Basic Civil Procedure Outline

Professor Richard
Summer 2006

Chapter 1: Overview of Procedure

I. Jurisdiction and Venue

A. Reasons for Concern
a. Convenience/Cost effective – nearby judges familiar, maybe
inconvenient for the other party
b. Tactics: jury sympathy toward issue, court backlog, etc.
c. Federal v. State
i. Federal judges appointed for life
ii. Federal district courts have lighter load – quicker
iii. Opposing party may not be familiar with fed court

B. Subject Matter Jurisdiction: 28 USC 1331 and 1332

a. Refers to availability of a court to hear a particular dispute
b. General jurisdiction – can hear any case, unless a statute requires that a
certain type of case be heard in a special court.
c. Limited jurisdiction – one set up by statute to hear only a particular
type of dispute – All federal courts have limited jurisdiction
d. Concurrent Jurisdiction – Federal courts have concurrent jurisdiction
with state courts – if it can be in fed court can also be in state ct.
i. Art. 1 Sect. 2 of constitution defines limits of federal
jurisdiction
ii. 1331: grants federal courts federal question jurisdiction or
subject matter jurisdiction over any claim that arises under
federal law
iii. 1332: grants federal courts diversity jurisdiction, which is
jurisdiction over any case where the amount in controversy is
over $75,000 and where the case is between citizens of
different states; or between citizens of a state and citizens of a
foreign country
iv. Citizen: for diversity purposes – he is a citizen if he resides
there with the intention of remaining there indefinitely.

B. Personal Jurisdiction
e. Courts must also have personal jurisdiction over the defendant –
determines which state a case can be brought in – same for both
federal and state courts within the same state.
f. Citizens of a state/individuals/corporations that engage in certain types
of activity within the state are always subject to personal jurisdiction
within that state – even when not personally served there.

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 C. Venue: 28 USC 1391
g. Involves finding the proper locality of the court that is to hear the case
in cases where more than one court has both SMJ and PJ.
h. All cases begin in District Court – use venue rules to determine which
court to use if more than one are appropriate.
i. Under most state venue statutes – case can be brought in the district
where:
i. one party or the other resides or does business or
ii. in the district where the claim arose.

D. Service of Process: Rule 4 – 2 basic methods

j. Waiver of Service – less formal – plaintiff mails the defendant a copy
of the complaint and waiver forms and suit proceeds if defendant mails
back a signed copy of the form
k. Process Server – more formal – draft summons, signed and sealed by
the COC – the summons and complaint are delivered to the defendant
by a process server.

II. Stating the Case

A. Rule 11: Drafting Proper Complaint
a. Complaint – application to judicial system to use its power to grant
relief – cannot be made for frivolous or improper purposes
b. Rule 11:
i. Lawyers responsibility for bring claim well grounded in fact
and existing law
ii. Allows courts to impose sanctions for violations of the rule
iii. Bridges v. Diesel Services -- Sanctions of Rule 11 are designed
to deter improper conduct and will only be applied in
exceptional circumstances.

B. The Complaint
a. State courts and federal courts have different rules as to what goes in
the well-pleaded complaint
b. Bell v. Novick Transfer – A federal court is not required to apply state
well-pleaded complaint rule even when the case originated in state
court under state substantive law.

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C. The Response – 2 Basic Types
a. Pre-Answer Motions – that ask the court to take some action the
defendant’s favor – do not address the substance of the plaintiffs’
complaint and so do not require any factual development
i. Rule 12(b)(1)-(5) – some reason why the action cannot proceed
in the particular court where plaintiff filed
1. lack of SMJ, personal or venue, defective summons or
improper service
ii. Rule 12(b)(6) – belief that plaintiff has no right to relief under
the substantive law
iii. Rule 12(c) -- defendant may not understand the complaint
because the complaint is too vague – defendant moves for a
“more definite statement”
b. Answers – responds to specific allegations – 2 types
i. Rule 8(b) – denial of allegations -- defendant believes that an
allegation is untrue or does not know whether the allegation is
true
ii. Rule 8(c) -- affirmative defenses – such as plaintiff waived his
right to make a claim or statute of limitations expired, etc.
iii. Miscellaneous information re: answers:
1. Defendant will use more than one of pre-answer
motions – if they are denied – he must file an answer
c. Counterclaim – Rule 13 – defendant has a complaint against the
plaintiff – 2 Types
i. Compulsory Counterclaim – arises out of the same transaction
that gave rise to the plaintiff’s complaint
ii. Permissive counterclaim – does not arise out of the same
transaction as the plaintiff’s complaint
d. Cross Claims – Rule 13(g) – if the plaintiff sues more than one
defendant – the defendants can file cross claims against each other as
long as the cross claims arise out of the same transactions that gave
rise to plaintiff’s complaint
e. Third Party Claims – Rule 14 – a defendant can file a third party
claim if he believes that there is a party liable to him or any damages
claimed by the plaintiff.

D. Amendment to Pleadings – Rule 15

a. Parties can amend pleadings as the case proceed through discovery and
new facts come to light that might alter the nature of the action.
b. Rule 15(a) sets out general rules and Rule 15(b) deals with amendment
made during the trial as new evidence is introduced.

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III. Parties to the Lawsuit
A. Permissive Joinder - Rule 20
a. Parties who may be joined to a lawsuit, as co-plaintiffs or co-
defendants, by the original plaintiff
B. Compulsory Joinder – Rule 12
a. A court can order, on a motion by the defendant, that a third party be
brought into the suit as a co-plaintiff or codefendant because the
outcome of the lawsuit might affect the third party’s interests.
b. Courts order joinder when the substantive law applied will involve the
rights or liabilities of a third party, or when more than one party is
claiming the same property, or when the relief granted to one party
will affect the interests of a third party.
c. CJ creates tension between the right of parties to a lawsuit to control
their own claims and strategies and the principle that the courts should
decide the claims of all parties who will be affected by the outcome of
the lawsuit.
C. Intervention – Rule 24
a. A party can petition the court to allow him to intervene as a
codefendant or co-plaintiff if he can show that the suit would inflict
hardship on him if conducted without him.
D. Class Actions – Rule 23
a. An alternative to the joinder of multiple plaintiffs – used when the
number of potential plaintiffs is so great that it would make more sense
to allow a few parties to represent the entire class in the lawsuit.

IV. Discovery
A. Definition: allows parties to obtain information from each other and from
individuals and entities that are not parties to the suit
a. Butler v. Rigby – a legal privilege can be used to protect information
from discovery under Rule 26
B. 5 Methods
a. Required Disclosures – Rule 26(a)(1) – the parties to the lawsuit are
required to provide each other with certain basic information
b. Inspection of Documents
i. Rule 34 – a party can request that the opposing party provide
him with documents
ii. Rule 45 – a party can obtain documents from other witnesses
by subpoena
iii. Documents definition – printed and written papers and records
as well as sound recordings, videotapes, photographs, and
email.
c. Oral Depositions – Rule 30 and 45 – a party can question any witness
with information about the suit under oath in the absence of a judge.

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 d. Written Interrogatories – Rule 33 – a party can send another party
written questions to be answered in writing – cannot be used to gain
information from nonparties
e. Physical and Mental Examinations – Rule 35 – a party may move from
a court order allowing him to obtain a physical or mental examination
of another party – must show that the condition to be examined is a
matter in dispute

V. Pretrial Disposition – Summary Judgment

(allows the court to dispose of cases where trial is not necessary and would serve
no purpose)
A. Rule 56 – Motion for SJ may be made at any time, but are usually not
granted until after discovery
B. Rule 56(c) -- allows courts to grant a motion for SJ when the case present
“no genuine issue as to any material fact” –
a. Houchens v. American Home Assurance – court granted SJ because
although the plaintiff cold show that her husband had disappeared and
had be declared legally dead by a state court, she could not show that
he had in fact died or that he had died by accident.
i. Therefore there was no issue of material fact in her case against
the carrier of her husband’s accidental death insurance policy.

