Civ Pro Outline Park

8/3/2019 Civ Pro Outline Park

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Civil Procedure Outline 1 of 51I. SUBJECT MATTER JURISDICTION

A. Overviewi. Unlike personal jurisdiction SM

a. Can be raised at any timeb. Can be raised by a judge even when all parties want the case in fede

court - i.e. Mottleyii. If there is no SM jdxn, there is no case in Fed Court- lack of jurisdiction is

fatal to the caseB. Diversity Jurisdiction

i. 1332- Diversity Jurisdictiona. the district courts shall have jurisdiction where amount in controvers

exceeds $75,000 and is b/t1. citizens of different states2. citizens of a state and citizens of a foreign state3. citizens of different states and in which foreigners are also

parties

4. a foreign state as and citizen of a state or of different states

a. If the sum is made in good faith and recovers less than$75,000 court may deny and impose costs

b. For diversity jurisdiction5. corp is a citizen of principle place of business and where

incorporated6. the executor of an estate is a citizen of the same state as dead

person7. For diversity jdxn, unincorporated associations have citizenshi

where each of its members have citizenship, i.e. partnerships,unions

ii. BAKER- citizenship=domicile + the absence of intent to leave [issue offloating intent]

iii. MAS v. PERRY-a. Mas was a domiciliary of MI since she only moved to LA for school a

lacked intent to remain in LA. Until a person acquires a new domicilthey remain a domiciliary of their previous domicile

b. Even though they recovered less than the amount the statute requirthey had a good faith claim of the required amount. You cant revokfederal SM jdxn because they recover less than required amount

c. Difference between domicile, resident and citizen1. Resident- living in a state2. Domicile- living with an intent to remain there, true, fixed,

permanent homea) You keep your domicile until you move and intend to swhere you move

b) Student is a citizen of the state they were in b43. Citizen- citizen of US + domicile of state

iv. Cant aggregate claims b/t s to get amount in controversy, each to ea must satisfy $75,000

v. Rationale behind diversity jdxn is that it protects against bias for the localparty in state ct


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Civil Procedure Outline 2 of 51

vi. Does not allow stacking of s to get required amount in controversy, eachclaim must stand on its own.

C. Federal Questioni. Article III Section 2 of the Constitution- Judicial power of the Fed governme

extends to all cases, in Law and Equity, arising under the Constitution, thLaws of theU.S.

ii. 1331- The district courts have original jdxn of all laws arising und

the Constitution and the Laws of the U.S.iii. MOTTLEY- Well Pleaded Complaint rule

a. In order to have fed SM Jdxn, the Fed Question must arise out of thecause of action in a well pleaded complaint

1. A possible constitutional or fed. question defense cannot giveFed SM jdxn

D. Supplemental Jurisdictioni. GIBBS- Fed Court is allowed to take jdxn over a state claim if the fed and

state claim both arise out of common nucleus of operative fact.a. Pendant jdxn is discretionaryb. Should incl. Factors such as judicial economy, convenience, fairnessc. Should be turned down if state issue predominates or is dismissedd. Remains an issue throughout the trial

ii. 1367- Supplemental Jurisdiction [codified Gibbs]a. The federal court shall have supplemental jurisdiction over any claim

that are so related to the original that they form part of the same cab. In a diversity case the court not have jurisdiction over claims made b

people joined by under 14, 19, 20 or 24 or over claims by people

proposing to be s under 19 or 24 if this would break diversity [leav

out s adding under 14 and 20-Gaping Hole]c. The court may decline supplemental if (1) claim raises a complex issue of state law (2

state claim substantially predominates (3) the district court dismisses federal claims (4any other compelling reasond. S/L is tolled while claim is pending and for 30 days after dismissed unless state has

longer timee. Codifies Gibbs so it allows Pendant Jdxn [state + fed claim] and

Ancillary Jdxn{claim is state and counterclaim is fed]f. There must be a substantial Federal claim, it cannot be frivolous

g. Gaping hole- technically you can add a that destroysdiversity since you are only barred from adding s under theFRCP rules, but courts have treated this as a mistake andwont allow it

iii. PALMER- You can add more parties and state claims as long as you have afederal claim to hang state claims on to

a.

iv. Romero exception- [Ga]dr [NY] state + Hosp [Ga] Fed- breaks diversitbut exception permits the court to disregard non-diverse party who isproperly there on fed ques

v. Courts have also allowed class action suits where each has less thanrequired amount, unlike for 1332

a. This ONLY matters if the class action is on the state claim cos there no required amount for fed ? jdxn


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Civil Procedure Outline 3 of 51E. Removal-

i. 1441 Removable Actions1. Any action that has original jdxn in fed ct, can be removed to f

ct in the same place2. You cannot remove if the diversity action is brought in the sam

place as s domicile3. You can remove if you have a fed ? joined with other non-

removable claimse. You can remove if fed jdxn was proper in the 1st place (i.e. fo

patent or tax claimii. 1446 Procedure

a. Notice of removal must occur w/in 30 days after gets the receipt oinitial pleading through service or otherwise

b. If original claim was not removable and an amended claim becomesremovable, then notice of removal may be filed 30 days after receipamended pleading through service or otherwise

1. MURPHY BROS- Getting a copy of the complaint does not triggthe time period of removal; you also need service, unless servis not required

2. Leads to 3 possibilities

a) Summons is served b4 complaint clock startsticking when you get copy of complaint

b) Summons is served after complaintclock startsticking when you get copy of complaint

c) Complaint filed but service not requiredclockstarts ticking when you get copy of complaint

II. PERSONAL JURISDICTIONA. Overview

i. Limitationsa. State statuesb. Constitution- Due Process Clause places two restrictions

1. Traditional notions of fairness2. Must have adequate notice

c. Federal courts must analyse personal jurisdiction as if it were a courthe state in which it is located- Rule 4

ii. 3 typesa. In personam- when forum has power over personb. In rem- court has the power to adjudicate the rights of every1 in wor

w/ respect to a particular piece of property

1. e.g. forfeiture of property used in illegal activityc. Quasi in rem- case does not involve property but court has the powe

to decide over a specific piece of property1. e.g. sue for property cos cant get $ recovery

iii. Personal Jdxn must be raised at the beginning of the trialB. Statutory Limitations

i. Most states have statutes that allow personal jurisdiction when hascommitted an act that brings him within the reach of a long arm statute

a. 2 types


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Civil Procedure Outline 4 of 511. Unlimited- CAs long arm statute allows courts power over any

person or property that is allowed by constitution2. Specific-

a) GRAY- Ill had a statute that allowed jurisdiction over ancause of action arising from transaction or tortious act the state.

1) Court held that putting your product into stream o

commerce where you know product will be in stateallows you to have jurisdiction in that state

2) Court also held that the tortious act occurs in the lplace, i.e. where the injury occurred

3) When analyzing long arm statutes, you must first swhether case fits in statute and then if statute isconstitutional [this one is]

C. Constitutional Limits on Personal Jurisdictioni. Traditional- Physical Power

a. PENNOYER- Jurisdiction is the consequence of the states physicalpower to exert judgment, State has power over everything in its

borders and nothing w/o- due process requires noticeb. There are three ways you can have personal jdxn traditionally

1. is physically present in state and served with processa) BURNHAM- father on vacation in CA and wife served hi

1) held mere presence in state when process servedenough for personal jurisdiction- allowing a transie

to be served with process for a cause of actionunrelated to the brief presence in state

2) held that mere voluntary presence enough

2. When is domiciled in that state

3. Where

consents to jurisdictiona) Express Consent-1) By contract-

i) CARNIVAL- Court held that consented to Fjurisdiction by buying ticket with forumselection clause on the back

2) By appointment of an agent to accept service ofprocess

i) State can require non-resident business toappoint an agent

b) Implied Consent-

1) HESS- When state has an interest in regulating anactivity (ex. Driving), the non-resident appoints thestate as agent implicitly by engaging in that activit

c) Voluntary Appearance-1) Insurance Co. of Ireland-court held that if you mak

limited appearance to argue jurisdiction you arebound by courts decision

ii. Specific vs. General Jdxna. Specific- the cause of action arises out of contacts with the state?

