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FEDERAL CIVIL PROCEDURE

SUBJECT MATTER JURISDICTION goes to federal court because of DIVERSITY OR FEDERAL

QUESTION (subject matter of the suit has a federal question)

1. DIVERSITY case parties are citizens of different states + case is worth more than 75k in
damages
a. Excess of 75k look at it from plaintiffs perspective how do you know? look
at the facts!
b. as long as one of the plaintiffs has a claim for 75 then its ok, but if none have a
claim for 75 then no diversity!
c. Legal certainty that the case is not worth 75k? then not working
d. REMEMBER PLAINTIFFS PERSPECTIVE
e. NEED TO BE DIVERSE CITIZENS OF DIFFERENT STATES
i. Plaintiffs and defendants need to citizens of different states where is
your permanent home and do you have the intent to stay there?
ii. One person must be a citizen of a us state and can sue a foreigner
iii. What if a corp is a party? where it is incorporated and/or where its
principal place of business is

2. FEDERAL QUESTION well pleaded co plaint rule federal rule in question must be
specifically plead in the plaintiffs complaint it must be clear that I am suing based on
federal statute/federal law
a.

TYPES OF HYPOS:
DIVERSITY Proper diversity jurisdiction citizenship and 75k
OR
Federal Question in the complaint by the plaintiff is the matter talking about federal law?
then Federal Question
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SUPPLEMENTAL JURISDICTION When normally a party or a claim couldnt get into federal
court but something is so similar about their claim then a federal court will grant them
jurisdiction, but federal court will allow other parties and other claims to join the suit against
you even if they wouldnt alone wouldnt satisfy the requirements of diversity
- If Derives from a common nucleus of facts will other parties/claims be able to
piggyback on your claims? YES
- Derive from common nucleus of facts court says its ok we will here the cae
- J v. B and Fred comes in
o Does Bs case derive from the common nucleus of facts?
o In a diversity case then we are looking for the same common nucleus of facts
AND
ALLOWED:
1. Compulsory counterclaim
2. joinder of parties in compulsory counterclaim
3. Cross claims
4. Impleader of 3rd party defendants
NOT ALLOWED:
1. Original Plaintiff v. 3rd party Defendant
2. Compulsory Joinder
3. Joinder of Defendants plaintiff trying to sue multiple
defendants
4. Intervention = plaintiffs trying to intervene
o So.Defendant trying to add a claim/party when they normally would not be
able to be heard?= OK
o So.Plaintiff trying to add a claim/party = NOT OK

HYPO:
Case is based on diversity

Counterclaim: defendant suing the plaintiff:

1. Compulsory counterclaim arises out of the same transaction/occurrence YOU MUST
ASSERT IT NOW! YOU WILL LOSE IT IF YOU DONT
2. Permissive counterclaim: doesnt arise out of the same transaction or set of events +
needs independent jurisdiction need diversity and federal question = doesnt have
anything to do with original occurrence

Adding parties;
Permissive joinder when may multiple plaintiffs join together
- if their claims come from a single transaction or occurrence
- and a question of law or fact is common
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- when the claim comes from a single transaction or occurrence + some sort of question
of law or fact is common
Compulsory joinder when MUST THEY
- if it would be unfair to litigate without them = necessary party leaving them out would
IMPAIR THEIR INTERESTS /when complete relief cannot be afforded without their
involvement
- IF cannot join due to jurisdiction = case may still proceed

NECESSARY IMPAIR INTEREST = if presence destroys jurisdictional problems like diversity they
cannot be in the case and we can still go forward
Vs.
INDISPENSABLE = PREJUDICIAL EFFECT -
= if there would be a prejudicial effect for them not ot be there, if presence destroys
jurisdictional problems like diversity Case must be DISMISSED it cannot go forward

Adding claims: if a plaintiff is suing a defendant each claims may add as many claims as they
want
What about smj? does the new claim require new smj?

