CIVIL

 PROCEDURE   1

Defenses

(1) Lack of subject-matter jurisdiction WAIVER TRAP:

(2) Lack of personal jurisdiction
(3) Improper venue 2-5 à must be in the first
(4) Insufficient process response (motion to dismiss or
(5) Insufficient service of process answer) or waiver
(6) Failure to state a claim upon which relief can be
granted 6 & 7 à can be raised anytime
through trial, you cannot raise
(7) Failure to join a party under Rule 19
these for the 1st time on appeal

1 à can be raised anytime in the

case even for the first time on
appeal

Subject Matter Jurisdiction

n Diversity Jurisdiction à diversity b/n parties + >$75,000

A. Citizenship
-Determined at time complaint is filed and is not affected by subsequent changes in domicile of parties

i. individuals: determined based on their domicile; to establish domicile a person must be:
(1) physically present in a place and
(2) have the intention to remain their indefinitely

ii. corporations:
(1) its place of incorporation and
(2) the place where its principal place of business is located:

• Nerve Center Test: location of decision-making authority, typically its headquarters (Hertz v.
Friend)

iii. partnerships and unincorporated associations: citizens of every state and country of which its partners or
members are citizens

B. Amount in Controversy
i. claim is MORE than $75,000
- punitive damages included
- costs and interests excluded
- aggregation:
• A single π asserts 2 or more claims against a single Δ, the amounts may be added together
to reach the requested amount

P Claim 1 $40,000 D
Claim 2 $50,000
• A single π cant aggregate amounts sought from different Δ’s; he
must meet the amount requirement for each Δ individually

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nd
- If he sues one Δ for more than 75k and a 2 Δ for less, he cant bootstrap the
insufficient claim onto the other

P $40,000 D1

$50,000 D2

NO BUENO!!

• Π’s cant add their claims together to meet the requirement

P1 $40,000 D
P2 $50,000

• As long as one π asserts a claim that satisfies the requirement, others may join as co-π’s
even though they are seeking less

P1 $80,000 D
P2 $50,000

MUY BUENO!!!

n Federal Question

A. Cases that Arise Under Federal Law

i. well-pleaded complaint rule: (Mottley Case) analysis must focus on allegations in the π’s complaint, not
potential defenses the Δ might assert in her answer. Δ’s answer irrelevant
- shortcut to apply rule: if you see federal law in complaint and thinking it might be a federal question case,
you ask 1 question – is the pl enforcing a right under this federal law? And if the answer is no then it is not a federal question
case

ii. holmes “creation” test: suit arises under “the law that creates the cause of action”
ex—in Mottley, the law that created the π’s cause of action was K law; thus suit “arose under” K law (state law)

iii. grable test: state law claims involving substantial question/issue of federal law
ex—Merrel Dow case did not find a significant federal issue and kept it in state ct.

n Removal of Cases From State to Federal Court

A. General Rules
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• D’s remove to a federal forum if they could have originally been brought there by the π (i.e. it meets diversity
or federal question) – and only in the district in where the state action is pending!
• D must remove within 30 days of receiving complaint
• If you have an in-state defendant, that will anchor the claim and make it non-removable in diversity cases.
(rule does not apply if case can go due to federal question)

Ex: P (NY) à Df1 (TX) AND Df2 (GA) for state law claim in a
Georgia state ct, cannot remove to Georgia fed ct BUT if sues for
federal employment law (FEDERAL QUESTION), yes can remove

• All dfs must agree to remove – so you have 10 and 9 of them want to and 1 does not, you cannot remove
• If a case is not initially removable, but later becomes removable (by addition of a federal claim or by dropping
a non-diverse party), the Δ may remove within 30 days of receiving the pleading or order from which they
would know that the case has become removable.

Personal Jurisdiction

2 conditions must generally be satisfied before a court can exercise personal jurisdiction:

(1) statutory inquiry – first must have a statute that allows jurisdiction
-­‐ Every state has statutes that allow jurisdiction based on the traditional basis (served with process in the
forum etc)
-­‐ Every state has 2 statutes that go after non-residents:
1) the non resident motorist act (Hess) only good for motor vehicle crash cases
2) every state has a long arm statute – allows jurisdiction over a non-resident and they are almost
always specific jurisdiction:
- California Type: which says we can go to the full extent of the constitution
- Laundry list long arm: where the long arm statute says we can sue a non resident df for
doing certain things in the forum (like entering a contract, or transacting business)