C. Other Methods of Pretrial Disposition:

a. Default Judgment – Rule 55 – if a defendant fails to answer the
complaint or fails to defend his case, the court will enter a judgment
for the plaintiff.
b. Dismissal –
i. Rule 41(b) – if a plaintiff does not obey a court order during
the pretrial proceedings the can dismiss the case
ii. Rule 41(a) – plaintiff can apply for a voluntary dismissal

D. Methods of Streamlining the trial:

a. Request for Admission – Rule 36 – a party can seek admission of the
truth of certain facts or the acknowledgement of the genuineness of
specific documents
b. Pretrial Conference – Rule 16 – a court can order a conference
between the parties to discuss settlement terms.

VI. Trial
A. Steps in the Process
1. Court notifies parties of trial date
2. Jury selected
a. Judge and attorneys question prospective jurors
b. Both parties may challenge jurors for cause or make peremptory
challenges – challenges for which no cause is stated.
3. Attorneys each make opening statements

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4. Plaintiff presents his case
a. Introduces evidence and calls his witnesses – each witness is examined
and cross-examined
b. After cross-examination, the plaintiff can redirect testimony and the
defendant is given the opportunity to re-cross
5. Defendant has the opportunity to move for Judgment as a matter of law
(Directed Verdict) under Rule 50(a)
a. It is the defendant’s way of saying that even if everything the plaintiff
has said is true, under the substantive law applied – plaintiff has no
relief
6. Defendant Presents his case
7. Plaintiff can now move for directed verdict
8. Rebuttal -- Plaintiff rebuts the defendants case and Defendant is given an
opportunity to rebut the rebuttal
a. General rule – a party can only rebut new issues that were raised in the
previous stage of the trial.
9. Now – either party can move for Directed Verdict under Rule 50(a) – not
usually granted
10. Both parties make Closing Arguments, Judge gives jury instructions or charge
a. This explains the jury what law applies to the evidence - and the
parties can object to any portion of the charge they think is erroneous
(Rule 51)
11. Jury Returns Verdict
12. Losing party can move for new trial or for a judgment as a matter of law
(Judgment Not-withstanding the Verdict) up to 10 days after the jury verdict
given (Rule 50(b) and 59)
13. Losing Party can Appeal the court’s final judgment if raised a point during the
trial that he believes was disposed of erroneously
14. Party can move to set aside the judgment (rare – in cases like evidence of
criminal conduct by the judge) – Rule 60(b)

C. No Jury Trial
a. Motion for Judgment as a Matter of Law – court can dispose of case
on motion when the party that carries the burden of proof cannot
produce enough evidence to meet that burden – will be granted if court
believes that a reasonable jury could come to only one verdict.
b. Jury must weigh material issues of fact and decide the credibility of
witnesses – courts do not take witness credibility into account in
deciding on Motions for JNOV
i. Norton v. Snapper Power Equipment – A JNOV cannot be
granted after a motion for a directed verdict has been denied
based on the same facts.

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VII. Former Adjudication
• Similar to double jeopardy in a criminal case – if a party to a case is not happy
with the outcome – he should not be able to bring the same case again.
A. Which issues can be litigated in 2nd Action
1. Claim Preclusion (Res Judicata) – if a plaintiff loses a case, he
cannot bring another action based on the same claim. If the
defendant loses he cannot bring a second action in order the set
aside the first judgment.
2. Issue Preclusion (collateral estoppel) – if the party to case raises an
argument based on the set of facts in that case and is unsuccessful,
he cannot use that same argument based on those same facts in a
second action with the same opposing party. Conversely, if a party
prevails on an issue, he may assert that issue as binding in a
subsequent matter.
 Example: if A sues B on a promissory note and B alleges
fraud as a defense, if B loses he will not be able to assert
fraud based on the same events in any subsequent
promissory note suit that A brings.
B. Rush v. City of Maple Heights – whether or not injuries to both person
and property resulting from the same wrongful act are to be treated as
injuries to separate rights or as separate items of damage, a plaintiff may
maintain only one action to enforce his rights existing at the time such
action is commenced.

Chapter 3: Subject Matter Jurisdiction of Federal Courts

I. Introduction
A. General Information
1. SMJ deals with types of cases a court can hear – personal jurisdiction
limits courts in relation to a particular defendant.
2. Courts must have both personal and SMJ over a claim to proceed with the
case.
3. Art. III, Sect. 1 – gives Congress power to create federal courts
4. Art. III, Sect 2 – establishes the scope of the federal judicial power
5. Concurrent Jurisdiction – cases arising under federal law can be brought in
both state or federal courts
6. Federal courts have exclusive jurisdiction over certain types of actions
such as bankruptcy and antitrust cases

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 B. Reasons for Preference between courts
a. Federal courts have shorter waiting times for trial
b. Jury in one area may be more desirable than another
c. Local state judge may be more or less sympathetic to a local case than
a federal judge

II. Federal Question Jurisdiction

A. Art. III, Section 2 and 28 USC 1331 – provide that the federal judicial
power shall extend to all cases arising under the Constitution and the laws
of the United States. – our focus – “arising under federal law” (regardless
of amount in controversy)

B. Well-Pleaded Complaint Rule – plaintiff’s federal question must appear in

the allegations of the complaint
1. Louisville Nashville RR v. Mottley – An allegation that an
anticipated defense will be based on federal question is not
sufficient to raise a federal question
2. Justification for the well-plead complaint rule is that it is impossible
to be certain what defenses a defendant will raise in the answer –
whether a case actually involves a federal question can be
determined before too much time and expense is wasted

C. Process for situation where no basis for federal SMJ:

1. In diversity cases – move for dismissal thru Motion under Rule
12(b)(1) asserting lack of SMJ is proper
2. In federal question cases – jurisdiction depends on substance of
plaintiff’s claim – Motion under Rule 12(b)(6) to dismiss the
substantive claim is proper
3. Jurisdiction is not waived if the defendant fails to move for the two
above dismissals
4. If a defendant challenges both personal and SMJ and the case is
dismissed -- the results are:
a) If dismissed for lack of SMJ – plaintiff may refile in state
court
b) If dismissed for lack of personal jurisdiction – plaintiff may
hot refile in state court because the federal court’s decision
that personal jurisdiction was absent will bind the state court
under the rules of issue preclusion.

III. Diversity Jurisdiction

A. Authority
1. Art. III, Sect. 2 – permits federal courts jurisdiction over
“controversies between citizens of different states” and between
citizens of a state and foreign citizens and subjects.
2. 28 USC 1332 – grants federal courts diversity jurisdiction – see
above definition

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 3. Created to combat the fear that state courts would be biased against
litigants from out of state.

B. Citizenship
1. Redner v. Sanders –Residency is not synonymous with citizenship
a) Citizenship depends on present domicile (residency) and
intent to remain indefinitely
b) Time for measuring citizenship for diversity purposes is as
of the date on which the complaint is filed in federal court
(commencement).
2. Individual has only one domicile – evidence by drivers license,
voter registration, bank accounts, etc.

C. Complete diversity – no party on one side of the suit may be a citizen of

the same state as any party on the other side.

D. Corporations and Dual Citizenship

1. Dual Citizenship – A corporation is deemed to be a citizen of every
state in which it is incorporated and the state where it has its chief
place of business (28 USC 1332(c)).
2. A corporation can only have one chief place of business
3. Two tests for determining the chief place of business:
a) The corporate “nerve center” where most managerial and
executive functions are controlled.
b) Some courts may also look at where the everyday business
activities or “muscle” of the corporation exists.

