Privilege- not discoverable
3. Work Product: Rule 26(b)(3)- depends
a. qualified immunity
i. documents prepared in anticipation of litigation
ii. other side must show “substantial need” and “undue hardship”
b. absolute immunity
i. mental impressions, conclusions, opinions, or legal theories of attorney or
representative concerning the litigation
ii. non-discoverable except in the rarest of circumstances
iii. Upjohn: work-product included attorney’s impressions of the case
iv. Hickman v. Taylor: atty’s recollection of what witnesses said were covered;
but existing transcripts were only qualified immunity
4. Statements by witnesses: person can obtain a copy without any substantial showing
5. Experts
a. planning to be called at trial: discoverable (identity, report, available for deposition)
b. retained by counsel, not to be called at trial: not discoverable unless exceptional
circumstances are shown
c. un-retained experts not to be called at trial: virtually non-discoverable
d. participant experts/experts who are parties: treated like regular witnesses
6. Mandatory Disclosure
a. Insurance
b. All witnesses with discoverable information/knowledge that the party plans to use
c. Documents/tangible things that the party plans to use (or at least descriptions of them)
d. basis/calculations of damages
7. What you have to do: Fisons
Must answer the question, must be honest, must update it, must turn over material in your
possession, must do it all yourself (no necessity for a motion to compel)
C. Orders & Sanctions
1. Abuse of Discovery
a. Objection (usually to scope)
b. Protective Order: Rule 26(c)
-to prevent annoyance, embarrassment, oppression, or undue burden/expense
-one common type is a bar on public disclosure
2. Compelling Discovery: Rule 37(a)
3. Sanctions for Failing to Furnish Discovery
a. may be ordered to pay reasonable expenses incurred by the other party; Rule 37(b)
b. if refusal to comply persists, court may impose additional sanctions including dismissal
D. Use of Discovery Results @ Trial
1. Request to Produce Documents/Reports
-allowed unless prejudicial, hearsay, or otherwise inadmissible
2. Depositions: must be admissible if it were being given live & must fit one of the admissible
categories (adverse party, impeachment, adverse witness for substantive purpose, other
hearsay exceptions)
3. Interrogatories: admissible
4. Rule 35 Examinations almost always admissible at trial
E. Pretrial Conference: to formulate issues for trial and/or facilitate a settlement
1. Judge must issue a scheduling order within 120 days after filing complaint, which may incl.
pretrial conference date
2. Pretrial order issued reciting actions taken in the conference
VIII. Who Decides: Judge or Jury?
A. Dismissal
1. Voluntary
a. w/out prejudice, anytime before Def. serves an answer or moves for summary jgmt
b. Only 1st dismissal is w/outut prej; after that Pl. needs court’s approval; Rule 41(a)(2)
2. Involuntary
a. usually with prejudice; Rule 41(b)
b. sometimes without prejudice
i. lack of jurisdiction
ii. improper venue
iii. failure to join an indispensable party; Rule 19
B. Summary Judgment: Rule 56; Policing Burdens of production & persuasion
1. moving party has the initial burden of showing “no genuine issue of fact;” or that there is
no reasonable way to find for the non-moving party given the evidence (go beyond pleadings)
2. Judge deciding based on the burden of production
3. Adickes:
a. All inferences go against the moving party
b. Non-moving party only needs to produce affidavits & other materials if the moving
party knocks them out of the zone of reasonableness
4. Celotex & Negative Argument:
a. Defendant can move for summary judgment without producing new evidence; still
need to point to the record and assert that the necessary evidence isn’t there
b. Pl. doesn’t need to depose witnesses if the defendant doesn’t point to new evidence;
the pl. can just point to the existence of the witnesses at this stage
b. Concern that this raises the Pl.’s burden at pre-trial from production to persuasion
C. Jury Right
1. Determining Whether there is a jury right
a. Did a common law writ exist? If yes, jury right
b. Would it have been in equity at common law? If yes, judge trial.
c. Gray area? Focus on remedy
i. damages? Jury trial
ii. injunctive order? Judge
d. Split between common law & equity?
i. send the common law parts to a jury
ii. have a judge decide the rest involving equity (err on side of jury getting more)
e. Totally new claim and no idea?
i. look to the nature of the issues, place a lot of weight on type of damages
ii. look by analogy to cases that existed as writ/in equity
iii. Brennan says just look @ remedy
2. Administrative Law Jury Right
a. Atlas Roofing: Sup Ct clarified that it would allow Congress to set up adjudicative
regimes without a jury
b. tough to debate jury right becase it’s been a formalistic argument for article 3 cases
c. ask whether a jury would be incompatible (since the reason for agency is expertise)
i. would they be good at finding facts?