(2) then judge if jurisdiction would be constitutional

n Forms of Personal Jurisdiction

• In rem – where the court is trying to decide the rights in a piece of property itself (in the thing).
• In personam – This is also known as personal jurisdiction. This has to do with jurisdiction over a person and
their personal rights and liabilities. Conceptually, think of in rem as land.
• Quasi in rem – determines the rights of a person in a thing. Not the rights of the world in a thing, but the
rights of specific individuals in a thing. There are two kinds of quasi in rem: (1) True quasi in rem: trying to
secure a preexisting claim in the property, or extinguish someone else’s. (2) Substitute for personal
jurisdiction where you apply a defendant’s property to satisfy a claim that is unrelated to property.

n Specific Jurisdiction à If a claim arises out of D’s contact

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1st: whether one of the traditional basis applies?

• presence when served, domicile, consent (it has been good since Pennoyer)
•  Mention Bernam -- how not sure whether the traditional basis is good by itself b/c in Burnam 4
justices said the traditional basis was good by itself b/c of historical pedigree but 4 other
justices said no you always have to do International Shoe

2nd: Then look to International Shoe Analysis

1)Δ has had "minimum" contacts w/ the forum state
• 2 things to discuss here for there to be contact:
• Purposeful Availment – a relevant contact is one that results from the df’s personal
availment, df must reach out to the forum in some way, she must avail herself of the forum in
some way, contact between the df and the forum cannot just be fortuitous (like in hanson) it
has to result from her reaching out (maybe to make money there, maybe to use the roads
there or to cause an effect there) have to show that the df availed herself of the forum in some
way not just the unilateral act of a 3rd party
• Must also have foreseeability – meaning not just foreseeability that the product would get
there, it has to be foreseeable that this df could get sued in that forum – the purposeful
availment must make it foreseeable that the df could get sued in that forum
2) claim arose out of those contacts
• evidence test: if Δ’s forum contact provides evidence of one or more elements of the
underlying claim
• “but for” test: if the claim would not have arisen “but for” the Δ’s contact w/ the state
3) Exercise of personal jurisdiction would be fair & reasonable
• burden on Δ – remember Burger King “tough you can travel if they made you travel from
Michigan to Florida they will make most people travel”

• interest of forum state – McGee is best example, look at the fact pattern maybe there is
something in there that tells you that the state is concerned with this particular kind of case

• π’s interest in obtaining relief – pl may have an interest in litigating at home, maybe pl is
injured and would be tough to travel

• interstate judicial system’s interest in obtaining the most efficient resolution of

controversies – efficient litigation, if jurisdiction here would help us with efficiency then great –
never done much with that

• shared interest of the several states in furthering social policies – only case talked about
Kulko – no jurisdiction bc we are interested in family harmony and if we had jurisdiction here
there would not be family harmony – court has done very little with, never done really much
with the last 2

•  you ask -->

• does the pl’s claim in this lawsuit arise from the df’s contact with the forum –
• if so that can help us find jurisdiction.
• If it does not – then you can only do it if you have general in personam jurisdiction meaning the
df must have continuous systematic ties with the forum.
• Then walk professor through the 5 fairness factors and tell prof the burden is on the df to show
that it’s so gravely inconvenient so gravely difficult that she’s at a severe disadvantage in the
litigation – very tough standard)
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• Standards for “minimum contacts”

o International Shoe: “minimum contacts” with the state (contact comes first, if you don’t have
a relevant contact, you don’t have jurisdiction even if it would be overwhelmingly convenient
and fair doesn’t matter)
o McGee: held jurisdiction over claim arising out of a “single (act) contract” solicited in the
state
o Burger King: “continuous” but limited activity in the forum state, such as the ongoing
business relationship
o Hanson: contact exists when Δ’s have “purposefully availed” themselves of the privileges
and benefits of conducting activities in a particular forum
o Zippo: internet cases -- Active websites sell things, while passive websites just show you
stuff. PASSIVE = NO PJ ACTIVE = PJ
o World-Wide Volkswagen: foreseeability alone is not sufficient for personal jurisdiction
under the Due Process Clause. The degree of foreseeability that must exist is not the mere
likelihood that a product will find its way into the state, but that the defendant’s conduct and
connection with the state are such that he should reasonably anticipate being haled into
court there. Purposeful availment provides clear notice of jurisdiction.
o Asahi: stream of commerce theory
§ Justice O’Connor – rejected that “mere awareness” that the stream of commerce
may sweep goods into the state after they leave the Δs hands suffices to satisfy
“purposeful availment”. He would require clearer evidence that the Δ seeks to serve
the market in the particular state, that the manufacturer INTENDED to serve the
market within the forum state, such as designing the product for the market in that
state or advertising there
§ Justice Brennan – mere awareness is sufficient
§ Justice Stevens – sending goods into the stream of commerce, at least in
substantial quantities, constitutes “purposeful availment” whether or not the original
maker knows that the goods will be sold in a particular state or cultivates customers
there