E. 28 USC 1332 (a) Amended – provides that an alien admitted to the US for
permanent residence is deemed a resident of the state in which the alien is
domiciled.
1. Eliminated diversity between a state citizen and a permanent
resident alien living in the same state
2. Saadeh v. Farouki -- interpreted not to extend diversity over an
action between an alien and another alien who has achieved
permanent resident immigration status in the US

F. Amount in Controversy
1. 28 USC 1332 also requires an amount greater than $75,000 to be in
controversy for federal jurisdiction to be present.
2. Courts view allegations in the pleading as controlling and do not
guess about the likelihood of the plaintiff collecting what is asked
for
3. Different claims may be aggregated to meet the amount:
a) Single plaintiff with two or more unrelated claims against a
single defendant may aggregate the claims to meet he the
statutory amount

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 b) Two plaintiffs with claims against a single defendant cannot
aggregate if their claims are separate and distinct.
c) Where there are multiple plaintiffs or multiple defendants
with a common interest and a single title or right, the value
of the total interest is the amount in controversy
4. Counterclaims – when a plaintiff’s claim exceeds $75,000, a
compulsory counterclaim may be heard regardless of the amount,
but a permissive counterclaim requires an independent basis for
jurisdiction
G. Not subject to Diversity Jurisdiction – domestic cases, successions, probate
matters – can only be brought in state court

IV. Supplemental Jurisdiction

A. 28 USC 1367 defines and creates supplemental jurisdiction
B. Definition – jurisdiction over a claim that is part of the same case or
controversy as another claim over which the court has original jurisdiction.
C. Put another way: When a federal court has proper original jurisdiction
over a claim, it may hear all other claims that form part of the same case or
controversy – allows fed ct to hear claims it would not otherwise hear when
brought with another claim that shares a common nucleus of operative facts
and there is no impediment under 1367(c) or (b).
D. Jin v. Ministry of State Security – supplemental jurisdiction exists when a
state law claim shares a common nucleus of operative facts with a federal
claim and jurisdiction would further judicial economy, convenience, and
fairness.

V. Removal
A. 28 USC 1441 – generally allows a defendant to remove a case if the
plaintiff could have originally filed the case in federal court.

B. If the district court lacks jurisdiction, or there is a defect in the removal

procedure, the federal district court is to remand the case back to the state
court – Caterpillar v. Lewis:
1. if the district court fails to remand a case when was improperly
removed, the ensuing adjudication will be upheld if the federal
jurisdictional requirements are met at the time the judgment was
entered.
2. Considerations of finality, efficiency and judicial economy dictate
that ht judgment be upheld if the jurisdictional defects are
ultimately cured.

C. If the removal is based on diversity (see Quest 2 on Exam)

1. 1441(b) prevents one sued in home state from removing even if
have a federal question or diversity
2. Diversity must exist when filed and removed!
3. Cannot be removed more than one year after filed

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 4. Need to file notice of removal in federal and state court and
removal must happen within 30 days of notice

Chapter 4: The Erie Problem

I. State Courts as Lawmakers in a Federal System

A. Rules of Decision Act – “the laws of several states” shall be followed in
federal diversity cases
1. Swift v. Tyson – supreme court interpreted the meaning of the
“laws” as used in the RODA and held that it did not include
“unwritten” decisional law by a state’s highest court, unless it was a
local nature such as land title. Statutory “written” laws did fall
within the meaning of “laws”
2. The federal courts are free to ignore the state unwritten law, even
when the matters before them were not explicitly governed by
federal law.

B. Constitutionalizing the Issue

1. Supreme Court reversed Swift in Erie RR v. Tompkins
a) “Laws of several states” include state “common law”
consisting of decisional law from the state’s highest court.
b) Held that a state’s substantive law must be applied in federal
diversity cases, except in matters governed by the Federal
Constitution or by Acts of Congress
c) Rejected the existence of a federal common law in favor of
individual state’s substantive common law
d) Specifically held that Congress has no power to declare
substantive rules of common law applicable to the states

II. Limits of state power in Federal Courts

A. Outcome Determinative Test – used for determining whether or not state
law is substantive
1. Guaranty Trust v. York – applying the test, the court held that a
state statute of limitations applies in a federal diversity case if
disregarding the state would significantly affect eh result of the
litigation, as compared with the outcome had it been tired in state
court.
a) When state practices conflict with a federal statute or rule of
civil procedure, the state practices apply
b) Examples:
(1) State law, rather than federal law, determines when
an action was commenced for purposes of state
statute of limitations

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 (2) State law requiring plaintiff to post bond when
filing a shareholders’ derivative suit applied
although no similar federal statute exists.
(3) State law determines the enforceability of
arbitration agreements
(4) State law denying out of state corporations not
qualified to do business in the state the right to sue,
applies to federal courts within the state

B. Interest Balancing Approach – expanded the outcome determinative test for

determining whether or not state law is substantive.
1. Byrd v. Blue Ridge – a state decisional law was held not to apply in
a federal diversity case where it allowed a judge, not a jury, to
determine a factual issue
2. Several factors to be balanced:
a) Considering the relation between the state rule and the
underlying state right
b) Examining the strength of the federal policy before holding
that it must yield to a counter state policy, and
c) Finally, consideration of the outcome determinative test

C. Rules Enabling Act & Hanna v. Plumer

Categories of Cases:
1. Federal Judge-Made Law: if case deals with FJML – issue is
whether the rule is procedural – if procedural then Federal law
applies – if substantive then state law applies
a) if federal rules of procedure conflict with state rules, the
federal procedural rule will prevail unless it violates the
Constitution or terms of the Rules Enabling Act
b) Hanna test – rule is deemed procedural if not likely to cause
forum shopping / the difference between state and federal
court would not likely result in forum shopping

2. FRCP & REA – gives the supreme court the power to adopt
procedural rules as long as they do not abridge, enlarge or modify
substantive right and preserve the right to jury trial

3. Federal Statutes – if statute valid and applies to issue at hand then

federal law applies

D. Semtek Int’l v. Lockheed Martin

1. Facts – after a California federal court dismissed the plaintiff’s
action on the basis of the state statute of limitations, a Maryland
state court dismissed a subsequent suit brought by the plaintiff on
the same grounds.

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 2. Rule – The claim preclusive effect of a judgment on the merits in a
federal diversity action is governed by the law of the state in which
the federal court sits.

Chapter 2: Personal Jurisdiction

I. Constitutional Framework
A. Jurisdiction – signifies the power of a court to render a judgment that other
courts and governmental agencies will recognize and enforce.
B. Personal Jurisdiction – power of one court to render a binding judgment on
someone who may have never been in the state
C. Basis in the Constitution
1. Art. III, Sect. 2 – sets forth the jurisdictional boundaries of federal
courts
2. Art. IV, Sect. 1 – the Full Faith and Credit Clause which requires
one state to recognize and enforce judgments of another state
3. Sect. 1 of the 14th Amendment Due Process Clause – provides that
no state shall deprive one of life, liberty or property without due
process of law.
4. Supremacy Clause of Art. IV – provides that the constitution and
federal laws are the supreme law of the land even if contrary to
state law.
5. Erie Doctrine – holds that in the absence of controlling federal law,
the federal courts must look to the law of the state.

II. Personal Jurisdiction

A. In Personam Jurisdiction – based on the state having power over a person
present in the state.
1. Due process requires that in order to exercise jurisdiction over a
person, reasonable methods must be employed to give the person
notice of the action and afford him a reasonable opportunity to be
heard.
2. A state can obtain in personam jurisdiction over a non-resident only
if that non-resident is personally served with process while within
the state.

B. In Rem Jurisdiction – based on the state having power over a person’s

property present in the state.
1. In rem can only be obtained if the non resident owns property
within the state, and that property is seized by way of “attachment”
(a prejudgment seizure of property through court order to secure
assets to satisfy future judgment)

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 C. Pennoyer v. Neff – service of process by publication in a newspaper is
valid for in rem jurisdiction, but will not suffice for in personam
jurisdiction.
1. Held that service by publication on one not present within the state
and who owned no property in the state at the time the action was
commenced, was not valid
2. Involved concepts of consent and presence – if a defendant
consented to the state’s assertion of power or if the defendant was
present in the state, jurisdiction existed.

