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Civil Procedure I Outline

Professor Alfieri
1. Doctrine (Rules / Statutes)
2. Litigational Strategy
3. Public Policy (Fairness / Efficiency)
4. Ethics
20 Questions
1. Lawyer Identity / Role
2. Attorney / Client Relationship
3. Interviewing / Counseling
4. Fact Investigation
Facts become facts when they are brought into evidence (otherwise, they are just allegations)
5. Litigation Planning
a. Theory of Proof
o Testimonial Evidence
o Documentarial Evidence
o Real Evidence
o Demonstrative Evidence
b. Theory of Case
i. Procedural (eg. What youll find in ct, remedies, judge shopping, issues to pursue)
ii. Substantive claims or COA that will be brought into the case
1. Torts (Theory of Case: Negligence)
a. Prove the issues
i. Duty
ii. Breach
iii. Proximate Cause
iv. Injury
6. Remedies and Fees
a. Remedy at law
i. Compensatory Damages
ii. Punitive Damages
b. Equitable Remedy
i. Injunctions [R.65]
ii. Declaratory Judgments [R.57 / 2201 / 2202]
iii. Provisional Remedy [R. 64]
c. Fees
i. 42 USC 1988
ii. 28 USC 1915
iii. 28 USC 2412
7. Pleadings [R.7]
a. 3 Types of Pleadings:
i. Complaint
ii. Answer
iii. Reply
b. 4 Types of Claims: (framework for your theory of proof)
i. Constitutional State & Fed
ii. Statutory State & Fed
iii. Regulatory State & Fed
iv. Common Law (tort) State
8. Forum Shopping and Judge Shopping
a. Judge shopping
i. Quick rotation pick (thru IFP)
ii. Wheel system
b. Forum shopping
i. Vertical b/w Fed and State
ii. Horizontal venue: b/w counties and districts

Circuit Districts
(w/in FED)

(w/in STATES)


Subject Matter Jurisdiction [ 1331, 1332]

Supplemental Jurisdiction [ 1367]
Removal [ 1441]
Personal Jurisdiction
Choice of law (ERIE)
Alternative Dispute Resolution
Pretrial Conference [R.16]
Process of getting factual allegations admitted into evidence
Pre-Trial Motion [R.12 / R.56]
Trial (Theory / Theme)
Trial Motion [R.50a / R.52]
Post Trial Motion [R.60 / R.59 / R.52 / R.50b]
Appeal [ 1651 writs / 1291 / 1292]
Judgments [R.59e / R.52b / R.60]
a. Claim preclusion
b. Issue preclusion

Civil Action: Jonathan Harr
Facts: s = 6 families (Anderson, et al.)
s = Cryovac (div. of W.R. Grace) / Riley (div. of Beatrice Foods) / XYZ Company (ies) Unifirst
Court: Massachusetts STATE court

South Carolina

New York

Theory of proof:
1. They had chemicals
2. Chemicals were dumped
3. Chemicals got to the ground water
4. It leaked into the wells
5. It caused the leukemia
Compensatory is difficult how do you replace lives?
Declaratory remedy: for the companies to admit they were wrong and apologize
Writ of mandamus to clean up (costly to s) & Writ of prohibition to shut the wells and stop TCE
It is easier to balance the harm v. hardship (prong of equitable relief) if you use a Writ of Prohibition
If by Writ of Mandamus, it will be harder b/c since clean up is so costly, the Co. can argue that it is not in the public
interest b/c they will have to lay off many people

Buffalo Creek Disaster: Gerald Stern

Facts: Feb. 26, 1972, 118 killed, 523 injured, 625 s including adults and children
Court: West Virginia FEDERAL court
Buffalo Mining Company
Pittston Coal Company

