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Civil Procedure Outline and Notes for Students:


Civil Procedure Outline:

6, 10, 54, 65, 68, 1631, and 42-1988-b are not in the outline


*    We have the most complicated legal system in the world. We try to balance speed vs. autonomy and truth vs. dispute resolution

*    Criminal cases tend to be out quicker… they must be tried in 180 days unless a lawyer requests and is granted an extension)… this makes sure that peoples’ right to a speedy trial is met   

*    Most states have adopted the FED. Rules into their own procedure and the FED rules reach to the FED court in every state.

*    Jurisdiction= who has it= the state or the FED

*    Generally=

*    A does not have to bring all possible defendants in a case

*    Trial types=

1.      general jurisdiction= “every topic”

2.      Limited jurisdiction= “only certain things” The FED can only hear certain types of cases.  Congress has not expanded this to the full extent that the Constitution will allow as is their right to do. Diversity of Citizenship “and the amount in dispute must exceed 75,000 (1332) and disputes arising under the federal question invoke FED jurisdiction (1331) and 1367 matters (supplemental jurisdiction

*    Most disputes will not end up in court.  In fact only 2.2% of FED cases will ever actually go to trial.

*    Pro Se= (or im pro persona) “on his own behalf” (not with a lawyer).

*    Suing for malpractice= the old way did not allow for this and the client was just stuck with the mistakes of the lawyer. 

*    Most jurisdictions have different levels of judicial power=

1.      the lowest being the trial court, a little higher being

2.      an intermediate appeals court, and

3.      the highest being a Supreme Court (generally except in New York)

There are 3 things that must be present before a particular court can hear a case legitimately= 

1.      first it must have subject matter jurisdiction (the power to hear that type of case),

2.      it must have personal jurisdiction (to make a judgment valid against someone) (note that it would be a against Due Process and thus unconstitutional to subject someone to proceedings if there was no personal jurisdiction over that person), and

3.      proper venue

4.      Note that rule 37 is limited by rule 82 stating that FRCP are not to be used to increase jurisdiction… this can come into conflict when the courts make someone subject to jurisdiction as a sanction when they did not follow all of the rules


Challenging Personal Jurisdiction=

1.      The easiest thing for an out of state ∆ to do is nothing. Then when judgment is sought in her state to settle the claim…declare a collateral attack…if she loses the collateral attack argument… she is screwed because her case will not be heard on the merits… but the second court will have to inspect the jurisdictional contacts and make a determination

2.      It is recommended that if you have a case on the merits but disagree with the jurisdiction… you can go through the case (while appealing the jurisdiction)… lose on the merits and then later challenge the jurisdiction to try and get out from under the judgment. 

3.      She could raise the lack of personal jurisdiction defense right away…there are two ways of going about this… you can do a pre-answer motion or a complaint… the pre-answer motion is easier because you don’t to answer everything like in the complaint.  Note that if you do not object to personal jurisdiction in your pre-answer motion or answer you waive your right to do so… if you don’t object to it on your first piece of paper… your right to object to it is waived.  The same is true for all other defenses besides subject matter jurisdiction.  

4.      You can enter a special appearance to challenge personal jurisdiction… this will allow you to challenge personal jurisdiction without consenting to the jurisdiction…This type of defense is not available in Federal Courts


1335= Interpleader


1332 Diversity of Citizenship:

1.      (and amt in controversy must exceed 75,000 + Diversity)= the place where you are living at the time you file suit counts for this. This is considered your domicile… Without Diversity and the amount… there is Subject Matter Jurisdiction and the court would have to dismiss

2.      Information on the amount in controversy:

*      The amount on the complaint to a legal certainty is the standard

*      When the thing being sued for is an injunction…the value of the injunction to the is used, the cost for the ∆ to comply with the injunction is used, or the costs to invoking the injunction is used

*      Aggregation of the amounts= if the claims are separate and district then no aggregation is allowed… if the claims are not distinct and separable they might be allowed to aggregate to make the amount requirement…if the claims are separate and distinct and one of the claims makes the amount level while the other does not… the one that makes it goes to FED court and the one that did not does not go to FED court

*      In class actions (1367)… only the representative party needs to meet the amount in controversy.  Also 1367 allows for the use of supplemental jurisdiction if it is the same case or controversy.

*      There is a graph as to claims and counter claims regarding whether compulsory ones are different than permissive ones for the purposes of 1332 jurisdiction

3.      Information on diversity of citizenship:

*      The key to this qualification is intent “animo menendi” = the intent to remain.  This intent needs to be backed by some evidence proving that this is the place were you intend to remain for an indefinite period of time.  Signs that you are going to leave may play against you when the court tries to determine your intent for diversity purposes. Signs or indicators of intent would be a driver’s license of that state, an apartment,…It should be noted that intent to stay does not mean that it is not possible that you live, it only means that you intend to be there for an indefinite time.

*      For 1332 to apply… it can’t be alien vs. alien… this would be against article 3… although it is not really unconstitutional, it is still not allowed

*      2 foreigners against a state citizen= yes

*      1 state citizen and 1 foreigner vs. a foreigner= no (1332-a-2 and 1332-a-3)

*      Once you have two diverse states against each other, you can have as many foreigners on both sides of the fence that you want… (California + foreigner) vs. (Colorado + foreigner)

*      US citizens living outside the US (residing) don’t fit into the 1332 reasoning.

*      Rule 21 allows for parties to be dismissed if they are going to destroy diversity… this allows parties to keep the case in FED court

*      The citizenship of a partnership is the citizenship of all of the purposes for the sake of 1332

*      The principle place of business… is determined by two tests for the sake of 1332:

o       Nerve center test

o       Muscle test…where the bulk of the activities take place… this is where most contact with the public will take place…this test is the one that is most commonly used

*      Rules= 14, 19, 20, 24 all affect diversity

*      Foreign corporations in the US also fall under 1332… they will also have a citizenship

*      An interesting fact is that when an insurance company gets into the game… it maintains its own citizenship while taking on the citizenship of the person insured when it is being sued… when the insurance company is the , the only citizenship that applies is its own and not the policy holders

*      There are certain things that the FED will not touch…child support, alimony, divorce, and child custody… these are state matters and so there is not anything on diversity for these topics

*      When a minor or incapacitated person is represented… their citizenship applies and not that of the representative

*      From DC to Guam… you are treated as if you are from a state for diversity purposes

*      Citizenship counts at the commencement of the action




*    Jurisdiction is limited by the Constitution “Due Process”


Subject matter Jurisdiction=

1.      Dismissal of a case based on the lack of this is to dismiss a case not based on its merits.  Another example of dismissing a case not on the merits is the statute of limitation dismissal. 

2.      This can’t be waived as the power of the FED to hear the cases depends on it “Article 3”… anything out it can’t be heard. 

3.      If a FED court dismissed for lack of Subject Matter Jurisdiction, there is no ban on bringing the matter up again in a state court

4.      this is not the same thing as personal jurisdiction… a court simply can’t hear a case without it

5.      FED courts are of limited SMJ by article 3… Article 3 spells out what FED courts can hear in addition to statutes that complement the constitution

6.      Some exclusive FED matter are admiralty, bankruptcy, and patent

7.      Concurrent jurisdictional matters are those that can be heard by both state and FED courts

8.      Raising objection to subject matter jurisdiction= you can go 2 ways… 12-b-1 or a 12-b-6 motions. 


1331 The Federal Question:

*      1331 general fed question statute= arising under the laws and treaties of the US… what does this mean… in a well pleaded complaint there has to be a federal question… otherwise the case will be dismissed in accord with lack of subject matter jurisdiction. At the pleadings you must state a case that arises out of the laws and treaties of the US.  If the federal question is not raised on the complaint…then the case will be dismissed for lack of subject matter jurisdiction. This does not mean anticipated defenses.

*      It is entirely possible that a case may fail the Mottley test and still get into federal court because the federal matter is the central issue… The Mottley test is the well pleaded complaint rule.  These kinds of cases…the facts are so important that the FED will be willing to hear the case.  Note that the quick dirty rule to follow is the well pleaded case rule.  Make the right type of complaint.