1. Look to International Shoe etc.


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Civil Procedure Outline 5 of 51b. General- the cause of action does not arise out of the contacts with t

state [but there are contacts]1. Need to prove systematic and continuous activity2. HELICO- Purchases and negotiations, even if they relate to the

cause of action, are not sufficient evidence of systematic andcontinuous activity need to have jurisdiction in a case where thcause of action does not arise out of contacts with the state

iii. Modern Standards- Fairness, suit cannot offend traditional notions of fairplay and substantial justice- must satisfy two prong test of minimumcontacts and reasonableness

a. Minimum Contacts-1. INTERNATIONAL SHOE- if there is a minimum of contact w/ the

state state can have personal jurisdiction, court looked at 3elements to satisfy

1) Volume of business transactions2) Continuity of transactions3) Connectedness of transactions w/in state

2. Purposeful availmentof the benefits of the state- even i

s activities are performed outside the state personal

jurisdiction is proper if can reasonably anticipate his actionscould give rise to a cause of action in the state

a) HANSON- must purposely avail himself of statesbenefits, contacts cannot be accidental

b) WORLD WIDE VW- must purposely avail himself of thstate so that he can reasonably expect to be haled into

court thereforeseeability1) putting product into stream of commerce and

purchaser taking it somewhere else does not give

jurisdictionc) KULKO- No jurisdiction for CA court to make dad pay ch

support since only contact w/ state is that his kids livethere- no purposeful availment.

d) KEETON- A magazine is subject to jurisdiction whereveis sold, it should reasonably expect to be haled into cou

3. Long term relationship with foruma) BURGER KING- Jurisdic over MI resident who made a

contract w/ Fl company4. Deriving economic benefit from the forum

a) GRAY- Putting your product into stream of commerce

where it may come into other states is sufficient forpersonal jurisdiction in that state

1) It is sufficient that the act or transaction itself has substantial connection with the state or the forum

5. Seeking to serve the forum even if only a single acta) McGEE- One systematic and long term contact [i.e.

insurance contract] in the state is sufficient to exercisepersonal jurisdiction, cause arose out of insurancecontract in CA


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Civil Procedure Outline 6 of 51b) CALDER- Personal jurisdiction of CA over an editor in Fl

ok since he purposely directed harmful activity at thestate

6. SCHAFFER- All types of actions are subject to minimum contactest

a) Presence of intangible property w/o min contacts is notsufficient to get PJ

b. Reasonableness- Minimum contacts are not enough, a jurisdictionanalysis must also take into account state and litigants interests

1. ASAHI- Merely putting product into stream of commerce is notenough to force a foreign company into American Court

2. MILLENIUM- Without further contact it is unfair to subject acompany with a web site to jurisdiction in every state that cansee it

iv. Notice- a reasonable method of notice must also be used to notify of alawsuit

a. MULLANE- You must notify by the best means possible, as manylitigants as possible. Notification must be reasonably calculated tonotify

b. Rule 4- Summons-1. (a) Form2. (b) Issuance3. (c) Service w/ Complaint4. (e) Service Upon Individuals w/in a Judicial District of the US5. (k) Territorial limits of Effective Service6. (m) Time Limit for Service

v. Venuea. 1391- Venue

1. A founded on diversity can be brought in any1) Judicial district where any defendant resides, if all

defendants reside in the same state2) District in which a substantial part of the events

occurs3) District where any defendant is subject to

personal jurisdiction2. A civil action not founded on diversity [federal question case]

may be brought1) In any district where any defendant resides, if all

defendants reside in the same state2) In any district to wear a substantial part of the clai

occurred3) Judicial district in which any defendant may be

foundb. BATES- Venue is allowed where a collection notice is sent, even if no

addressed there, because that is where a substantial part of the cauof action occurred

c. PIPER- Forum non conveniens 1441

1. A can not pick an inconvenient forum just because there ismore favorable law


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2. balance s interests w/ s inconvenience when decidingwhether to transfer or dismiss

3. If a venue is not convenient for , the suit can be moved to anvenue where the court has original jurisdiction

III. PLEADINGD. The Historical Evolution Of Pleading

vi. Code Pleading- a system of pleadinga. Only allowed one cause of action

1. Made pleading a gamble since you had to choose carefully whcause of action you wanted to plead

b. GILLESPIE- code pleading requires that the facts must be alleged in tcomplaint, and not just conclusions

1. The court held to the complaint should stand if a presents factsufficient to constitute any cause of action

2. That trend is for courts to move toward a more factual/specificpleading requirement

c. The states that allow code pleading are quite liberal in allowing thecomplaint to be amended

d. There are three general purposes for pleading requirements1. Notice to defendant2. Notice to the court3. Deciding the merits

vii. Notice Pleading- requires that only enough facts be pleaded to put theopposing party on notice of the charges against him

a. Developed through the FRCP-1. Federal Court uses and most states

b. Rule 8b only requires a short and plain statement of the factsc. Allows inconsistent & alternative pleading

viii. Rule 7- Pleadings Allowed- Form Of Motiona. Pleadings

1. there shall be complaint and answer, a reply to counterclaim,answer to cross-claim, 3rd party complaint, 3rd party answer, noother pleading allowed, except that court may order reply to aanswer or 3rd party answer

b. Motions and other papers1. application for an order must made by motion in writing

ix. Rule 8- General Rules Of Pleadinga. A pleading shall set forth a short and plain statement of the grounds

1. jurisdiction, 2. relief, 3. demand for the judgment for the reliefb. A party shall state in short and plain terms the defenses. If a party iw/o knowledge sufficient to form belief the party shall state = denialPleader shall deny each part or if they deny everything they must doso in accordance w/ r11

c. In the pleading the party shall state affirmative defenses. If a partyhas mistakenly designated a defense as a counterclaim or acounterclaim as a defense, the court shall treat as if there were nomistake

d. If a responsive pleading is required then failure to deny = admission


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Civil Procedure Outline 8 of 51e. Each averment shall be simple concise and direct. A party may plea

in the alternativef. All pleadings shall be so construed as to substantial justice

E. Describing And Testing The Plaintiffs Claimvi. Rule 12- Defenses and Objections- When and How Presented-By Motion or Pleading- Judgm

on the Pleadingsg. When Presented-

h. How Presented- every defense must be asserted in responsive pleading. Except thefollowing may be made by motion 1. lack of SM jurisdiction 2. lack of PJ 3. impropevenue 4. insufficiency of service 6. failure to state a claim upon which relief may begranted 7. failure to join a party under r19

i. Motion for Judgment on the Pleadings- after the pleadings have closed either party ma

move for judgment on the pleadings. If they add informationr56 SJj. Preliminary Hearings-k. Motion For More Definite Statement- if the pleading is too vague that a party cant

respond the party may move for a more definite statementl. Motion To Strike- the court may strike any redundant, immaterial, impertinent, or

scandalous matter on courts initiative or by motion

m. Consolidation Of Defenses In One Motion- if a party makes a motion but omits a defenot in h2 that is available it is waived

n. Waiver Or Preservation Of Certain Defenses-1. a defense for lack of PJ, improper venue or service is waived according to G2. a 12b6, failure to join indespensible party under 19 may be made inany pleadin

by 7a or by motion for judgment on the pleadings or at rial on merits3. SM jurisdiction motion may be made at any time

vii. The Problem Of Specificityo. US v. BOARD OF HARBOR COMMISSIONERS- a complaint need not be

more specific if it is sufficient to fairly notify the opposing party of thnature of the claim

1. Court says a motion for a more definite statement under rule 1e is ordinarily restricted to situations where a pleading suffersfrom unintelligibiltity rather than the want of detail

2. Complaints can also be too long, complaints which ramble,which needlessly speculate, accuse, and condemn, and whichcontain circuitous diatribes far removed from the heart of theclaim that do not comport with rule 8.

3. The purpose of the rule is to give the notice of this claim forbeing asserted so as to permit the adverse party the opportunto file a responsive answer, prepare an adequate defense anddetermine whether the doctrine of res judicata is applicable

4. Rule 12f authorizes a motion strike portions of a pleading thatare immaterial, impertinent, or scandalous. A motion to strcan be used to attack an insufficient defense, or part of a prayfor relief that is not justified by the law. [such as a request forpunitive damages in a breach of contract case]

p. CONLEY v. GIBSON- holds that a complaint should not be dismissed failure to state a claim unless it appears beyond doubt that the plaincan prove no set of facts in support of his claim that would entitle hito relief.


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Civil Procedure Outline 9 of 51q. Posner- you have to have some standard- must be some direct,

inferable facts to create reliefviii. Consistency and Honesty In Pleading

r. Inconsistent allegations-1. KOPPMAN- claims can be made in the alternative regardless of

consistency, unless the pleader has knowledge of facts thatwould make one of the alternatives untrue.

a) Policy weighs in favor of alternative pleading so thatcontroversies may be sealed and complete justice beaccomplished in a single action

b) There are advantages to the pleading inconsistently1) If there were two suits each defendant might blam

the other which would bar finding a preponderanceof the evidence

2) Trying both defendants at once might strengthen tcase because one defendant might help make thecase against the other defendant

c) It would be unfair to force the wife to prosecute

separately because cause was almost certain to be onethe other and if she was forced to do them separately,she might lose both cases.

s. Rule 11- Signing of Pleadings, Motions and Other Papers,Representations to Court; Sanctions

1. Rulea) Signature- every pleading should have attorney signatb) Representations to Court

1) by presenting anything to the court the party iscertifying that

i) Is not being presented for improper purposeii) Claims are non-frivolousiii) Allegations have evidentiary support, or are

likely toiv) Denials are warranted on evidence or are

reasonably based on lack of infoc) Sanctions-if the court determines b has been violated t

court may provide sanctions upon attorney, firm or par1) how initiated

i) By motion- has 21 day safe harborii) On its own initiative court can make order

2) Limited to what is needed to deter [can be paid toother side or into court, does not have to bemonetary]

d) Does not apply to discovery2. ZUK v. EPPI- even if the attorney does not have bad faith but

does not make a reasonable inquiry into the facts, rule 11 isjustified

a) Court determines that Rule 11 sanctions are meant todeter acts, not to help prevailing parties regain theirattorneys fees


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Civil Procedure Outline 10 of 51x. Scrutinizing The Legal Sufficiency Of The Plaintiff S Claim

a. MITCHELL- successful 12b6 claim1. In deciding that there a motion to dismiss was properly grante

the court is required to accept only well-pleaded facts as truewithout considering any new legal theory asserted by theplaintiff

2. Ordinarily Federal Courts will, in granting a motion to dismiss f

failure to state a claim, also granted the plaintiff leave to ameat least once to try to cure the defect that prompted thedismissal

3. restriction on broad notice pleadingxi. Heightened Requirements For Specificity

a. ROSS- a complaint alleging fraud must contain specific evidentiaryfactual allegations and be pleaded with particularity according to rul9b.