Automatically add under Supplemental jurisdiction:

Each individual new claims must satisfy federal question or diversity

PERSONAL JURISDICTION subject matter of the case itself that will get into court itself?
- Would it be fair to bring John into court?
- Are they present in the state in which the court will be heard?
- Am I domiciled in the state in which it would be heard
- PRESENCE in the state?
o How to get me into the state? long arm statute? which allows state a to bring
John into the state into federal court which allows jurisdiction over the individual
- CONSENT TO BE SUED THERE?
- DOMICILED THERE?
- Minimum contacts does the defendant have the minimum contacts with the forum
state where the case will be heard?
- Will be minimum contacts maintenance of the suit does not offend tradtl notions of
fair play and justice reasonably anticipate being called into court
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What if I am out of state? how to get me into the state? is there a long arm statute that
makes it fair to be brought into court - FAIRNESS?
- ****minimum contacts does the defendant have the minimum contacts with the
forum state? maintenance of the suit does not offend the traditional notions of fair
play and justice so that the defendant could reasonably anticipate being called into
court
- doing business in the state? activities based in the state? Advertising here/trying to do
business here/selling widgets here?
o Whether I am trying to do business/what are the basic activities/HOW OFTEN
AM I THERE?
o MBE QUESTION: What is John doing with the state? - how involved is he with
the state/what kind of activities the FACTS WILL TELL YOU DONT ARGUE
WITH THE FACTS - INTENTIONALLY TRYING TO BE IN THE STATE
o DUE PROCESS FAIR
o IF YES TO MC
o SERVICE OF PROCESS if its fair for john to be brought into the state then we are
talking about how they will serve him
o
o LIMITED TO: In federal court, to limits of the state where the district court sits
OR if long arm statute
o EXCEPTION: 100 MILE BULGE PROVISION out of service will be allowed
anywhere w/in 100 miles of the federal courthouse where the suit is pending but
only applying to out of staters
o Outside party 3rd party defendants AND Indispensable parties = additional
parties to an existing case

Service of process assuming MC is present serving me in a fair way or I would have NOTICE -
does it look it would be reasonable for the defendant to get notice? does it seem like it would
work? if a corporation then who do you serve? (officer/agent/anyone authorized/someone in
high level of placement)
- FAIR IF:
o Not a party
o Over 18
- Personal: Fine
- Substitute: indirect:
o FAIR IF:
leave it with someone of legal age
likely to give it to the defendant
- FIRST CLASS MAIL: generally ok
o Can be ok
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- Out of staters registered and certified mail and NEWSPAPER CAN BE OK IF NO

ALTERNATIVE
- PUBLIC OFFICIAL:
- Reasonable for me to expect that I would get notice?
- Was the service of process and notice

In rem jurisdiction:

REMOVAL

VENUE

JURY TRIALS 7th amendment federal truials right to jury at least 6 not more than 12
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RIGHT TO JURY Trial- 7TH amendment

Verdict must be unanimous
Demand for jury trial within 14 days
No jury trial for equitable relief
- Within 14 days after service of the last pleading
- No right for equitable damages only legal damages
May be waived or if no right judge may be the finder of fact and law
Judge hears the evidence and decides on the conclucsions of fact and law separately

Rules for jury selection:

Voir dire juror can be dismissed for cause or without cause
For cause if there is any bias that can be deduced no limit may exist on the part of the juror
or they admit there is actual bias or felony conviction of a juror can be a dismissal for cause 9]=

Dismissed FOR cause:

1. Actual bias
2. Possible bias
3. Felony conviction
4. No limit to amount
PEREMPTORY CHALLENGES - When you can excue someone for any reason you have 3x you can
do this. In federal three is the max, however you cannot based on race or gender

Balanced pool 7th amendment=jury should be comprised of a rep slice of the overall
community

Judge instructs based on law not on facts.

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MOTIONS

Motion to dismiss 12b6

Preanswer motion to dismiss
For lack of smj
Improper venue
Insufficient service of process
Personal jurisdiction

Unless you make them in a motion or your answer whichever comes first

1. Personal jurisdiction
2. Improper venue
3. Insufficient process
Must bring any of these 3 in Motion or Answer, whichever is first, if not then WAIVED!

Motion for Failure to state a Claim upon which relief may be granted even if every fact is true
no recovery is possible bc there is insufficient fact to support any kind of a claim usually may
be raised at any time before or at trial

FOR FAILURE TO JOIN A PARTY RAISE BEFORE OR AT TRIAL

12B6

motion to strike generally made within 21 days of service redundant immaterial information
for a more definitive statement responding if the pleading is vague or ambiguous you are
bringing a motion for a more definitive statement.

