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Civil Procedure Outline

REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!


(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
Both Fed. and state courts must have proper jurisdiction to exercise power. Can sue under both 1331, or 1332
In Fed court, plaintiff must show PJ, Venue, and SMJ in order satisfy due process
Personal Jurisdiction can be found in a number of ways, including:
Intro at beginning of
Domicile-legal residence
answer!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Consent-D agrees to be sued
Roadmap/Just state the
Physical Presence- D was served in the particular state (Tag jurisdiction Burnham)
ruleno facts!!!
Minimum Contacts - TNOFP&SJ
Courts have evaluated the due process analysis differently for present and absent defendants.
Minimum Contacts The SC has determined that a court has personal jurisdiction over an absent defendant when
1. that D has sufficient minimum contacts with the forum state that jurisdiction would comport with our notions of
fair play and substantial justice, and
2. there are no factors that make the exercise of that jurisdiction unreasonable. These factors are:
1) whether the forum is somehow unconstitutionally inconvenient for the defendant (Asahi);
2) whether the P has an alternative forum (in which case dismissing for PJ might not be problematic for P); and
3) whether the forum state has an interest in the proceedings (to defend its citizens or enforce its policies).
These factors very rarely prevent the exercise of jurisdiction
Rule: To satisfy the requirement of minimum contacts, the D must have purposefully engaged in contacts with the
forum state that make it fair to hale him into court.
Such contacts may result when a defendant purposefully avails himself of the benefits of the forum state (for
example, by benefiting from sales to customers there) or purposefully directs his activities at the forum state
(for example, by directing harmful activities at residents of the forum state. Keeton)
Long-Arm provision- Authorizes a court to exercise jdx over a nonresident.
McGhee v. International Life Insurance Co.
In finding that a single insurance contract was sufficient to confer jdx over claims arising out of the policy. The SC
found the nature and quality and the circumstances of the Ks commission in Cal created a reasonable expectation
that the D might be sued for breach of that K.
Hanson v. Denkckla
In finding that Ps unilateral contacts with the forum were not relevant for purposes of establishing PJ over a
nonresident D. The Ct. held that PJ is not lawful unless the D "purposefully avails itself of the privilege of
conducting activities with the forum state, thus invoking the benefits and protection of its laws."
World-Wide Volkswagen Corp.
In holding that Ok could not exercise JDX over an out-of-state auto dealer when the family purchased a car in NY
and got involved in an accident in OK. The Ct. found that Ds conduct and connection with the forum state had to be
of such a nature that he should reasonably anticipate being haled into court there, rather than the foreseeability that
a product will find its way into the forum state that was critical for the DP analysis. Merely placing products in the
"stream of commerce" is insufficient to provide minimum contacts with the states where the products end up
Keeton v. Hustler Magazine, Inc.
Facts: P, a resident of NY, brought suit in NH against Hustler, D. P's only connection with the state was that copies
of an magazine she produced circulated there. D's connection with the forum was that 10k-15k copies of its
magazine (small percentage of total publication) circulated there.
Rule: The "fair warning" requirement is satisfied if the D has "purposefully directed" his activities at residents of
the forum
Holding: (1) P's contacts-or lack thereof-were irrelevant; (2) the D deliberately exploited the NH market and must
reasonably anticipate being haled into court there; and (3) NH had a significant interest in redressing the injury
(libel) to a nonresident, because it could thereby discourage the deception of its citizens
Calder v. Jones
The SC held that writing an allegedly libelous article about a Cal. resident could give rise to PJ in Cal. over an
absent FL defendant. The D in Calder used Cal sources to write his article, and the P was in California at the time
that the article was published. It was thus unquestioned that the defendant knew that he was causing harm in Cal.
Calder effects test, a defendant must (1) commit an intentional act that is (2) expressly aimed at the forum state that
(3) causes harm that the defendant knows is likely to be suffered in the forum state.
Burger King Corp. v. Rudewicz
Facts: Burger King (P) entered into a franchise contract with D and his partner, MI residents that allowed D to open
a BK franchise in MI. When D fell behind on its payment, P sued for breach of K in FL.
Holding: The "purposeful availment" requirement ensures that a D will not be haled into a jurisdiction solely as a
result of "random," "fortuitous," or "attenuated" contacts, or of the unilateral activity of another party or a third
person. JDX is proper where the contacts proximately result from actions by the D himself that create a "substantial
connection" with the forum State. Where the D "deliberately" has engaged in significant activities within a State, or
has created "continuing obligations" between himself and residents of the forum he manifestly has availed himself