D. Procedure for attacking personal jurisdiction

1. if one is sued in another state and jurisdiction is disputed – raise the
defense of lack of personal jurisdiction in a pre-answer motion or in
the answer.
2. if the defense is not raised early enough, the courts may hold that
the defendant has waived the defense of lack of PJ

III. Corporate Defendants/Specific and General Jurisdiction

A. Minimum Contacts – new standard for asserting in personam jurisdiction
with respect to corporate defendants
1. Personal jurisdiction over a non-resident corporate defendant exists
where the defendant has certain minimum contacts with the state
and maintenance of the suit does not offend traditional notions of
fair play and substantial justice.

2. International Shoe v. Washington – a non-resident corporation that

employed salesmen in a state to sell its products, shipped at large
volume of its product to the state, and benefited from the laws of
the state, was subject to jurisdiction of that state.
a) Consideration should be given to whether the corporation:
(1) Has presence in the state, such as systematic and
continuous activities, or
(2) Whether the corporation enjoys the benefits and
protections of the state’s laws and
(3) Whether it would be reasonable to require the
corporation to defend a suit in the state.

3. Shaffer v. Heitner – International Shoe’s minimum contacts

standard applies to all forms of jurisdiction, including in rem and
quasi in rem.
a) Even where property there is property in the state that serves
the basis for jurisdiction, but is unrelated to the cause of
action, there must be sufficient minimum contacts with the
state to support jurisdiction over the defendant.

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 b) Court held that neither the ownership of shares of stock of a
corporation located in the forum state nor holding positions
as directors and officers of the corporation, is sufficient
minimum contacts to support jurisdiction over individual
defendants.

B. Specific Jurisdiction – one of two types of in personam jurisdiction

1. SJ – cause of action must arise out of the activities in the forum
state, or the defendant must have purposefully availed himself of
the privilege of conducting activities in the state, thereby invoking
the benefits and protections of its laws.
2. McGee v. International Life – a single business transaction is
enough to satisfy the minimum contacts test, provided the
transaction is what gave rise to the claims and was purposefully
undertaken.
a) Held that a non resident insurance company that refuses to
pay a life insurance claim may be sued in the state where the
insured resided since the contract was delivered to the
insured in the state, premiums were mailed from the
insured’s home to the defendant and the insured was a
resident of the state that the time of his death.

3. Hanson v. Denckla established sufficient minimum contacts

a) Sufficient minimum contacts – there must bee some act by
which the defendant purposefully avails itself of the
privilege of conducting activities within the forum state,
thus invoking the benefits and protections of its laws.
b) SMC does not exist if the only contacts with the state are
sporadic and inadvertent and do not give rise the claim
being asserted.
c) Held that where a company has no office in the state and
neither transacts nor solicits any business there, it has not
performed any acts within the state so as to establish
jurisdiction – merely sending income payments to a resident
of the state does not constitute an act by which the company
purposefully availed itself of the privilege of conducting
activities within the state.

4. Worldwide Volkswagon v. Woodson

a) In order to establish sufficient minimum contacts – a
defendant must have purposefully availed himself of the
forum state, if not, considerations of fairness, convenience
and the interests of the state in overseeing the litigation are
irrelevant. Foreseeability alone is insufficient.

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 b) Held that where a car was sold and distributed in one state,
and the buyers were involved in an accident while driving it
through another state, the seller and distributor defendants
did not purposefully avail themselves of the state where the
accident occurred.
c) It does not matter that it was foreseeable that the car would
be driven in other states.
d) Court ruled that it was not foreseeable that the defendants
would be haled into court in a state where they did not
conduct business or intend to have the products reach that
market.

5. Asahi Metal Industry v. Superior Court

a) SMC do not exist merely from intentionally putting a
product into the stream of commerce with the expectation
that it will reach the forum state.
b) There must be some act showing that the company
deliberately intended to take advantage of the state’s market
or laws.
c) Even if SMC do exist, jurisdiction over the party must not
offend the traditional notions of fair play and justice.
d) Court held that a manufacturer of a tire tube valve, who did
no business with the forum state, and did not import any
products thereto, lacked SMC with the state even though it
was aware that its products might windup in the state.
e) Further, the manufacturer was from a foreign country and it
would not be fair or just to require it to defend in a distant
forum with a foreign legal system.
f) Advertising and other activities would constitute as
establishing contacts

6. Burger King Corp v. Rudzewicz

a) Once SMC have been established, there is a presumption
that it would be fair to require the defendant to defend the
suit there.
b) To overcome the presumption, the defendant has the burden
of proving that it would be fundamentally unfair to defend
in that state.

16
 c) The court held that whether a franchisee entered into a
contract with the franchiser which expressly provided which
state’s law would govern, it was up to the non resident
franchisee to show that he would be unfairly prejudiced or
harmed by having to defend in that state. Since he
purposefully availed himself with a company from another
state, SMC existed, even though he does not do any
business within the state.
d) Without any showing of unfairness or harm, the franchisee
is subject to the jurisdiction of the forum state.

C. General Jurisdiction
1. Arises when the activities in the forum state are so substantial and
continuous that they need not have a connection to the cause of
action alleged.
2. Coastal Video v. The Staywell Corp
a) Facts – Coastal, a Virginia corporation distributing
copyrighted employment manuals sued The Staywell
Corporation in Virginia federal court for copyright
infringement.
b) Rule – A court may exercise general jurisdiction over a non-
resident corporation if the corporation conducts a substantial
and continuous corporate operation within the state.

3. Burnham v. Superior Court

a) Transient jurisdiction (service of process on non resident
defendant while present in the state) by itself is sufficient
for personal jurisdiction over an individual defendant. Such
jurisdiction comports with due process and it is not
necessary to establish minimum contacts with the state.
b) The court held that jurisdiction was properly obtained over a
non resident defendant who was visiting the forum state on
business and was served with divorced papers while in the
state.

IV. Consent as a Substitute for Power

A. Carnival Cruise Lines v. Schutte
1. Reasonable forum selection clauses are enforceable to establish
consent to jurisdiction.
2. Minimum contacts test is inapplicable when the clause is
reasonable.
3. The court upheld jurisdiction based upon a forum selection clause
contained on the back of the cruise ticket. This amounted to
consent to jurisdiction.

17
V. Notice
A. Note: In addition to jurisdiction, due process requires that a defendant be
given notice that proceedings have been instituted against him. This
requires that reasonable efforts be made to provide notice to persons
affected.

B. Mullane v.Central Hanover

1. Notice by publication fails to comply with due process where the
names and addresses of the parties are known.
2. The court required that notice be given by mail, rather than by
publication to those individuals whose addresses were known.

C. State and Federal Rules for Notice

1. In federal cases, notice may be given by personal service by the US
Marshall, or by a person over eighteen years of age and not a party
to the suit.

2. Mailing notice to a defendant and requesting the signing of a waiver

of personal service is a proper method of informal service of
process
a) If a waiver is not obtained, other methods of giving notice
are proscribed by the rules depending on whether it is an
individual or corporate defendant, domestic or foreign, or a
state or governmental agency.

VI. Self Imposed Restraints on Judicial Power

A. Long Arm Statutes
1. Authorize various methods of service of process on out of state
defendants. They authorize states to extend their jurisdictional
arms beyond their own borders
2. Gibbons v. Brown – a state’s long arm statute may restrict personal
jurisdiction even if the constitution would otherwise permit
jurisdiction.
a) Here, the state’s long arm statute provided that a non-
resident defendant who is engaged in substantial and not
isolated activity within this state is subjected to jurisdiction
of the state.
b) The court held that jurisdiction was not proper where the
only contact eh non resident defendant had with the state
was the filing of a law suit two years earlier against a
defendant who was not a party tot eh current suit.

B. Venue – 28 USC 1391 – only one on venue

1. Determines where the litigation takes place – based upon statutory
limitation on the geographic location of the litigation.

18
 a) If there are a number of federal district courts within a state,
venue statutes will provide which district is proper.
b) Venue may be determined by the place of defendant’s
residence or where the activity that is the subject of cause of
action took place.