West Virginia

West Virginia
New York

Theory of Case: Tort Negligence

Design 2. Maintenance 3. Construction
No Federal claims were plead but the following were considered:
- Coal Mining Health and Safety Act
- Federal Navigable Streams Act
Compensatory damages to replace real & personal property and to compensate for wrongful death.
For Punitive damages their conduct is reprehensible b/c people are dying
Declaratory relief: you want to declare that Pittston is the Parent to BMC, to pierce the corp. veil (goes back to theory of case)
If PCC wanted a TRO or injunction to bull doze, then Notice to the s if required (form of notice is imp b/c mailing them
would not be adequate form of notice b/c they have no house. Hand deliver is an adequate form.
Rule 11 (Serve Safe Harbor Provision)
(a) Signature: Pleadings, written motions, and other papers shall be signed by at least 1 attorney & must include address and
telephone #. No need to accompany pleading w/ affidavit. If the signature is missing, court may strike the pleadings, unless it is
signed promptly after the omission is brought to the pleaders attention.
(b) Representations to Court: A signature implies that, to the best of the signers knowledge, w/ reasonable inquiry the pleading is:
(1) Made w/ proper purpose Not to harass, cause delay
(2) Warranted by Existing Law non-frivolous argument to change existing law
(3) Well grounded in Fact likely to be reasonably supported by facts
(4) Based on Evidence Denials of factual contentions are based on evidence or reasonable based on lack of belief/info
(c) Sanctions: If R.11(b) is violated, the ct may impose sanctions of an attorneys signers. Law firms, or parties.
(1) How to initiate Sanction:
(A) By Motion:
Motion must be made separately from other motions
Motion must state violation of R.11(b)
Motion may only be filed if the pleading is not corrected w/in 21 days = The Safe Harbor Provision
Court may award the winner reasonable expenses and fees incurred in making or opposing the motion.
Law firms will be held jointly liable absent exceptional circumstances
(B) On the Courts Initiative: If the ct initiates the sanctions, the burden of proof will fall on the pleader to show
that it is not in violation.
(2) Limitation on Sanctions: Limited to what is sufficient to deter repetition of conduct.
May include: Equitable damages, penalties paid to the ct, Payment for another parties fees
Money damages shall not be awarded for:
(A) Violations of R.11(b)(2)
(B) When initiated by the Ct [R.11(c)(1)(B)], unless the ct issues an order to show cause for either:
a voluntary dismissal (made by or against an attorney to be sanctioned)
a settlement of claims (made by or against an attorney to be sanctioned)
(3) Order: When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule &
explain the basis for the sanctions imposed.
(d) Inapplicability to Discovery: This rule does not apply to disclosures, discovery request, responses, objections, and motions
subject to provisions in Rules 26 37.
(e) The crux of Rule 11 is its implied certifications. Whenever an attorney or unrepresented party presents a matter to the court, he is
deemed to have certified things concerning that matter. If these certifications are not accurate, the party is subject to sanctions.
*Note: 21 day Safe Harbor Provision to fix, amend, or withdraw

Remedies & Attorneys Fees


Remedies @ law substitutionary remedy

i. Compensatory Damages
1. works to make a party whole
2. Theory of MITIGATION to make less severe
a. Prudence: act as a reasonable person would (objective)
b. Timely: by waiting, you just incur more loss

US v. Hatahley Navajo horses taken by US gov and sold to glue factory

- establishes the purpose of compensatory damages to make the party whole
- lay testimony insufficient to award Punitive damages
- Sets up Objective Standard for determining Compensatory damages:
(1) Market Value (at the time of taking)
(2) Interim Value (b/w time of taking and reasonable time of replacement)
(3) Mitigation (what is done to diminish damages / Loss of profits)
Norfolk v. Ayers Asbestos case, plaintiffs could collect for fear of cancer if they had actionable
disease of asbestosis.
- If s in buffalo creek were in water they could collect, but if they were watching they could

ii. Punitive Damages

1. works to punish or deter willful or reckless behavior
2. its a compensation for things lacking replacement value
a. Reprehensibility (how bad it was)
b. Proportionality (Harm done / punitive damage award)
c. Comprehensibility (Diff. b/w the remedy and Civil penalty)
Browning-Ferris Industries v. Kelco Disposal = held that punitive damages did not violate the
Eighth Amendment (cruel and unusual punishment) because due process places outer limits on
such damages, however defendants did have a due process claim under the 14th amendment

Honda v. Oberg Oregon State Const. prohibited judicial review of punitive damages
- Judgment overturned violated 14th Amendment (relates to state action due process violation)
- State statute cannot bar judicial review
- Imposes substantive limits on the size of punies so as not to make them excessive
(1) Haslip
- trial and appellate ct review of punies began w/ this case
- established need of procedural safeguards to guard against violation of
due process

Cooper Industries, Inc. v. Leatherman Tool Group, Inc. = held that appellate review of punitive
damages must be done de novo (in the new). This meant that the appellate court was to review
the entire case & facts not just the damages award. This is expensive & time consuming. In
Buffalo Creek, Pittston would be happy with such a review bc they have deeper pockets and this
would make the case draw out longer. Pittston would hope that some of the plaintiffs could not
wait any longer and may settle for less before the appeal was reviewed
Carey v. Piphus = held that A deprivation of constitutional rights entitles a person to nominal
damages, even in the absence of injuries and where a deprivation of constitutional rights
causes injuries, substantial compensatory damages are appropriate, the amount of which is
dependent on the type of constitutional right that is deprived. As well, although mental and
emotional distress caused by the denial of procedural due process itself under 1983, the difficultly

in proving such damages is not so great as to warrant awarding compensatory damages without
proof that such injury was caused.

BMW v. Gore guy got $4 mil in punies for a bad paint job which was found grossly excessive
- Sets out Grossly Excessive Standard for punitive damage award (see3 GUIDEPOSTS)
- 14th Amendment provides judicial review of Punitive damages awarded by jury
Remittitur: Process by which a ct reduces damages awarded by a jury
- Allowed in STATE and FED
Additur: ct increases damages awarded by jury to avoid new trial
- Allowed only in STATE
Phillip Morris v. Williams = held that extreme reprehensibility does not negate the other 2
guidelines in BMW, all 3 are required. A jury can look to reprehensibility in determining whether
to allow punitive damages, but cannot use reprehensibility to punish the defendant for nonparties who havent sued