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
of the privilege of conducting business there, and because his activities are shielded by the benefits and protections
of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that
forum as well.
Asahi Metal Industry Co. v. Superior Court
Facts: P, a motorcyclist, was injured in Cal when his front tire lost pressure. P sued the Taiwanese manufacturer,
which impleaded Asahi, D, the Japanese manufacturer of the tubes valve assembly.
Rule: Even when minimum contacts are present, PJ may be lacking if the exercise of jurisdiction would
be so unreasonable that it becomes unfair under the DP clause. The Ct. has listed a number of factors
that affect this analysis, including:
(1) the burden on the D
(2) the interest of the forum state
Reasonableness of the exercise of jurisdiction
(3) Ps interest in obtaining relief, also
(4) the interstate judicial systems interest in obtaining the most efficient resolution of controversies and
(5) the shared interest in the several states in furthering fundamental substantive social policies
Due process allows jurisdiction when the D has certain minimum contacts such that the maintenance of the suit does not
offend TNOFP&SJ (Shoe). Those contacts must be such that the D may reasonably anticipate being haled into court
in the forum (WWVW). Once there is at least one sufficient contact, court may balance burden on the D, forum states
interest, Ps interest, interstate justice system, and the shared interest of the several States (id)
purposeful availment and purposeful direction are two different ways of making contacts with a state. If one does
business in a state or otherwise enjoys the benefits of that state, one is availing oneself of the states protections; if one
reaches into a state to cause harm, one is directing ones activities into the state.
Calders effects test depends on the intentional acts of the reporter aiming his harm into the state of California. This
implies that the defendant knew his victim was in the forum. In Calder, the reporters clearly knew that P was in Cal
General jurisdiction: the continuous corporate operations within a state are so substantial and of such a nature as to justify
suit against it on causes of action arising from dealings entirely distinct from those activities. Helicopteros
Goodyear
The Ct did not find jdx over a foreign subsidiary of a US corporation when the D did not engage in activity
that was continuous, substantial and systematic and thus, the D would not be treated as if they were
domiciled in that state.
Daimler
The Corporation was not amenable to suit in the forum state for injuries allegedly caused by conduct of the
foreign subsidiary which took place entirely outside the US.
PJ for Corporations: at home; established an agent for service of process; it is registered to do business, sufficient
minimum contacts TNOFP&SJ, and those contacts give rise to my lawsuit; consent
VenueGiven the facts of the case, where is venue proper? Did P file suit in one of those places?
1391(b) Venue Generally venue is proper (waivable defect)does not apply to removed actions!
1. in any district where a D resides, if all Ds are residents of the same state.
2. where a substantial part of the events or omissions giving rise to the claim took place
3. if ~ (1 or 2) any district in which any D is subject to the Cts PJ [very unlikely]
Residency
Persons: where they are domiciled.
Venue for CorporationsA Corporation resides in a state where it is subject to PJ for the action. 1391(c)(2)
If the state has multiple districts district which D has MC, if no MC then the district with most sig. contacts
Non-US Resident: any district
1404. Change of Venue
(a) For convenience, in the interest of justice, a Ct. may transfer any CA action to any other district where it might
have been brought or to any district to which all parties have consented.
(b) By motion, consent, or stipulation by the parties, may be transferred at the discretion of the Ct.
*Change of courtroom, not change of law
*Factors for change of venue (1) the convenience of witnesses; (2) the location of relevant documents and
the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the
operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative
means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's
choice of forum; and (9) trial efficiency and the interests of justice, based on the TOC . J. Lyons Co.
1406. Cure or waiver of defectsLAW CHANGES
Permits transfer from one place of improper venue to place of proper venue
Some Cts permit transfer for venue defects, and also PJ defects
Erie: A federal court sitting in diversity applies the same substantive law as the state court in which it sits