2. Dee-K Enterprises v. Heveafil

a) Venue is determined solely from statutory rather than
constitutional sources. This differs from jurisdiction which
requires a statute and then a constitutional analysis under the
due process clause.

b) The court held that a general federal venue statute

subjecting alien corporations to suit in any judicial district
overrides other federal statutes that may contain specific
venue provisions.
3. Corporations are deemed to reside where it has personal jurisdiction
4. Aliens are deemed to reside in any district in the US
5. If an action is brought in state court, federal venue statutes are
irrelevant since they apply only to federal actions
.
C. Declining Jurisdiction – Transfer and Forum Non Conveniens
1. State and federal courts have the power to decline jurisdiction even
though it exists.
a) Example – long arm statute that is more limiting than that
which is permitted by the constitution, other situations –
where there are transfers among federal district courts and
transfers upon forum non conveniens.

2. Forum Non Conveniens (Court created doctrine)

a) Definition – Discretionary doctrine whereby a court which
has jurisdiction over a case may decline to exercise it as
there is no substantive reason for the case to be brought
there or if in presenting the case in that court would create a
hardship on the defendants or witnesses.
(1) Alternative forum must be available
(2) And court determines that dismissal is warranted
(a) Private factor – convenience
(b) Public factor – choice of law and interest of
judicial system

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 b) Piper Aircraft v. Reyno
(1) In applying the doctrine of forum non conveniens,
the fact that the substantive law is less favorable to
a plaintiff in an alternative forum than the one in
which the action was originally brought should not
be given conclusive or substantial weight.

c) Transfer under 28 USC 1404, 1406, 1631

(1) Federal statutory law permits transfer to a different
judicial district for the convenience of parties and
witnesses, in the interest of justice.
(2) This allows transfers within the federal court
system without the need for dismissal or refilling,
which would be required under the doctrine of
forum non conveniens.
(3) Ability of one federal court to transfer case to
another federal court provided it has proper venue
(4) Test – is the new forum more convenient?

Chapter 6 – Pleadings

I. Pleading – General Information

A. Refers to initial exchange of papers in lawsuit
B. Rule 8(a) requires a compliant to include:
1. Recitation of basis for jurisdiction (specify particular statute or
article proceeding under
a) if diversity – must specify citizenship of all parties and the
claim exceeds $75K, and supplemental jurisdiction if
applicable
2. Short and plain statement of claim showing the pleader is entitled to
relief
3. Demand for judgment for the relief sought
C. Rule 10(b) – requires numbered paragraphs or separate individual
statements and Roman numerals for each claim
D. Rule 10(c) -- exhibits may be attached
E. Rule 7(b) – Motions must be written, particularity and grounds for relief
sought
1. Most require a memo in support of motion
2. Well settled law that in deciding Rule 12(b)(6) motions – the court
will assume that all of the factual allegations of the complaint are
true
II. Ethical Limitations – Rule 11
A. Requires lawyers to investigate legal and factual sufficiency of a claim
before pleading it and establishes an interlocking set of standards,
procedures and sanctions

20
 B. Rule 11 Information:
1. Requires all pleadings signed by at least one atty working on it
2. Only filed papers are covered
3. Does not apply to Discovery
4. Need name, address and telephone number (if not there – pleading
may be stricken from the record)
5. Applies to any paper presented to the court
6. Certified – as to truth and reasonableness
C. Walker – issued sanctions b/c not complete diversity
D. Christian -- issued sanctions b/c should have been easily able to discover
error
E. Safe- Harbor – 21 Days Notice
1. Rule 11(c)(1)(a) – file motion then serve it 21 days later
2. Judge on it own may issue sanctions – safe harbor does not apply
3. Court may impose sanction on:
a) Attorneys, or
b) Parties – if they violated the rule or was responsible.

III. Specificity – Rule 8

A. Provides for notice pleading – requiring the plaintiff to plead only enough
information to give defendant a fair chance to respond
B. Some claims require more specificity
1. Fraud – requires more than short and simple statement of facts
(Rule 9(b))
2. Special damages – claims must be stated with particularity (Rule
9(g))
C. Lower threshold for particularity
1. Capacity (Rule 9(a) – it is presumed
2. Civil rights claims – particularity not needed
D. Stradford v. Zurich --

IV. Allocating the Elements

A. Each party bears some responsibility for bringing its claims to the attention
of the court and the other side
1. Gomez v. Toledo – it is the burden of the defendant to assert an
affirmative defense – it is not the burden of the plaintiff to
anticipate affirmative defenses

V. Responding to the Complaint – admit, deny, or claim insufficient evidence to

admit or deny the allegations, counter-claim or affirmative defenses
A. Pre-Answer Motion
1. Has no bearing on the answer – if motion denied – must still answer
the complaint – if don’t answer – may be held in default
2. Rule 7 – party seeking relief can ask through a motion

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 3. Rule 12(b) Defenses: (Most common)
a) Lack of SMJ
b) Lack of PJ
c) Improper venue
d) Insufficiency of process
e) Insufficiency of service
f) Failure to state claim for relief
g) Failure to join party

4. Rule 12(b)(6) – Motion to Dismiss complaint only if no reasonable

basis for cause of action to proceed – Failure to state a claim

B. Answer – response to factual allegations – can also raise counterclaim,

cross-claim or third party claim in answer
1. Deadlines:
a) Answer must be filed within 20 days of date of service
b) If Defendant waived service – get automatic extension – 60
days for in state defendant
(1) Out of state defendant gets 90 days
c) If defendant is US or federal agency – gets 60 days to
respond
d) If file a pre-answer motion and it is denied – have 10 days
after judgment to answer
2. Denials
a) Rule 8(b) – requires defendant to deny only those
allegations that he actually disputes
b) Rule 8(d) – provides that any allegation that is not denied is
deemed admitted
c) General Denial – an allegation that denies each and every
allegation of the complaint
(1) Zielinski v. Philadelphia – a general denial will not
be valid if any of the allegations being denied have
been admitted by both parties as true
d) Alternative allegations – can allege inconsistent statements
(1) Ex. K case – A K did not exist, but if it did – I did
not breach it.
3. Affirmative Defenses – Rule 8(c)
a) Must be pled in the answer or the defense is lost – cannot
present evident of the defense at trial
C. Reply
1. Rule 7(a) – requires a reply if the answer contains a counterclaim
a) Rule 7(a) also permits the court to order a reply on its own
motion or on the motion of a party
D. Amendments
1. Rule 15 – declares that leave to amend should be “freely given
which justice so requires”

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 a) Courts have interpreted this to mean:
(1) That the would-be amender should have a good
reason for net getting the pleading right the first
time
(2) That allowing the change should not hurt the other
side too much
b) Beech v. Aquaslide – a court does not abuse its discretion
by allowing an amendment to an answer which initially
admitted responsibility but now seeks to deny it.
2. Party may amend once without court permission
3. Must amend before responsive pleading is filed
4. Can obtain court permission after the deadline – court will usually
grant leave to amend but if the other party can show negligence or
carelessness – the court may not allow

E. Relation back
1. Rule 15(c) -- permits an amended pleading to relate back to the date
of the original pleading whenever the claim or defense asserted in
the amended pleading arose out the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original
pleading.
2. Issue with this Rule: Whether the original complaint, gave notice
to the defendant of the claim that is now being asserted
a) Moore v. Baker – in order to relate back to the time of the
original complaint, a proposed amendment must have its
basis in the same facts that are alleged in the original
complaint.
b) Bonerb v. Richard – A claim will relate back if the
operational facts set out in the original complaint are
sufficient to put the defendant in notice that the amended
claim could be brought.