n Alternatives to Specific Jurisdiction

1. General Jurisdiction:
-­‐ if claim does not arise out of the Δs contact but the Δ has “continuous and systematic” contacts with the
state
-­‐ company typically has continuous and systematic contacts in states where it has its principal place of
business and place of incorporation (may have continuous and systematic contacts in other states ex –
where it has an office w/ employees)
2. Transient Presence Jurisdiction:
-­‐ Burnham v. Superior Court – The rule is: if you’re temporarily in the forum, and I can serve you, I gotcha!
While Mr. Burnham, the appellant, was in California briefly he was served process. If a defendant is
served process within a state’s borders, does due process require a connection between the lawsuit and
the defendant’s contacts within the state? The rule is eazy. If we serve you in our state, we gotcha.
o Corporations are not subject to this

3. Consent – forum selection clauses:

-­‐ Carnival Cruise Lines, Inc. v. Shute – The Shutes went on a cruise. On the ticket, there was a forum
selection clause that said any litigation related to the cruise must be tried in Florida. Is the forum
selection clause enforceable?
-­‐ Courts have the responsibility to determine whether forum selection clauses in form passage contracts

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are fair.
-­‐ Forum selection clauses are considered permissible in this context for several policy reasons. The
ultimate question is one of “fundamental fairness”. We won’t allow the cruise line to select a forum with
the purpose of discouraging legitimate lawsuits. “Basically, forum selection clauses are good law.”

4. Quasi in Rem Jurisdiction:

-­‐ Authorizes a court to declare which of the litigants has the better claim to the property w/o determining
whether the owner is the true owner relative to everyone else in the world

5. In Rem: Permits a court to declare the true owner of specific property relative to everyone in the world

6. Waiver:
-­‐ court can deem a party to have waived PJ if the party fails to comply w/ court orders
-­‐ typically results from a party’s inadvertent failure to raise an issue w/in a specified time or in a proper
manner

7. Domicile:
-­‐ If the lawsuit has nothing to do with the forum state and the Δ is an individual, the Δ can still be sued if
the Δ is domiciled there
-­‐ If the law suit has nothing to do with the forum state and the Δ is the company, the company can still be
sued in that forum if it has “continuous and systematic” contacts there

n Notice
• In addition to personal jurisdiction you have to give the df notice and you have to give the df a chance to be
heard.
• If Δ is properly served, court will have personal jurisdiction over them

1. Notice – service of process:

• Consists of the Summons and Complaint

o Service in Person: can be made by any non party who is at least age 18 – so that’s the answer if
asking who can serve process in federal court (notice that this person does not have to appointed by
the court, this person does not have to be an officer, in some states process has to be served by a
sheriff or a deputy but in federal court it is just any non party who is age 18.

o Substituted Service: If not served in person, this must be done at the df’s dwelling or usual abode
and you must serve someone of suitable age and discretion who resides there

o Service on a Business (corporation, partnership, limited liability company, some business): serve
an officer or a managing or general agent of that business
• *an officer will be easy, the prof has to tell you who the officers are – the president,
the corporate treasurer, whatever it is
• *the managing or general agent – there’s no clear line except that generally we look
for somebody who has sufficient job responsibilities that we can expect her to
transmit important papers, not just any employee

o Waiver of Service: allows a pl to mail the df the process and waiver form and the df can waive
formal service by signing the waiver form and mailing it back. Now the thing to look for is if the df fails
to return the waiver, then we must serve her and DF MAY HAVE TO PAY THE COST OF THE
SERVICE

Ex: I sue Bob and I wanna serve process but I do substituted service, so I go to Bob’s dwelling and I serve process on
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Bob’s wife who is of suitable age and discretion residing therein. And the wife says ahh bob has had a tough week I don’t
wanna upset him so she throws them out and Bob never gets them. Is notice constitutional? Yes, the rule was met and it
was reasonably calculated to apprise Bob under the circumstances of the proceeding – Mulane v. The Central Hanover
Bank

n Challenging Personal Jurisdiction

1) Make General Appearance (waiver of objections)
2) Default à option to collaterally attack (Δ appears in the enforcing court and contends that original ct’s judgment
was invalid or lack of pj and should not be enforced)
3) Special/Limited Appearance
you win à case dismissed

you lose à submit to jurisdiction

à leave and suffer default (you are foreclosed from attacking the merits)