*      1331 has been interpreted more narrowly than article 3

*      A well pleaded complaint is the bare bones allegation required to survive dismissal.

*      An artfully pleaded complaint…you have a federal question but you hide it… it is the opposite of a well pleaded complaint


*      The declaratory judgment is a way to raise the FED question without a well pleaded complaint… this is where one party asks the court to declare its rights in a given situation… it should be noted that this thing does not expand the jurisdiction of the FED court. A declaratory judgment comes from the Declaratory Judgment Act

*      There are times when you can lose your ability to be in FED court… this usually happens when you change your case or continue under a different type of complaint.  Another time is when you deiced to settle a matter… you can lose your status in FED court… a remedy for this is to enforce a consent decree…. What this will do is keep the matter open and able to be in FED court until the settlement actually occurs


Personal Jurisdiction=

1.      you can consent to it, it can be served on you in the state “tag jurisdiction/transient presence”, and it can be subjected to you when you are a citizen of the state

2.      It can served on you if you have property in that state

3.      There are two types of contacts that will give you personal jurisdiction over someone… Specific contacts and General contacts. When there are enough specific contacts there will be Specific Jurisdiction and when there are enough general contacts there will General Jurisdiction

4.      Via specific jurisdiction= if a claim arises or relates to the contacts

5.      Via General Jurisdiction= the claim need not arise or relate out of the contacts if the connection to the state is so persuasive that it has to be allowed.  It should be noted that you are going to need a lot more contacts when the dispute does not arise/relate to the connection with that jurisdiction.  These are the continuous and systematic contacts.

6.      You can waive personal jurisdiction voluntarily or involuntarily “by sanction”

7.      Normally a FED court will adopt the state where they reside’s long arm rule unless a rule 14 or 19 situation arises… another exception involves the 100 mile bulge rule… Another type of exception is when there is a statute stating that the FED court is to dominate… like in a situation calling for a nation-wide service of process “1335” or the enforcement of a civil contempt order arising from litigation involving a federal question (rule 4.1)… the last exception is to aliens that don’t have sufficient contacts to any state to create personal jurisdiction rule 4-k-2

8.      International Service (Hague Service Convention)=  you can serve process on a ∆ in any manner specified by receiving nation for its own civil litigation, in a manner specified by the plaintiff so long as that manner does not violate the receiving nation’s laws, or by the ∆’s voluntarily accepting service.

9.      If the ∆ claims that he did not get service it will not affect the validity of the service… Rule 4-l handles this… it requires that there be a response to service

10. The age suitability is 18 but if the person is old enough to understand what is going on then it would probably be ok but that is not the rule

11. State long arm statutes can go as far as the constitution will allow them or they can just be to certain specific things (but those things must be constitutional)… States may decide to stay well within the bounds of the Constitution to avoid having to answer those really tricky Constitutional questions… When FED court is using the long arm provision of a state as it must under rule 4 then if the state can’t reach then neither can the FED court

12. When you file a claim in one jurisdiction you open yourself up for being subjected to that jurisdiction if there is a counter-claim

13. IF a FED court dismissed for lack of personal jurisdiction… the matter can’t be brought in a state court (the same state). This is not the same if the case dismissed for lack of Subject Matter Jurisdiction in a FED court



Raise the defense, lose, can you collaterally attack?

Appear, not raise the defense, can you collaterally attack?

Personal Jurisdiction



Subject Matter Jurisdiction





Default, can you collaterally attack?

Personal Jurisdiction


Subject Matter Jurisdiction

Yes/no “no clear holding on this”



Minimum Contacts (reasonably expecting to haled into court) =

1.      Minimal contact arguments are used when someone is not located in the jurisdiction.  According to the findings in international shoe= there must be minimum contacts sufficient enough to subject someone to jurisdiction… without minimum contacts subjecting someone to jurisdiction would offend due process as it would not coincide with notions of fairplay and substantial justice. International shoe found that continuous and systematic ties to the area was enough of a minimal contact to allow for jurisdiction.

2.      Continuous and systematic… purposeful and not accidental. Claim arises out of these contacts= a clear meeting of the minimum contacts requirement…If the claim does not arise out of the contacts with the jurisdiction and the contact is single and isolated= this is clearly not enough to satisfy the requirement and it would violate due process.

3.      Purposeful Availment of the laws of that state can be enough to satisfy minimal contacts. A unilateral act of one party in going to another state will not mean jurisdiction to that other party unless he purposefully availed himself of the laws of that state.

4.      This is an evolving part of the law and what is sufficient minimal contacts keeps being redetermined.

5.      For “In REM” cases over property in a state, it is ok for the state to seize the property to prevent the ∆ from hiding it without having minimal contacts but if you are going to assert jurisdiction over him then there needs to be minimal contacts over him

6.      Simply putting something in the stream of commerce is not enough to bring out minimal contacts… there needs to be something more like advertising which would show that someone purposefully injected something into the stream of commerce… another thing that could make the minimal contacts thing happen is if you catered your product for a certain area.

7.      Selling a product in an area will likely increase the minimal contacts and might increase the state’s interest in the case.

8.      Deriving benefits from the state will increase your chance as being seen to have minimal contacts.

9.      A modest purchase will not subject you to a jurisdiction but the purchase of a home would and so would having a lease in some cases

10. According to rule 4-K-1= FED courts should follow the state’s long-arm statute… this rule states that FED courts borrow the laws of the states that they reside in

11. web pages= if you can transact business on that page then you can be haled into court wherever that page reaches… if you don’t want to be haled into court in a certain area then you should make it so that the page can’t do business in that certain area… because if it is a page that just advertises…being subject to every jurisdiction that it reaches would be unacceptable.


Consideration Factors for the fairness of minimal contacts (fair play and substantial justice), These are balancing factors to consider=

1.      Burden of the ∆

2.      ∏’s interests= what is the reason for the wanting to litigate this case there

3.      State’s Interests= does the state care about it… states are concerned about the affairs of their citizens

4.      Judicial Efficiency Interests

5.      Advancement of Fundamental Social Policy Interests= this interest certainly increases when there is no other forum for relief for all practical purposes.

6.      Note that the more attenuated the interests are…the less they are going to count for making minimal contacts reasonable

7.      Another factor to look at when evaluating these factors is how reasonable is it for a ∆ to expect to be haled into court in that jurisdiction “forseeability”… one example of this is looking to a contract… things like prior negotiations, where the parties are, who the parties are, contemplated future consequences, terms of the contract, and the parties’ actual course of dealings… Courts give great deference to who brought suit first in trying to determine where a case is going to be heard… note that this won’t stop the other side from starting a suit somewhere else and the court may decide to hear the case where the other party filed but it is in your favor to start the first where you would like to have it because of the deference that the courts give to it

8.      note that if a case is found to be reasonable under these circumstances then it will require less minimal contacts to be heard in that jurisdiction

9.      The trend for the FED court is not to find jurisdiction and the trend for the state court is to find jurisdiction

10. Note that minimal contacts and the 5 factors are used together in a balance to determine whether someone should be subjected to a jurisdiction.


Pendant Jurisdiction= This is one claim clearly meets the contact requirement and another claim against the same ∆ can be brought. Both of these can be heard in a FED court via Pendant Jurisdiction if they arise out of the same nucleus of common fact (to the point of claim preclusion)… This applies to jurisdictional reach as well… It should be noted that being from the same nucleus of common fact it is totally justified to be in the FED court but if the matters are totally unrelated… then it just won’t stand as much of a chance… but there have not really been any cases like this. As for the claim preclusion qualification… when there are two matters like this… one that belongs in FED and one that belongs in state… there won’t be a problem with claim preclusion.