F. Judgment on the Pleadings

1. Rule 12(c) -- allows judgment on pleadings as long as it does not
delay the trial
2. Court accepts all facts alleged as true
3. Not often used

Chapter 13 – Joinder

I. Joinder of Claims
A. Rule 13 & 18 allow P and D who are already in a suit to file additional
claims arising against the other – certain counter claims are compulsory

23
 B. Rule 18(a) – provides that “a party asserting a claim to relief as an original
claim, counterclaim, cross-claim, or third party claim, may join … as many
claims as the party has against the opposing party (plaintiffs or defendants)
1. Does not require the same transaction test
2. Court must have SMJ over all claims (significantly restricts)

C. Counterclaims
1. Rule 13 – allows a defendant to bring any claims that she may have
against the opposing party
a) Permissive counterclaim – Rule 13(b) – defendant can bring
any claim he ahs against the plaintiff, regardless of whether
it is related in any way tot the plaintiffs claim
b) Compulsory counterclaim – if the defendant has a claim that
arises out of the same transaction or occurrence as the
plaintiff’s claim, defendant must raise the claim in his
responsive pleading
(1) Test: Logical relationship test – are the two claims
logically related in any way

D. Cross-Claims – filed by one co-party against another (Rule 13(g))

1. Same transaction test – party may file any claim against a co-party
arising form the same transaction or occurrence as either the
original complaint or the counterclaim
2. Cross-claims are always optional, never required

II. Joinder of Parties -- Plaintiffs

A. Rule 20 – allows a plaintiff to sue multiple defendants, and/or for multiple
plaintiffs to join, if 3 requirements are met:
1. Plaintiffs are suing or defendants are being sued, jointly, severally,
or in the alternative
a) Jointly when they share the right
b) Severally when each has an individual right to recover
c) In the alternative when they allege that one of them, but not
both, is entitled to recover
2. Claims arise from the same transaction or occurrence, or series of
transactions or occurrences
3. Some common question of law or fact common to all parties must
arise in the action
a) Common question must bear a significant relationship to the
action

III. Joinder of Parties – Defendants

A. Rule 20 – also allows plaintiff to sue multiple defendants – uses 3 part test:
1. Jointly, severally or in the alternative
2. Same transaction or occurrence

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IV. Adding Parties to Counterclaims & Cross-claims
A. Rule 13(h) – allows a party to add additional parties to the cross claim or
counterclaim.

V. Third Party Claims (Impleader)

A. Law holds multiple parties responsible for an injury
1. Parties who are jointly liable have a right to seek contribution or
indemnity (usu. under K’s) from other responsible parties
2. Rule 14 – if plaintiff does not or cannot sue all of the responsible
parties, 14 preserves defendant’s right to seek contribution or
indemnity by allowing defendant to bring the other responsible
parties into the suit.
3. the person joined is called the “3P Defendant”
4. the person joining is called the “3P Plaintiff”
5. Process called “impleader”
B. Rule 14(b) – allows a plaintiff to use impleader if that plaintiff has been
sued for affirmative relief in a counterclaim
C. No need for court permission to implead if done within 10 days of filing
the original answer
D. Vicarious Liability – where 2 defendants are both liable – law allows them
to seek indemnity (vicarious liability) or contribution (in joint liability)

VI. Compulsory Joinder – where people must join

A. Rule 19 – comes into play when a party moves to dismiss the action
because of the absence of one or more interested persons
B. Raised by:
1. Motion (Rule 12(b)(7)
2. Answer
C. If feasible to join and don’t – run the risk of claim being dismissed
D. Rule 19 – persons to be joined if feasible
E. Rule 19 – 3 Steps
1. Should the parties be joined? (Rule 19(a)) – 3 Situations where
should be joined if feasible:
a) If absence prevents court from giving complete relief in
lawsuit
b) Where absence causes individual prejudice – a person
should be joined if that person “claims an interest relating to
the subject of the action and is so situated that he disposition
of the action in the person’s absence may as a practical
matter impair or impede the person’s ability to protect that
interest.
c) Where absence prejudices the parties – if the absence leaves
any of the persons already subject to a substantial risk or
incurring double, multiple or otherwise inconsistent
obligations by reason of the claimed interest

25
 2. May the parties be joined?
a) If court determines party should be joined – next step
whether party can add -- personal and SMJ must be present
3. Consequences of Non-Joinder
a) Court will determine whether to dismiss by looking at the
factors listed below of Rule 19(b)
F. If court orders joinder and plaintiff refuses – case is usually dismissed
G. If one can’t join b/c of jurisdiction – then consider:
1. The extent to which a judgment rendered in the person’s absence
would prejudice the absent person or the parties (degree of
prejudice)
2. Whether any prejudice could be reduced by protective provisions in
the judgment, shaping of relief or other measures
3. Whether a judgment rendered in the person’s absence will be
adequate (judgment adequate)
4. Whether the plaintiff will have an adequate remedy if the case is
dismissed.

VII. Intervention
A. Rule 24 – allows strangers to the suit to join as parties in order to protect
their rights or interests
B. Permissive Intervention – Rule 24(b)
1. Party may seek to intervene when either:
a) A federal statute grants a conditional right or
b) When the applicant’s claim or defense shares a common
question of law or fact with the existing suit.
C. Intervention by Right – Rule 24(a) – right to intervene without court
permission
1. A party has a right to intervene when either of the following are
met:
a) A federal statute grants an unconditional right to intervene
b) Applicant:
(1) Claims an interest relating to property or
transaction
(2) Is so situated that the disposition of the action may
as a practical matter impair or impede the
applicant’s ability to protect that interest, unless
(3) The applicant’s interest is adequately protected by
existing parties.

VIII. Interpleader – where a party faces multiple, inconsistent claims

A. Typically used when party who is liable to someone but is ot completely
sure to whom
B. Elements of Interpleader:
1. Stake – thing that is being claimed by two or more persons (can be
property or an obligation)

26
 2. Stakeholder – person who is in possession of the stake
3. Claimants – parties who seek to obtain the property or performance
of the obligation
C. 2 Types of Interpleader
1. Rule Interpleader – Rule 22
a) Allows stakeholder to commence an interpleader action in
federal court
b) Jurisdiction and venue same as any other federal case -
must have SMJ, PJ and venue
2. Statutory Interpleader – 28 USC 1335—more useful
a) SMJ – requires only minimal diversity among the claimants
(1) Citizenship of stakeholder usually not considered-
at least one claimant diverse from any other
claimant
(2) Amount in Controversy – stake must be worth
$500 or more
b) PJ – (28 USC 2361) – allows court to serve process
anywhere in the United States
c) Venue (28 USC 1397) – venue proper in any judicial district
where one or more of the claimants reside

IX. Severance of Lawsuits –Rule 20(b) and 42(b)

A. Justifications of Sever
1. Court may sever when case is unmanageable or unduly complex
2. when the presence of one claim may prejudice another claim

X. Consolidations of Actions
A. Rule 42(a) – allows a court to consolidate existing actions that are currently
pending before it if those actions involve a “common question of law or
fact”

XI. Class Actions -- Rule 23

A. One or more representatives litigates not only his personal rights, but also
the rights of other who are similarly situated.
B. SMJ – same consideration as other federal cases
C. Diversity – consider only the citizenship of the representatives of the class
1. amount in controversy – every member must meet the $ amount in
controversy
D. Requirements to be certified as a class action:
1. Certification should be made as soon as possible after
commencement of the action
2. Two step Process:
a) Court determines as to whether appropriate as class action
b) Court must determine which category of class action is
appropriate

27
 3. Standards for determining whether action is appropriate as class
action: Rule 23 (a)
a) Numerosity – so numerous that joinder of all members is
impracticable
b) Commonality – there must be questions of law or fact
common to the class
c) Typicality – claims or defenses of the representative parties
are typical of the claims or defenses of the class
(1) Turns on several factors – size of claim, legal
source of claim, whether representatives or
members are subject to any defenses
d) Adequacy – requires that the representative parties will
fairly and adequately protect the interests of the class

4. Categories of CA
a) Rule 23(b)(1) – numerous necessary parties – many absent
parties, each of whom, generally speaking, meets the test for
a “necessary party” under 19(a)
b) Rule 23 (b)(2) – Injunctive or Declaratory Relief – where
the party opposing the class has acted or refuse dot act on
ground generally applicable to the class, thereby making
appropriate final injunction or corresponding relief with
response to the class as a whole
c) Rule 23(b)(3) – The “Damages” Action – catchall category
designed to deal with situation where class actions might
still be appropriate but where the claims are not as
intertwined