Supplemental Jurisdiction

n Introduction
a. Allows addition of claims if they arise from a common nucleus of operative fact as the claim that
invoked federal SMJ.
b. For diversity cases
• § 1367 a – claim shares a common nucleus of operative fact with the claim that got the case
into federal court
• § 1367 b – applies only in diversity cases, never in federal question. Only takes away
rd
supplemental jurisdiction over claims by π’s (not by any other party, not by Δs or 3 party Δs)
o claims by the π against parties joined under 14, 19, 20 or 24
o claims by rule 19 πs (so if this person is brought in under rule 19 to assert a
claim as a π no supplemental jurisdiction there in a diversity case)
o over claims by somebody seeking to intervene as a π
c. Common nucleus test is out of the same transaction or occurrence
d. Example of analysis:

P (California) à D (California)

Claim #1: FQ claim bc it arose under federal labor laws

Claim #2: State law – that claim arose under state law

1st: every claim we have to assess for SMJ

Claim 1- does not have diversity but has federal question so gets into federal ct

Claim 2- does not have diversity and does not have federal question, so cannot get into
federal court by itself

-­‐ But we have supplemental jurisdiction over claims that share a common nucleus of operative
fact with the claim that invoked jurisdiction so we can bring it into federal court

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n Application
• Federal Court can exercise supplemental Jurisdiction over the following claims that do not possess
their own independent basis for SMJ:

1. State-law claims and additional parties

- related to those federal question claims over which the court already has
jurisdiction because they arise from a common nucleus of operative fact

Federal Employment Act Federal Employment Act

OR
Ex: P (CA) ----------à D (CA) Ex: P (CA) ----------à D (CA)

----------à ----------à D2

Breach of K Breach of K

2. Compulsory counterclaims
- not permissive ones!

Federal Employment Act

Ex: P (CA) ----------à D (CA)

<-----------

Breach of K

3. Joinder of additional parties to compulsory counterclaims

Federal Employment Act

Ex: P (CA) <---------à D1 (CA)

<----------- D2 (NY)

Breach of K

4. Crossclaims by one DF against another

Federal Employment Act

P D1

Breach of k
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D2

5. Impleader of 3 rd party dfs, but only as to claims by and against 3 rd party plaintff’s
and claims by 3 rd party dfs
- not claims by the original plaintiff against 3rd party defendants

federal law claim

Ex: P (NY) ---------------à D1 (NY) Federal Employment Act

----------------à D2 (NY) P (NY) D1 (CA)

state claim Breach of k Contribution

NOT ALLOWED!!!

D1 (CA)

6. Multiple π’s who join under “permissive joinder” but multiple defendants under Rule
20 not covered

7. Unnamed class action π’s as long as named π’s meet the amount in controversy

**NOTE: Parties and claims subject to § 1367 must still satisfy personal jurisdiction and service of process
requirements (but probably not venue, since venue has been held to apply only the π’s original claim)

Venue

n Basic Provisions
• Venue specifies a specific court within a jurisdiction where parties can litigate.
• Does not apply in a removed case.
• So you can sue where
o any df resides or
o any district where a substantial part of the claim arose (maybe where you entered the K, maybe
where it was to be performed, maybe where the damage was suffered – those may all be good)
or
o fall back if there is no other district then where df is subject to PJ at time the action is
commenced

§  1391  (a)  applies  to  DIVERSITY  CASES  

Ø
  (1)  Judicial  district  where  any  D  resides,  if  all  Ds  reside  in  the  same  State  
(2)  Judicial  district  in  which  a  substantial  part  of  the  events  or  omissions  giving  rise  to  the  claim  occurred,  or  a  substantial  part  
of  property  that  is  the  subject  of  the  action  is  situated,  or                                                                                                                          
  (3)  Judicial  district  in  which  any  D  is  subject  to  PJ  at  the  time  the  action  is  commenced,  if  there  is  no  district  in  which  the  action  
may  otherwise  be  brought.    

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Remember  difference:  a3  provides  more  venue  choices  than  b3  because  even  if  no  D  is  found  in  that  
district,  it’s  ok  as  long  as  D  had  relevant  contact  with  forum  
 

 
Ø §  1391(b)  applies  to  FEDERAL  CASES  
  (1)  Judicial  district  where  any  D  resides,  if  all  Ds  reside  in  the  same  State  
  (2)  Judicial  district  in  which  a  substantial  part  of  the  events  or  omissions  giving  rise  to  the  claim  occurred,  or  a  substantial  part  
of  property  that  is  the  subject  of  the  action  is  situated,  or                                                                                                                          
  (3)  a  judicial  district  in  which  any  defendant  may  be  found,  if  there  is  no  district  in  which  the  action  may  otherwise  be  brought.    
 