-in tune with community sentiment
-group decisions are better for recall and decision-making strategy
-legitimizing force
-check on the governmental power; they’ll acquit if they think the govt. is
being oppressive
*Compare to the level of expertise in article 3 cases and see if it’s
something we give to juries in that context
d. Rules
i. Rule 38: Right to e Jury Trial; Demand
ii. Rule 39: Trial by Jury or the Court (if jury not demanded, trial by court)
iii. Rule 42: Consolidation of Trials Allowed
iv. Rule 57: Declaratory Judgments
3. Selection (Voir Dire)
a. Inclusionary Portion: Assembling the panel
i. trying to get a “fair cross-section” free of intentional discrimination
ii. Challenging the panel
a. Step 1: show a distinctive group is underrepresented in comparison to
#s in the community
b. Step 2: show a certain level of discrepancy (%s differ by > 10)
c. Step 3: show underrep is due to systematic problem in selection
b. Exclusionary Portion: Petite Jury
i. Rule 48: No fewer than 6 members
ii. Challenges for cause
-really hard to win in civil b/c once you show prejudice, the judge just
asks if they can be impartial. If they say yes, they stay.
-b/c they’re tough to win, there’s more pressure on peremptories
iii. Peremptory challenges
-federal system allows 3 per side
-if you’ve got strategic striking, it favors the majority (whites)
-Edmunson: in order to maintain the cross-section; extends race-neutrality
guarantee in civil cases, nobody can strike for race
-Batson: trying to adjust numerical power disparities present in society;
allows minority to strike on race but not white person
-Challenging peremptories for being discriminatory: can’t win them
-challenger must show prima facie case that it was discrimination
-ct asks strikes for a non-discriminatory reason
-court decides whether to accept it; almost always does
D. Judgment as a Matter of Law (JML)/ Judgment Notwithstanding Verdict (JNOV): Rule 50
1. Similar to Rule 56 Summary Judgment; allows a judge to take the case away from the jury
later in the proceedings
2. Directed verdict: before jury deliberates
a. This isn’t used because once you get to this point you might as well send it to the jury
and then if necessary issue JNOV($$ concerns of having to do it over again)
3. Judgment NOV (after it’s gone to the jury)
a. similar standards to Rule 56 Summary Judgment
i. Simblest: standard similar to current federal standard: judge reviews all of the
evidence in its entirety; draws necessary inferences in favor of non-moving
party; doesn’t weight credibility
-the judge really picked apart the evidence though; tough to say he wasn’t
considering credibility; much more judge power than before when he
could only consider the plaintiff’s evidence
b. Rule 50: Moving party must file the motion before the case is submitted to the jury
specifying why in terms of law and facts she thinks she’s entitled to JML; judge sits on
it and then if the jury goes against the moving party may consider it as JML and
overturn the verdict
d. Sioux City: decisions about negligence always go to the jury, even if the facts are
undisputed
4. Granting a New Trial (Rule 59)
a. Huge judge power over jury
b. two categories:
i. procedural errors
ii. against the weight of the evidence
-Here, he’s allowed to weight the evidence without 7th Amend. Concerns
because he’s sending it to another jury
IX. Expanding the Suit
A. Counterclaims: Rule 13
a. Compulsory Counterclaims: 13(a)
i. Def. must bring any and all claims arising out of the same transaction as opposing
party’s claim, or he loses that claim in any future litigation
-exceptions:
-claims that require for “just adjudication” the presence of parties outside
of the court’s personal jurisdiction
-claims by D when the suit against D is in-rem or quasi in-rem
ii. covered by supplemental jurisdiction for subject-matter
b. Permissive Counterclaims: 13(b)
i. Def. can bring any claim against plaintiff, doesn’t need to be arising out of same
transaction
ii. Needs to fulfill jurisdictional requirements on its own; not covered by supplemental j.