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
Subject-matter jdx (SMJ): The authority of a ct to hear cases or a particular type of cases relating to a specific subject matter
Federal Question Jurisdiction (FQJ)- the SMJ of United States federal courts to hear a civil case because the P has alleged a
violation of the US Constitution, federal law, or a treaty to which the United States is a party, admiralty law. 1331
Mottley
Rule: The federal question must arise in the Ps well-pleaded complaint (and not, e.g., in a defense).
Rule: When the federal issue is key to both the claim and the defense, Mottley does not prevent 1331 SMJ
Well-pleaded complaint rule: A suit "arises under" federal law for 1331 purposes "only when the plaintiff's
statement of his own cause of action shows that it is based upon federal law.
Holding: An anticipated defense in a well-pleaded complaint does not give rise to FJ because it does not arise
under federal law.
Merrel Dow
The ct. found federal jurisdiction unavailable for a state tort claim resting in part on an allegation that the defendant
drug company had violated a federal branding law. Courts will be concerned if the Ps complaint looks like it will
open the door to a flood of lawsuits that Congress didnt intend to be in federal court, The Ct held that claimed
violations of the FDCA as elements of a state cause of action not to be was "substantial" enough to confer FQJ.
Grable
Facts: IRS seized Ps property to satisfy a federal tax delinquency. P brought a quiet-title action.
Rule: A state law claim may nevertheless give rise to 1331 jdx if the embedded federal issue is: (1) necessarily
raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting federalstate balance approved by Congress.
Holding: The national interest in providing a federal forum for federal tax litigation is sufficiently substantial to
support the exercise of federal-question jurisdiction over the disputed issue on removal.
Gunn
Facts: P argued that the state law claim alleging malpractice in the handling of a patent case must be brought in
federal court.
Rule: The 3rd prong of the Grable test, means substantial to the federal system as a whole
Holding: P failed to show that the federal issue in the case carried the necessary significance. The need to decide a
hypothetical patent case is not substantial enough to deprive the state court of jdx. A state court decision in a state
law malpractice case relating to patent law will not substantially affect federal patent law
The SC clarified in Gunn v. Minton that the question must be substantial to the federal system as a whole. So, for example, it
is substantial to the federal system how the Internal Revenue Code is interpreted when the Internal Revenue Service is
alleged to have improperly seized property (Grable); but it is not substantial to the federal system how patent law is
interpreted to resolve a single malpractice case involving patent law (Gunn).
* Grable is the test only for cases in which the FQ is embedded in a state-law claim.
*For cases in which the FQ stands on its own: there is jdx unless the federal claim "is so attenuated and unsubstantial as to be
absolutely devoid of merit." Newburyport Water Co. v. City of Newburyport
1332. Diversity Jurisdiction, amount in controversy
District Cts shall have original jdx if:
1. Amount in controversy exceeds 75K, and
2. Is between citizens of different states; or
3. Citizens of a state and citizens of a foreign county
It is Ps complaint that must show that basis for diversity jdx
Citizenship is determined at the time of the complaint
Complete Diversity: Every P must be diverse from every D.
Rule: For diversity jdx, domicile and citizenship are synonymous. Sheehan
Domicile: 2 part test: 1) presence in the purported state, and 2) intention to remain their indefinitely
Corporations 1332(c): Corporations are deemed citizens of (1) any state of incorporation, (2) principle PoB.
Rule: A corporations "principal place of business" refers to the place where the corporation's high level officers direct,
control, and coordinate the corporation's activities. The corporation's "nerve center." The "nerve center" will typically be
found at a corporation's headquarters. Hertz
Rule: Cts determine the amount in controversy by reference to the Ps complaint, P may aggregate claims, Ps request for
injunctive relief must be valued in the determination. Dismissed only if it is apparent to legal certainty that P cant recover amt
1441. Removal. Who can remove?--Not Plaintiffs, not forum defendants, not Defendants who blew the deadline
may be removed by the D or the Ds, to the district court of the United States for the district and division embracing the place
where such action is pending 1441(a)*** Possible q. The only thing you worry about is what is the federal district Ct were
this case was filed at?
Forum Defendant Rule: such actions shall be removable only if none of the parties in interest properly joined and served as
Ds is a citizen of the state in which such action is brought. 1441(b).
If the case is removable when 1st filed,
All defendants must consent to removal. 1446(b)(2)(A)

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
A removed case is within federal SMJ if the case could have been filed within the original SMJ of the federal courts 1441).
30 Days after receipt by the D. 1446(b)(1)
1 year outside limit on removal
Despite the fact that D is the one who removed to fed. ct., it is Ps complaint that must be analyzed for the required FQ.
Pleading
Rule 7. Pleadings allowed
1. Complaint
2. Answer to a complaint
3. Answer to a counterclaim
4. Answer to a crossclaim
5. Third party complaint
6. Answer to third party complaint
(b) motions. Request for a ct order must be made by motion. It must
1. be in writing, unless made during hearing or trial
2. state with particularity the grounds for seeking the order
3. state the relief sought
Rule 8. General Rules of Pleading
a. Claim for relief must contain
(1) Short and plain statement of the grounds for the courts jurisdiction;
(2) Short and plain statement of the claim showing that the pleader is entitled to relief, and
(3) Demand for relief sought
Conley provided that a P only need to plead a short and plain statement that will give D fair notice of what Ps case is
and grounds upon which it rest. But that standard was changed with Twiqbal. The new standard requires P to plead a
short, plain, and plausible statement showing that the pleader is entitled to relief. The Ct now applies a
plausibility test where the Ct 1) strikes all legal conclusions from the complaint; and 2) applies the plausibility analysis
to the allegations that remain. A complaint must contain sufficient factual matter, accepted as true, to state a claim of
relief that is plausible on its face.
b. Defenses; Admission and denials
1. In response to a pleading, party must state in short and plain terms its defenses to each claim and admit or deny
the allegations or say IDK
a. Must respond to substance
b. Party that intends in good faith to deny everything can put in a general denial that denies all claims that
arent specifically designated
c. Must admit what is true and deny the rest
i. Failure to deny = admitted
2. Ds should answer every claim asserted against it, even when it does not specifically name them as a party or
when allegations are copied
a. Answers should narrow litigable issues and proceed on the merits.
b. Also, vague defenses may be amended, but should not be taken as admitted.
c. Affirmative Defenses
Twiqbal standard also applies to affirmative defenses. See majority rule below
Majority Rule: Affirmative defenses must include sufficient factual detail to suggest that the defense may
plausibly be in play
Courts applying Twiqbal to affirmative defenses emphasize fairness and efficiency. In Racick, the
court held that what's good for the goose is good for the gander. In other words, if the P must comply
with the plausibility standard, it is only fair that the D should have to do the same. Furthermore,
requiring the D to assert only plausible defenses will keep boilerplate assertions from cluttering the
docket and creating unnecessary discovery and work for judges and attorneys both.
Some courts believe that the spirit of the FRCP also supports the application of Twiqbal to affirmative
defenses. Rule 1 states that all rules should be construed and administered to secure the just, speedy,
and inexpensive determination of every action and proceeding. By allowing the defendant to assert
every affirmative defense they can think of, the determination of the action becomes slower and more
expensive. Moreover, a slower and more expensive trial may discourage parties from asserting valid
claims to begin with, thereby depriving them of justice. Finally, the FRCP serve to prohibit
gamesmanship. The naked assertion of a defense, raised only to harass the plaintiff or delay the trial, is
certainly the type of gamesmanship that the Rules seek to prevent.
Minority Rule: Affirmative defenses do not require as much factual information due to the differences in the
language of 8(a) and 8(b) and 8(c)
The courts that do not apply the Twiqbal plausibility standard to affirmative defenses primarily do so
by emphasizing the textual difference between Rule 8(a) (for complaints) and Rule 8(b) and 8(c) (for