Summary Judgment

VIDEO 3: VERDICTS:
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Default Judgment one party fails to plead or defend plaintiff sues defendant and defendant
does not sue at all

DISMISSAL:
Voluntary dismissal P may voluntarily dismisses his/her own action anytime before the
defendant answers or moves for summary judgement once without prejudice
- 1. Once without prejudice
- 2. Before defendant answers/summary judgement
- 3. After defendant answers need court approval

involuntary dismissal COURT DOES IT IF THERE SOME SORT OF FAILURE TO PROSECUTE

FAILURE TO OBEY A COURT ORDER usually with prejudice
usually without prejudice, except
1. lack of jurisdiction
2. venue
3. insufficient service of process
4. failure to join a party

judicial bias: c
challenge a judge for cause when there is an appearance of bias by the judge him or herself
is there bias by the judge or does it just look bad???
appearance of bias MAY BE WAIVED BY PARTIES
but if specific grounds for recusal they may not be waived and the judge must be recused
judge or their family member
1. personal knowledge of facts
2. judge acted as a lawyer in any matter or controversy w/another lawyer associated with
a lawyer in the case
3. financial interest
4. expressed opinion about the merits of the case previously
ACTUAL JUDICIAL BIAS = PARTIES MAY NOT WAIVE
Directed Verdict/Judgment as Matter Of Law

RENEWED Motion Judg. As Matter Of Law

RES JUDICATA claim OR COA preclusion whether a claim or cause of action may be relitigated
-
-civil version of double jeapordy usually NO
SAME PARTIES SAME CAUSE OF ACTION/CLAIM
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- CANNOT SPLIT UP DAMAGES AGAINST ME

- JUDGMENT ON THE MERITS = look for settlement , lack of jurisdiction, lack of venue
- Original parties however: PRIVITY = other people in privity with john will be bound by
this res judicata look for some substantial legal relationship
- Ex: employer employee

Collateral estoppel ISSUE PRECLUSION:

- If issue 1 in trial 1 was decided we cannot relitigate in a subsequent suit its not the
COA its the issues in the particular case
- The issue must be necessary to the judgement itself and it must have been previously
decided and must the same as the issue in the first case
- Settlement or default you can bring the issue again

IF THE PLAINTIFF WINS their claim is merged into the judgement and the same cause of action
cannot be the source of the suit
LOSER BARRED

Claim preclusion res judicata prevents relitigation

1. Split up claim of DAMAGES, look for lega vs. equitable, property vs. personal
2. Judgement on the merits decided in court
Not on the merits:
1. Dismissed for lack of jurisdiction
2. Improper venue
3. Settlement
Original parties same cause or claim of action and decision on the merits sometimes privity

Privity substantial legal relationships who are tied toghether

Collateral estoppel issue preclusion: issue must be actuallylitigated and decided in the first
case ad must have been necessary to the judgement
Vs .res judicata . Side not
Originally parties are generally going to be bound by this

Split up claim of damages, look for legal vs. equitable property v. personal
nots

offensive vs. defensive use of CE

DEFENSIVE USE OF COLLATERAL ESTOPPEL IS GENERALLY PERMITTED party was not a party in
the first trial and now is present in the 2nd trial as a defendant. John sues ABC Co. and loses.
Now John sues Co. 2 in trial 2. John lost the first case. Co 2 is going to say john is collaterally
estopped from litigating the issues in the first case.
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Offensive use:

John sues and wins. Now Bob sues and is the new plaintiff. He is going to try to collaterally
estopp the company from denying liability. Generally doesnt work.

Full faith and credit: RESPECT FOR THE JUDGMENT OF STATE 1. THE JUDGEMENT OF 1 STATE
MUST BE GIVEN RESPECT FOR THE OTHER STATE.
Judgement in STATE A AND STATE B must give respect to judgment rendered in state b.

New Trial

VIDEO 2. Pre Trial Procedures:

Pleadings:

When there is an appearance of

1. Complaint filing ALONG WITH THE SUMMONS begins the action. Esp for statute of
limitations of concerns. WITHIN 120 DAYS ACTUALLY SERVED
a. Complaint along with the summons with the clerk of the court and within 120
days of SERVICE
b. Fiing commences
c. 3 basic elements
i. 1. Jurisdiction short and plain statement of the grounds for jurisdiction:
what kind of jurisdiction wil the case be heard on?
ii. 2. Statement of the claim BASIC SHORT STATEMENT OF THE FACTS/NO
LEGAL THEORY NEEDED
iii. 3. CLAIM FOR DAMAGES claim for relief
d. couple of times where the complaint needs to be plead with more specificity
FRAUD/SPECIAL DAMAGES = SOME SORT OF UNIQUE CLAIM FOR RELIEF Then
the

COMPLAINT NEEDS TO BE PLEAD WITH SPECIFICITY WHEN.