StatefarmCar accident, statefarm refused to pay after saying they would. Court upheld gore
guide posts.
Exxon Shipping v. Baker = Held that the amount of such damages should not be excessive in that
if the compensatory damages are significant a 1:1 ratio of punitive to compensatory damages is
acceptable and does not violate the due process clause.
Statutory Damages Damage minimums and maximums are outlined by federal or state statutes
Feltner v. Columbia Pictures Television = established statutory damages (before Feltner damages
were only available via common law)
Equitable Remedies specific remedy preserve the status quo
iii. Injunctions
1. Rule 65
a. Temporary restraining Order (TRO)
i. Comes before discovery
ii. You do not need other party present to obtain
iii. Have to show damage and injury are imminent and that notice was either
attempted, unnecessary or too dangerous
iv. Valid for 10 days, unless extension is obtained
b. Preliminary injunction
i. Must notify the other party and give them a chance to respond
ii. Thus, hearing is needed
iii. Obtain while the case is pending
c. Security
i. Must issue a bond at a value the court deems appropriate to compensate losing
party for costs and damages.
ii. Can only issue a bond for TRO, and prelim injunction
Permanent injunction
i. Granted after a final hearing on the merits
ii. Its included in the pleading as a remedy


Injunctions can be issued when: (Harris)

a. No other adequate remedies @ law or equity
b. Risk of irreparable injury
c. Probability of success (prevail on the merits)
d. s will not be harmed more than is helped (balance of equity b/w injury and hardship)
e. It is in the public interest
Injunctions can be monetized to meet amount in controversy requirements for diversity
jurisdiction purposes
Sigma v. Harris injunction against an e-ee who gave away company secrets
- established 4 prongs (balance of equities) when issuing injunctions
- no adequate legal remedy at law
Inglis little bakeries sued big baker for antitrust violations requesting preliminary injunction

Burden of Proof falls on the applicant / movant

Revlon Alternative test, reasonably certain to fair chance for prong c.
Established 5 prongs
1. Burden of Production
2. Burden of Persuasion
3. Balance of Hardship
LA v. Lyons black guy choked by police till he was unconscious
- Ct denied issuing an injunction b/c
1. failure to show irreparable injury
2. no proof that all cops behaved in this manner
3. failure to establish case or controversy of him being choked again
( seeArt. III standing)
Oshea To satisfy case and controversy plaintiff must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the challenged official conduct.
real and immediate
Zwickler Abstract allegations are not enough, cannot be conjectural or hypothetical must be real
and Immediate
Ebay v. Mercexchange Four factors to determine permanent injunctive relief must be granted
and applied with equal force to patent
Grupo Mexicano wants an injunction to prevent from moving money to Mexico and
rendering itself judgment proof
- Ct says it lacked the remedial power to issue the injunction
1. Breach of K, therefore remedies are limited
2. Timing / Sequence not enough evidence of liability
3. Provisional Remedies would do.
In Re Managed Care Physicians sought a preliminary injunction against managed insurance
companies from settling with plaintiffs in another federal court.
- Court granted injunction because settlements will cause irreperable hrm to s and
undermind MDL.

iv. Declaratory Judgments (R. 57)

1. created by 28 USC 2201 and 2202
2. 3 prong eligibility
a. Actual Controversy (Art. III standing)
i. Injury or imminent injury (cite to lyons)
ii. Traceable
iii. Redressable
b. Rights, Obligations, relationships
c. Interest

Wilton Insurance case where Fed ct and State ct where hearing the same issues
- Sup ct held that the Declaratory Judgment Act gives the Fed Cts discretion in deciding
whether to declare the rights of litigants.
- In this case, the discretion to not grant declaratory judgment due to avoiding duplicate
hearings and form shopping was held to be valid
American Machine & Metals fan patent case
- Manufacturer is seeking declaratory judgment to see if he could terminate his K w/ a
patent holder and manufacture fans under the holders patent
- Sup Ct held that irreparable injury was not in and of itself sufficient to prevent otherwise
lawful termination of a K. The only remedy available for alleged breaches is to recover

v. Provisional Remedies (R. 64)

1. Can be prejudgment or post-judgment seizure of property
2. Due Process Clause
a. 14th Amndt applies to STATE actions
b. 5th Amndt applies to FEDERAL actions



a. Garnishment (attachment of wages)
b. Attachment (custody of property)
c. Liens (asserting legal right or interest in anothers property)
d. Seizure (taking of anothers property)
e. Sequestration (tangibles or intangibles are taken away)
3 requirements
a. Preseizure NOTICE and HEARING
b. Some limits on judicial discretion
c. Look at the private law factors
i. PRIVATE INTEREST affected by prejudgment remedy
ii. RISK of erroneous deprivation
iii. Probable VALUE of safeguards
iv. INTERST OF PARTIES seeking action
1. Burden and cost of protection
2. How much it is going to cost society

Fuentes v. Shevin ct reviews constitutionality of state replevin statutes

- Ct held that in order to comply w/due process, NOTICE and HEARING must be provided
prior to any deprivation of a property interest protected by the 14th Amendment
Mettimunne v. Genetech Patent license is not required to terminate its license agreement before
seeking a declaratory judgment that the subject patent is invalid, unenforceable, or not infringed
Matthews v. Aldridge Due Process Test
Private Interests
Risk of erroneous deprivation
iii. Interest of party seeking the hearing
iv. Probably value of additional safeguards
v. Government interests
Wilkinson v. Ohio State Due Process Test for Prisoners
Prisoners interest
Risk of erroneous deprivation and probable value of additional safeguards
Government interests