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
answers). FRCP 8(a) requires that a party making a claim show her entitlement to relief, whereas
8(b) and 8(c) require that a party making a defense need only state that defense. In other words, the
language of Rule 8 indicates that while the claimant must offer at least some support to show that she
has a claim, no similar burden is imposed on those who are defending against a claim. On this view, a
showing must be plausible, while a statement need not.
d. Party can set out 2 or more defenses, ok as long as one of them is sufficient
Rule 4: Summons must:
(f) Individual in other country
Rule 9(b) In alleging fraud or
name the Ct and the parties; (a)(1)(A)
(1) any international recognized
mistake, a party must state
be directed at the D. (a)(1)(B)
means of service that gives notice.
with particularity the
served with a copy of the complaint. (c)
Rio: 4(f)(3) is just as effective as (1)
circumstances constituting
By person (not a party) at least 18. (c)(2).
and (2), don't have to do those first
fraud or mistake. Malice,
Waiving Service (not a method of service) (d)
intent, knowledge, and other
60 days to reply after the request is sent (normally 21d)
conditions of a person's mind
can be mailed (only way mail can be used)
may be alleged generally
D does not waive any objections jdx by waiving service
Individual w/i the US. (e)
1) following state law
2) doing any of the following:
a. personal service,
b. leaving copy at persons dwelling with person of suitable age and discretion who lives there,
c. delivering a copy to an agent authorized by appointment or by law
Rule 5 Serving and Filing Pleadings
Each of the following must be served on every party
a) an order stating that service is required;
b) pleading filed after original complaint, unless court under 5c rules otherwise;
c) discovery paper required to be served on a party, unless court says otherwise;
d) written motion, except an ex parte motion; and
e) written notice, appearance, demand or offer of judgment
No service is required on a party in default for failure to appear
Rule 12 Defenses and Objections (2 PART TEST 1) PROCEDURE, 2) Substance !!!!!!!!!!!!!!!!!!!!)
D must serve an answer w/i 21d after being served with the summons and complaint; or 60d the parties waiver
(b) Defenses may be raised by motion or in responsive pleading (PROCEDURE AND MERIT)
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
(2)-(5) are waived if not raised in the FIRST pleading or motion filed: The only thing you can do is 15(a)(1) amendment as
matter of course. (Everything but SMJ is waivable) 12(h)(1).
A petition for removal is not a motion under Rule 12
Motion for more definite statement (disfavored) 12(e)
Motion to strike. Used if the complaint is full of redundant, immaterial, extraneous stuff 12(f)
Must be combined with any of the 12(b) disfavored defenses
Waive any defense that was available at the time of the motion. 12 (g)(2)
If a responsive pleading it not required, an allegation is considered denied or avoided. 8(b)(6)
Rule: A motion to dismiss under Rule 12 must be (1) procedurally proper and (2) meritorious, in to be granted
1) To be procedurally proper, a Rule 12 motion must be timely and not waived. A party defending against a claim
must serve its motion w/i 21d after being served with the [pleading]
2) To be meritorious