General Jurisdiction=forcing this on someone with contacts in a state when those contacts are not the cause of the dispute is unconstitutional


Transient Jurisdiction= this is a well established facet of law.  This is where someone is subject to jurisdiction because they are in the state but justice Brennan does not agree with it because without minimal contacts with the state or having a controversy arise from state contacts… it is unconstitutional to subject someone to jurisdiction in that state. Along this line of thinking, being tricked into a state or kidnapped and brought into the state is not constitutional… Along these lines, a person who turns themselves in gets immunity from being subjected automatically to jurisdiction 3, however a person who does not turn themselves in and has to be extradited does not enjoy immunity from being subject to jurisdiction.  



Diversity Jurisdiction=

1.      marrying a foreigner does not make you lose your US citizenship

2.      Permanent resident aliens take on the citizenship of the state where they reside (a student probably won’t qualify for this) for Diversity Purposes.

3.      Spouses may be domiciled in different states and children have the domicile of their custodial parent   

4.      Complete diversity= not having parties from the same state on both sides of the fence. Complete diversity is not required by the Constitution… The Federal Interpleader allows for FED jurisdiction with minimal diversity… meaning that there needs to be someone from a different state on the other side of the fence even if not all of the parties can do this… just one person from a different state


Bringing in different laws into a Jurisdiction… Rule 44.1, you have to give notice and bring the law to the court.


Impleader= Derivative Liability is the proper basis for this… “If I am liable to them then you are liable to me.



Venue= USC 28 1391 takes care of this for you…

1.      You need to have personal jurisdiction over someone and proper venue over someone in order to bring someone to a particular court… This has an affect on suing an alien because they are subject to venue anywhere in the US… but they can only go to court where there is personal jurisdiction over them… so this limits the places where an alien could be sued. 

2.      Venue really makes a difference when it comes to states that have more than one FED district but it really does not make a difference where there is only one because of the personal jurisdiction requirements.

3.      local= can only be heard in one place… this usually happens when trying a case about land matters… the venue is where the land is… 1392= if you have land that is in multiple jurisdictions… then venue is proper in any of those districts

4.      transitory/transient= can be heard anywhere

5.      Forum Non-Conveines=  

o        You can’t transfer to another system, you have to dismiss before it can be heard in another system…

o        The fact that another venue is less favorable to a is not enough to deny dismissal but if would have no remedy otherwise… the court might consider that enough…

o        this really is a judge/court made rule… there is no statutory backing on the public/private factors listed in the Piper case

o        Forum Non-Conveniens is dead in state courts… you have to remove to FED courts and then move for Forum Non Conveniens





Service of Process=

1.      This kicks off a case but it must be properly done.

2.      Serving in the state is no longer relevant due to “Long Arm Statutes”. A citizen is said to benefit from their citizen status in that state and thus has responsibilities as well.

3.      Just because a registered agent of a corporation is served, does not mean that the corporation is subject to personal jurisdiction (especially when the corporation has no contacts)

4.      Giving notice must be of such as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearances.  It must be reasonable in way that it is reasonably calculated (under all of the circumstances to apprise those interested of the pendency of the action and afford them an opportunity to present their case. If the circumstances of the case are such that notice is not likely, then to be constitutional the method chosen can’t be substantially less likely to inform than other available methods

5.      A mere gesture will not meet the requirements of notice

6.      You must use due diligence in trying to notify the ∆… they need time in order to respond to the

7.      Personal Service is the best way to serve process

8.      Other acceptable ways of serving process is mailing, publication (but not when the address of the person is known), seizing property, posting, and serving in homes/offices… Generally speaking… if you can do better than publication… you should use that method

9.      If parties are classified according to 23-b-3 then 23-c-2’s method should be used

10. Waiver of Service is another way to send service of process… this can the most affordable way to start a law suit provided that the other side plays ball… If they do then both sides can benefit from additional time and cheaper cost to start… it should be noted that waving service is not waiving a case on the merits… The US is not a proper party for a waiver of service

11. Note that the FED must honor the service rules (including timing) of the state in which it resides… Rule 4 says this




The Complaint=

1.      First the complaint must be made

2.      Then the complaint must be delivered. Delivery happens most often by request of waiver of service. In it the ∆ waives the need to be served.  IF he does not the ∏ needs to have him served but this is costly. The ∆ may have to pay for the service if he did not waive service of process.

3.      A well pleaded complaint is the bare bones allegation required to survive dismissal



The Pleadings=

1.      Rules 8 and 9 deal with the varying requirements of this

2.      The complaint is a short plain statement tat entitles the pleader to relief.

3.      There does not need to be a lot of detail because broad discovery through interrogatories will bring these out. 

4.      State courts may be more stringent than the FED courts at the complaint.  Form 9 is a good example of what the FED requires. It is on pg. 172 in the supplement. 

5.      After the complaint the ∆ can respond by a pre-answer motion or an answer. The pre-answer motion=the motion, the notice, and the legal argument for it are all parts of the pre-answer motion. 

6.      Compulsory Counterclaims= arising out of the same t/o and the right to raise it is waived if it is not raised.

7.      Permissive Counterclaim=  not arising out of the same t/o

8.      A dilatory plea= is not going to the merits of the case

9.      Demurrer= “Even if everything is true it does not entitle the ∏ to anything

10. Traverse= Denying what the ∏ says

11. Confession and Avoidance= ∆ admits to the ∏ the truth but because of new info he does not have to pay.

12. Silence is the same as an admission

13. A motion deals with bits and parts of the pleading

14. With answers, you can be silent, deny, or state that there is insufficient evidence (which has the same effect as a denial but there must have been a reasonable investigation.

15. When answering or making a counterclaim serve the other side and file it with the court. Also make sure to include all grievances

16. Amending the pleading= The FRCP are liberal and allow for other parties to be added later (joinder)

17. A need not name all of the ∆s that he/she might have a claim against when there is more than 1 ∆

18. If an FRCP does not deal with it, then the common law applies

19.  When pleading Civil Rights Matters… Prima Facie= stating the exact nature of the case like “I was discriminated against” will suffice for Rule 8-a requirements… as giving non-conclusory notice to ∆, so that the ∆ can prepare a response while setting forth evidence of unlawful intent… Note that the same standard will be heightened if this was simply an action with a suing an individual government official



Common Law Pleading:

*      Quantum Meruit= what you deserve or are entitled to

*      Our system joins law and equity

*      Causes of action replace forms of action

*      Even though the writs are gone… their substantive law still applies a little in the field code

*      You must plead ultimate facts… this means that you must have a balance of facts and conclusions… you must not be too conclusory (too bare bones…you can’t just say that the ∆ acted illegally… you must say why or in what way was ∆ acting illegally… you don’t need to put in all of the details… just the ones that dominate) and you can’t have too many facts (not enough law... it is possible to have too much detail... too much detail will bog the court down)

*      Complaint= no such relief or not enough facts will get it thrown out of court… the FED system is really worried about not enough facts to state a claim/right to relief.

*      You must connect the ∆’s actions with the type of relief that you are pursuing… you need enough details to link the ∆’s behavior with the claim of relief

*      If there is no law giving relief… then your complain will not be heard

*      If you botch a complaint…. You are allowed to amend it

*      FRCP is really forgiving when it comes to pleading… if you don’t have the law stated that entitles you to relief… but you have the facts… the courts will not generally dismiss your claim.

*      You can’t lie in a complaint/pleading procedure… “factual and legal basis after reasonable investigation or else FRCP 11 sanctions could apply

*      FRCP 84 tells you what forms are adequate for pleading, as well as, for other things

*    Specific Damages= When you are asking for specific damages… the heightened pleading requirement is in effect… Dollar amounts of specific damages need to be stated in the pleading... Special damages are those that may not be naturally occurring from an event cause by the ∆… In contract general damages are those that naturally occur from the conduct of the ∆… Pain and Suffering= general damages… Hospital bills= special damages…

*    Note the distinction between the burden of pleading and burden of proof

1.    burden of proof is the burden of production and the burden of persuasion

2.    burden of pleading one example is who has to plea good faith or bad faith



Joinder of Parties:

1.      Same t/o or series of t/o, same question of law or fact= parties can be joined as ∆s.

2.      Rule 20= same t/o or series of t/o, common question of law or fact= parties can be joined even with alternative types of liability (joint and several).