FRAUD
SPECIAL DAMAGES

Actual joinder bias parties may not waive the issues

PERMISSIVE :
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2. NOT FORM TRANSACTION OR OCCURRENCE

3. Answer- response to the complaint

a. Signed by the defendants lawyer before it is brought back to me
b. May admit or deny any of the claims
c. May ASSERT AFFIRMATIVE DEFENSES
d. If you dont deny the claims/accusations then they are conclusively presumed to
be admitted
e. Some affirmative defenses must be plead with defenses in your answer:
i. Any type of contributory negligence
ii. Statute of fraud
iii. Statute of limitations
iv. Illegality
f. Answer must be served w/in 21 days of the complaint
4. Amending the pleadings:
a. May do so always amend once without court as long as 21 days within original
service of pleadings
b. After that you just need the courts permission and the court will usually be very
liberal when justice so requires

Relate Back the time of the amending will relate back to the original complaint
-= when will my amended pleading relate back to the original pleading? It will as long as it arose
out of the conduct, transaction, or occurrence set out in the original pleading. If the claim or
the defense arose from the conduct transaction or occurrence that is related to the original
complaint itself
= date goes back to the original date so long as what I am changing is from the same thing
- When I am amending a change in the party? = Relate back for PARTIES:
- 1. Arose out of conduct, transaction, or occurrence
- 2. Within 120 days of filing party had notice
- 3. Knew or should have known but for mistake of ID
can it go back to as if it were from the original pleading? yes relates back to the original date
if.

RULE 11 lawyer signing the pleading: is not promises to the court that they are not making
stuff up: to the best of their knowledge and belief they are not putting anything forth
- attorney signs to best information and belief, facts, law, denials and purpose all ok
- to best of information and belief, facts, laws, denails purpose all ok
-
Changing parties vs. claims:
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Law vs. fact on appeal: facts only set aside on appeal if clearly erroneous
Harmless error rule only applies if it would have made a difference if they didnt really
change the outcome then nothing is going to happen.
Final judgment rule - Need to have a final judgement in order to have an appeals
= collateral order exception issue is unresolved = resolves an issue that separate from the
merits of the action. Delay would cause severe damage + collateral issue separate from main
issue

1 claim in a multi issue claim suit has had a final judgement on it judge orders a final
judgement on that issue, you may appeal it if its separate from underlying merits of the action,
collateral order rule applies y\
if there is an issue an case that is separate from the underlying merits in the action then the
collateral order rule would apply.

Injunctions:
You can appeal the granting/denying of an injunction before all the issues in a case have been
judged. If a particular issue in a multiclaim case can be resolved on its own you can appeal.

Injunctions = appeal the granting or denying

Standards of review: issue: findings of fact: Clearly erroneous standard

Based on Law: de novo review
Facts: clearly erroneous standard
Anything relating to the judges court decisions = abuse of discretion standard
- Relevancy
- Prejudice
- Court orders
Federal vs. State
Diversity case = no blatant conflict between federal and state law but there is a choice.
Always apply the substantive state law.
Statute of limitations state law
Procedure federal law
Venue federal law
Where does the federal court sit? see the diversity case a federal or state law is applicable
default to state substantive law unless procedural matters (venue)
NY v. Florida where does the federal court sit? choose that
Erie doctrine:
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CLASS ACTIONS
1. diversity only the reps of the class need to satisfy jurisdictional reqs with the other
side
a. Citizenship of the representatives is what counts
b. 1 member named has a case worth more than 75k (NAMED PARTY)
i. EXCEPTION: nobodys got a 75k as long as the class action totals 5
million the entire case itself than its ok
2. prereqs for the class action:

CLASS ACTIONS: ELEMENTS:

a. size its too big to join these parties size

b. question of law fact in common
c. typicality of reps claims with everyone elses
d. fair representation for everybody
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TYPES:
1. b1 class action: allowed if the risk of inconsistent decisions would about impairment to
the interests of the members = members may not opt out in order to represent
themselves impair interests of members of the class
2. B2 = injunctive relief MEMBERS MAY NOT OPT OUT
3. B3 = common question throughout members of the class and the class action is the
superior method to all other methods MEMBERS MAY OPT OUT!
NOTICE TO MEMBERS:
ALL OF THE MEMBERS OF B3 must be given notice sent notice via mail for example
B1/B2 DISCRETION OF THE COURT