1. Although 9b allows you to lead knowledge generally, you mustplead this specific circumstances leading to the allegedknowledge

2. It is reasonable to require that the plaintiffs specifically pleadthose events which they assert give rise to a strong inferencethat the defendants had knowledge of the facts contained inParagraph 18 of the complaint or recklessly disregarded theirexistence.

3. Plaintiff was not specific enough in the pleading as for threereasons

a) They must have pled defendant had knowledge ofstatements in the unpublished report

b) That they knew the of the knowledge or recklesslydisregarded before 1973

c) They must show that the price they brought it at wasartificially inflated due to the fraud

4. According to the FRCP there are special pleading requirementsfor cases involving mistake and fraud- R9b- because

a) Higher requirement of notice because some fraud casemay involve more complicated transactions andnumerous parties

b) Injury to reputationc) Limiting in terrorem value of suit

1) By requiring more detail in the pleading, the courthopes this will be helpful in screening out lawsuitsthat will fail at an early point

b. CASH ENERGY- a higher standard of particularity of pleading will berequired where a heightened concern for due process arises by reasof that drastic nature of the remedies sought

1. Used an analogy to fraud to broaden the requirements of rule to extend to CERCLA claims

a) Says that the policies underlying the making of thestatute are the same as those in requiring a higherreading standard in this case


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Civil Procedure Outline 11 of 512. This also came about as a result of the plaintiff suing the

corporate officers instead of just the corporationc. LEATHERMAN- Rule 9b only requires heightened pleading in the case

of fraud and mistake. All other types of actions require and a shortand plaintiff statement of the facts as required by rule 8b.

1. Expresio Exclusio rule- if the rule says one thing, then the otheis excluded

a) So, if the rule 9b requires more specific pleading forspecific cases, the ones that are not listed do not havethis requirement.

2. Because the rule 8 does not apply to the reply, some courts harequired the reply to include particularity

3. 8f says that pleadings should be construed so as to dosubstantial justice

4. 9b limits the filing of meritorious claimD. Defendants Response

i. Pre-Answer Motions Under Rule 12-a. Disfavored- Lack of PJ, improper venue, insufficient service, insufficie

process [they are raise it or lose it]b. Favored can happen any time up to trial, failure to state defense, 12

or failure to join under r19c. Most favored is lack of SMJ- can be raised at any time even after triad. Why are there separate motions?

1. Importancea) Either very important or not important at all

2. Cant tell from the pleadings3. They can be separated from the rest w/o deciding the merits

ii. Failure To Answer-Defaulta. Rule 55- Default Judgment

1. a) Default judgment is entered when someone fails to appearwhere you appear but dont comply with the procedures

2. b) Judgment of default may be entered by eithera) the clerk if the claim is for a sum certain or for a sum

which can by computation be made certainb) the court the defaulting party will be served with writ

notice of these three days before the hearing and theremay be a hearing to determine damages

3. c) the court can set aside the judgment of default for goodcause shown

a) uses a more lenient standard than 60c- just not be willfb. Rule 60- Overturning Default Judgment- much harder to do because

the court has already ruled and it is more trouble to reverse [andcourts dont like to reverse themselves]

1. b) on motion and when such terms are just the court canoverturn a final judgment for the following reasons

a) 1- mistake, inadvertence, surprise, or excusable neglecb) 2- newly discovered evidence by which the due diligen

could not have discovered it in time


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Civil Procedure Outline 13 of 515. no ve pregnant- cant deny everything as a group- must deny

stuff separatelyiv. Counterclaims

a. R13- counterclaims and cross claims1. (a) Compulsory- if the counterclaim arises out of the same

transaction or occurrence then it must be in pleadings or youlose it

a) no independent jurisdiction needed- covered under 1362. (b) Permissive- if the counterclaim doesnt arise out of the sam

transaction or occurrence, then you can bring it in another actif you dont bring it in the pleadings

a) Separate basis of jurisdiction needed3. (g) A party can [but doesnt have to] add a claim against a co-

party arising out of the same transactiona) Its not mandatory because a party shouldnt be forced

create a fight b/t co-parties4. (h) Persons other than the original parties may be added in

accordance w/ 19 and 20

5. (i) Court can sever claims if it wants tob. A party is not obligated to bring counterclaim if

1. Not available to be brought at the timea) Ex. breach of K claim filed- may have claim for misse

payments but they are not due yet2. Claim has already been brought elsewhere

c. WIGGLESWORTH-The counterclaim was permissive because it involvtransactions that occurred at diff times, involve diff legal issues and

diff evidence diff transaction and occurrence1. Since it was a permissive counterclaim it could not be brought

the same trial because it didnt have 1367 jurisdiction

2. The counterclaim must be compulsory [ supp jurisdiction] ohave its own independent jurisdiction to be in fed court

d. Test to determine if counterclaim is compulsory [same transaction ooccurrence]

1. Are the issues of fact and law basically the same?2. Would res judicata bar a subsequent suit on s claim absent t

compulsory counterclaim rule?

3. Will substantially the same evidence support or refute and claim?

4. Is there any logical relationship b/t the claim and counterclaim

[but for test]E. Voluntary Dismissali. Rule 41-Dismissal of Actions

a. Voluntary Dismissal; Effect Thereof

1. can dismiss w/o prejudice by i) filing motion before service of

answer or summary judgment or ii) by motion signed by all the parties. But ifhas already dismissed once then the 2nd = adjudication on the merits

2. the court can order dismissal w/o prejudice w/ terms and conditions the courtdeems proper [makes it harder to dismiss w/o prejudice once trial work hasstarted- you have to prove why you want to dismiss


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Civil Procedure Outline 14 of 51b. Unless court says otherwise, involuntary dismissal is w/ prejudice,

except for certain reasons that are listedii. Even though not in the rule, the court will not allow dismissal if parties hav

done some workF. Amendments To Pleadings

i. Rule 15 Amended and Supplemental Pleadingsa. A party can amend once b4 the answer or if no answer is required th

in 20 days of being served. Otherwise you can amend by consent ofparties. Leave to amend shall be freely given as justice requires

b. When issues that are not in pleadings are tried by xpress or impliedconsent, they will be treated as if they were in the pleadings. If theother party objects then the court can allow amendment as long asother party not prej. If they are prej then court can grant continuanc

c. An amendment relates back to the original pleading when1. Allowed by law2. The amended claim or defense arose out of the same transact

or occurrence3. The amendment changes the name of the party w/in period

provided by R4m and the partya) Has received notice so they wont be prejudiced andb) Knew or should have known that but for a mistake in th

identity it should have been themii. Permission To Amend

a. DAVID v CROMPTON & KNOWLES- the court is justified in denyingamendment if the pleading contained incorrect answer that led him believe he sued the correct person because amendment would causprejudice because SOL had run out

1. Even though unfair to , it is unfair to leave w/o claim, esp

when mislead iii. Relation Back Of Amendments

a. SWARTZ v. GOLD DUST- amendment was allowed because

1. Amendments should be freely given the only requirementshould be whether justice will be served and is other partyprejudiced

a) Should be liberally construed if there is no bad faith2. The same transaction was that she fell [when the harm occurr3. did have notice because he should have known john doe was

himb. In 1991 congress amended rule 15

1. Before the original had to know w/in the period of service- 12days but the new had to know w/in statute of limitations anomaly in some cases where new had to know before origin

2. Now they both have to know w/in the period of service=120 da

a) New anomaly if files well in advance of statute of

limitations now the has much less time than befoSUMMARY!