Ø 28  U.S.C  §  1391(c)  applies  to  corporations    
  For  purposes  of  venue  under  this  chapter,  a  defendant  that  is  a  corporation  shall  be  deemed  to  reside    

1. in  any  judicial  district  in  which  it  is  subject  to  personal  jurisdiction  at  the  time  the  action  is  commenced    
2. In  a  State  which  has  more  than  one  judicial  district  and  in  which  a  defendant  that  is  a  corporation  is  subject  to  personal  
jurisdiction  at  the  time  an  action  is  commenced,  such  corporation  shall  be  deemed  to  reside  in  any  district  in  that  State  
within  which  its  contacts  would  be  sufficient  to  subject  it  to  personal  jurisdiction  if  that  district  were  a  separate  State  
3. if  there  is  no  such  district,  the  corporation  shall  be  deemed  to  reside  in  the  district  within  which  is  has  the  most  significant  
contacts.  
 

4) The  Meaning  of  "Resident"  Under  Subsection  (1)  

• Individual:  same  as  citizen  in  the  DJ  context  -­‐-­‐  last  district  where  she  moved  with  the  intent  to  remain  
indefinitely  
• Corporation:  resides  in  every  federal  district  where  it  would  be  subject  to  PJ  if  that  district  were  its  own  state  
• Multiple  Corporate  Defendants:  corporate  defendants  only  need  one  shared  district  of  residence  under  1391  
(c)  to  satisfy  subsection  (1)  
• Non-­‐Corporate  Entities  (partnerships):  1391  (c)  should  be  used  to  determine  the  residence  –  treat  like  
corporation  
 

  5)  The  Meaning  of  "Substantial  Part"  Under  Subsection  (2)  

• Substantial  Rule:  Uffner  Case  -­‐-­‐  More  broadly  to  include  any  event.  Venue  is  proper  as  long  as  what  
happened  in  the  forum  was  an  important  party  of  the  “sequence  of  events”  or  “historical  predicates”  giving  
rise  to  the  case.  
• Alternative  View:  D  engaged  in  a  forum-­‐related  event  that  produced  "a  point  of  dispute  between  the  parties  

n Transfer of Venue
• Federal courts can transfer to any other federal courts in any other states
• State courts can only transfer to other districts within the same state
• There are 2 transfer statutes:
§1404: (for convenience venue)
• Law of the transferor court follows the case, which means that a π can forum shop
for the state with the most favorable law (where jurisdiction and venue are proper)
and then move to transfer to a more convenient forum while keeping the benefits of
the transferor forum’s law
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1

o However, if it involved a federal question and was transferred, the transferee

court would be free to consider which law it would apply
• Forum Non Conveniens (doctrine of dismissal) – a federal district court can transfer
to any other district in the country only so long as:
(1) to do so is “in the interest of justice”
(2) the case could have been brought in the transferee court originally

Private Interest Factors Public Interest Factors

Ps choice of forum (unless the balance of convenience is strongly in Transferee’s familiarity with the governing laws
favor of the Ds)
Ds choice of forum Relative congestion of the calendars of the potential transferee and
transferor courts
Whether the claim arose elsewhere Local interest in deciding local controversies at home
Convenience of the parties
Convenience of the witnesses
Ease of access to sources of proof

§1406: (for improper venue)

• Can only be brought by the DF or the court not π
• Court can dismiss or transfer
• Law of the transferee forum controls

Pleading

n Allowed Pleadings
1. Complaint
2. Answer
3. Answer to counterclaim
4. Answer to crossclaim
5. 3rd party complaint
6. answer to 3rd party complaint
7. if the court orders one, a reply to an answer
n Complaint
• Requirements π must put in complaint, if any of them is missing case dismissed, probably without
prejudice:
1. Basic facts – statement of the ground of SMJ
2. Asserts “causes of action”
o Rule 8 – does not require fact pleading (pleading specific facts in sufficient detail to
suggest the plausibility of liability under applicable law)
o Conley v. Gibson – pleading could be broad unless there is no set of facts that could
prove the claim
o Twombly – rejects Conley, gives us standard in federal court π must allege facts
supporting a plausible claim
o Are the allegations well pleaded?
§ Well pleaded – when it is more than a “mere conclusory statement”; well
pleaded factual allegations
o Are the well-pleaded allegations plausible?