c. Any party can bring a counter-claim against any opposing party, Rule 13(a/b)
d. New parties can be brought into a suit because of a counter claim, Rule 13(h)
e. Statute of lim. for counterclaim goes by when suit started, even if it ran before counterclaim
B. Joinder of Claims, Rule 18
1. always allowed, never required, not really a strategic point to doing it
2. supplemental jurisdiction probably does not apply
C. Permissive Joinder, Rule 20
1. two kinds:
a. right of multiple plaintiffs to join together
b. right of a plaintiff to join multiple defendants
2. requirements
a. same transaction/occurrence
b. question of law or fact common to all plaintiffs which will arise in the action
3. jurisdiction
a. personal jurisdiction requirements must be met for each individual defendant
b. supplemental jurisdiction does not apply to joined defendants; but does apple to joined
plaintiffs only for purpose of amount (if 1 plaintiff meets it) not complete diversity
D. Compulsory Joinder, Rule 19
1. Two categories:
a. Necessary party, Rule 19(a)
i. joined if feasible, continue without them if jurisdictional problems prevent it
ii. criteria (need one of the following):
-complete relief can’t be accorded to the plaintiff in this party’s absence
-trying the case without the party will impair the absent party’s interest or
make them subject to multiple/inconsistent obligations
b. Indispensable party, Rule 19(b)
i. joined if feasible, action dismissed if they can’t be brought in
ii. factors to consider
-extent of prejudice to the absentee or those already parties
-possibility of framing the judgment to mitigate those prejudices
-adequacy of a remedy that can be granted in the party’s absence
-whether the plaintiff will have a remedy if the suit is dismissed
2. Jurisdiction: supplemental jurisdiction does not apply to compulsory joinders
3. Cases
a. Helzberg’s Diamonds: party was held not indispensable just because it would affect a
separate contract that included them; the court tried to mitigate by inviting them to
intervene but they didn’t
b. Temple: joint tortfeasors are necessary but not indispensable parties
E. Interpleader
1. A party who owes something to one of several persons but isn’t sure which one, he can force
those parties to argue amongst themselves and just pay the winner
2. Two kinds
a. Statutory Interpleader, 28 USC §1335
i. commenced by the stakeholder, to begin he must deposit the property in
question or post a bond for that amount (can still argue he doesn’t owe it)
ii. different rules about jurisdiction
-nationwide service
-diversity is met as long as some two claimants are diverse
-amount in controversy only $500
iii. Court may enjoin claimants from starting related actions elsewhere
b. Rule Interpleader, Rule 22
i. commenced by stakeholder, doesn’t need to deposit the property
ii. regular rules of jurisdiction apply
F. Impleader, Rule 14
1. a defendant who believes a third party is liable to him for all or part of the plaintiff’s claim
against the defendant may implead that third party
2. Claim must be derivative (for the amount owed to the plaintiff)
a. alternative pleading is allowed
3. Must serve the third party within 10 days after answer, or else get court’s permission
4. Jurisdiction
a. 100 mile bulge rule
b. supplemental jurisdiction applies for subject-matter
5. Claims by impleaded party
a. supplemental jurisdiction applies for subject-matter
b. may raise any defense against the original plaintiff that the original defendant could
have raised
6. Claims by original plaintiff
a. must independently satisfy jurisdictional requirements
G. Cross-Claims, Rule 13
1. Party can bring a claim against someone on the same side, never compulsory
2. Requirements
a. same transaction/occurrence
b. must ask for actual relief (or else it’s just a defense)
3. covered by supplemental jurisdiction for subject-matter
H. Intervention, Rule 24
1. Intervention as of right
a. three criteria, must meet all:
i. interest in subject-matter
ii. disposition of the action may impede her ability to protect that interest
iii. inadequate representation by parties already in the action
-argue they have different goals/objectives
b. jurisdictional requirements must be independently satisfied
2. Permissive Intervention
a. must have “question of law or fact in common”
b. trial court’s discretion
c. jurisdictional requirements must be independently satisfied
3. Bustop:
a. once there are a lot of parties in the case, it is harder to win an argument that your
particular interests aren’t being adequately represented (acts as a valve)
4. When it’s a case involving broad public policy
a. advantages to bringing more parties in
-want to give people access to the judiciary when it’s making policy just like they
have access to their legislature
-legitimize the result in the eyes of those whom will be affected
b. disadvantages to bringing more parties in
-expensive
-makes the courts lean more toward being legislative bodies
-undermining/displacing the immediate issue at trial
-not everyone can afford to be an intervener
-can let them file an amicus brief instead
X. End of Litigation: Preclusion
A. Res Judicata (Claim Prelusion)- Restatement of Judgments §24 is the current doctrine
1. case will be precluded if the same claim between the same parties or those in privity with them
has already been litigated to a judgment that was: final, valid, and on the merits.
a. Was it valid?
-did the court have personal jurisdiction, or was personal jurisdiction waived?
-did the court have subject-matter jurisdiction?
b. Was it final?
-case has been decided in such a way that there’s nothing left to do but execute
judgment? If liability but not damages has been decided, it’s not final yet.