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
15. Amendment; amend
(1) As a matter of course!!!!!. Once within
(A) 21 days after serving it
Rule 5 for serving amended complaint (already a party to the proceeding
(2) Opposing partys written consent, or Cts leave
(3) Respond w/i time to respond to normal pleading or 14d of service whichever is later
(b)(2) If the parties treat something as if was pleaded, the Ct. treats it as if it pleaded
(c) Relation Back of Amendments.
1) An amendment relates back when:
a. The law that provides the SoL allows for relation back;
b. the amendment asserts a claim or defense that arose out the conduct set out in the OP; or
c. changes the name of the party, if 15(c)(1)(B) and actual notice of the lawsuit w/i 120d (4m)
i. the party receives notice of the action and will not be prejudiced in defending merits;
ii. knew or should have known, but for a mistake concerning the proper partys identity
Rule: For a newly added action to relate back, the basic claim must have arisen out of the conduct set forth in the original
pleading. 15(c)(1)(B)
Williams
The 2nd Circuit found that the denial of the Ps motion to amend was improper because Cts should freely give leave
to amend where justice so requires. The Ct. need not give leave to amend when the Am would satisfy one of the
Foman v. Davis factors.
(1) undue delay, (2) bad faith or (3) dilatory motive on the part of the movant, (4) repeated failure to cure
deficiencies by previous amendment, (5) prejudice to the opposing party, and (6) futility of amendment
would support a denial. Absent such special circumstances, it would be an abuse of discretion for a court
to deny leave to amend.
-The SC, in Mayle emphasized that the claim, to relate back, must share the "same core facts" as the original claim and
cannot be different in both time and type. The 2nd Cir. has concluded that the D must have received "fair notice" of the
possibility of the amended claim: the plaintiff's original complaint must foreshadow the later claim.
-Tran, who (according to the Second Circuit) could not have anticipated any claim regarding fraud or bribery arising from
Mr. Trans original fair-pay claim. Thus the Ct. held that the Ps RICO claim was time-barred by the statute of limitations
-The key to SCTO is whether the original complaint put the defendant on notice that the other claim might arise later
Rule 13. Counterclaim and Crossclaim
P sues D
If D thinks that it is Ps fault, D is obligated to bring this claim (a)
If D has a separate claim, he may being the counterclaim (b)
Crossclaim between Co-parties Permissive, the co-party may bring the claim, not obligated to do so (g)
Rule 41. Dismissal of Actions.
Voluntary and involuntary
A voluntary dismissal is w/o prejudice unless the D has previously voluntarily dismissed
Sanctions- Rule 11
a. Every pleading or written motion must be signed by at least one attorney
i. 11(b) Representation to the court
1. By presenting these papers attorney certifies that to the best of persons knowledge, information and
belief, formed after a reasonable inquiry
a. Is not for improper purpose, like harassment, unnecessary delay, or needless cost
b. The claims defenses and other contentions are warranted by existing law or by a good faith
desire to change the law
c. The factual contentions have evidentiary support, or if specifically identified, will likely have
evidentiary support after discovery
d. Denials are warranted on evidence or reasonably based on belief or lack of info.
e. An attorney may be in violation when he had responsibility for false documents when he has
not reasonably inquired as to their veracity
ii. An attorney is only entitled to rely on clients statements when these statements are objectively reasonable
b. Sanctions-11(c)
i. If court determines, after notice and a reasonable opportunity to respond, that Rule 11(b) has been violated, the
court may impose an appropriate sanction
c. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that
allegedly violates Rule 11(b)
i. SAFE HARBOR DOCTRINE: Must be served under Rule 5 but must not be filed if the challenged paper or
claim is withdrawn or corrected within 21 days of service

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
1. Court may still award attorneys fees incurred for motion
11(c)(3) On its own the court may order an attorney to show cause why conduct was not in violation of Rule 11(b)
i. No safe harbor doctrine here. Since the standard for a sua sponte show cause order is akin to contempt, there
was bad faith and therefore no need for a safe harbor.
ii. Objective reasonability applies when there is a chance for amendment or withdrawal. For sua sponte orders,
there must be a SUBJECTIVE bad faith requirement
iii. A complaint is frivolous when a reasonable inquiry would have rendered it void. Court will assign attorneys
fees for opposing the motion, and will not inquire into what respondent did, but on what petitioner did.
DISCOVERY RULES 26, 30, 31, 34, 36, 37
a. Rule 26- Initial disclosures
i. W/o awaiting a request- 14 days of 26(f) conference about discovery rules
1. Name and address of each individual likely to have discoverable information that the party may
use to support its claims or defenses
a. There is a good faith and a showing requirement to discover information on the subject
matter, a more broad idea than info just relevant to claims and defenses
b. Scope of discovery determined according to the reasonable needs of the action. Court
may permit broader discovery depending on the circumstances, nature of the claims, and
scope of the request
i. The standard of determining whether info is relevant for pretrial discovery is
substantially broader than standard of relevance at trial. Relevance /=
admissibility
2. Party is not excused because it has not fully investigated. Must make initial disclosures based on
the information reasonably available to it.
a. Even when e-documents are not reasonably accessible, good cause may require their
access anyway
i. Reasonably accessible takes into account not only the accessibility of
documents format (tape, hard drive, etc) but also of the filing system used to
store it (would it result in undue burden or cost?) but still subject to a GC test
1. Specificity of request
2. Quantity and quality of same info stored in other more easily accessible
formats
3. Likelihood of obtaining unique info
4. Importance of issues at stake
5. Parties resources
ii. Protective orders- 26(c)
1. Any party or person from whom discovery is sought may move for a protective order. Must
include a certification that movant has conferred in good faith with other affected parties in an
effort to resolve the dispute. Courts may
a. Forbid the disclosure
b. Specify terms
c. Prescribe a different method
d. Forbid inquiry into certain matter
e. Designate who may be present while discovery is conducted
f. Require that depo be sealed
g. Require that trade secret or other confidential research not be revealed
i. Courts have broad latitude to grant protective orders but they require good cause
iii. Pretrial disclosures
1. Name and number of each witness
d.

2.