Different Meanings Of Same Transaction Or Occurrence

Rule 13


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o Same transaction or occurrence= has to do w/ similar evidence stricter test

o This is because r13 has to do w/ economy puts all suits w/ same subjecttogether

Rule 15

o Purpose of rule 15 is fairness and justice

o Lets get around sol because the purpose for sol [which is repose and

preserving evidence] are still kept since the party should have known it wasthem and their own investigation should lead to the real cause looserdefinition

Different purposes [policy goals] can diff definitions of same transaction oroccurrence

IX. ESTABLISHING THE STRUCTURE AND SIZE OF THE DISPUTEJ. Proper Parties To A Suit

iv. Rule 17- Parties and ; Capacitya. Party must sue in the name of the real party in interest, the party w

has interest in the action

b. They must sue in their own namec. Protects legitimate interest of

v. SOUTHERN METHODIST- s cannot sue anonymously if they allege sexdiscrimination because it is not a matter of a sensitive or personal nature oconstitutionally challenging laws they have broken

a. Here, it is a specific case w/ specific harm and the needs to knowwho it is so they can put on a good defense

b. Absent a strong reason to protect id, s must use their own namesvi. Courts have allowed fictitious names

a. If very sensitive case-i.e. Roe v. Wade1. Challenging a Constitutional measure, not hurt by not knowi

who she is, and this was a highly sensitive caseb. They can also order protective measures

K. Joinder of Claims-vii. Rule 18- Joinder of Claims and Remedies-

a. A party asserting relief as a claim, counterclaim, cross claim or 3rd

party claim may join as many claims as the party has1. Does not mean they will be tried together

b. Rule 18 makes it easier to join claims than parties because if you arejust adding claims

1. There are fewer lawyers economy

2. No jurisdiction or venue issues economy

3. Discovery would be similar economyc. Joinder is never requiredd. Easier than 20e. Note: only a pleading rule, claims can be severed under R42b when

separate trials would further convenience, prevent prejudice, or bemore economical

viii. Counterclaims And Cross-Claimsa. Rule 13-


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Civil Procedure Outline 16 of 511. A pleading shall state as a counterclaim any claim that arises

out of the same transaction or occurrence- CompulsoryCounterclaim- use it or lose it

a) Are the issues of law and fact the same?b) Is there a logical relationship b/t claim and counterclaimc) Will substantially the same evidence be presented?

2. A pleading may state a claim not arising out of the same

transaction Permissive Counterclaim3. (g) A pleading may state a cross-claim against a co-party arisi

out of the same transaction or occurrence4. (h) Other parties may be joined in accordance w/ rule 19 and 2

G. Joinder Of Partiesi. Rule 20- Permissive Joinder of Parties

a. All persons may join to assert relief [or join s] jointly, severally or inthe same transaction or occurrence or there will be the same ?s of faand law. Judgment does not have to be for or against all of them

b. The court may make any order to prevent embarrassment,harassment, delay or separate trials or other orders to prevent

prejudice1. can also sever under 42

c. Subject Matter Jurisdiction: 1367- supplemental

1. diversity claims by s: no supplemental jurisdiction over sjoined under this rule

2. diversity claims against s under this rule: independentjurisdiction

d. KEDRA- court allowed joinder of different policemen during differentincidents when one family alleged a systematic harassment by the Pbecause the systematic nature = same transaction or occurrence

1. Though there might be prejudice against s since all would be1 trial and maybe some were not involved in all occurrences thcourt can make protective orders under R20b.

e. INSOLIA- court not allow joinder for 3 s alleging industry-wideconspiracy b/t tobacco companies because there were so many

variables no same transaction or occurrencef. Kedra is better example than Insolia because the s are logically

connected- the PD is targeting one family efficiency. Insolia wouldbe too confusing for the jury

g. The key is the amount of facts and the potential for prejudiceii. Rule 19- Compulsory Joinder Of Parties

a. A person whose joinder will not ruin jurisdiction shall be joined if1. Complete relief not possible w/o them or2. The person claims an interest and the absence may

a) Impair persons ability to protect interestb) Lead to inconsistent results

b. If they cant be made as party, court will determine if suit will proceeThis requires an analysis of 4 factors

1. Extent that judgment will be prejudicial2. How much the prejudice can be lessened by protective measu3. Whether the judgment will be adequate w/o the person


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4. Does have an adequate remedy if case dismissediii. When joining parties there are typically 3 categories

a. Proper parties- may be joinedb. Necessary parties- must be joined if at all feasiblec. Indispensable parties- Must be joined or suit will be dismissed

iv. Essentially the reason why the case cant go forward w/o indispensable pais that the claim is contingent on their rights being settled w/ the others an

the ruling is not binding if they are not there.H. Impleader

i. Rule 14- 3rd party practice- refers to the right of a to bring in a new party

who may be liable for s claima. At any time after commencement, a defending party may bring in

another party acting as a 3rd party . The 3rd party may assert an

defenses to bring any claim arising out of the same transaction or

occurrence against or . Any party may move to sever.ii. CLARK v. ASSOCIATES COMMERCIAL- can bring in a party who may be

liable to so the 3rd party can be brought in b4 the claim w/ is

adjudicatediii. 3rd Party Claim must be derivative of the original claimI. Interpleader

i. Interpleader allows all people claiming on pot of $, like an insurance policyto have one trial

a. Policy is that it is unfair to make have multiple suitsii. Rule 22-

a. People who have claims against may be required to interplead iftheir claims are such that they may be exposed to multiple liability

iii. 28 U.S.C. 1335-a. District courts shall have original jurisdiction of any civil action of

Interpleader of a suit of $500 or more if1. Two or more adverse claimants, that have diversity, may claim

to be entitled to one stake and

2. has deposited $ in2 court

b. This applies even if s claims have no relation to each otheriv. STATE FARM- insurance company can invoke Interpleader before all claims

have been reduced to judgment even if the state allows direct action suitsa. Since the statute says may claim to be entitled you can have one

Interpleader action w/ all sb. If this were not so, the 1st one to judgment gets the $

v. Rule vs. Statutory Interpleader-

DIVERSITY VENUE AMOUNT INCONTROVERSY

SERVICE

RuleInterpleader

B/t stakeholderand all claimants

Residence ofall s, or whereeventsoccurred, orwhere propertyis located

$75,000 As under Rul


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[1391a]StatutoryInterpleader

B/t 2 or moreclaimants

Residence of 1or moreclaimants

$500 Nationwide

J. Interventioni. Allows other parties to participate instead of just filing amicus

ii. Rule 24- Interventiona. Anyone shall be permitted to intervene if

1. A statute gives an unconditional right to intervene2. The party claims an interest relating to the claim and the actio

may impair or impede the applicants ability to protect thatinterest and it wasnt adequately represented

b. Anyone may be permitted to intervene1. When a statute gives a conditional right to intervene2. When the applicants claim and the main ? have a similar ? of

fact and lawa) Must use balancing test to see if there will be prejudice

iii. NRDC v. US NUCLEAR REGULATORY The interests of the uranium mine insuit against the nuclear regulatory committee are sufficient to satisfy therequirements of rule 24, because the threat of loss of their interest due to inability to participate will impair their ability to advance their interest

K. Class Action suitsi. Compare rule 23 w/ permissive joinder-

a. People in a neighborhood complaining noise from a bus is too loudjoinder

b. SF complaining of bus pollution class action

1. Decision is binding against the whole class stare decisis and

res judicataii. 4 Barriers to Class Assignmenta. There has to be enough people to make it feasibleb. Has to be sufficiently common ?s of law and fact

c. Named s must be typical of the class as a whole

d. Class must be adequately represented by sXII. DISCOVERY

M.The promise and reality of broad discoveryiii. Modern discovery rules allow for more fairness- there should be no surpris

PRO CONTruth- info for your case Expense

Equalizer- both sides have access toinformation

Time Consuming

Less expensive because parties donthave to hire prvt sources

Allowing info to other side allows them

to tailor their testimony bigger prob crim trial

Leads to settlement because if you seethe others info then you have a betterun of your case

Leads to excess litiga because allowspeople to bring claim b4 they know howvalid it isNot very = because it can be abused b


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party w/ more resourcesiv. IN RE CONVERGENT TECHNOLOGIES- one party served 1000 interrogatorie

and it evolved into a bitter dispute-a. R26 allows discovery to be used only when it is reasonably calculate

to lead to evidence and should justify the burden being put on peoplv. Scope- may obtain discovery on

a. Any matter, not privileged

b. Relevant to subject matterc. Need not be admissible at trial but is reasonably calculated to lead t

discovery of evidencevi. Limitations

a. Claims of privilege1. ex: against self-incrimination, attorney/client, dr/patient2. can get discovery if person puts the matter at issue- ie if you a

claiming psychological issues you can get psych recordsb. Confidential matters- seek protective order

1. protective order- parties agree not to disclose informationoutside of suit

2. if not stipulated to court can make order for good cause/flip sidis motion to compel

3. Ex. trade secrets, competitor litigation- discovery from one casbeing used in others

c. Trial preparation- see belowvii. Initiation and timing

L. Discovery devicesi. Discovery Sequence and Tactics

a. Most attorneys use the pyramid method- start broad and then go tospecifics

1. R33 [interrogatories] and R34 [production of documents etc.]

R32 [depositions] R26[Experts and opinions] R35[exams]R36[admissions]

ii. Initial Disclosure R26a. Initial disclosure

1. Provides for initial disclosure of insurance policies, name andaddress of people who might have discoverable information,evidence relating to disputed facts

a) Doesnt have to be evidence that can be admitted at trb) Lawyers felt they had to disclose too much damaging

information amendments which require you to disclo

all materials to support claims unless its to impeachc) District courts can opt out of initial disclosurerequirements