3.      Rule 15= you can amend as a right before a response has been filed. After that you must get legal consent

4.      Rule 19= a party that has to be joined but for some reason can’t be joined…


Case Studies:

1.      Temple v. Synthes Corp. = The Supreme Court said that not all tort feasors need to be named in a complaint. There are alternatives to naming all of them.  The ∆’s can implead to have other parties joined. There is no double recovery allowed or at least it is the intention of the court not to allow it.  IF the ∏ is not made whole by a judgment, the judge in the subsequent action may allow an award.

2.      Rush v. City of Maple Heights= this was a case of issue preclusion. The city was negligent in its maintenance of the streets. 



1.      Intervention as a right= When no one is adequately representing the rights of a stranger to a case.

2.      Permissive Intervention=

3.      Of notable mention, the further you get from the situation, the less likely you can have intervention.



Class Actions: One or two ∏s representing a group of people.  Autonomy is taken away.




1.      Discovery is designed to prepare the attorneys for trial.  It lets the attorney get a feel for the other side, if there is good evidence for both sides then it could go to trial.

2.      At common law there was no discovery, the FRCP rules were designed for formal discovery.

3.      Informal vs. Formal discovery= in 1938 formal discovery procedures were made part of the FRCP. Types of items that fall under this category are production and inspection of documents and things, written interrogatories, physical and mental exams (these will only take place if the court orders them to), and depositions.

4.      What is discoverable= any matter not privileged and is to the subject matter, relevant to the dispute and relevant to the claim or defense of any party.

5.      Privileged Information= we want privileges to be protected so that people can be candid with their attorneys.


Pre-trial Disposition: “ending a case before it starts”=

1.      The ∏ can pull the plug and start again only once according to the FRCP

2.      Motion for Summary Judgment “56”= there must be no genuine issue of material fact and that the other party is entitled to judgment as a matter of law.  If the party, who has the burden of proof, meets the burden, then summary judgment can be avoided. The evidence is not weighed as it pertains to avoiding summary judgment, it only has to some credible evidence.

3.      If the ∆ does not respond= there can be a default judgment and involuntary dismissal


Pre-trial Conferences: there can be many but the final one is the one that we are talking about


Starting a trial:

1.      Jury Trial= If a jury is required, then the selection of the jury starts the trial. The voir dire is the process of selecting the jury. In FED court the judge selects the jury and in state court the attorneys select the jury. The attorneys receive challenges for cause of the jury selection and they get pre-emptory challenges which allows them to dismiss a juror for any reason other than racial or sex discrimination.

2.      ∏’s opening statement describes what issues are going to the jury

3.      ∆ can do their opening statement right after the ∏’s opening statement or they can wait until the ∏ rests his case.


The Trial:

1.      Judgment as a matter of Law “50”= was known as directed verdict= and this happens when the other side does not prove its case and the other side is entitled to a judgment as a matter of law.  As a side note, the 7th preserves the right to jury trial. 

2.      Attorneys make their closing arguments= but they can’t ask the jury to put themselves in the shoes of the ∆ or

3.      The verdict is verified= the losing side still has the ability to renew their Judgment as a Matter of Law “directed verdict” (only if they made one previous during the case)


After the Verdict=

1.      The losing party can still raise (by motion) the Judgment as a Matter of Law if they  brought it up before in the trial

2.      The losing party can ask for a Judgment not withstanding the verdict

3.      The losing party can ask for a New Trial

4.      The losing party can ask (by motion) for a Renewed judgment as a matter of law= this is when no evidence is offered later but if not enough is offered then the court will allow it.  This is a fine line, because the court is not supposed to weigh evidence. So what it does is ask “would a reasonable jury be able to find another way”

5.      Appealing= this requires that the matter was brought up sometime during the trial and it was objected to. The Supreme Court says that there is Constitutional right to an appeal. Each court system will have a system for making appeals. It should be noted that appealing to the Supreme Court “FED” is not guaranteed as they are under no obligation to hear your case. When a decision is interlocutory= it means that it is not final and thus not appealable. 1291= Only a final decision is appealable except in New York. The justification for making people wait for appealing is that the issue may be decided on other grounds and an appeal may not even make a difference.  Another reason is that it helps speed the trial by not allowing it to get bogged down in every issue.  The bad side of this is that a trial can be decided even before it goes to trial because those earlier rulings can shape the trial for later.


Appealer FED

 Other Party FED





∏ in error= the old way

The ∆ in error= the old way



Claim/Issue Preclusion:

1.      Claim Preclusion “res judicata”= you only bring a claim to court once. “Each note is a separate claim”.  Each person has their own claim “loss of consortium is an exception to this in few jurisdictions. 

2.      Issue Preclusion “collateral estopple”= you can only bring an issue before the court once.  To have issue preclusion, you must have the same parties suing about the same issues.  “You tricked me into this= is one issue.  When a claim is assigned to an insurance company, the insurance company has a claim and so does the holder of the policy. The court would not preclude such an issue or claim.

3.      As far as Claim/Issue preclusion go= if a case is lost because of information not found but later discovered, you can ask the court to set aside the judgment.  The court will not like doing this though. 

4.      Each person has their own claim= loss of consortium may be an exception in a minority of states


Claims between FED and state courts=

1.      Between the FED and State courts= FED says that the first one filed will be precedent for the later one

2.      Between the state courts= the first filed has nothing to do with it… it is the first adjudicated that be precedent to the later one… “Full Faith and Credit”





*      The US Supreme Ct. says there is no Constitutional right to an appeal

*      The State System of sending appeals= trial court-court of appeals-Supreme Court

*      The Federal System for appeals= federal district…statute allowing an appeal…-court of appeals

*      Interlocutory= not final and thus not appealable

*      1291= “Final Decision of District Courts”= only a final decision is appealable, except in New York

*      The policy behind making people wait before they can appeal= the case may be decided on another issue altogether and so it would not make a difference. Also, this wait makes the trial go faster.  It should be noted that these earlier rulings can actually shape the outcome of the dispute as most cases don’t go to trial. 

*      The Federal Court of Appeals treats the District Court Decisions below them with a De Novo methodology giving them no deference in the decision as it comes to interpretation of the law (not in the fact finding)... it could very well be that the District Court may be more knowledgeable about the law in that area because they did some research

*      Civil Rights Cases= are more often appealed than other types of cases


Consent to Forum=

1.      Forum selection clauses will only be accepted if they are found to be fundamentally fair… meaning no indication of fraud or over-reaching… it must not be a contract of adhesion “a take it or leave sort” where one party holds all of the cards of negotiations… When a forum selection clause has other legitimate reasons for being in there then it will likely be found to be legitimate

2.      There is a good graph on this…



1.      When a case is not properly removed it gets remanded and improper removal could result in sanctions

2.      You only get one year to remove a case for diversity from the time of filing the case.

3.      Only the ∆ can remove to FED court (not even through a counter-claim can a remove to FED court…removal is only for the ∆)

4.      On the day of removal is when the amount in controversy counts for getting into FED court… note that you can later amend the amount and it won’t hurt FED jurisdiction

5.      1441-c= the power to hear 1331 and non-removable claims that are separate and independent but still part of the same case or controversy but when the state claim dominates the courts must remand back to the state… A FED court can hear part of a claim and then remand the unhearable part to the state court

6.      1445= makes some actions not- removable

7.      When a state refuses to validate a FED case… it can be removed to the FED system.

8.      When you file a state class action based on FED securities law… FED law applies and it is removable

9.      Removal is restricted by Congress… I don’t know to what degree.


Conflict of Law=

1.      States are generally free to apply whatever law that they wish to

2.      When there is a conflict and there is a legitimate FRCP or FED statute (usually has to be a procedural rule) that handles the matter (either being constitutional) then the state law will yield to the FED law… note that the ERIE twin aims will be considered in this application

3.      A conflict is shown when you take the twin aims of the Erie case and mix it with a determination of whether a rule is consistent with the Rules Enabling Act (note that this is only as factor to consider when trying to figure out if there is a conflict or not

4.      When there is no conflict then the FED rule/statute won’t win out.

5.      FED courts seem to feel that state courts are too nice to Class Actions and so have been dismissing them once removed… It should be noted that you can bring a class action into FED court but the rules regarding class actions in the FED courts are not so nice

6.      The Judiciary Act of 1789…the law of the several states should apply when appropriate

7.      The Erie Case had twin aims… to prevent forum shopping and equitable application of laws

8.      when cases based on state law end up in FED court the FED court needs to apply state law. The Erie doctrine allows for some forum shopping but it does not draw the line. This case marked the end of FED general law but it did not end FED common Law (there are areas that the FED can reserve for itself but not every facet of state law)

9.      The 10th “Federalism”… those rights not reserved for the FED… go to the states… it should not matter whether the law comes from legislature, statute, or the highest state court.