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§Court must determine whether they plausibly give rise to an entitlement

to relief
3. States relief from court -- $ damages, specific performance, divorce, wills, etc.
o Can have more than one claim
o Claims can contradict
o Can have multiple ∆’s

n Response
• When you get served with process, must respond w/in 20 days
o Rule 55a -- ∆ who fails to respond to the complaint w/in the time limit set by the rules is subject to an
entry of default when that failure is shown by affidavit
• Respond by motion (is not a pleading) or by answer
• Answer:
o ∆ must respond to each allegation in complaint:
§ admit to those that are true
§ deny
§ state ∆ has not enough info to admit/deny allegation
o affirmative defenses
o defense of waiver

n Care and Candor in the Pleading

• Rule 11: form of legal malpractice based on an objective negligence standard.
• Bad faith is not required to violate this rule and good faith is no defense against a violation
• Must serve it on the offender 21 days before filing

n Amending Pleadings
• Party may amend the original pleading once w/out leave of court w/in 21 days of serving that pleading
o Rule 15(c)—address the problem of amendments attempted after a SOL has run and whether they can
relate back—
§ backdated to the date of a timely original pleading, if the claim or defenses asserted in the amended
pleading “arose out of the conduct, transaction or occurrence” as the original
§ receives such notice that it would not be prejudiced in defending on the merits and
§ that it is or should be aware the action would have been brought against it but for a mistake
concerning the proper party’s identity

Joinder

n Introduction
• Determines the scope of the litigation – how many claims or how many parties are in a single case
• You have to assess subject matter jurisdiction for every single claim
• Example Analysis:

Ex: A (NY) and B (FL) out driving around, they collide, A sues B for $100,000 (that’s diversity case), B
asserts a compulsory counterclaim back against A and its for $45,000 –

What kind of claim can the df assert back against the pl?
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Step 1: Why13 is it a compulsory counterclaim (you must explain why it falls under 13a.1)

Step 2: Why is there no federal question over that claim? (there’s no federal question bc it’s a car wreck, nothing
federal about it

Step 3: Why is there no diversity over that claim? (bc it didn’t meet the amount in controversy)

Step 4: Why does 1367a grant supplemental jurisdiction? (always yes, because same transaction or occurrence
always meets the common nucleus test)

Step 5 Why does 1367b not take it away? (only applies to diversity cases and only over claims by pls)

n Rule 20: Permissive Joinder of Parties

• Allows πs or ∆s to sue together if they assert claims arising out of the same transaction or occurrence & their
claims against the ∆s will involve a common question of law or fact at the OUTSET of the case

n Rule 18: Claim Joinder by the π

• Allows Π to join w/ his original claim any additional claims he has against the opposing party – related and
UNRELATED
rd
• Applies to counterclaims, crossclaims or 3 party claims

n Rule 13: Claim Joinder by the ∆

• 13.a1 Compulsory Counterclaim
o A counterclaim that arises from the same T/O as the π’s claim
o Must assert it and cannot sue separately or else will have waived the claim
• 13.a2 Permissive Counterclaim
o Counterclaim that does not arise from the same T/O as the π’s claim and allows ∆ to settle all his
claims against his opponent w/out having to file a separate lawsuit
§ However, judge could separate claims under Rule 42b
n Rule 13g: Crossclaim
• A claim against a co-party (NOT OPPOSING PARTY) and it MUST arise from the same T/O as the
underlying case

n Rule 19: Necessary and Indispensible Parties

• Raised by ∆
• 1st step – is the absentee necessary?
o 19.a.1.A the absentee is necessary if without her the court cannot accord complete relief among the
parties – in other words if we do not bring A into this case we cannot wrap this all up in one nice neat
package there is going to be multiple litigation down the road
o 19.a.1.B.1 the absentee’s interest may be harmed if she is not joined/ brought into the case, in other
nd
words for the 2 test you must focus on the absentee herself and say look if she’s not brought into
this case might she be hurt
o 19.a.1.B.2 if the absentee’s interest may subject the Δ to the risk of inconsistent obligations –
remember joint tortfeasors are not necessary and cannot be forced under rule 19!

n Rule 14: Impleader

rd
• ∆ brings in a 3 party Δ if she is liable to the Δ for all or party of the underlying claim

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• Must do it w/in 10 days of answering complaint