2. Disclosure of Expertsa) Must disclose id of expertsb) Must include a report

3. 2nd wave of pre-trial discovery- you have 14 days to serve i. Anobjections to the use of a deposition and ii. Any objection to thadmissibility or your objection is waived

a) Names of witnesses


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Civil Procedure Outline 20 of 51b) Designation of witnessesc) ID of each document or other exhibits

b. Scope and Limits1. Information that you are trying to get doesnt have to be

admissible at trial but has to be reasonably calculated to lead evidence

2. The court may limit time and amount of discovery

3. Protects work product and attorney-client privilege fromdiscovery

4. Expertsa) A party may depose expertsb) A party can only get information from a retained exper

by R35 or by a showing of exceptional circumstancesc) Court requires you to pay them a fee

5. claims of privilegec. a court may make any protective order required to protect a person

from annoyance, embarrassment, annoyance or undue hardshipd. A party may not ask for discovery b4 pre-trial discovery conference

e. Party has a duty to correct if information is incomplete or incorrectf. 14 days b4 R16 conference, parties must meet and discuss discover

and make planiii. Document Inspection R34iv. Interrogatories R33v. Depositions R28,30,31,32vi. Physical or Mental Exams R35

a. SCHLAGENHAUF- cant get discovery just because you allegesomething in the pleadings- there must be an actual basis for needinthe exam

1. The way to get supporting information is to use other discoverprocesses

M.Managing the scope and burden of discoveryi. DAVIS v. ROSS- what items are discoverable in an action alleging mental

distress and slander?a. Financial Information?

1. does not have to disclose until found liable2. Normally this evidence is relevant but under 26c discovery can

be refused if it will embarrass or annoy3. BUT court routinely issues protective orders to let discovery bu

make sure information is kept hiddenb. Arrangement w/ Attorney?

1. does not have to disclose if this is the only evidence and it wnot lead to evidence of bias

c. Names of Other Employees w/ Complaints?1. does not have to disclose this information in a slander trial

because it is not relevant to the ? of whether libeled in thiscase

d. Psychological Exams?

1. does have to disclose because is alleging mental distressand she is putting her mental state at issue


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Civil Procedure Outline 21 of 51ii. KOZLOWSKI v. SEARS- has a duty to disclose relevant materials even if i

costly or time-consuming unless they can show sufficient causea. This was a R34 request-b. If they had used R33- this allows the party to specify where the reco

are and let other party inspectc. If the burden of answering is the same on both parties- but here it w

s fault that it was so cluttered

N. Exemptions from discoveryi. R26(b)(3)- Privileged information

a. party may obtain materials prepared in anticipation of trial by or fanother party or partys representative only upon showing ofsubstantial need and the party is only able to get the substantialequivalent w/ undue hardship the court SHALL protect againstdisclosure of the mental impressions, conclusions, opinions or legaltheories of an attorney

b. Anticipation of litigation test rests on1. When the document came into existence2. When the trial is

3. When the attorney became involved4. Date the suit is filed

c. Does not protect information gathered as part of routine investigatiod. Protects material gathered by attorney and her agentse. Protects work product = attorneys

1. Mental impressions2. Conclusions3. Opinions4. Legal theories

f. Policy1. Prevent parasitism of lawyers2. Encourages lawyers to write impressions down3. Prevents invasion of attorneys tactics and thoughts4. Prevents problem of attorney as witness5. Fosters the adversarial process

g. 2 ?s to ask in discovery request1. Is the material work product?2. Is there any other way to obtain it?

ii. HICKMAN- A lawyers notes, prepared in anticipation of litigation is workproduct and is privileged unless there is some justification, especially if yocan get the information from other means

iii. UPJOHN- the answers to an in-house questionnaire prepared in anticipationlitigation are protected as work product because it provides information thattorney will need to prepare his case. Attorney client privilege goes beyothe control group and to get work product you need a strong showing ofneed

a. There are 2 reasons for attorney-client privilege- to give accurateinformation to attorney and for attorney to be able to advise client

b. The control group test discourages clients giving information toattorney


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iv. IN RE SHELL REFINERY- s can obtain discovery from experts that are notgoing to testify even if they were specially retained [and not just acting wthe scope of their employment] but mere expense is not sufficient enoughexceptional circumstances to warrant discovery

XIV. SUMMARY JUDGMENTO. Introduction

v. There are other motions dispose of trials- 12b6 and 12c- but these are for

of lawa. These motions accept the pleadings as trueb. If you supplement a 12b6 motion w/ other evidence the court can tu

it into a Summary Judgment motion- R56vi. R56 motion pierces the pleadings- you dont have to take them as true- yo

must support the motion with admissible evidencevii. You can separate multiple claims- grant SJ for one and move on with the

othersO. Rule 56-

i. Summary Judgment

a. may move at any time after 20 days after commencementb. may move at any timec. SJ will be granted if there is no genuine issue as to any

material factd. Case not fully adjudicated on the motione. Supporting and opposing affidavits must be on personal knowledge.

Supporting documents can be anything that would be admissible asevidence. If a motion is made, the opposing party cant rest on thepleadings and must set forth facts.

P. ADHICKES- [SC]- alleged conspiracy and moved for SJ when could not prothe police were present [which would validate the conspiracy]

i. SJ may not be granted unless a can show no evidence exists- absence offact

ii. Even though the burden of proof is on at trial, no burden exists at SJ staQ. CELOTEX- [SC] widow sued manufacturers of asbestos. Celotex move for SJ on t

basis that no evidence existed that the had been exposed to their product. Tcourt granted the motion and appeals court reversed holding that Celotex had n

offered evidence to rebut i. the court can grant SJ, even if the moving party does not support its motio

as long as there is insufficient proof for the party w/ the burden of proof attrial

ii. claims not to overruleAdickes because that case should not be read to me

that the burden is on the moving party to bear the burden of showing anabsence of fact w/r/t an issue on which the non-moving party bears theburden of proof on at trial

iii. Example of the trend to allow for more SJXVI. PRETRIAL CONFERENCE

Q. Introduction

iv. The trend is to courts involvementv. THE RULE-

a. Court may order pretrial conference for1. Expediting disposition


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Civil Procedure Outline 23 of 512. Establishing early and continuous control3. Discouraging wasteful pre-trial activities4. Improving trial quality through preparation5. Facilitating settlement

r. After receiving 26f report, order a schedule to limit6. Join other parties and pleadings7. File motions

8. Complete discovery9. Modify times and extent for disclosure10. The dates for conferences and final conference11. Any other matters

s. The court may take action w/r/t [just about anything]t. Any final pre-trial conference shall be held as close to trial as possib

at least one attorney from each sideu. After any conference under this rule, court will enter order which

controls subsequent actionb. If a party fails to obey an order [in bad faith] there may be sanctions

vi. R16 allows for 2 types of conferences

a. Scheduling and planning-1. Establishing early and continuing control so that the case will

not be protracted from lack of case management2. Improving the quality of trial through preparation3. Facilitating settlement

b. Final pretrial- to formulate a trial plan, including a program to facilitaadmission of evidence

vii. more efficiency settling and disposal of casesviii. Benefits-

a. Forces litigants to show their evidence and maybe they will get arealistic picture of their casemay lead to settlement

ix. Drawbacks-a. In many cases this is a waste of time- Posner

R. JOSEPH OAT- court ordered each side to send a corporate representative w/authority to settle to a pretrial conference. Oat sent a lawyer saying they wouldnot settle and the court sanctioned under R16

i. Court finds inherent powersii. R1 says that the purpose of FRCP is to ensure just, speedy and inexpensiv

determinationiii. Court held that a court may order litigants, even if they are represented b

counsel, to appeal in person to discuss the posture and settlement of theircase

iv. Court imposed sanctions for failing to comply w/ the orderv. But in dicta said that there are circumstances where requiring a

representative would be too onerous, complex, not valuable enough and nproductive enough in proportion to the size of the case

S. Civil Justice Reform Acti. Summary jury trial- non-binding and fast- and may make a party that think

they have a big case want to settleii. Court annexed arbitration- actual binding judgmentiii. Mediation-no judgment- just tries to find an arrangement


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Civil Procedure Outline 24 of 51iv. Settlement conference- mediation conducted by the judge- can be abusive

toward the unfavored party and might make the judge favor them less attrial

XXII. STAGES OF TRIALW.The Phases of Trial

v. Jury selectionvi. Opening Statements

a. Not evidence1. not impartial2. if there is a statement that appears in the opening and doesn

appear in the case then jury cant use it to decide the caseb. Function is to provide roadmap

vii. Presentation of Evidence [Case-in-chief]

a. System relies on witnesses to tell what they know providesfoundation for evidence

b. FRCP incline towards allowing evidence as long as probative valueoutweighed by other factors

c. s case1. Direct-

a) Cant ask leading ?s2. X-examination3. Redirect

a) Can only ask ?s based on what was presented during x

d. After s case will ask for judgment as a matter of law probablydenied

e. Then s case

f. s rebuttal1. things that rebut s case

2. cant admit new, just have to try and impeach s caseviii. Argument [closing statements]a. Limited to fair commentb. Cant offer new evidence

ix. Instructionsa. Judge explains legal issues to jury

x. Jury Deliberation and Verdictxi. Post Trial Motions and Judgment

a. Renewed judgment as a matter of law motion- JNOV- must have mada motion at the at the close of all the evidence