10. There are matters that Congress can state as FED matters and so FED law will apply even though there is to be no general FED common Law.

11. If there is no FED substantive law then you can’t file in FED court without diversity

12. When more than one states’ law applies… then the state with the highest interest in the case will probably end up having its law apply… this could be the state that would be most offended if their law was not applied

13. It should be noted that a state will not usually apply a law that will not help their own citizen They will also not generally use the law from another state

14. Diversity jurisdiction should alleviate certain forms of prejudice but it can’t eliminate all of them and so there are going to be differences in the ways that state courts and FED courts do things… this is why forum shopping still happens

15. The Outcome Determinative Test= if the result would be different use the state law… (this does not always apply now but it is part of a bigger test)

16. Eri says that some forum shopping is OK but it does not tell us to what degree that it should be accepted

17. The Rules Enabling Act= this act allows the FED to Draw up procedural rules for the FED court)

18. There are 3 big factors in determining what law to use in the event of a conflict: 

§         The degree of how bound up the state way is with substantive law over procedural (note that the more procedural it is the more likely it will swing in favor of using the FED law and the rule used must conform to the Rules enabling Act)

§         The strength of the FED interest, and

§         how certain it is to change the outcome (the outcome determinative test)

19. When there is no conflict in laws… the state law will prevail…

20. In FED courts… the judge can evaluate the jury’s decision to ensure that the jury found in a way conclusive to the evidence presented

21. In a diversity case… without another reason… use the state law

22. In reality… attorney’s regularly forum shop, so the Forum Shopping test does not really apply

23. Even when the FED applies state law… it will use its own procedure and so this can make a difference in how the case is going to come out… that is why we still have forum shopping… another reason is that damages tend to higher is highly populated areas but their dockets are going to be more crowded… booming areas tend to have more disputes… this will contribute to them being more crowded

24. The scope of Congressional Power… if there is no FED substantive law= you can’t file it in FED court without diversity… (there is no FED question).

25. It would not be Unconstitutional for Congress to decide that all cases heard in FED Court should apply FED Law… note that Erie says that in cases involving state law that are filed in FED court should have state law applied to them. Erie is the applicable law today as far as this is concerned. Erie only marks the end of General Fed Common Law but it did not end FED Common Law (there actually is a difference)  

26. Congress and State legislatures are more busy today than they used to be… this means that more laws are being passed

27. In a diversity case… without another reason… use state law

28. The FED system moves faster than the state system and the FED system is more formal that the state system… They are also going to carry lighter dockets

29.  Klaxon: The federal court should use the conflict of laws rules of the state in which the federal court is sitting. The federal court is to use the state rules for deciding which state law should apply.






Decisions between the FED and state courts:

1.      Preclusion via Full Faith and Credit:

*      State to State= FFC

*      State to FED= FFC

*      FED to State= FFC when there is no FED interest and State law is borrowed

2.      When cases are decided:

*      On the merits= can’t refile

*      With prejudice= can’t refile

3.       There are times when courts will make changes in the law that it just decided because precedent changes fairly recently and thus ended up in two different outcomes for the same underlying events. This happens when there is more than one party involved in the case and one set of parties ends up going to the FED and the other party does not… because they were in different courts the time frame for deciding the case even under the same law took a different amount of time and then in the interim the precedent changed… the court will then adjust the outcome of the previously decided cases to make justice consistent

4.       Certification… this is when the FED checks with the state courts when it is not sure about the law in the state… it does not always happen and there are some good notes for this in the book… The majority of states will allow this to happen… the policy behind this is that the FED court can’t told what to do by the State Supreme Courts

5.       When a FED court does an abstention… it either dismisses or it stays the proceedings to get the law clarified

6.       Certification and abstention are ways to avoid a conflict in laws


Decisions between the FED District Court and FED Court of Appeals:

*      When the court of appeals de novo… in a question of law… they give no deference as to the law… even though the district court might be more knowledgeable about that area of law


Damages and Calculations:

*      A court can measure interest on judgments by=

1.      running it from the actual taking (most jurisdictions do this one)

2.      running from the date of filing

3.      running from the time of the judgment

4.      In FED the interest rate is set to the T-Bill

*      Sustitutional= this is where you are not getting back the actual thing that you lost but it is where you are being compensated for he things that you lost… money is the biggest example of this

*      Emotional Distress=

1.      It needs to be determined from the time of the final judgment

*      Liquidated Damages=

1.      parties agree to them in advance

2.      makes it easier to determine damages (especially when they would be hard to measure)

3.      can come from statutes as well as from party contracts

*      Specific Remedies=

1.      You must first seek legal remedies before you seek equitable remedies (unless you can show that legal remedies are inadequate)… this is the old maxim and it is still followed today

2.      when you seek a legal remedy… you get a jury and when you seek equity you get a judge (generally)

*      Equity= the requirement of equity

1.      the legal remedy is inadequate or there would be irreparable harm otherwise

2.      the benefit to the recipient must not out weigh the harm to the person it is used against
the harm in giving it as opposed to not giving it

3.      must have clean hands

4.      laches= sitting on your rights won’t help

*      Declaratory Relief= courts declare rights and duties of parties… the Declaratory Judgment Act empowers the courts to do this

*      Considerations when it comes to damages=

1.      we need to restore the to the condition he/she would have been in before the injury

2.      marketability of what was lost

3.      Find the correlation between the loss/taking and lost profits and not only the value of the thing lost. 

4.      Duty to mitigate… this is the time it would have taken the reasonable person to recover.  After this point, lost profits can no longer be rewarded because all people are expected to mitigate their damages… but if things can’t be replaced due to economic condition… this will also be considered

5.      Sentimental value

6.      Pain and suffering must be evaluated on a case by case basis

7.      time and legal fees are generally not compensable

*      Punitive Damages=

1.      are based on a reckless act by the ∆ and the idea is to punish the ∆ for it

2.      must be reviewed for excessiveness

3.      An appellate court will do a denovo review for punitive damages:

*      When the Supreme Court reviews a punitive damages case…70% of the time… they are going to reverse/remand

*      There is also a notion of not interfering with the decision of the states but it is not as strong as the 70% swat

4.      When they are found to be grossly excessive… they may be found to be unconstitutional… because there needs to be notice of punishment and such punishment needs to be proportional… The 3 things to consider when making this determination:

*       Reprehensibility of the act

*       Ratio of damages to value

*       Comparison to civil penalties in other cases


Attorney Fees:

*      Attorney Fees= when someone else pays:

1.      Fee Shifting from 11, 26, and 37

2.      complete fee shifting in civil rights cases

3.      Equal Access to Justice Act= rarely happens but when the FED brings a bogus suit… they pay but not at 200 dollars an hour… it is much less

4.      contracts can get the other side to pay (like a lease)

5.      common law provisions can get the other side to pay

*      Attorney Fees= the client pays:

1.      hourly fees (most common)… if it would be advantageous for your client you must offer the hourly rate and when they ask you must disclose it

2.      flat fee

3.      In premium billing either one of the above will go up when the case gets complicated

4.      liability insurance

5.      prepaid insurance pays attorneys

6.      contingent fees… sliding scale states allow a lower % when the amount of the judgment goes up

7.      common fund

8.      sliding scale states



Property Seizure and Notice:

*      Mathews Test= this is a 3 factor test used to determine the degree of formality needed in a case before you seize or have property seized.