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
iv. Privilege and work product
1. To claim privilege or work product, the party must expressly make that claim and describe the
nature of the documents
2. Work Product (Hickman) 26(b)(3)
a. Documents or tangible things (and otherwise discoverable)
b. Prepared in anticipation of litigation
c. By or for another party or its representative
i. Exception:
1. Substantial Need by the other party
2. Inability to get by other standards
d. Hickman Rule: Where there is an attempt, without purported necessity or justification, to
secure written statements, private memoranda, and personal recollections prepared or formed
by an adverse party's counsel in the course of his legal duties, it falls outside the arena of
discovery.
3. Rule: Ordinary course of business communication from your attorney are not protected
a. Two elements to this rule:
1. Temporal,
2. Purposive
4. Attorney-client privilege applies only if
a. the asserted holder of the privilege is or sought to become a client;
b. the person to whom the communication was made
i. is a member of the bar of a court, or his subordinate and
ii. in connection with this communication is acting as a lawyer; and
c. the communication relates to a fact of which the attorney was informed
i. by his client
ii. without the presence of strangers
iii. for the purpose of securing primarily either
1. an opinion on law or
2. legal services or
3. assistance in some legal proceeding, and not
iv. for the purpose of committing a crime or tort; and
d. the privilege has been
i. claimed and
ii. not waived by the client. United Shoe Machinery Corporation
5. Attorney client privilege
a. attorney and
b. client
c. private communication
d. in confidence
e. for the purpose of seeking/giving legal advice
f. *not for the purpose of committing a crime or fraud
g. *not waived
i. if waived, all materials involving the SUBJECT MATTER of the conversation is
discoverable
h. 26 (c)- Ordinarily, party may not discover documents and tangible things that are
prepared in anticipation of litigation by a party or representative
i. But subject to discovery if other party shows that cannot, w/o undue hardship,
obtain their substantial equivalent by other means
ii. An attorneys private thoughts, conversations are not discoverable
1. fact work product requires good cause, opinion work product is not
usually discoverable
v. Party may not seek discovery before the parties confer under Rule 26 (f)
vi. 12(e)- Party who has made a disclosure must supplement or correct its response
1. In a timely manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if this knowledge has not already been made known to other party

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
b.

c.

d.

e.

3.

Depositions by oral Examination


i. May depose any person w/o leave of court- subpoena third parties
1. Unless parties have not stipulated to deposition and
a. It would result in more than 10 depositions under 30 and 31
b. Deponent has already been deposed
c. Deponent is in prison
ii. Must give notice to other parties and give name and address
iii. May include a Rule 34 request to bring documents and tangible things to deposition
iv. Corporations may name an agent who is competent to answer the questions set forth
v. Objections must be noted on the record, but examination still proceeds
1. May instruct a deponent not to answer when necessary to preserve a privilege, enforce a limitation
ordered by the court, or to present a 30(d) motion to terminate
vi. Depos are limited to 1 day of 7 hours
1. Court must allow additional time to fairly examine, or if any delay
2. Court may impose sanctions on one who impedes delays or frustrates fair examination
vii. Grounds to terminate only if in bad faith or a manner that unreasonably annoys, embarrasses, or oppresses
the deponent
viii. 30(g) Failure to attend or serve a subpoena may get sanctioned with attorneys fees
Interrogatories to Parties Rule 33
i. 25 written questions including subparts
ii. No objection merely for opinion or contention that relates to facts or laws.
iii. Must be answered by the party to whom directed
1. Every question answered
2. Objections must be stated with specificity
3. Must be signed, and any attorneys objections must be signed
Request for production of documents, tangible items, and entry onto land not privileged- Rule 34
i. Request must
1. Describe with reasonable particularity each item or category of items to be inspected
2. Must specify a reasonable time, place, and manner for the inspection
3. May specify the forms in which e-information is t be produced
ii. Objections and responses within 30 days
1. Each item must be permitted or objected to, and given reasons for objection
iii. Order of operations
1. RFP
2. Receive objections
3. Confer in good faith
4. Motion to compel
a. If granted, court must award attorneys fees and expenses, unless these are substantially
unjust
5. If you violate a court order in bad faith, 37(b) sanctions
Requests for admission Rule 36
i. Can ask for the admission of any facts or application of law to facts, or opinions about either
ii. Answer
1. Must admit or deny, or state why party cannot truthfully answer
iii. Objections
1. The grounds for objecting to a request must be stated. Cannot object just because the request
presents a genuine issue for trial

Judgment
a. Judgment on the merits
i. Settlement
ii. Voluntary Dismissal
iii. Involuntary Dismissal
iv. Default judgment
v. Dismissal as sanctions for discovery violations
vi. Judgment on the pleadings
vii. Summary Judgment

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
b.

c.