1. R50-

a) Judgment as a matter of law1) If, after hearing a party, there is no legally sufficie

basis for a reasonable jury to find for that party, thcourt may grant judgment as a matter of law w/r/t claim or defense

2) Motion for judgment as a matter of law may be maat any time b4 submission to a jury

b) Renewing motion for judgment as a matter of law aftertrial


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Civil Procedure Outline 25 of 511) If court not grant motion at the close of evidence,

movant may request a new trial 10 days after entrof judgment

c) if the renewed motion is granted the court shall also ruon the motion for a new trial

d) if motion is denied the party may appealb. Also motion for a new trial

1. R59-a) Judge-made error

1) Should have declared a mistrial2) Erroneously excluded evidence3) Other mistakes

b) Jury Misconduct1) Juror was bribed2) Talking about the case

XXIV. JUDGMENT AS A MATTER OF LAWY. R50- Judgment as a Matter of Law

xii. Judgment as a matter of law may be entered when there is no legally

sufficient evidentiary basis for a reasonable jury to find for non-moving paT. s burden of production

i. has burden to produce evidence in support of case

ii. If he does not prove enough SJ for a. Not enough evidence to get the right to go to trial

iii. If he passes the threshold case jurya. They have met burden of persuasion even if judge thinks they cant

meet burden of production

iv. If he has so much evidence that jury couldnt possibly find the other wayjudgment as a matter of law

a. If the party w/burden gives so much direct, uncontradicted,unimpeached, disinterested evidence no reasonable jury could find tother way

U. All the evidence test-i. Allows the judge to consider all the evidence

ii. If theres a scintilla of evidence to support the case juryiii. Gives the greatest latitude to jury- they can choose to disbelieve all

witnesses

iv. SIMBLEST v. MAYNARD- sued for negligent driving. At trial p said helooked into intersection and was hit by firetruck w/no lights and siren.

maintains there were lights and siren and witnesses. moved for SJ

a. SJ was granted becauseV. Qualified favorable evidence test

i. Judge considers evidence most favorable to non-moving but also balancedevidence that directly contradicts from the other side

ii. If, after considering that evidence, there can be only one reasonable

conclusion judgment for moving party

iii. If the a direct conflict in testimony no dviv. Judge only looks at completely overlapping evidence, if there is some non-

overlapping evidence


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Civil Procedure Outline 26 of 51v. CHAMBERLAIN- [SC] 3 employees testified they didnt see a crash, one

testified that he heard a crash and saw the trains moving together- movfor dv

a. Dv granted because the only evidence for is circumstantial and wcontradicted by direct testimony

b. Could look at it 2 ways,1. The court held that there should be dv if there is no credibility

conflicta) s witness never saw the crash so there really is no

direct evidence of crashb) Direct vs circumstantial means there is no conflictc) You can reach a verdict for rr w/o disbelieving anyone

2. The court held there should be dv if there is a case of credibilitconflict

a) You should grant a dv even if there is some evidence ifthe evidence on the other side is overwhelming

W.Favorable evidence only test

i. Judge considers only evidence favorable to ii. Test becomes whether the jury, if it chooses to believe the witnesses, wou

have sufficient evidence to find for

iii. WILKERSON v. McCARTHY- [SC]- was injured when he used a board tocross a pit, alleged negligence to . argues that they put up posts to ke

from using the boarda. Court looked at favorable evidence because there was a direct confl

of evidence1. If you believe one side you get one conclusion but if you believ

the other you get the other conclusion2. Judge cant resolve credibility conflicts

3. So case goes to juryb. This case is distinguishable from Chamberlain because this one says

there is no credit conflict the case goes to jury, Chamberlain held thwas no conflict in a case where there was direct vs. circumstantialevidence

c.X. Hypo- cow hit by train in the middle of two holes in a fence, if the cow went

through one its the farmers fault; if the cow went through the other its the traifault. Farmer sues and train moves for judgment as a matter of law

i. All the evidence test- has burden of persuasion and the best a jury could

find is 50/50- so cant meet burden and dv granted

ii. Favorable only- no dv because the judge would decide based on non-movipartys evidence- the cow went through the hole the train co is supposed t

fix no dv because there is a triable issue of factiii. Qualified most favorable- there is an exact contradiction and no other

evidence to weigh in favor of either side no dviv. For all tests if there is any testimony that a judge thinks a reasonable jury

would believe it must go to juryY. SUMMARY!


27/51

Civil Procedure Outline 27 of 51i. SJ should not be granted if- could a reasonable jury find in favor of the oth

party consideringa. Only the evidence favorable to non-moving partyb. Only the evidence favorable to non-moving party + disinterested,

unimpeached and uncontradicted evidence favoring the moving partc. Evidence on both sides [all the evidence]

XXVI. ERIE DOCTRINEAA. General

ii. Doctrine applies only to federal cases in diversity jurisdictioniii. Doctrine only applies if there is a conflict of laws

BB. The Erie Doctrine

xxix. ERIE RR v. THOMPKINS- was injured crossing RR tracks. argues that

under PA law, was a trespasser and not entitled to damages, arguesunder federal general law he is entitled to dam

a. Overturned Swift v. Tyson which held that federal c/l applied in fedecourt

b. Determined that state law should be used for substantive issues[includes state c/l] and federal law should be used for proceduralissues

c. There is no federal c/l for substantive issues- it is unconstitutional toimpose what it thinks is c/l on the states

d. Policy1. Discourage forum-shopping

a) Note- it only prevents vertical shopping parties are stillfree to choose b/t states

2. Promote equitable administration of the laws3. Respect for state policies4. Promote certainty

e. The Doctrine-In federal diversity cases,1. If a procedural issue is covered by a FRCP and a conflicting sta

law- FRCP cad run controls. This is the rule from Hanna and itholds as long as the FRCP is both Constitutional and it comportw/ the 1934 Rules Enabling Act by not enlarging, abridging ormodifying a substantive right [no FRCP has failed this test]

2. If a procedural issue is not covered by FRCP and only by judgemade law, and a contrary state law exists, then use the Byrdbalancing test. It weighs the federal and state interest and theextent to which the rules are outcome determinative. The cou

must also consider the twin aims ofErie (1) whether applyingfederal judge-made law would encourage forum shopping and whether it would result in inequitable administration of laws

Z. Other casesi. GUARANTY v. YORK- [SC] was granted SJ because S/L had run according

state law. appealed in equity and the court ruled that a court in equitycould apply its own laws

a. Where a state statute would bar recovery in a state court, but thefederal law would not, hence it would substantially affect theoutcome, the state law must be used


28/51

Civil Procedure Outline 28 of 51b. Broad holding- a rule is substantive if it is outcome determinativec. Exalts =ity idea over the other policies- federal court [for the purpos

of diversity jurisdiction] should be just another state courtii. COHEN v. BENEFICIAL INDUSTRIAL [SC]- in a stockholder derivative action,

stockholders which owned less than a certain % of shares were required topost bond, FRCP 23 had no requirement

a. None of the R23 provisions conflicted w/ NJ state law use state law

b. Probably a state interest involved and FRCP especially if the state lais not in conflict

c. On the other hand it is not outcome determinative in the merits of thcase

iii. RAGAN v MERCHANTS TRANSFER [SC]-in PI case state S/L had run becauseshe filed b4 but served after, but using R3 the S/L would not have runbecause action commenced by filing

a. Court used state law- if recovery could not be had in state court thenno recovery in federal court

b. After Ragan courts held that FRCP were subject to Erie testiv. WOODS v. INTERSTATE REALTY[SC]- issue was whether court could apply

door closing statute to prevent out-of-state companies from doing businein the state unless they consented to service

a. State statute must be followed- using federal law would creatediscrimination against citizens of the state

b. This would create forum shopping because a company would removto federal court when they cant sue in state court

c. But HUGE state interestv. BERNHARDT[SC]- ? was whether federal court could enforce arbitration

clause even though under VT law the clause could be revoked at any timeaward is made

a. VT law must be used because if the federal court allows arbitrationwhen a state court wouldnt then the outcome would depend on whethe suit was brought

vi. KLAXON- [SC]a. Conflict of law rules are substantive and federal court must follow st

rules

vii. BYRD-[SC]- sued for negligence in federal court. argued that was astatutory employee under state law and not allowed to sue for negligenceIn SC law judge gets to make this determination but in federal court the ?goes to the jury

a. Federal court should not use state law if it would undermine a large

federal policy, state law should not alter the rules about the fact-finding roles of the judge and juryb. Balancing test

1. Look at the purpose of the federal law or policy [federal intere2. Look at the purpose of the conflicting state law [state interest]3. Determine the extent to which applying the federal as oppose

to the state law would affect the outcome of the case

viii. HANNA- sued for wrongful death in federal court and served the wife. B

state law requires that you serve executor, and didnt do that w/in enoutime- S/L had run, argues MA law bars the suit