*      Search Warrants are the exception to the general feeling about property seizure is that property can be seized and there is no requirement for the “powers that be” to tell you how to get it back.  You have to find out for yourself.

*      With a valid/ important state interest… notice is not required.

*      If a waiver of your right to due process (notice) is bargained for… it might be allowed… but it will depend on what the court thinks about it.

*      Simply going in to warn a person about an immanent seizure can be considered informal notice under 6-a.

*      TRO= there needs to be

1.      a need for prompt action

2.      a clear need

3.      the state controlling the process

4.      an important public interest is at stake

5.      and a reason not to notify a person

*      An Attachment Quasi-in rem= you need to have minimum contacts… and a governmental interest to attach a property.  Fuentes says that if you have minimal contacts… there is no need for attachment to obtain jurisdiction and so it forbids it… Alternatively… Shaffer says that if there is no minimal contacts… attachment can’t be made to obtain jurisdiction


Rule 11:

*      There are some good notes to this in the rules outline

*      We talked about the safe harbor rule in this rule.  We also talked about waiving service will give you longer time to amend a pleading… 60 or 90 days the same time you get when you waive your right to service

*      The safe harbor rule can allow for bullying tactics

*      Monetary sanctions are paid to the courts and not to the parties… this is presumed

*      An attorney could be sent to a CLE as a punishment

*      When a court imposes a FRCP 11 sanction, it must stay under the FRCP 11 provisions for doing so

*      Note that a court can impose its own sanctions and does not need to use FRCP 11 to do so

*      If you deny something that you later find out is true… you will not need to amend but you can’t pursue action according to that denial


Notes on Ethics:

*      A lawyer can’t call another party that is already represented unless he talks to the representing attorney

*      Rules 26-37 have their own sanctions


Pleadings and Motions:

*      The term pleading covers things like complaints, answers, and counter-claims

*      Pleadings are handled by a few rules… 8 and 9 deal with different types of pleading while rule 15 deals with amending pleadings

*      Modern pleadings are also important in the things that they don’t do… 1 they do not sharply define the dispute and 2 they do not convey substantial factual information in the case

*      Modern Pleadings have 2 functions… 1 is that they can eliminate some legal theories and streamline proceedings and allow for parties to figure out the value of their cases and 2 they can define the ground covered in the discovery phase…

*      Government officials are held to the objective standard… so when you are pleading against them you need to keep that in mind

*      Burden of Pleading= when there is a presumption otherwise… you have the burden of proof. When pleading affirmative defenses… the burden is on the ∆ “Hannah v. Plummer”

*      vs. = does not have to anticipate a ∆’s defenses but the has to anticipate when it is a situation where it is on the face of the complaint… like you are pleading after SOL “complaint raises SOL defense” and so you will have the burden to plead why you tolled the SOL

*      Rule 10 and 11 will tell you what you need to have in a pleading… you will need to number the paragraphs… you will need to put the name of the complaint on it… the name of the pleading is what type of pleading it is (like a complaint, answer, counterclaim…)… when you want a jury trial you have to ask for one in the pleadings… the local rules in Louisiana do it in the caption… attorney information goes in the caption too (name, address, signature, phone, and bar admission number)

*      All pleadings go to all other parties in the suit… they must be signed… and then it is to be filed within reasonable period of time

*      You have 20 days after you have been served to file an answer or motion unless a statute says otherwise… if you waived service of process you will get 60 or 90 days from the time the waiver was sent (depending on whether you are in the country or not)

*      You have the same amount of time to serve a pre-answer motion as you do a regular motion

*      Motion= when a or moves the court

*      You can join a motion and a pre-answer motion


Pleadings and Motions:


*      When a complains the can affirm or deny… after the pleadings are closed… you are left you can use 12-f to strike an affirmative defense to get out from the affirm or deny position from the pleadings stopping 

*      If someone does a conjunctive denial… (they are denying A or B)… no one knows what it is that they are denying

*      Denials should fairly meet the averments… otherwise they will be deemed as an admission… you can only affirm or deny

*      Saying that you lack sufficient information is the same thing as a denial 8-b-2

*      It should be noted that saying nothing is an admission but since the pleadings could be read in front of the jury so it won’t be as damaging

*      Affirmative defenses need to be specifically pleaded and put in the answer or else you can’t do it

*      Regular denials don’t need to be specifically pleaded

*      The line between denials and affirmative defenses is not always clear.

*      There even a couple of notorious examples of when a ∆ must plead the affirmative defense… in response to a certain type of allegation… when a claims defamation… the ∆ must allege that the statement was true… when a alleges non-payment of a bill… the ∆ must allege payment of the bill


Amendments of pleadings Rule 15:

*      Allows as a right to amend once before 20 days or before responsive pleading has been served (what ever is shorter)… the same applies to a counter claim when the reply comes back before the 20 days

*      If for some reason someone misses their attempt to amend… the party may request a leave to amend… leave to amend shall be given when justice so requires… when there is no evidence of bad faith, prejudice, undue influence, or futility

*      Futility talks about granting a leave that will not do any good because the SOL has run… but this can be overcome by relation back… the court will look to the operational facts of the case to determine if the case relates back… it must be of the same C, T, O and give the party adequate notice that they should have been litigated against… additionally it must meet the time requirement.

*      The policy behind allowing this rule to run over SOL is that the part that had notice of it had all of the protections of the SOL… It should be noted that as long as the operative facts are the same in the amended claim… suing under a different theory of law will be allowed

*      The courts will take each case on its own.. to determine if the original complaint did indeed have the essential elements to notify

*      The courts are really concerned with notice. So if a party receives notice with the wrong name on it (but its close) they will definitely allow leave for amendment. Where it gets tricky is when the other party does not even get notice… the courts will only allow notice if that other part should have known reasonably that they were the proper party to get sued. Another element is whether o not the party serving the pleading actually made a mistake or not  

*      15-a is about getting to the merits of the case when the party trying to use it has not offended any of the balancing factors.  It should be noted that granting or denying leave to amend is @ the discretion of the court. The court will expect there to be a good reason why the party did not get the pleading done right the first time and will not want the granting of it to hurt the other party too much. 

*      Relation Back= allows for a pleading to beat SOL by relating back to the time when the pleading was filed… go to the rules outline for this for the requirements for claim to relate back… and one includes timing of 120 days from the time of filing the original pleading… the other element is that the other party have notice to prepare itself for litigation so that if litigation is allowed.



Rule 12 Defense and Objection concerns:

*      A motion is where a or ∆ moves the court to do something

*      A pre-answer motion= you will have the same length of time to do these as a regular motion

*      You can join a pre-answer motion wit a regular motion

*      We have all of rule 12 in supplemental graphs

*      Motions for more definite statements (12-e) almost never happen... they are not favored by the courts

*      Motions to strike= deal with striking out certain parts of a pleading… most of these motions fail… the most common type are those that try to strike down forms of relief that are not warranted

*      12-h-2 defenses are never waived… they can be raised in you answer

*      The literal terms of rule 12 suggest that you only get 1 motion to include things like defenses

*      You can amend once within 2o days max or before the responsive pleading comes back which ever is shorter (FRCP15-a)… after you do this once… you need to get leave of the court (FRCP15-a)…this also applies to replies to counterclaims.

*      A failure to state a claim in which relief can be granted… is on the merits and precludes bringing the matter again…. The other is the subject matter jurisdiction… and this is not on the merits and is not precluded from being brought again in court.

*      If you did not object to personal or subject matter jurisdiction…on appeal you could only raise subject matter jurisdiction… personal jurisdiction is waived.
Pg. 226 the Caterpillar Case was mentioned in class.