Summary Chart:
(@ Law)
*works to make
the party whole

(@ Equity)
Punitive Damages

*To punish or deter

* 14th Ammendment
1. Reprehensability
2. Proportionality
3. Comprehensability

(TRO, preliminary, permanent)
*Can be issued when:
1. no other adequate remedies
2. Irreparable injury
3. prevail on merits
4. balance of equities
5. public interest

1. actual
(Art. III)
2. relatnshps
3. Interests


private interests
risk of deprivation
value of safeguard
parties / remedies
gov/public interest


2 methods:
- American Rule each side bears its own costs (prohibits fee shifting)
- English Rule Lodestar = rate x hrs
- 42 USC 1988: provides fees in Civil Rights Actions ( 1983)
prevailing party may be awarded reasonable attorneys fees (IOW, you lose, you pay)
have to establish prevailing party and reasonable attorneys fees
Note: Anti-Clan Act: 42 USC 1983
2 provisions
wrongdoer must be acting under the color of law

deprivation of Fed. Rights

28 USC 1915: IFP (in forma pauperis)
this is a waiver provision
Petitions filed in Fed Dist. Ct. that allow the waiver of a filing fee
this allows for JUDGE SHOPPING
(a) There is a quick rotation of Judges for cases requiring a waiver
(1) To get IFP signed, you can track the rotation
(2) Sometimes you can get your IFP signed and your petition heard, depending on
the Judge (know the system)
(b) Wheel system Judge is picked randomly
28 USC 2412: EAJA (Equal Action to Judgment Act)
Get attorneys fees and costs when the US is a party and their position is either substantially
unjustified or b/c of bad faith conduct

Evans v. Jeff D lawyer given a settlement offer contingent on the waiver of his attorneys fees
- Sup Ct held that this is not illegal
There is no statute or legislative history that demand a ban of settlements conditioned on fee waiver
(R.68 = encourages settlements)
Marek v. Chesney guy who got less of a jury award than he was offered at settlement
- Chesney then sought attorney fees under 1988
- Sup ct held that s were not liable for attorney fees incurred by the after the officers pretrial offer of
settlement, where the recovered judgment less than offered
Buchannon v. West Virginia
a) Plaintiff is not allowed to recover if the desired action was brought about voluntarily on part of Defendant,
instead of prevailing lawsuit
b) Rejected catalyst
c) To get around this rule, P should also ask for fees, then judgment must be made and fees can be recovered
Travelers v. PGE Federal bankruptcy law does not disallow contract-based claims for attorneys fees based solely
on the fact that the fees were incurred litigating bankruptcy law issues.
Arlington v. Murphy Fee shifting doesnt authorize prevailing party to recover expert fee.
Hensley v. Eckerhart Where plaintiffs fail of a claim unrelated to the successful claim they do not get the money
for it. Success of related claims the fee should not be reduced because court did not adopt each contention raised
Sole v. Wyner A plaintiff who secures a preliminary injuction, then loses on the merits as the case plays out and
judgment is enteree against her has won the battle but lost the war. A preliminary injuction does not qualitfy for an
award of counsel fees under statue 1988
Richlin v. Chertoff paralegal fees are a part of attorneys fees (modern day- they separate paralegal from attorney/
but when the bill was enacted it was a given that paralegal was included in the reimbursement for the attorneys fees.
Aleyeska Supreme Court refused to create a generalized common law doctrine shifting fees in public interest cases
but the legislature is free to do so
Blanchard v. Bergeon Courts should ordinarily award fees unless special circumstances render it unjust
Christianburg Court interpreted statutes to permit routine attorneys fees awards to prevailing plaintiff but no
defendant with exception that plaintiff claim was frivolous and groundless

Pleadings & Pre-Trial Motions

Litigation Continuum:

R. 12(e),(f)
No Discovery xxxxxxxxxxxxxxxxxxxxxxxxxx
R. 11

R. 12(b),(c)

R. 52
R. 59

R. 56
R. 50(a)

R. 50(b)





RULE 7: Pleadings allowed; Forms of Motions

(a) complaint, answer, reply
(b) Motions and other papers:
(1) An application to the ct for an order shall be by motion, which shall be in writing, state the grounds, set forth relief
(2) The rules apply to all motions
(3) All motions shall be signed in accordance w/ R.11
(c) Demurrers, Pleas, Etc., Abolished Replaced by R.12(b)(6)

RULE 8: General Rules of Pleading

(a) Claims for relief: all claims shall contain a short and plain statement showing:
(1) Statement of Cts Jurisdiction
(2) Statement of Claim showing pleader is entitled to Relief
(3) Demand for Judgment
(b) Defenses; Form of denials: a party shall state in short and plain terms the partys defenses to each claim assertedWhen a
pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is
true and material and shall deny only the remainderthe pleader may do so by a general denial subject to the obligations set
forth in R.11
(c) Affirmative Defenses
(d) Effect of Failure to Deny
(e) Pleading to be Concise and Direct; Consistency:
(1) Each averment of a pleading shall be simple, concise, and direct (abolishes common law form of pleadings)
(2) A party may state as many separate claims or defenses as the party has regardless of consistency (can have more than
one COA)
(f) Constructions of Pleadings: All pleadings shall be construed as to do substantial justice.