29/51

Civil Procedure Outline 29 of 51a. Court must use FRCP for service even if it would be outcome

determinativeb. Situation where there is a federal rule right on point and a contrary

state rulec. The federal rule must be applied if it would abridge, enlarge or modi

a substantive rightix. BURLINGTON- [SC]- AL law requires a 10% penalty if you lose a PI claim on

appeal.a. Court held the rule was inapplicable because it conflicted w/ FR of A

Pro 38 which does not mandate a penaltyb. The argument is that there is no conflict but court rejects- there is a

conflict AL requires a penalty and FR says no penalty

x. WALKER v. ARMCO STEEL-[SC]- filed b4 S/L and filed after. State law say

that suit starts w/ service and suit would be barred. argues R3 controlsfederal court

a. Rule 3 does not replace a state S/L- because state S/L is substantiveinterest

b. FRCP are assumed to be valid but if there is a state interest and itsubstantially affects the outcome of the action then use state law

xi. GASPERINI-[SC]- sent slides to who lost them. sued and was award$1500/slide. appealed and said that NY allows a judge to overturn verdiif it deviates materially from what would be reasonable compensation

a. State law controlling excessive jury awards should be usedb. Rules should be read w/ sensitivity to state interests

AA. Determining if a law is procedural or substantivei. Procedural vs Substantive

a. Procedure concern efficiency, fairness, and effectiveness of judicialprocess, how to try a case

b. Substantive involves everything else, like rights and things that wousubstantially effect the outcomeii. US constitution- always applies over state law

a. This includes federal laws rooted in the Constitutioniii. Federal statute- applies if Constitutional-iv. FRCP- almost always applies- Hanna

a. Does the rule violate a substantive right under Rules Enabling Act orit unconstitutional?

1. 28 USC 2072 [Rules Enabling Act] test-a) Supreme Court has power to make procedural rules an

all laws in conflict shall have no further force or effect

the rule arguably procedural?b) BUT only applies as long as it wont enlarge, abridge ormodify a substantive right

2. No FRCP has ever been found to violate a substantive right unthe act

b. Federal rule will trump state rulec. If the state law not conflict but merely adds on federal rule

[compliments it] then use it insteadv. Judge-made Law- does it meet the following?

a. Purposes of Eerie


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Civil Procedure Outline 30 of 51b. Byrdbalancing test

1. Look at the purpose of the federal law or policy [federal intere2. Look at the purpose of the conflicting state law [state interest]3. Determine the extent to which applying the federal as oppose

to the state law would affect the outcome of the casec. Yorkoutcome determinative testd. Dont forget Gasperini

XXX. PRECLUSION OF JUDGMENTSEE. Claim Preclusion- Res Judicata

vi. In Generala. Merger and bar- if 2nd action is part of claim or cause of action as 1st,

cant raise it again, even if not covered by first suitb. Precluded by both issues that were raised in the claim and claims th

could have been usedc. 3 requirements for claim preclusion

1. Same claim2. Adjudicated on the merits3. There is a final judgment

d. These should be distinguished from stare decisis- everyone is boundthe decision but anyone can relitigate

e. law of the case = sometimes in a case the same case an issue wilpresent itself twice. If the case is remanded, do not need to relitigatunaffected claims

vii. Same transaction test

a. MANEGO- sued in federal court alleging conspiracy and claims we

dismissed. Later brought another suit adding one and alleginganti-trust violations

1. a 2nd suit alleging anti-trust violation, after an initial suit alleginconspiracy is barred by res judicata because they arise out of tsame transaction or occurence

2. since these events were part of the same transaction, resjudicata bars any claims that have been adjudicated and thosethat could have been brought in the 1st action

b. Restatement provides that

1. The claim extinguished includes all the rights of the s toremedies against the with respect to all or any part of thetransaction out of which the action arose

2. What constitutes a transaction and series are to be determinepragmatically giving weight to time, space, origin, motivation

and whether they form a convenient trial package

viii. Same rights and wrongs testa. SMITH v. KIRKPATRICK- court held that if the 2 actions involve differe

rights and wrongs then the actions are not barred by res judicata

b. But issue preclusion may take effect because if loses 1st suit then might be precluded by collateral estoppel from the 2nd

ix. Same Claim

a. MOITIE- [SC]- sued in class action and case was dismissed. 5appealed and it was reversed. The other 2 brought a new claim


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Civil Procedure Outline 31 of 51collaterally in a state claim. s removed and moved to dismiss for rejudicata. Court of appeals reversed saying the claim was not barreddue to public policy

1. Res judicata bars relitigation an unappealed adverse judgment

where other s in similar actions against common ssuccessfully appealed the judgments against them

2. There are no exceptions to res judicata, even in equity

3. The initial suit had been adjudicated on the merits res judic- they should have appealed

x. On the merits

a. RINEHART v. LOCKE- filed suit and was dismissed for failure to stata claim w/o prejudice. He made a new complaint and moved todismiss for res judicata.

1. R41b states that except for certain listed exceptions, alldismissals are on the merits unless the court dismisses w/oprejudice

2. Any dismissal bars a 2nd suit- the only remedy is appeal

b. MARESE-

brought a case in state court and it was adjudicated. Hethen brought an anti-trust suit in federal court, which could not havebeen brought in state court.

1. A state court judgments preclusive effect on a federal case isgoverned by state law in the state of the case

2. The preclusive effect of a judgment is governed by full, faith acredit

BB. Issue Preclusion- collateral estoppeli. In General-

a. Applies when there is the same claim or c/ab. An issue that has been litigated and determined cant be brought ag

c. If a claim has been w/drawn it hasnt been litigated and determined estoppel does not applyii. Same Issue Litigated

a. General Rule- when an issue has been actually litigated anddetermined by a final judgment, the litigations operates to stopanother litigation w/the same parties that are in privity. The judgmeis not preclusive to issues that might have been litigated and were n

b. LITTLE v. BG- BG sued for negligence and won. Later he sued forpersonal injuries from the same accident alleging gross negligence oBG.

1. A previous court decision constitutes collateral estoppel to a

subsequent action involving the same parties, issues andtransaction2. Since the first suit settled the issue of BG being negligence the

the 2nd suit is barred by collateral estoppelc. BENSON & FORD- plaintiff testified and is represented by the same

attorney in a case against the defendant which has many of the samwitnesses. Since defendants had won the previous suit, s moved fosummary judgment contending that the relevant issues wereprecluded from re litigation


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1. The issue is not precluded because the s are not in privity tothe original action

2. The same lawyer and witnesses cant preclude a different [even if he was a witness to the first action] from an opportunito get a trial

iii. Surplusage Exceptiona. There is no preclusion if the determination if the issue in the first

action did not lend support to the judgment1. POLICY-

a) If the court in the prior case were sure as to one of thealternative grounds and this ground by itself was enougto support the judgment than the court may not feelconstrained to give rigorous consideration to thealternative grounds

b) Since there are alternative grounds which couldindependently support the prior judgment rigorous revof an asserted error as to one ground probably would noccur

b. If the prior determination was an alternative ground of decision insteof mere surplusage then it is preclusive

1. A number of courts still take a position contrary to Halpern,holding that when there are alternative holdings, each of whicindependently would support the judgment, issue preclusionapplies to both, if the court decides a case on two grounds,each is a good estoppel

c. HALPERN v. SCHWARTZ- a bankruptcy referee denied H a dischargebased on intent to defraud having been found earlier, although intenwas only one of 3 possible bases for the earlier decision.

1. When a prior judgment rests on 1 of 3 possible grounds it is noconclusive to discharge issues if less than all grounds areinvolved

2. Even if an issue was fully litigated in the prior proceeding,preclusive effect will not be given if the resolution of that issuewas not necessary for the judgment

3. Since the bankruptcy referee could have held the plaintiffbankrupt with or without a finding of intent, the issue will of thintent can still be litigated

d. HARDY v. JOHNS MANVILLE- s were suing s for failure to warn. moved for estoppel based on a previous determination in their favor

the matter of a warning standard1. Collateral estoppel cannot be applied since the previousdetermination had not expressly determined that failed toadequately failed to warn

2. Since the jury may have found liable on many theories,estoppel cant be used- collateral estoppel he is in appropriatewhere the prior judgment is ambivalent

iv. Question of Law Exception


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Civil Procedure Outline 33 of 51a. Determinations of unmixed questions of law are not preclusive in

subsequent actions- only determinations of fact and the application law to fact are preclusive

b. IRS v. SUNNEN- IRS sued Sunnen and S won and was sued on the saaction the next year after some favorable court decisions. S moved dismiss for collateral estoppel.