*      If you raise and lose personal jurisdiction…you can’t raise in a collateral… the second court must give full faith and credit to that court that already decided (you got you bite at it… it is the same story with subject matter jurisdiction… you got your bite at it. This is the same thing if you appeared and failed to raise either and then try to bring the matter in a collateral matter ( it is not the same thing as an appeal)




Abstention Doctrine:

*      There are two ways to go here, one is to dismiss the case, another is to stay the proceedings in FED court and send things to the state court to have the state laws figure out the state stuff (Pullman Abstention)

*      This doctrine is judge made and so it is really complicated

*      FED courts will not interfere with state court criminal proceedings because the ∆ can still appeal to the US Supreme Court… also state courts still have to apply the Constitution to the ∆ (Younger Abstention Doctrine)


1407- Consolidation for Cases:

*      1407= allows for consolidation for cases that hit across multiple jurisdictions. The idea is to have a consolidated pre-trial.

*      1407-a= after pre-trial proceedings are finished the cases need to go to their original jurisdictions.
























1335 Interpleader Graph

1332 and Compulsory vs. Permissive Counter-Claims










12-e Motion for a more definite statement:

(When responsive pleadings are permitted)








12-f= Motion to Strike

(For pleadings (that do not permit and that do permit) a responsive pleading)





“Responding to a Complaint Graph”









Procedure for Removal

USC 28 1446:

“Jurisdiction to Service Graph”








“Issue Preclusion Chart:”



Verdict 1

Verdict 2

Mrs “R”

The City



Mr. “R”

The City

May be precluded because he did not join with Mrs. “R”

Won’t be precluded






Requirement of Mutuality= Preclusion is waived when Mr. “R” was not bound when Mrs. “R” lost, then the city should not be held to losing again if Mrs. “R” won.




























Intervention FRCP 24


Dismissal of Action Rule FRCP 41 (below)










































“Counter-Claims, Cross Claims, Interpleading, and 3rd Party Claims Graph”









Adjusting Parties (14, 19, 20, 21, 22, 23, and 24)




Venue 1391/1392










































Rule 12-g and 12-h = Consolidation of Defenses in Motion:



When a party makes a motion under rule 12, they may make with it other motions provided by this rule that are available to them… If the party makes such motion but does not include a defense or objection available to the party (that is permitted by this rule to be raised as a motion)... the party can’t make a motion based on those defenses or objections again… The one exception from this is an h-2 defense…




1.  Defenses for lack of jurisdiction over the person, improper venue, insufficiency or process, or insufficiency of service of process are waived:

*      when not included in a motion described in 12-g (above)

*      when not included in a motion (under this rule), a responsive pleading, or an amendment (15-a)


2.  A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under rule 19, and an objection of failure to state a legal defense to a claim may be in any pleading permitted or order under FRCP 7-a. These could also happen by motion for judgment on the pleadings or @ trial on the merits


3.  When ever it appears (by suggestion of the parties or otherwise) that the court does not have SMJ, the action will be dismissed by the court… it should be noted that the court may finds on its own that it lacks SMJ to hear a case (Sua-sponte = on its own resolve)









12-b and 12-d = Defenses and Timing:









12-c = Motion for Judgment on the Pleadings:





























Rule 12 Answering/Replying “12-a-1 thru 3”



























Rule 5 and Serving/Filing and other
















12-c and 12-d = Motion for Judgment on the Pleadings:










































A. Rule 26 (b): Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action whether it relates to the subject matter of the party seeking discovery or to the claim or defense of any other party. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
-Purpose of discovery is to eliminate surprise.
-Negative aspect is the abuse of discovery to drive other parties out of case because of expense.
B. Types of discovery:
1. Interrogatories to parties
2. Oral depositions: done in the attorney’s office
3. Written depositions
4. Motion for production
5. Mental or physical exam
C. Hearsay is not admissible at trial, but can be used in discovery if reasonably calculated to lead to admissible evidence.
D. Blank v. Sullivan & Cromwell: example of admissible evidence reasonably calculated to lead to the discovery of admissible evidence.
E. Privelege
1. The type of privilege excluded from Rule 26(b)(1) is Dr./patient and Atty./Client.
a. The person who claims privilege is that person who can assert it in trial.
F. Rule 26(a): Required Disclosures; Methods to Discover Additional Matter. (Dist. Cts. Can opt out of rule)
-exception: parties can stipulate this b/t themselves, but court can overrule.
(1) Initial Disclosures: Except to the extent otherwise stipulated or directed by order or local rule, a party shall, without awaiting a discovery request, provide to other parties:
(A) Name of persons relative to the case: “relative” changed from “helpful or detrimental”
(B) Allows for the demand for of any documents that are related, but not necessarily poignant to my specific case.
G. Devices of Discovery:
1. 3 ways of obtaining info.
a. Asking questions
1.) Rule 33. Interrogatories to parties. (Only good for basic info.)
2.) Rule 30. Depositions upon Oral Exam
a.) You must subpoena a witness. If you don’t produce the witness you pay attorney fees. You have to give notice to the attorney. It’s there job to produce client.
b.) Advantages to Rule 30 Depositions:
i) You get info. that you don’t have about opponent.
ii) Gives you an advantage in what your opposing council knows and doesn’t know.
iii)You commit a party to statements made under oath.
iv) You can assess the demeanor of an adverse party or witness.
v) Gives you an opportunity to confront opposing party with damaging evidence.
vi) You are preserving his testimony in case he is unable to appear at trial.
c.) Disadvantages
i) You may stimulate the other side to better prepare his case.
ii) You educate the opponent.
iii)You preserve bad testimony.
3.) Rule 30 (d)(1): Look at 2001 revision.
4.) Rule 30(e): Opposition and client have the right to read and approve the deposition.
5.) Rule 28: Before whom a deposition may be taken.
6.) Rule 29: If a proper authority is present to swear witnesses in then the parties can agree to stipulate to it.
7.) Rule 31: Depositions upon written questions (rarely used)
b.) Rule 34: Production of Documents and Things. (files with motion for depo.)
(a) Scope: Any party may serve on any other party a request (1) to produce and permit the party making the request to inspect and copy any designated documents within the scope of Rule 26(b) and which are in the possession of the party upon whom the request is served; or (2) to permit entry upon designated and in the possession of the party for the purpose of inspection within the scope of Rule 26(b).
-To obtain documents in the custody of a non-party, you have to subpoena for deposition and for him to bring documents with him. Rule 45
1.) 30 days is basic time, but can be extended by agreement.
2.) You can request earning records before and after and medical records for the purposes of the deposition.
3.) Rule 26(d): Forbids discovery b/f the 1st pre-trial conference.
c.) Rule 35: Physical and Mental Exam
(a) Order for Examination. When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify time, place, manner, etc.
-All sides are entitled to copies of the report.
2. Rule 36. Requests for admissions (“admit or deny the following”)
a.) If admitted, that’s the end of it.
b.) If ignored, after 30 days it’s deemed admitted.
3. Rule 37(a). If you forget to add something in your voluntary disclosures, then you cannot use it in trial.
H. Limitations to curb abuses on discovery.
1. Discovery necessarily gets personal and confidential. Some atty’s try to embarrass w/ depositions, etc.
2. Rule grants judges great discretion over discovery and its requisite abuses.
3. Rule 26(c) gives judge authority to grant “any” order necessary to protect party.
Stalnaker v. Kmart Corp.(Rule 26(c) case): In a sexual harassment action v. Kmart the p requested for admission of voluntary sexual relations of other co-workers… p wanted to establish a pattern. ? wants to protect the non-party persons involved. There is no privilege here. Under the broad heading of subject matter it is relevant. It could lead to further evidence.

Schlagenhauf v. Holder (Regarding Rule 35): Several passengers injured in auto accident. Schlagenhauf is driver. ? wanted ? to undergo several physical exams. Court held that ? is within scope of Rule 35 when referring to “party”. “Party” does not have to be adverse, just any party to the litigation. Have to determine if good cause exists. ? did not use his health as defense, thus, excluding it as an issue. The issue was not in “controversy”.