RULE 9: Pleading Special Matters

(b) Fraud, Mistake, Condition of the Mind: In all averments of fraud or mistake, the circumstances constituting fraud or mistake
shall be stated with particularity
you need a lot of details
typically dismissed w/ prejudice
- doesnt apply to 1983

D.O.T. car accident where s used a form complaint that was not specific
- Form complaints are not invulnerable to a demurrer [R.12(b)(6)]
- One common problem w/ the pleading of complaints : Sufficiency
Movant still needs to state proper COA
Haddle v. Garrison whistleblower e-ee was fired for co-operating w/ a criminal investigation of his e-er
- E-ee included in his complaint relief under 42 USC 1985
- Motion to dismiss granted under R.12(b)(6) by District Ct
Permits to move to dismiss for failure to state grounds upon which relief can be granted
Ct cant dismiss for failure to state claims (most provide leave to amend under R.15)
- Sup. Ct reversed saying firing an @will e-ee does cause injury b/c it interferes w/ the employment
Conley v. Gibson Negro e-ees sue their union for discrimination and the union files a R.12(b)(6)
- Trial and App Ct granted motion to dismiss b/c complaint failed to set forth specific facts
- Sup ct reversed b/c R.8(f) says claim just needs short and concise statement and give fair notice
- SeeConley Presumptions
Swierkiewicz e-ee says he was fired for age discrimination (ADEA)
- Sup ct held that an employment discrimination complaint need not contain specific facts, but instead must
follow R.8(a)(2) = only need a short and plain statement showing pleader is entitled to relief
Dura Pharmaceuticals Complaints legally insufficient when contain only allegations but does not provide notice to
defendant of relevant information (loss or causal connection, in this case) The statutes/codes seek to avoid, namely the
abusive practice of filing lawsuits with only a faint hope that discovery might lead to some plasuable cause of actions.
Affirms rule 8 low pleading stand, a must show some indication of the economic loss and causal connection between
the fraud and the loss
Ashcroft v. Iqbal A complaint needs to plead suffienct facts to state a claim for purpose and unlawful discrimination
(Complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination must plead sufficient
factual matter to show that defendants adopted and implemented the detention policies at issue not for neutral,
investigative reason, but for the purpose of discrimination on account of race.
Twombly-interpreted and applied rule 8*specificity case. Court wants more factual matter to show entitlement for relief
(this is a Sherman Act case), short and plain taken to a new level, raised pleading standard
Pardes Court reversed Rule 12b6 motion on grounds that support fair notice standard in Conley

Leatherman v. Tarrant Preserves rule 8 (rule supportive) No heightened plead stand

Jones v. Block The Standard of pleadings cannot be changed by court, have to amend via legislation
-standard of pleading cannot be raised by the court rules.
In Jones 1983 was inconsistent with the state statute
1983 says that person has a claim if rights have been violated
statute says that the prisoner has to exhaust other means before filing a complaint
o The exhaustation of means does not need to be proven in the pleading but is a affirmative defense
Stradford v. Zurich s counterclaim for fraud was insufficient. In fraud under heightened pleading Rule 9b which
requires the pleading with particularity. The case must be dismissed if doesnt amend counter-claim to meet
heightened pleading requirement


o Applies to everything written, filed and argued or later advocated to the court
o Does not apply to discovery (R.26)
o Applies to attorneys and firms
28 USC 1927: Counsels liability for Excessive Costs
o Sanctions attorneys who increase costs unreasonably
o Overlaps with R.11(b)(1) in both unnecessary delay and needless increase of costs
Sources of Sanction Powers:
o Rule 11
o 1927
o Inherent Powers (Chambers)
o Equitable Estoppel (Layman / Zielinski)
o 1988 Ethics
o Rule 37 / Rule 26 available only in discovery

Buisness Guide v. Chromatic Case of the fake seeds

filed a frivolous copyright infringement action w/out investigation

Sup Ct held a represented party may be sanctioned in addition to or instead of its attorney for violating the
R.11 requirement that all info in signed documents submitted to the ct be reasonably accurate

The standard of conduct = objective reasonableness as to the claim

Gerbode brings a R.11 motion against for costs and attorney fees for filing a frivolous lawsuit

also moved for sanctions under 28 USC 1927 applying to attorneys who multiply proceedings and
increase costs unreasonably

R.11(c) amended lets sanctions be imposed on firms as well as on attorneys who sign the offending
pleading. (note Clients may also be sanctioned for everything EXCEPT frivolous arguments)
Lee v. American Airlines the wanna-be kick-ass attorney

The ct can sanction attorneys through its inherent powers by decreasing 1988 fees and adjusting the
Chambers client gets in trouble for misconduct outside the courtroom