1. Estoppel cant be used when there is a change in law

2. To allow him to get off after the law has changed would be toallow un= protection among tax payers

3. If the law changes then the issue is not the samec. US v. MOSER- [SC] when plaintiff retired as a captain he sued for the

retirement pay of a rear admiral under a statute that provided thatofficers who would served in the Civil war would be retired with thebenefits of the next higher rank. The issue was whether the statuteapplied to someone whose service was as a cadet at the Academy athe court decided in his favor. In a later suit the court discoveredanother statute, which denied him the benefits. Plaintiff sued threemore times than the court relied on its original judgment. The

government appealed the third suit to the Supreme Court contendinthat collateral estoppel should not apply to an issue of law that hadbeen wrongly decided in the first suit.

1. The court held that although collateral estoppel should not appto unmixed questions of law it does apply to mixed law andfact questions

2. Because the court found that the plaintiffs case involved a facwestern that had been adage indicated in the first suit it heldthat the government was precluded by the decision in the firstsuit

d. Problem is how to draw the line between an unmixed question of lawand mixed issues of law and. When the rule of law has beendetermined the context of a particular said the facts, and there seemto be no reason to allow that issue to be relitigated. Modern cases athe restatement allows preclusion as to issues of law as well as factexcept when

1. The result would place the party who won in a favored positionthe general administration of the law as in Sunnen

2. The first determination was not fully appealed as it was in thesecond suit

3. The 2 actions involve claims that are substantially unrelated4. A new determination is wanted in order to take account of an

intervening change in the applicable legal context or otherwiseto avoid inequitable administration of the law

5. The party against preclusion is sought had a significantly heavburden of persuasion on the first suit than in the second

v. Evidentiary Fact Exceptiona. Preclusion applies only to issues of ultimate fact. There is no

preclusion where the issue in the second case is one of evidentiaryfact.


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Civil Procedure Outline 34 of 51b. Ultimate facts were those upon which combined occurrence the law

raises the duty, or the right, in question in which the law makes theoccasion for imposing sanctions

c. EVERGREENS v. NUNAN- drew a distinction between ultimate facts aevidentiary facts in order to determine whether a decided issue wassufficiently important in the first action that it was foreseeable that imight be subject to subsequent litigation and therefore to preclusion

vi. Mutualitya. The old rule was that a party should not benefit from it unless he cou

also be bound by it1. Ex.-employee gets into an accident in boss car. Other party

sued employee and lost so sued boss. Boss was not in privity couldnt be bound by earlier judgment so the mutuality ruleprecluded him from using the previous judgment. BUT courts allow this for indemnity

b. Types of estoppel

1. offensive use- new wants to use collateral estoppel against who lost the first case

a) 1 and loses, then 2 and pleads collateralestoppel to use the issue in her suit

2. defensive use- new party is a seeking to stop from establishing a faccouldnt prove in the 1st trial

a) 1 and loses, then 2, 2 pleads collateral estoppel to

stop from re-litigating issuec. When deciding whether the mutuality doctrine should be enforced th

court will take into account1. Whether it would be unfair to give preclusive effect to a prior

determination where the party seeking preclusion got to choos

the form in which to sue and the adversary against whom tobring the action. Allowing preclusion would make it possible, fexample, to induce a particularly sympathetic plaintiff to bringaction in the pro-plaintiff for in order to secure a judgment thaother plaintiffs could use in other forums

2. It could be unfair to allow an action to be preclusive against aparty did not foresee that a second action might be brought

3. It is unfair to have a compromised verdict (one in which a jurythat was split on the question of liability compromised by findiliability but awarding reduced damages) be preclusive in a lateaction

4. It is inefficient to apply preclusion when, by doing so, one migdiscourage plaintiffs from joining together the initial action

d. BLONDER TONGUE-[SC]1. court abandoned mutuality for defensive use of preclusion to a

party not in the first suit to a who was a party2. questioned whether it is tenable to afford a litigant more than

one full and fair opportunity for resolution of the same issue3. but a judge would not preclude a losing party from relitigating

issue if he could demonstrate that the 1st action failed to allowhim a fair opportunity to pursue his claim


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e. PARKLANE- [SC] s brought a class action suit against Parklane. B4that action was brought the SEC sued them and won on essentially t

same issues. s tried to use the result of the previous action1. Although offensive use of estoppel is suspect the court will allo

it in this case

2. Here the probably complete litigated the prior action and scould not have joined it

3. Offensive estoppel is allowed if there is no policy reason againif

ERIEAPPROACH:

Federal courts sitting in diversity must apply state substantive law under the Rules of DecisiAct (1652) but may apply federal procedural law under the Rules Enabling Act (2072).

RDA federal court must apply the laws of several states, except where the constitution ofreaties of the federal if the US or acts of congress require

Rules Enabling Act allowed the SC to prescribe by general rulespleadings and the practicand procedure in civil actions at law for the federal courts

- The rules enacted must not abridge, enlarge, nor modify the substantive rights of anitigant.

FIRST TEST: 3 steps:

1. is the issue arguably procedural?for it to be procedural, the relevant law has to focus on the pleading, proof, and not on the

nature of the claim)

F YES:

2. is there a definite conflict between the relevant principles of state law and federal law?if there is only one rule of law that is applicable or no conflict between the laws then there i

no Erie issue)

F YES:

3. What is the source of the federal law?

A. IF IT IS FRCP: (also applies to FRAP)(Hannah applies:)Ask:1. Does the FRCP rule apply to this issue?If yes:2. Is the FRCP valid under REA?a. Whether the content of the rule falls within the practice and procedure definition

the REAb. Determine that the rule is not substantive under REA- it doesnt abridge or enlarg

substantive right.


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Civil Procedure Outline 36 of 51(if yes, then FRCP applies regardless of contrary state rule)With the FRCP, will not test under the Erie twin aims, will test under REA (see #1and 2 above)

B. IF IT IS CONSTITUIONAL:(Byrdis controlling):under Byrd, if there are important federal procedural issues, such as right to trial by juunder 7th Amendment, then the federal provision takes precedence

C. IF IT IS CASE LAW BASED:(Guaranty Trustas modified by Hannah is controlling- look at whether it is outcomedeterminative in light of Eries twin aims):If the adoption of the federal procedural provision affects that outcome in that itencourages forum shopping or unequal administration of the law, then under theoutcome test state law applies. Otherwise, federal law is controlling.(case law includes res judicata, and most of rules of appellate review)

SECOND TEST : ERIE TWIN AIMS: (except for FRCP cases: then see REA test above)1. discourage forum shopping2. avoid unequal administration of the law

CASES:1. Hanna: FRCP v. State law FRCP controlling2. Burlington: FRAP v. State law FRCP controlling3. Stewart: Federal Statute v. State law statute controlling4. Byrd: constitutional v. state law (7th amendment right to jury trial v. state law)

constitution controlling5. York v. Guaranty Trust: common law (case law) v. state law state law controls(outcome

determinative test followed by Erie Twin Aims)6. Gasperini: deals with substantive and procedural issues: hybrid case

1. state law for how to review (federal law allowed a shock the conscience test andallowed larger rewareds then state law (their test is to see what materially deviatesfrom what would be reasonable compensation) court said had to use state law orpeople would forum shop for larger rewards (what Erie was trying to discourage)

2. procedural: (trial v. appellate distribution of decision making) 7th amendment v. statestatute (Byrd) (but different outcome accommodated state interest by assigningmandate in NY statute to federal court) federal law for who reviews

7. Ragan v. Merchants transfer: FRCP Rule 3 (statute of limitations) v. state law state law isalways controlling in diversity cases

FEDERAL RULE OR FEDERAL STATUTE ALWAYS CONTROLS OVER STATE LAW

RULE SUBSECTIONS POLICY 1 Scope andPurpose ofRules

Rules shall be construed to secure the just,speedy and inexpensive determination of everyaction

3Commencement of Action

A civil action is commenced by filing a complaintw/the court


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4 Summons e. service upon individuals in US may beeffected 1. pursuant to law of the state which thedistrict is in or 2. by delivering a copy to theperson or leaving a copy at their dwelling w/some person of suitable age or discretion or bydelivering a copy to an authorized agentk. 1. Service of summons is effective to get

jurisdiction over a. who could be subjected togeneral jurisdiction in that state where districtcourt located or b. who is a party under rule 19or 20 or 100 miles of the place the summons isissued c. who is subject to federal Interpleader d.when authorized by statute 2. If exercise ofjurisdiction is consistent w/ constitution toestablish personal jurisdiction if they are notsubject to general jurisdiction

PLEADINGS

AND MOTIONS7 PleadingsAllowed; FormOf Motions

a.Pleadings- there shall be complaint and answer,a reply to counterclaim, answer to cross-claim,3rd party complaint, 3rd party answer, no otherpleading allowed, except that court may orderreply to an answer or 3rd party answer

b.Motions and other papers- application for anorder must made by motion in writing

8 General RulesOf Pleadings

f. A pleading shall set forth ashort and plain statement of the grounds of 1.jurisdiction, 2. relief, 3. demand for the judgmentfor the reliefg. A party shall state in shortand plain terms the defenses. If a party is w/oknowledge sufficient to form belief the partyshall state = denial. Pleader shall deny eachpart or if they deny everything they must do soin accordance w/ r11h. In the plea

Documents

Civ Pro Outline Park