I. Work-Product of an attorney.
1. Rule 26(b)(3): “…in anticipation of litigation or for trial by or for another party or by or for that other party’s rep. only upon showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other rep. of a party concerning the litigation.
2. 2 Categories:
a. Documentation: Mental impressions, theories and opinions are almost always excluded from discovery. Absolute immunity from discovery.
b. Documents not reflecting subjective thoughts:
1.) Maybe discoverable:
a.) Substantial need by party seeking it, and
b.) Reasonable equivalent not available without undue hardship.
Cases: Hickman v. Taylor (Rule 26(b)(3)): A written statement is not a deposition. Writing what a witness tells you signed by witness. Not done under oath. Can use for impeachment purposes. p demanded private files of ? atty. Tr. Ct. said it had to be disclosed. App. Ct. Says it was privileged. S. Ct. affirms.
1. 2-fold rule of work product:
a. Qualified immunity:
b. Absolute immunity:
2. Factors of “undue hardship”
a. Relationship to party
b. Friendliness to party
c. Cost and expense to party
d. Material resources
e. Crucial witness whose whereabouts are unknown
J. Expert Witnesses:
1. They have tremendous bearing on outcome of case.
2. Rule 26(a)(2): Disclosure of Expert Testimony.
(A) Identify persons to be used at trial.
(B) accompanied by a written report prepared and signed by the witness.
(C) 90 days b/f trial.
a.) Must be able to cross experts
b.) Need to control fraud.
3. Rule 26(b)(4): Trial Preparation: Experts.
(A) A party may depose any person who has been id’d as an expert whose opinions may be presented at trial.
(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(C) If (b)(4)(B) is utilized, then opposition has to help pay fees for expert.
4. Procedure:
a. Qualify him as an expert (ed., training, experience, certification, etc.)
b. Tender to the judge as an expert for judges permission.
5. Employee expert (expert about operations of ? company)
a. Considered general witness under 26(b)(1)
b. Can be qualified as expert witness, thus, may be able to give opinion.
6. Actor Experts (eyewitness to event, but also expert. Ex. Dr.)
a. Opinions would be more difficult to get.
7. Informal Consultants
a. If not retained and not expected to testify, then info not discoverable.
K. Oral Depositions on behalf of corp.
1. Rule 30(b)(6): A party may in the party’s notice and in a subpoena name as the dependent a public or private corp. or a partnership or assoc. or gov’t. agency and describe with reasonable particularity the matters on which exam. Is requested. In that event, the org. so named shall designate one or more officers, directors or managing agents who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party org. of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the org.
L. Rule 26(g): Signing of Disclosures, Discovery Requests, Responses, and Objections.
(1) Everything must be signed.
(2) Signature means that everything (A) follows law, (B) not harassing, and (C) not unreasonable or expensive.
(3) Violations will result in sanctions, which may include attorney’s fees.
M. Rule 37: Failure to cooperate in Discovery.
(a)(1) File in court where action is pending
(a)(2)(A): Failure to comply with rule 26(a)
(a)(2)(B): Motions to compel discovery.
1. Before you bring it to the court:
a. Meet with the opposing parties atty.
b. Continue with deposition and advise that it will be taken up with the court, or if you need the answer then, you can halt the deposition to get a ruling.
c. Present to a magistrate: He orders for your motion.
(a)(4)(A): Expenses and sanctions.
1.) Costs in making the motion and attorney’s fees are recouped. Unless court feels that expenses are unjustified.
d. Return to deposition (still refuses)
(b)(1) Failure to comply:
1.) If deponent is a witness:
a.) deponent held in contempt. Fine, possible jail time and expenses.
2.) If deponent is a party:
a.) (b)(2)(A-D):
1.) Court can determine if facts are est.
2.) Party can’t enter evidence on the matter.
3.) Dismissing suit
4.) Default judgment
5.) Held in Contempt
(d) Failure to attend deposition or serve answers, or respond to request for inspection.
1.) Held subject to (b)(2)(A-C). Not (D) b/c it’s not a court order, so can’t be in contempt.
2.) Rule 26(c): Protective order. Explanation of why a deposition can’t be attended. (only if informal request doesn’t work).
(g) Failure to participate in the framing of a discovery plan. (Not working on schedule)
(c)(1) Failure to Disclose: Amended in 2001
1.) Can’t use in trial, motions, etc. and Malpractice.
2.) You have an obligation to supplement. (Rule 26(e))


A. Rule 55: Default judgments: Fed. Ct. does not favor these. Often appealed.
B. Rule 41(a): Voluntary Dismissal
(1) By p:
(i) filing a notice before service by the adverse party of an answer or of a motion for summary J. (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.
-Often done when settlement is reached.
-Dismissed w/o prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a p who has once dismissed in any court of the US or of any state an action based on or including the same claim.
(2) By Order of the Court: Except in (1), an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper.
-W/o prejudice unless stated otherwise.
C. Rule 41(b): Involuntary Dismissal: For failure of the p to prosecute or to comply with these rules or any order of court, a ? may move for dismissal of an action or of any claim against the ?. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of J, for improper venue, or for failure to joint a party under Rule 19, operates as an adjudication upon the merits.
1. Dismissal w/ prej. Or Dismissal w/o prej. (p can re-file unless SoL have run)
2. Failure to prosecute: No set time limit to prosecute claim. ? must file a motion. If the court calls its docket. Reviews cases on docket, and those with no recent action go on call docket to appear in court on motion day and atty. has to explain inaction and judge has authority to dismiss.
D. Settlement (Procedure):
1. Verbal agreement of settlement
2. A release is prepared by ? to clear them of any claims by p.
3. Motion to dismiss with prejudice is filed with court.
E. Referring settlements to a magistrate.
1. Better than sending to a judge because they don’t want to look at #’s because of prejudice.
2. Some judges meet privately wit both counsel. Promotes settlement by letting the judge know where each party stands without divulging strategical info. to opposing counsel.
F. Settlement Confidentiality
1. Free to contract to keep info. from going public.
Case: Kalinauskas v. Wong: The p filed for discovery in a sexual discrimination suit. They filed for a deposition with an employee that had one a previous sex. Disc. Suit, but the settlement agreement included a confidentiality agreement. The agreement only mentioned the terms of the settlement, not her side of the story. The court held that p could depose the witness on facts, but not the terms of the agreement. The ? could have stipulated to the terms of the desired deposition to avoid the actual deposition.
G. Rule 56. Summary Judgment: p can’t prove cause if action.
1. 56(c): The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
2. 56(e): Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein… When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial.
3. Lawyers use this to minimize claims prior to jury trials. You can dismiss the entire suit or individual parts.
4. This can still be done before trial based on discovered info.
H. Rule 12(b)(6): To dismiss for failure of the pleading to state a claim upon which relief can be granted.
1. Only applicable if the complaint doesn’t claim a legal cause of action.
2. Court is required to give the p the benefit of the doubt. (Connelly v. Smith)
Case: Celotex Corp. v. Catrett: p claims death of husband by asbestosis. ? moved for SJ because of no fact showing that it was exposure to ?’s product. Motion was filed after ample time for discovery. S.Ct. ruled that moving party does NOT have obligation to produce evidence that tends to negate the other party’s claim. Discovery and pleadings speak for themselves as to issues of relevant material facts.
3. Rule 8: Notice Pleading: Suits can be filed without all of the facts being known.(Contradiction to 56?)
4. 56(f): Allows more time for discovery if justice demands it.
-Courts are reluctant to allow Rule 56 without ample discovery.
I. Pre-Trial Order
1. Rule 16: Pre-Trial Conferences.
(a) Court calls a conference to set the schedule for the case.
(e) Pretrial order: After any conference held, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.
Case: McKey v. Fairburn: p filed suit for neg. b/c of leaky roof. It became apparent that the p could not win on neg, but that there was a violation of the Fair Housing Act. Ct. denied amendment to pre-trial order. Ct. said that “manifest injustice” is an extreme term and trial judge has wide discretion in determining what is or is not manifest injustice. One could assume this was not injustice because counsel for p assumed to know law and should have included it in the original complaint. Ex. Client chooses lawyer at his peril. Lesson: ALWAYS include e every conceivable cause of action in pre-trial order.






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