R.11 did not apply b/c the clients wrongful actions were not filed or argued before the court b/c they were
done outside the courtroom

28 USC 1927 did not apply b/c the attorney did not act badly

Ct used its inherent powers to sanction the for bad faith conduct (it can do this even if the state laws dont
recognize bad faith exceptions to fee shifting

Inherent powers can be used to sanction either the client or attorney

Business Guides v. Chromatic Commmunications Enterprises- Rule 11s purpose is to deter baseless filings in distr
court and thus, consisten with the Rule Enabling Acts grant of authority, streamline the administration and procedure
of the federal courts
Christian v. Mattel Rule 11 permits the district court to sanction an attorney for conduct regarding pleadings[s],
written motion[s], and other paper[s] that have been signed and filed in a given case, it does not authorize sanctions
for, among other things, discovery abuses or misstatements made to the court during an oral presentation

To impose sanctions under its inherent authority, the district court must make an explicit finding that
counsels conduct constituted or was tantamount to bad faith. (Primus Auto. Fin. Serv., Inc v. Baltrase)

Holding that misconduct committed in an unreasonable and vexatious manner that multiplies the
proceedings violates 1927(B.K.B. v. Maui Police)

Sanctions may be imposed under the courts inherent authority for bad faith actions by counsel, which
includes a broad range of willful improper conduct (Fink v. Gomez)
Exparte Young covers official and personal capacity prosecutors are immune in court room, but policies you set in
your office are not immune


RULE 12: Defenses and Objections When and How Presented by Pleading or Motion Motion for Judgment on
the Pleadings
(a) When presented:
(1) shall serve and answer
(A) Within 20 days after being served w/ the summons and complaint
(B) If service of the summons has been waived w/in 60 days in the US or within 90 days
outside the US
(2) a party served w/ a cross-claim shall serve an answer w/in 20 days
(3) (A) The US shall serve an answer w/in 60 days
(B)An officer or e-ee of the US shall serve an answer w/in 60 days
(b) How Presented: the following defenses may at the option of the pleader be made by motion:
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper VENUE (couplet w/ 1404)
(4) Insufficiency of PROCESS (summons and complaint)
(5) Insufficiency of SERVICE of process
(6) Failure to state a claim upon which relief can be granted
(7) Failure to join a party (R.19)
(c) Motion for Judgment on the Pleadings
(d) Preliminary Hearings
(e) Motion for More Definate Statement: w/in 10 days
(f) Motion to Strike: w/in 20 days
(g) Consolidation of Defenses in Motion
(h) Waiver or Preservation of Certain Defenses
Rules 12(b)(1),(6), and (7) are the only ones which are NON-WAIVABLE
Ct may raise question of jurisdiction sua sponte (on its own)
Pre-Trial Motions:
o Rule 56 Summary judgment
o Injunctions
o Declaratory Judgments
o Rule 11
Conley Presumptions: [R.12(b)(6) / R.56]
1. Presume allegations to be true
2. Facts construed most fav. to
3. Cant dismiss unless proven beyond a doubt that can prove no set of facts

Olsen v. Pratt e-ee claims fraud for being fired when his e-er convinced him to drop out of his early retirement plan

Allegations of fraud [R.9(b)] must be plead with particularity

o should include what, when, where, how, and why
Leatherman v. Tarrant County Narcotics 2 incidents of forcible entry into homes where the manufacture of
narcotics was suspected

s sued under 1983

Dist Ct and App Ct imposed a heightened pleading standard on 1983 civil rights claims
o They claimed a more relaxed pleading standard of R.8(a) would subject municipalities to needless

Sup Ct held that R.9(b) imposes heightened pleading standard in only 2 specific instances: Fraud & Mistake
o Suits under 1983 cannot be required to be pled w/ more particularity than the requirements of
Zielinski forklift operator was injured and its difficult to determine the owner of the machine

is required to give the insight of info about errors in the complaint

Cannot just give a general denial, have to specify which parts are true [R.8(b)]

Doctrine of Equitable Estoppel will prevent from taking advantage of S/L where was misled
o Ct will hallucinate the facts to be otherwise (consider it bad faith)
Layman v. Southern Bell property owner sued the phone Co for trespass after it buried some phone lines under her

answered the s complaint w/ a general denial and then at trial, the theory of the s defense was that it
had a right of entry by easement

Ct didnt allow the easement into evidence b/c it was an affirmative defense [R.8(c)]
o Affirmative defense must be pled in an answer to be used at trial
o May not be plead generally but pled directly in the answer



Beck v. Aquaslide slide manufacturer discovered that they were not the manufacturers of a slide being litigated and
moved to amend their answer after the S/L had run out

Ct allowed amendment of the answer in the absence of bad faith on the part of the movant, leave to amend
is fully w/in the discretion of the court

R.15(a) declares that leave to amend shall be freely given when justice so requires
o Burden is on the party opposing the amendment to show prejudice
Moore v. Baker A patient who was disabled after an operation sued the for violation of the informed consent law,
and later tried to amend the complaint to include allegations of negligence (S/L had run out)