The court must certify this case as a class action Certify Class B1/2/3
- Can you have just a subclass action: YES
- Proper class action moves forward but if CERTIFICATION OF CLASS DENIED (for lack of
common question for example, then DENIAL MAY NOT BE APPEALED

Settlement among the the parties must be approved by the court

Reasonable attorneys fees + statement detailing the agreement = supply it

Intervention: when people who are not part of the original lawsuit want to join on their own
when a 3rd person/stranger wants to come in on their own
1. Intervention as of right: no court permission is needed
a. Interest in property/transaction
b. Interest is impaired
c. no court permission is needed
2. permissive intervention: claim or defense that has a
a. claim or defense that has a common question of law or fact:
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b. court must decide whether to allow

interpleader lawsuit: one party owes some amount to 2 or more people force other people to
fight it ought themselves
- make you guys apportion the money
- 1. Statutory interpleader:
o as long as 2 claimants are diverse that is OK
o only $500 must be at stake
o nationwide service of process is allowed
o person deposits money/property in court or bond
- 2. Rule interpleader:
o owe something to 2 or more people but now it requires COMPLETE DIVERSITY
b/w claimant and ALL persons on the other side
o No nationwide service is allowed
o 75k of the claim itself
o Not required to deposit the money/property in court
- 3. 3rd party interpleader = Defendant believes that a third party is liable for all or part of
the claim contribution/indemnification cases

cross-claim = one defendant may sue another defendant = co parties sue each other = same
transaction or occurrence + looking for actual damage .looking for actual relief

DISCOVERY:
Any matter which is not privileged and relevant
- not about admissibility
- about privileged information
- and relevancy

work product RULE: generally that is privileged and will stay privileged unless there is a
substantial need for the material and cannot without undue hardship obtain it without
substantially equivalent other means

Work Product: anything done to help the lawyer in anticipation at trial

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Absolute immunity:
1. mental impressions
2. options
3. legal theories
4. conclusions

witnesses and names and locations of all people who have discoverable information must be
disclosed as long as its discoverable it must be provided to other side

Experts @ Trial- and PARTY MUST PROVIDE ID + REPORT

Party must give the party the other side the identification of the expert and the expert must
prepare a report detailing their opinions, the basis of the opinions, data, exhibits,
compensation,

Experts NOT @ Trial discoverable only in EXCEPTIONAL CIRCUMSTANCES

DUTY TO SUPPLEMENT DISCOVERY:

- timely manner is a required:

methods of discovery:

Depo:

Generally dont need the courts intervention may depose a party or a non-party
If trying to get anon party to take a deposition you can subpoena them
Limit of 10 depositions and cannot depose the same person more than 1x without the courts
permission
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Interr: written questions or answers ONLY to a party limit is 25 to any party

Request for an admission regarding truth of any discoverable information

Request to produce documents to a party ONLY not to a non-party

Physical Exam: only for a party not a non party

If you are requesting a physical or mental exam then the physical or mental condition of a party
must be in controversy
need a court order + show good cause

What if you fail to abide by the discovery rules? = court may order SANCTIONS
- Ways to maintain control for failing to abide by the rules:
- Object to request = RELEVANCY
- Protective order stop discovery (to avoid embarrassment, undue burden)
- Compel discovery -

Protective order or compel discovery or someone is acting beyond unreasonable standard then
sanctions may be imposed by the judge

Pre Trial Conference: judge uses different meetings in effect to take control of the timing
1. Conference parties = court MUST have conference , parties must submit discovery plan
2. Scheduling conference:
a. Court MUST have conference, limiting time
b. Must issue SCHEDULING ORDER within 120 days of filing complaint
c. Cannot be modified unless good cause
d.
3. Final pretrial conference
a. Judge may hold conference
b. If there is conference, must issue a PRE TRIAL ORDER
c. ONLY MODIFIED BY GOOD CAUSE

TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Tro granted without prior notice when can you get this if you can show immediate
irreparable harm will result if the TRO is not granted.
- Expires at the time stated in the order if it doesnt then it cant last longer than 14 days
- Go get prelim injunction need notice and hearing
- Show: irreparable harm will occur if it is not granted.
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VI. ERIE

2 scenarios :