Summary Judgment. Rule 56


i. The judgment sought should be rendered if the pleadings, the discovery and disclosure material on file, and
any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.
ii. Adickes v. Kress
1. Held that D failed to carry its burden showing the absence of any genuine issue of material fact when
the P (white teacher) sued for a 1983 violation after she was refused service at a lunch counter when
she was accompanied my her negro students.
iii. Ct will construe evidence in favor of the nonmovant
1. If a RP could debate the issue, SJ is inappropriate
2. Inferences are made in favor of the nonmovant
iv. Fully heard. P may move for SJ on only part of the claim or defense as long as opposing party has been fully
heard on the issue
v. A P who must prove her case by clear and convincing evidence is more likely to lose SJ than if she needs only
show preponderance of the evidence. Anderson v. Liberty Lobby.
vi. A movant need not introduce evidence to support SJ, can point to the record to show that non-movant has no
chance of meeting burden of production, thus trial is pointless. Celotex
vii. Summary Judgment is proper:
1. Unless non-movant can show there is an issue for trial. Celotex
2. There is no factual dispute at all
viii. Summary Judgment is inappropriate if:
1. there are genuine factual issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.
a. i.e., if reasonable minds could disagree, summary judgment is improper.
ix. Evidence
1. Movant must show the absence of any genuine issue of fact
2. Submissions must be viewed in the light most favorable to the non-movant.
3. Inferences must be drawn in the light most favorable to the non-movant.
4. Judge must ignore all evidence against the nonmovant that a jury would be free to disbelieve.
Judgment as a Matter of Law. Rule 50
i. If a party has been fully heard on an issue during a jury trial and the court finds that a RJ would not have a
legally sufficient evidentiary basis to find for the party on that issue, the court may:
1. resolve the issue against the party; and 50(1)(a)
2. grant a motion for judgment as a matter of law against the party on a claim or defense. 50(1)(b)
ii. Motion for JML may be made at any time before the case is submitted to the jury.
iii. Fully heard: Ct can grant motion for JML only on grounds which the non-moving party has been afforded an
opportunity to reply.
iv. Renewed Motion for Judgment as a Matter of Law: Rule 50(b) [judge cannot make sue sponte]
a. Timing: must be filed within 28 days of the entry of judgment.
b. Grounds: The grounds for granting Renewed judgments as a matter of law are identical to those of granting
a motion for judgment as a matter of law: no legally sufficient evidentiary basis for a reasonable jury to
find for the party opposing the motion.
c. Limits on Renewed Motion: Renewed JML cannot be granted unless the moving party made a motion of
JML during the trial itself. 50(b) motions can assert only those grounds that were previously asserted in a
50(a) motion.
d. Must make 50(a) motion in order to make 50(b) motion. Unitherm
e. If court grants 50(b) motion, Ct must rule on 50(c) motion (conditionally rule on a right to a new trial and
state grounds for its ruling
f. Conditional New Trial Decision
a. If judge thinks evidence is so insufficient that it fails as a matter of law:
a. Grant JML
b. Grant NT conditionally (so that, if JML reversed by appeals court, new trial is held
because the jurys verdict was against the great weight of the evidence)
c. Verdict would not be reinstated; instead, NT
b. If judge thinks evidence is sufficient, and debate is about whether the law should be interpreted
one way or the other:
a. Grant JML
b. Deny NT conditionally (so that, if JML reversed by appeals court, no NT is held)
c. Verdict would be reinstated if JML reversed

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
g.

4.