• Still must be a basis for SMJ over impleader claim
• Indemnity or contribution
• Also allows party to escape liability TPD à P or P àTPD – arising from the same T/O as the underlying case
rd rd
• Impleaded 3 party ∆ does not affect the court’s jurisdiction over the original claim and 3 party Δ is
rd
disregarded in determining venue (i.e. π and 3 party ∆ can be from the same state)

n Rule 24: Intervention

• The absentee is joining herself into the case
o Might come in as a π to assert a claim against ∆ or come in as a ∆ to defend a claim against the π
• Intervention of Right 24a
o If that absentee’s interest may be harmed if she is not joined and she makes a timely application she
has a right to intervene
o Unless existing parties adequately represent that interest
• Permissive Intervention 24b
o All you have to do as the intervenor is show that your claim or defense (depending if you are coming
in as π or ∆) and the pending case have at least ONE common question
o Court does not have to let you in, it’s up to the court’s discretion

n Rule 23: Class Actions

• Representative sues on behalf of the class and only look to her citizenship for diversity, not the
other class members
• Rule 23A –
o Numerocity: so numerous joinder is impracticable
o Commonality questions: must have common questions
o Typicality: representative claim is typical of those of the class members
o Show that the rep will fairly and adequately represent the interest of the group because they are
binded by the judgment
• Rule 23B –
o Common questions predominate over individual questions
o Class action is the superior way to resolve this dispute

n § 1335 Interpleader
• allows a party facing conflicting claims to the property or fund to interplead the various claimants to
obtain a judgment of ownership that will bind all claimants
o whereas impleader “allows someone of property or money to force all adverse claimants to that
property to litigate the ownership of that property in a single proceeding”
• a party may file an interpleader action in federal court if:
o worth more than $500
o diversity between any 2 contending claimants
• Venue lies where any claimant resides
• Ex: X & Y both claim a bank account at Bank. Y demands the $$ from Bank. If Bank had to litigate against Y
nd
and then possibly defend a 2 suit brought by X. Bank might have to pay the amount of the account twice.
INTERPLEADER DOCTRINE; Bank can force X & Y to litigate between themselves as to the ownership of
the account, with Bank paying only the winner
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Discovery

n Required Disclosures
• Rule 26 tells you that at 3 completely different times during the case, you must cough up information even
though nobody asks for it

n Discovery Tools
1. Deposition
§ You can depose a party or a non party but a non party must be subpoenaed or else
he does not have to show up
§ Taking of testimony from a witness under oath
§ Counsel for both parties present
§ Time consuming/ expensive
§ Most effective means of obtaining detailed info from witness before trial
1. Counsel gets to see the party/witness
2. Witness required to answer questions spontaneously, uncoached by counsel;
provides better preview of witness’s trial testimony
3. Examining counsel can frame follow-up questions @ deposition based on previous
answers
4. Deposition gets the deponent “on the record”, commits her to a detailed version of
the relevant events; if witness later changes testimony, deposition an be used to
impeach
§ Rule 30 – deposition where the questions are oral
§ Rule 31 -- questions are written and they are read out loud by the court reporter

2. Interrogatories
§ Rule 33 – written questions answered in writing under oath (you have 20 days to answer
them)
§ Can only send them to parties, never non parties
§ Inexpensive means of gathering information
§ Responding party has to answer under oath
§ Answers are usually drafted by the opposing party’s lawyers after consulting with client

3. Request to Produce
§ Litigation should be based on open access to all relevant info
§ Requires opponent to produce designated documents or things in its control for inspection
and copying
§ Rule 34 – request in writing that somebody give you access to stuff
§ Applies to parties & non parties – or non parties you must subpoena

4. Medical Exam
§ Rule 35 – Must get a court order will only be granted for “good cause”, requires physical or
medical examination of parties whose condition is at issue in the case
§ Must be of a party or someone in the parties custody or legal control (ex: parent and child)

5. Request for Admission

§ Rule 36 – can only be sent to parties NEVER non parties

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§ Can force the other party to admit or deny anything that’s discoverable (so you just send this
to them and say “admit or deny you were drinking alcohol as you drove the car” and you
force them to answer) and if they fail to deny that can be treated as an admission

n Scope of Discovery
• The Standard for what is discoverable – Rule 26b.1 anything “relevant to a claim or defense”
• Privileged matter is not discoverable
• Work Product – anything prepared in anticipation of litigation is immune from discovery

Motions

Four Different Motions which can dispose of a case as a matter of law based on “settled facts”
Motion Seeking Decision as a Matter of Law
12(b)(6) 12(c) 50(a)(1) after П's case 50(a)(1) after П's & D’s case

facts in complaint facts in complaint & answer facts in record after П's case Facts in full trial record