-can’t appeal until after it’s final
c. On the merits = they didn’t concede, it wasn’t dismissed on technical grounds
2. Defining the “claim”
a. Primary rights approach (common law & many states)
i. only precludes bringing the same type of claim; can sue once under tort and
again under contract for the same occurrence
ii. advantages
 Mitigates punishment of parties for poor lawyering
 Maps more closely onto how plaintiffs think about the situation and nature
of dispute resolution: what types of harms were visited on them
 Fits with access and openness of FRCP and Dioguardi
 Simplifies litigation: doesn’t require exceedingly complex cases across
legal theories
 Probabilistic because allow for different outcomes relating to the same
facts
b. Transactional approach (federal law & some states; the best way)
i. you must bring all claims arising out of that transaction/occurrence or you’re
barred from bringing others; can’t sue again under different type of claim
ii. advantages
 Most efficient
 Maps onto view of reality: people think about it in terms of a
transaction/facts not the legal nature of the harm
 Enforces the dispute resolution goals of the FRCP
 Is most pragmatic in ensuring that issues are actually decided
 Maximizes repose: the final judgment really is final
 Creates consistency: adheres to single right answer about a situation
  aggressive lawyering and discovery
iii. Applied in Davis v. Dallas (which also demonstrates timing is important; it
was a continuing circumstance and they had to include all claims for things
that occurred before the first suit was brought)
3. Series of transactions/continuing transactions
a. determined by pragmatically weighing: closeness in time, space, origin, and
motivation, their coherence as a trial unity, and whether viewing them as a unity
conforms to parties’ expectations
4. Who will be bound?
a. only parties of the suit will be limited to res judicata (except those in privity with
the original party; like a beneficiary, indemnitor/indemnitee)
5. Moitie demonstrates the strictness: when multiple plaintiffs bring suit against a defendant and
lose, a non-appealing plaintiff may not benefit from a reversal
-EXCEPT: when there has been a major change in Constitutional law
6. Exceptions
a.Rule 60 allows relief from a final jgmt on motion and upon such terms as are just
i. misnamed party
ii. serious errors that later came to light
b. Restatement §24 Exceptions:
(a) parties agreed to allow claim splitting
(b) Court in 1st action specifically preserves plaintiff right to pursue a compulsory
claim in a subsequent action
(c) Plaintiff was limited by the subject matter jurisdiction of a forum from pursuing a
particular claim (Note: this is limited, the restatment’s comments and the SC in
Marrese suggest that making a conscious choice to sue in a forum that doesn’t
have jurisdiction over a particular theory may preclude subsequent action on that
theory, including choosing to bring a state claim in state court barring later
bringing the federal claim in federal court)
(d) Judgment was inconsistent with statutory/constitutional scheme
(e) Earlier judgment allows for periodic suits to vindicate a right
(f) Extraordinary public policy circumstances
B. Collateral Estoppel (Issue Preclusion)
1. An issue resolved in one suit can be given effect/applied in a second suit if:
a. the issues are identical
i. Levy says identical means everything down to the legal standard (type of claim)
b. the issue was actually litigated in the prior setting (not conceded/settled)
c. there was a “full & fair opportunity” to litigate the issue in the prior setting
d. the issue was necessary to reach a final judgment on the merits in the first case
i. gratuitous finding not given effect in preclusion, it’s “gratuitous” if:
-original defeat was overwhelming/defendant lost on many elements
-defeat was inconsequential, party won on other grounds & didn’t care
2. Third parties can never be precluded because they never got their day in court on the issue
-Except parties in privity with the party that lost the original suit
C. Mutuality: Can parties be bound to old decisions by new parties not part of the original suit?
1. Original doctrine of mutuality
a. Must have been a party of the original suit (can only bind if you could have been
bound) –maybe the jury decided because of its perception of the relationship between
the two parties involved
2. Erosion of the doctrine on 2 fronts
a. Obnoxious Plaintiffs (defensive non-mutual collateral estoppel)
i. broken down a lot; preclusion against them is widely allowed now
ii. Bernhard: Prevents plaintiffs from playing the game of not joining
defendants and then trying the same case over and over again until they win
-Blonder-Tongue was the federal adoption of this change
b. Chronic Defendants (offensive non-mutual collateral estoppel)
i. broken down somewhat; preclusion allowed with some qualifications
ii. Parklane adopts this change, but gives some qualifications:
-2nd suit doesn’t offend judicial economy
-not unfair to the defendant
-not inconsistent with previous decisions
-not unforeseeable by the defendant
-fairly litigated
c. Pro-Preclusion
 Plaintiff shouldn’t be treated asymmetrically
 Wait and see approach is empirically uncommon
 Due process protects the defendant
 Even if plaintiff is master of claim, they didn’t choose when to get hurt
d. Downsides to Preclusion
 wait and see plaintiffs
 opportunity of snowball effect from just one loss
 Inefficient by creating incentive not to join initial suit
 Procedural advantages enjoyed by plaintiff
D. Full Faith & Credit
1. states must give exactly the same effect to the issue already decided in another jurisdiction