XII. Other Representative Litigation

A. Shareholder derivative actions – Rule 23.1
1. Usually brought against the officers and/or directors of a
corporation
2. Seeks compensation for harm caused by the corporation by
improper decisions of the officers and directors
B. Unincorporated Associations – Rule 23.2
1. Allows suits involving unincorporated organizations to take a form
similar to class actions
C. Differences in the two above:
1. 23.1 – suit is against the associations’ officers or directors
2. 23.2 – the association is suing or being sued by a 3P

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Chapter 7 – Discovery

I. Standard for Discovery

A. Rule 26(b)(1) – A party can discover information relating to “any matter,
not privileged, that is relevant to the claim or defense of any party”
1. Relevance – information is relevant as long as it helps the parties
prepare the case -- need not become evidence at trial
a) Under new standard (2000 amendment) – it must be relevant
to a claim or defense of a party
2. Privilege -- protects information from being disclosed by a
particular source – the party may still be able to obtain the
information from other sources
3. Common Privileges –
a) Atty-client privilege – client right to prevent an attorney
from disclosing information pertaining to the legal
representation that the client relayed to the attorney
b) Doctor-Patient
c) Priest-Penitent
d) Self-Incrimination
e) Spousal
4. Privileges can be waived

II. Sequence of Discovery

A. Discovery Conference (Rule 26(f)) – occurs as soon as practicable
1. discovery plan discussed, etc.
B. Initial Disclosures (Rule 26(a)) – shoretly after the discovery conference,
parties make the initial mandatory disclosures
C. Party Initiated Discovery
D. Pretrial Disclosures – expert witness and other evidence to be offered at
trial

III. Discovery Methods

A. Mandatory Disclosures – Rule 26(a)(1)
1. Initial Disclosures include:
a) Name of any person with discoverable information (eye
witnesses)
b) Documents, tangible items, etc.—excluding impeachment
evid.
c) Computation of damages
d) Liability Insurance Policies

29
 2. Pretrial Disclosures – Rule 26(a)(2-3)
a) Expert testimony - identity and report
(1) Signed
(2) Qualitifcations
(3) Opinions and grounds for opinions
(4) All information considered
(5) Amount of compensation
(6) Experience over last 4 year
(7) Disclose 90 days prior to trial
b) Lay Witnesses – name and contact information for all may
call at trial (disclose 30 days prior to trial)
c) Tangible Evidence – documents, etc that may be used at
trial – disclose at least 30 prior to trial

IV. Types of Discovery

A. Depositions
1. “Deponent” – person being deposed – can be parties or non parties
– only type of method of seeking information from non parties
2. Initiated by giving reasonable notice to all other parties
3. If the location or timing is too burdensome, the party deponent may
petition the court for a protective order
4. Non – Party Deponents
a) Notice does not require them to show
b) Send subpoena requiring witness to appear at the time and
place specified
c) Rules Governing Subpoena:
(1) Can’t require him to drive more than 100 miles
(2) Must be issued by district court in the district
where the deposition will be conducted
(3) Service can be made:
(a) Anywhere in the district where the subpoena
was issues
(b) Within 100 miles of place of depo
(c) If state law allows, anywhere in the state in
which the depo is to be conducted
d) Subpoena Duces Tecum – requires the non party to attend
and bring documents
5. If the deponent is a party to the suit – no need for subpoena – he is
required to attend

30
 6. Corporations
a) Rule 30(b)(6) – allows party to notice depo of corporation
and describe in detail information sought
b) Corporation must designate one or more persons within the
organization or who agrees to testify on behalf of org.
c) If party knows particular person he wants to depose at the
corporation – just notice the depo of that person and not the
depo of the corporation
7. Depo Procedure
a) Depo can take place anywhere or by telephone
b) Question and Cross examining section
c) Objections – can be made as to form or content – must be
made precisely and non-argumentatively
8. Protective Orders
a) Rule 30(d)(4) – allows party to seek protective order when
the deposition is conducted in bad faith or in a way that
unreasonably annoys, embarrasses or oppresses the
deponent
(1) Order must be obtained from judge in the district
where the depo is taken
(2) Not often used
9. Time Limit – Rule 30(d)(2) – one day of 7 hours unless court order
10. Deposition before commencement of action – “Depo for the
Perpetuation of Testimony” – taken to preserve the testimony of an
important witness who is in poor health or about to leave the
country

B. Interrogatories
1. Written questions that the recipient answers under oath
2. Only against parties – no court approval
3. If non party – nothing prevents sending them – they just don’t have
to answer them
4. No more than 25 questions unless the court approves more – each
subpart constitutes a question
5. Must be answer w/in 30 days

C. Inspection of Documents
1. Rule 34 – allows party to inspect documents and tangible things in
the possession of other parties
2. Two ways to Inspect documents of non parties:
a) Noticing the depo of a person with subpoena duces tecum
requiring person to bring documents
b) If no testimony is necessary – just send subpoena requiring
non party to produce and permit inspection of tangible items
or to permit inspection on the premises

31
D. Request for Admissions
1. Rule 36 – allows a party to ask another party to admit certain
matters
2. If other party does not object or deny the matter, it is deemed
admitted

E. Physical/Mental Examinations
1. Rule 365 – makes it possible to force a party to submit to a physical
or mental exam
2. Must have a court order (unlike the rest of discovery)

F. Protective Orders
1. Rule 26(c) – allows a court to enter a protective order limiting
discovery when needed to protect a person or party from
“annoyance, embarrassment, oppression, or undue burden or
expense”
2. Trade Secrets – secret information
a) Court may conduct an in camera inspection – provided to
court and not to the other parties
b) Court then distills and provides the parties just what they
need

G. Work Product
1. Rule 26(b)(3) – covers documents and tangible things prepared in
anticipation of litigation
2. Can only be obtained upon a showing of Need and cannot be gotten
from any other source
H. Expert Information
1. Rule 26(b)(4) – governs discovery of information and opinions held
by experts
2. Clear distinction between those who may testify at trial and those
who are retained but will not testify
a) Mandatory disclosures – provide information from one who
may testify
b) If not testifying – usually not discoverable, but upon a
showing of need – may discover

I. Preventing Discovery Abuses

1. Rule 26(g) – attempts to prevent abuse from occurring by requiring
all discovery documents to be signed
2. If violate – court may impose sanctions and the rule authorizes
expenses and attorneys fees
3. Rule 11 is not applicable – Rule 26(g) is the only provision
applicable to discovery

32
 4. Compelled Discovery
a) Rule 37(a) – if party doesn’t comply then party can seek to
compel the discovery and get order from the court
b) Order may impose sanctions

5. Failure to answer Questions at Depo

a) A party or non-party deponent who refuses to be sworn in at
a depo or to answer a question after being sworn in may be
held in contempt of court (Rule 37(b)(1)).
b) Consequences/Options – can certify the question or get
judge on the phone for him or her to decide whether the
question should be answered when the attorney advises
client not to answer.