Ct denied motion to amend Issue did not relate back to the original complaint
o R.15(c) A claim is considered to relate back when the claim or defense arose out of the same
conduct, transaction or occurrence set out in the original pleading
Bonerb Tort action was amended to include counseling malpractice

R.15(a) freely grants leave to amend however, R.15(c) states the allegations in the amended complaint
must relate back to those in the original complaint

In the relation back doctrine, the operational facts set forth in the original claim determine whether the was
put on notice of the claim the seeks to add
Nelson v. Adams ct granted motion to amend after judgment was entered and did not have opportunity to be

A ct cannot amend a judgment to add a party w/out violating due process, as reflected in R.12 and R.15,
unless the proposed party is given an opportunity to respond and contest their personal liability

Lesson: Give adverse party time to respond to your pleadings. To not do so, would violate due process
Mayle v. Felix An amended habeas corpus petition does not rotate back when it asserts a new ground for relief when
supported facts differ in both time and type from those set forth in original pleading


Requires affidavits
Either party can bring it
o 20 days
o has to balance w/ R.11
Party opposing the motion, not required to file affidavits but probably should be safe and not sorry
Do affidavits have to be admissible?
o R.56(e): Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be
admissible in evidence, and shall show affirmatively that the affidavit is competent to testify to the matters stated
Visser: affidavits can be made on personal knowledge (unless they are expert witnesses)
Can be filed 20 days after commencing of the action on 21st day, can file R.56 and serve to adverse party (b/c you can
amend during that time)
Can move on the basis of claims, counterclaims and pieces of claims
Want to end litigation early, so moves first
1. cuts down on costs
2. Do not want to let information out during discovery
3. Do not want to get a verdict
must show:
o has no genuine issue of material fact; and
o JAML, you are entitled to Judgment as a matter of law (found under R.50(a)]
2 Kinds of JAML
o directed verdicts [R.50(a) / R.52]
o JNOV [R.50(b)]
You can raise a R.50 3xs
2x @ trial (JAML)
1x post verdict
RULE 50: JAML Jury Trial
RULE 52: JAML Bench Trial
RULE 59: Motion for a new trial
Evidence is viewed in the light most favorable to the
Can cut off discovery, but usually comes after it Strategic Decision!
Can come any time b/w R.12 and R.50 on the litigation continuum
If no rational juror can grant for the mover, Ct grants summary judgment


Adickesthe movant for summary judgment has the burden of foreclosing the possibility that the plaintiff
can prevail at trial. Summary judgment was overturned because the movant failed to carry its burden of
showing the absence of any genuine issue of fact.
Anderson v. Liberty Lobby In seeking to demonstrate a factual dispute, the non-moving party gets the
advantage that the court must draw all justifiable inferences in its favor
Matsushita Electric Non-moving party has to create more than a metaphysical doubt as to the material
Celotex the asbestos case
In order to prevail in SJ, you must only show the absence of evidence you do not have to negate
the facts
This case opens the floodgates for SJ motions, especially for Corp s
Bias In order to withstand a summary judgment motion once the moving party has a prima facie showing
to support its claims, the nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial
Visser in a Fed Age Discrimination suit moved for SJ on the ground that there was no showing that
was fired b/ of his age
If R.50(b), then R.56, and if R.56, then R.12(b)(6)
All judges decisions should go the same way
Jones v. Clinton the president dropped his trousers
Paula did not make her burden of production, so he prevailed on SJ by showing the absence
Many of the claims were related, so when one fell, all the others fell

Two Kinds:
1. Qualified
Based on 2 elements:
Good faith belief by
Objective Reasonableness
2. Absolute
Guaranteed no matter what
Found in both the Constitution (11th Amendment) and Judge made doctrine
No municipal immunity under the constitution
1983 and other statutes are exceptions to immunity to sue state or government officials
Congress has tried to wear away immunity

Gomez v. Toledo Police officer was wrongfully accused of wire-tapping and then fired w/out a hearing
Sup ct held that Qualified Immunity based on good faith is an affirmative defense and thus the
has the burden of pleading it the is not required to plead bad faith
Only need Objective reasonableness of s actions
o HARLOW Qualified immunity is limited to objective reasonableness
Richardson v. McKnight privately employed prison guards plead qualified immunity for 1983
However, immunity doesnt apply to privately employed prison guards
Hope v. Pelzer the Hitching Post case
Inmate was subject to cruel and unusual punishment
Guards were not entitled to qualified immunity under 1983 b/c they had fair warning
It is a crime for a state official to act willfully and under color of law to deprive a person of
rights protected by the Const.