Factual Record for Decision

n 12b6 Motion to Dismiss for Failure to State a Claim

• Court does not look at evidence, only looks at the face of the complaint and asks “if everything here is
true would the π win judgment?”
• Ex: elements of a claim is A, B, C and D but π only alleges in her complaint A, B and D. ∆ can file a MTD
because to win you need all 4 and C wasn’t met

n Rule 56 Summary Judgment

• The court looks at the evidence (affidavits, deposition testimonies, answers to interrogatories):
1. There is no dispute on a material issue of fact à court can NEVER EVER grant
judgment if the evidence shows a dispute of fact
2. That she is entitled to judgment as a matter of law

n Rule 50a Motion for Judgment as a Matter of Law

• The court takes the case away from the jury, judge looks at the evidence from trial and says “hey I don’t
need a jury I am going to decide this” by:
o If reasonable people could not disagree on the result
• Summary judgment stops cases before trial, here we have gotten to trial but this is going to weed out a case
that should not go to the jury at all
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Either
D may party may
move for move for
directed Judge
Opening directed Judge Jury Jury enters
P presents verdict D presents Closing instructs renders
Statements evidence eveidence verdict Statements deliberates judgment
(Judgment jury verdict
(judgment on verdict
as a matter as a matter
of Law)
of Law)

n Rule 50b Renewed Motion for Judgment as a Matter of Law

• Same as 50a but it comes up later, here the jury decided the case and the jury got it all wrong so now the
losing party makes this motion and if its granted we are going to take the judgment away and give it to the
other party
• To bring this motion you must have moved for JMOL at a proper time at trial
• Ex: if π puts on her evidence for A, B and D but not any evidence for C and ∆ does not move for JMOL at
trial and the jury gives the π verdict, the ∆ cannot move for RJMOL

n Rule 59a Motion for New Trial

• Comes up after case has gone to the jury
• Something happened at trial (that affected the outcome) that makes the judge think we should start over:
o mistake of law
o judge in the jury instructions put the burden on the wrong party
o maybe improper conduct like juror went out to do independent investigation

Preclusion

Claim Preclusion Issue Preclusion

Encompass all transactionally related claims that could have been Requires that the issues have actually been raised and litigated;
asserted but were not having had the opportunity to raise an issue but failing to do so is not
enough to trigger issue preclusion

n Claim Preclusion
• Affirmative defense that must be set forth in a responsive pleading if a party intends to challenge a
claim on preclusion grounds or it may be waived
• Requirements:
1. Prior action must have concluded in a valid, final judgment on the merits

2. Claim in the subsequent action must be the same as the claim that was raised or should have
been raised in the previous claim
o Transactional test (Majority): preclusive effect of a prior judgment extends to all rights the
original π has with respect to all or any part of the transaction or series of connected
transactions out of which the action arose
o Critical issue – whether the 2 actions under consideration are based on the same nucleus
of operative facts

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o Primary Rights Test (Minority): you get a different claim for each right invaded in a single
transaction

3. Parties in the subsequent action must be identical to – or in privity with the parties in the first
action:
o Nonparty has succeeded to a party’s interest in property is bound by a judgments against
that party
o Nonparty who controlled the original suit will be bound by the resulting judgment
o FCs will bind a nonparty whose interest were represented adequately by a party in the
original suit

n Issue Preclusion
• Requirements:
1. Issue to be precluded in subsequent litigation must be the same issue that was raised in the
prior litigation that resulted in a valid final judgment
2. Issue must have been actually litigated and determined in the first case
3. Resolution of that issue must have been necessary to the judgment in the initial action (guys
wouldn’t have on that case if they didn’t win on that issue)
4. Subsequent action must involve the same parties or their privies
o Nonmutual defensive – person using it in case #2 was not a party in case #1 and is the ∆
in case #2
o Majority Rule: allowed if the person against whom you are using it had a full and
fair chance to litigate in case #1
o Traditional Rule: No
o Nonmutal offensive – person using it in case #2 was not a party in case #1 and is the π in
case #2
o Majority & traditional rule: NO not allowed
§ Except Parklane v. Case Factors of Fairness:
• Person against whom you are using issue preclusion had a full fair
chance to litigate in case #1
• Person could foresee multiple suits
• Π Could not have joined easily in case #1 (i.e. intervening)
• There are not inconsistent judgments

Ascertaining Applicable Law

n Eerie Doctrine
• What law should apply: FEDERAL or STATE for cases brought in federal court?
o To prevent forum shopping, courts generally apply state law in diversity cases
o Federal courts apply federal PROCEDURAL law in diversity cases