Evidence
a. Submissions must be viewed in the light most favorable to the non-movant
b. Inferences must be drawn in the light most favorable to the non-movant
c. Judge cannot make credibility determinations or weigh the evidence
d. Judge must ignore all evidence against the nonmovant that a jury would be free to disbelieve
e. Disinterested witnesses who are un-impeached and un-contradicted: the judge has to believe that
witness
New Trial. Rule 59
a. Timing: Must be made within 28 days of the entry of judgment
b. Grounds: Not expressly listed, any reason for which a new trial has been granted in an action at law in federal
court. Types:
a. Verdict is against the weight of the evidence
b. Damages were excessive
c. The trial was not fair to the moving party
d. Substantial errors in the admission or rejection of evidence or instructions to the jury
e. Newly discovered evidence
f. Impermissible argument by counsel
g. Misbehavior by counsel, judge, or members of the jury
c. 50(b) and 59(a) motions can be made at the same time
d. 59(e) motion allows you to fix something in the judgment within 28 days
a. Relief from Judgment. Rule 60
a. Corrections based on clerical mistakes
b. Some Courts construe it liberally to do justice
c. Ct, itself, can correct typos, not time limited. 60(a)
d. Grounds for relief of Final Judgment
a. Mistake, inadvertence, surprise, or excusable neglect
b. Newly discovered evidence
a. Evidence existed at the time of the trial, and
a. Could not have had it in your possession due to circumstances beyond parties control, &
b. Would have an effect on the judgment
c. Fraud, misrepresentation, or misconduct by an opposing party
a. has to be proven by clear and convincing evidence
d. Void
a. If it is entered against your due process rights
e. Judgment has been satisfied
a. Arises only for default judgments
f. Any other reason that justifies relief
d. Appeals
Joinder
i. First ask whether joinder is required of permitted by the Rule (the answer is usually yes)
ii. If so, ask whether there is SMJ over the claim
b. Rule 18(a)
i. A party [already] asserting a claim ... may join ... as many claims as it has against [that] opposing party.
c. Permissive, not compulsory
i. May (not must) join any claims against defendant [SMJ issues]
d. Rule 18(a), more detail
i. A party [already] asserting a claim [FRCP 8],
ii. counterclaim [FRCP 13(a), (b)],
iii. crossclaim [FRCP 13(g)], or
iv. third-party claim [FRCP 14]
v. may join, as independent or alternative claims, as many claims as it has against [that] opposing party.
e. Rule 13. Counterclaim
a. (a) Compulsory Counterclaim
(1) In General. A pleading must state as a counterclaim any claim that--at the time of its service--the
pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's
claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
13(a)(2) Exceptions. The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject of another pending action; or
(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any
claim that is not compulsory.
a) Painter
a. Rule: To determine if a counterclaim is compulsory:
i. are the issues of fact and law raised in the claim and counterclaim largely the same;
ii. would claim preclusion bar a subsequent suit on the party's counterclaim, absent
13(a) compulsory counterclaim rule;
iii. will substantially the same evidence support or refute the claim as well as the
counterclaim; and
iv. is there any logical relationship between the claim and counterclaim.
b. A court need not answer all these questions in the affirmative for the counterclaim to be
compulsory. Rather, the tests are less a litmus, more a guideline.
b) Other Courts compulsory test:
a. the essential facts of the claims must be so logically connected that considerations of
judicial economy and fairness dictate that all the issues be resolved in one lawsuit.
c) 13(g) Cross-Claim against Co-Party
a. A pleading may state as a crossclaim any claim by one party against a coparty if the claim
arises out of the transaction or occurrence that is the subject matter of the original action or
of a counterclaim, or if the claim relates to any property that is the subject matter of the
original action.
i. Example:
1. A sues both B and C for Negligence in a 3-car accident
2. Can B now join against C, a cross-claim from the same accidence? Y
3. Can B now join against C, an unrelated cross-claim under the CA act? N
d) THINK ABOUT JOINDER MYTHODICALLY
a. A (Al) sues both B (Ga) and C (Ga) for negligence in a 3-car accident
b. Think about A & B
i. A must join any other claim she has out of the T&O
ii. A may join any other claims she has against B (18)
iii. B must join counterclaims arising out of the T&O as any of As claims (13a)
iv. B may join any other counterclaims he has against A (13b)
v. A must join any counterclaims she has out of the same T&O as Bs counterclaims
(13a)
vi. B (C) may join any crossclaims he has against C(B) out of the same T&O (13g)
vii. If B chooses to bring the crossclaim, he must then join any other crossclaims he has
out of the same T&O
viii. B may join any other claim he has against C (18)
ix. C must join counterclaims arising of the same T&O as any of Bs crossclaims (13a)
x. C may join any other counterclaims he ahs against B (13b)
c. Joining Parties
i. May (or must) the claim be joined?
ii. May the party be joined?
iii. If so, ask whether there is SMJ over the claim under title 28
iv. And ask whether the is PJ over the party

Civil Procedure Outline


REMEMBER LAY OUT YOUR ANALYSIS: CONNECT THE DOTS!
(1) PROCEDURE (2) SUBSTANCE!!!!! EVERYTHING MUST HAVE 1 AND 2!!!
e)

Rule 20(a) Permissive Joinder.


a. (1) Plaintiffs. A person may join in one action as Ps if:
i. (B) they assert any right to relief jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and
ii. (B) any question of law or fact common to all plaintiffs will arise in the action
b. (2) Defendants. A person may be joined in one action as Ds if
i. (A) any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and
ii. (B) any question of law or fact common to all defendants will arise in the action.
f) A party seeking joinder of claimants under Rule 20 must establish two prerequisites:
a. 1) a right to relief arising out of the same transaction or occurrence, or series of transactions
or occurrences, and
b. 2) some question of law or fact common to all persons seeking to be joined. Alexander
g) Impleader (14) Derivative Liability
a. A defending party may, as third-party plaintiff, serve a summons and complaint on a
nonparty who is or may be liable to it for all or part of the claim against it.
b. As of right: within 14 days of filing answer
c. By permission after that
d. Court should allow impleader on any colorable claim of derivative liability that will not
unduly delay or otherwise prejudice the ongoing proceedings.
h) Impleader Procedure
a. (1) Timing of the Summons and Complaint. ... But the third-party plaintiff must, by motion,
obtain the court's leave if it files the third-party complaint more than 14 days after
serving its original answer.
i) Rule: Rule 42(B) provides for separate trials where the efficiency of a consolidated trial is outweighed
by its potential prejudice to the litigants
b. Supplemental Jurisdiction
Supplemental Jurisdiction. 28 U.S.C. 1367
Supplemental JDX allows you to get past diversity issues
If claims are part of the same case
Only one claim has to be within original SMJ of the fed. Ct. (1331, 1332, etc.)
The other claim comes in under supplemental jdx
So, how do we tell if the claims are part of the same case?
The test for sup. jdx
If the claims share
A common nucleus of operative facts (looser than same transaction or occurrence, if it looks like it would make sense
to try them together (there would be a lot of overlap), they will have sup jdx)
13(a) Counterclaimalways sup jdx
In diversity cases, you run into a particular problem
Owen Rule: an unrelated claim has to have its own bases for JDX
When you have a div. case, you have to think about the entire case as a whole
Supplemental jurisdiction refers to the various ways a federal court may hear either:
state law claims,
claims from parties who lack the amount in controversy requirement of diversity jurisdiction,
when defendants are joined in claims, or
when multiple plaintiffs are joined in claims, like in class action suits.