Chapter 9 – Resolution before Trial

I. Settlement
A. Settlement – most cases settle – judicial approval unnecessary
B. Informal Dismissal – Plaintiff voluntarily dismisses
C. Formal Dismissal – by consent decree entered into by both parties and
signed by court – has effect of final judgment
II. Default
A. Rule 55 – person who fails to respond to a claim can be declared in default
and may have judgment rendered against it
B. 2 Stages:
1. Entry of Default – Rule 55(a)
a) When party fails to plead or otherwise defend the case
2. Default Judgment – after default is entered, claimant may mover for
enter of the default judgment

C. Judgment may be entered by the Clerk if:

1. Claim is for a certain sum, or a sum that can be made certain by
calculation
2. Entry of default was based on the party’s failure to appear
3. The defaulting party is not an infant or an incompetent person
4. The defaulting party is not the US or a federal officer or agency

D. All other cases, the court (judge) enters the default judgment (after motion
and hearing, etc)
E. Rule 54(b) – judgment by default cannot award damages in excess of that
set out in the complaint, nor can it grant relief that is different from that
requested in the complaint

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 F. Challenges to DJ: Rule 55(c) and 60(b)
1. Entry – have the entry set aside by showing good cause why it did
not plead or otherwise defend
2. Default Judgment – have judgment set aside if the party can show
procedural irregularities
a) If procedural is so significant that it results in denial of due
process – automatic grounds for reversal.
III. Involuntary Dismissal
A. Rule 41(b) – allows the court to order dismissal for two reasons:
1. Failure to prosecute – if the plaintiff fails to move the case along to
completion, the court can dismiss it
a) Rare
2. Failure to comply with rules or court order
a) Due to defect – lack of jurisdiction, etc.\
b) Sanction – sanction dismissals are rare
B. Effect – Rule 41(b) – Dismissal will be an adjudication on the merits which
prevents plaintiff from suing the defendant again.
1. Basic Rule – Involuntary Dismissal operates as an adjudication on
the merits unless of the following are true:
a) Court dismisses for lack of SMJ, PJ, or
b) Dismissal for failure to join a necessary party OR
c) Court specifies in the dismissal order that adjudication is not
on the merits
IV. Voluntary Dismissal – voluntary on Plaintiff’s part
A. 3 Ways Case can Be Dismissed:
1. By Notice – if defendant not answered, or a motion for summary
judgment
a) May be done w/o court approval
b) Dismissal effected by Notice of Dismissal filed with court
2. By Stipulation – plaintiff can file a written stipulation of dismissal
that has been signed by all parties who have appeared in the case
a) Can occur at any point during the case
3. By Court Order – plaintiff files a motion asking the court to dismiss
B. Whether the case can be refiled depends on the type of dismissal:
1. If by Court order or stipulation – it is w/o prejudice and Plaintiff
can refile – unless the stipulation states otherwise
2. Dismissal by notice is usually w/o prejudice – but notice of
dismissal is an adjudication on the merits if it is filed by a plaintiff
who has previously dismissed another action based on the same
claim
V. Random Alternative Dispute Resolution (he mentioned it in class – can’t figure
out its relevance here --- Sorry!!)
VI. Summary Judgment
A. Rule 56 – allows filing Motion for Summary Judgment (MSJ) – gives the
court a limited ability to look beyond the language of the pleadings to the
actual facts that each side has marshaled to support its case

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 B. Procedure
1. Party may seek SJ on all claims in the case or a Partial Summary
Judgment on one or more specific claims (Rule 56(a))
2. Both claimant and defendant can move for SJ on a particular claim
– common for both to do so
a) File a motion for SJ
b) Accompany motion by:
(1) Affidavit
(2) Answer to interrogatories
(3) Transcripts of Depositions
C. Standard
1. Rule 56(c) – provides that the court shall grant SJ if there is:
a) No genuine issues of material fact and
b) The movant is entitled to judgment as a matter of law (the
law that governs the issue is in favor of the mover to
prevail)
D. Timing is Critical
1. Rule 56(c) – MSJ must be served at least 10 days prior to the
hearing on the motion
E. Opposition to MSJ – opposing party may submit its own evidence
supporting its side of the argument – including affidavits and memos
F. Effect
1. If SJ granted – has effect as final judgment if granted as to the
entire case
2. Losing party is entitled to appeal – usually heard on de novo (as if
never tried to begin with)
3. If moving party loses – no right to appeal

Chapter 10 – Jury Trial

I. Authority
A. 7th Amendment of US Constitution – right of trial by jury shall be
preserved”
1. Does not create the right – but reserves it – not applicable in all
cases
2. Applies only to civil cases in federal court

II. About Jury Trials

A. Size: Rule 45
1. No fewer than 6 – no more than 12 (usually 9 or 12)
B. Unanimity – Federal rules preserve the requirement of unanimity – but
parties may stipulate to a non-unanimous verdict (Rule 45)

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 C. Demand:
1. Jury Trial is a personal right of the parties and can be waived by the
parties
2. Rule 38(b) – party must serve on the other parties a written demand
for jury within 10 days following service of the last pleading
dealing with the issue for which a jury is demanded.
3. Any party can file a demand

III. Selecting the Jurors

A. Rules 28 USC 1861-1971 – Process for Jury Selection
1. Qualifications – Rule 28 USC 1865
a) A US citizen
b) 18 or older
c) resided for one year or more within the judicial district
which she will serve as a juror
d) can read, write, and understand the English language
e) can speak English
f) suffer no mental or physical infirmity that would preclude
her from rendering satisfactory service
g) no charge pending
h) no charge pending against he for the commission of a crime
punishable by imprisonment for more than one year
i) Has not been convicted for something punishable for more
than one year

B. Exclusions – 28 USC 1863(c) – allows people with certain characteristics

to be excluded from the jury pool according to definite standards
1. Automatic exclusions – military personnel, members of police and
fire departments, gov. officials, etc.
2. Exclusion by Request –
a) Those without the need to show hardship – firefighters,
volunteer rescue squads, etc.
b) Other groups and occupational classes – must demonstrate
undue hardship or extreme inconvenience

C. Voir Dire – questioning of jurors to decide qualifications

1. Attorneys can exclude jurors by challenges for cause and
peremptory challenges

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 2. Challenges for Cause:
a) Number unlimited
b) Grounds for justification:
(1) Personal relationship with anyone involved (judge,
attorneys, witnesses, etc.)
(2) Juror is employed by one of the parties, etc
(3) A strong predisposition for or against one side
based on reasons other than law
3. Peremptory Challenges
a) Limit 3 for each party – exclude juror without reasons
b) US Supreme court can limited the use if it detects patterns
based on race, gender, national origin, etc.

IV. Disqualifying the Judge

A. 28 USC 144 and 455 – congress enacted statutes dealing with the question
of when a judge will be disqualified from hearing a matter
B. Specific Grounds for Recusal – Rule 455(b):
1. judge has personal bias or knowledge of a party
2. personal knowledge of the underlying facts
3. worked on the matter in controversy
4. has been a material witness concerning the matter in controversy
5. judge participated as counsel in the proceeding
6. judge has financial interest
7. judge is close relative to someone involved in the case

V. Jury Instructions
A. Judge instructions the jury as to the law to use in the case
B. Instruction drafted by the parties
C. Objections – atty can object and state reasons to any instruction
D. Federal court and federal rules give the judge lot of discretion

VI. Judgment as a matter of law (aka Directed Verdict)

A. Rule 50 – when clear from the evidence that one side should prevail, the
judge may effectively take the case from the jury by entering JML
B. Both parties can move for this JML
C. Judgment not withstanding the verdict (JNOV) – judge enters a judgment
and ignores the jury verdict
D. Motion for JML made after the verdict must be filed w/in 10 days after the
entry of the judgment

VII. Motion for New Trial

A. Rule 59 -- must be filed w/in 10 days after judgment and cannot be
extended

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 B. Two categories where courts will grant a new trial
1. jury clearly reached the wrong conclusion
2. serious procedural error
C. Can regard the entire case or small limited area

VIII. Claim Preclusion “res judicata”

A. Forces parties to litigate in a single action all claims arising from a single
basic event
B. Goals:
1. provides for judicial efficiency and economy
2. one judgment rather than multiple inconsistent judgments (prevents
inconsistent judgments)
C. A party who litigates a claim in one suit can never raise the same claim
against the same defendant

IX. Issue Preclusion (Collateral Estoppel)

A. Applies if:
1. the same issue is involved in two actions
2. that issue was actually litigated
3. issue actually decided
4. necessary to the decision

X. Full Faith and Credit

A. Article 4, 28 USC 1738
1. FF&C statutes apply between state and federal courts
2. State court have to give FFC to federal court decisions

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