Subject Matter Jurisdiction

Found in Art. III of the Constitution

o Art. III does not require complete diversity but 1332 limits Art. III
Goes to the competence of the courts to hear the claims


Concurrent jurisdiction = state and fed boundaries overlap

Issue can be raised at any time with R.12(h)(3)
2 Con Law Claims FACIAL and APPLIED

Federal Question claims: 28 USC 1331
o The district court shall have original jurisdiction of all civil actions ARISING UNDER the Constitution, laws, or
treaties of the United States
o Amount in controversy doesnt matter as long as there is federal question

Mottley dispute about R.R. passes that were deemed illegal by legislature was brought into the wrong ct
Fed ques or issue must be brought in a well pleaded complaint on its face and cannot be brought in
anticipation of a defense (Artful Pleading) WELL-PLEADED COMPLAINT RULE
The Holmes Group filed a counterclaim and removed case to Fed Ct
Fed Ct does not have jurisdiction when the s counterclaim raises Fed Ques
o s complaint needs to include the claim
o Ct looked to the purpose of this rule to determine the meaning of arising under for
Reasons why arising under does not include counterclaims:
1. is the master of the complaint
2. conferring this power upon the would radically expand the class of removable cases
3. it would undermine the clarity and ease of administration of the WELL-PLEADED
Rivet used claim and issue preclusion to remain in State Court (did not raise Fed Ques on purpose)
ARTFULLY PLEADED CLAIMS may not defeat removal by omitting to plead necessary
fed questions
o you cant escape a 1331 rule
o Ct will remove it themselves if they believe there is a federal question

Diversity: 28 USC 1332

(a) The dist ct shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum
or value of $75,000, exclusive interest and costs, and is between
(1) citizens of diff states;
(2) citizens of a State, and citizens of a foreign state;
(3) citizens of diff States and in which foreign states or citizens or subjects thereof are additional parties
(4) a foreign state as and citizens of a State or of diff States
(b) Where the is finally adjudged to be entitled to recover less than the sum or value of $75,000, the dist ct may
deny costs to the and, in addition, may impose costs on the
(c) For the purposes of this section and 1441
(1) a corp is a citizen of a State in which it is incorporated or has its PPB
(2) legal representative of a decedent is considered citizen of the State of the decedent
(d) The word States, as used in this section, includes the Territories, the District of Columbia, and Puerto Rico

Diversity Summary
Must be complete diversity
Natural Person (residence and intent to stay)
Corporations (state of incorporation and PPB)
Amount in controversy over $75,000
Aggregation of claims when you can
Multiple claims and a single
Multiple claims and multiple s can only aggregate when liability is
joint and severable

Mas v. Perry Married Couple v. Peeping Tom

s were studying in Louisiana (1 was French and 1 was a resident of Mississippi) and the was
a resident of Louisina he tried to get a motion to dismiss for lack of diversity jurisdiction


Ct held diversity jurisdiction was established on 2 grounds: (1) by an alien against a state citizen
and (2) b/w citizens of diff states
Change of domicile can occur when 2 conditions are met:
1. taking up residence in a diff domicile
2. w/ intent to remain there

Redner v. Sanders: Citizen of New York tries to seek diversity because he resides in France and California
To invoke diversity plaintiff must be a citizen of a foreign state not a resident
A person is a citizen of a state if they are a citizen of the United States and domiciled within a
particular state. Plaintiff did not have sufficient facts to prove domicile such as where he lives,
what kind of residence, where his family is, and where he carries out business activities.
Saadeh v. Farouki -Greek citizen v. -Jordanian citizen residing in Maryland
After litigation began, became a citizen of the US
There is no diversity jurisdiction over an action b/w an alien and another alien who has achieved
permanent resident immigration
o Citizenship at the time the suit was filed is the relevant test, so subsequently becoming
a citizen does not create diversity
Strawbridge: The existence of a single party with same state citizenship as that of an opposing party will
destroy diversity.
Exxon v.Allapattah: Complete diversity is not mandated by the constitution but adhered to by the courts.
Complete diversity is needed by all parties in a suit in order to be moved to federal court.
Ankenbrandt v.Richards: suits for divorce, alimony, or child custody fall outside the scope of diversity
jurisdiction, even if the spouses were citizens of different states when suit was brought.
Ruhrgas A court can decide the 12(b)s in any order
This case involves ques. of PJ [R.12(b)(2)] and SMJ [R.12(b)(1)]
There is no hierarchy in determining federal question efficiency is imp!
McCauley whether an injunction can satisfy the amount in controversy requirement
Under 1332, the party asserting diversity jurisdiction has the burden of establishing by a
preponderance of the evidence that the amount in controversy satisfies statutory jurisdictional
EITHER VIEWPOINT RULE when value of s potential recover is below jurisdictional
amount, but the potential cost to of complying w/ the injunction is above the amount in
controversy, the latter represents amount in controversy
JP Morgan v. BVI whether a corp organized under the laws of the British Virgin Islands is a citizen or
subject of a foreign state for the purposes of diversity
Corps want to be out of the reach of the treasury and corps (no taxes / no laws)

Supplemental Jurisdiction: 28 USC 1367
(a) in any civil action, the dist cts shall have supplemental jurisdiction over all other claims that are so related to claims
in the action that they form part of the same case or controversy under Art. III
(b) where dist cts have jurisdiction under 1332, the dist cts shall NOT have supp juris under subsection (a) over claims
by s against persons made parties under R.14, 19, 20, or 24
(c) the Dist cts may decline to exercise Supp Jurisdiction over a claim under subsection (a) if
(2) the claim raises a ques of State law
(3) claim predominates over claims which the dist ct has original jurisdiction
(4) the dist ct has dismissed all claims over which it had original jurisdiction (Kroger)
(5) in exceptional circumstances
(d) When a claim is dismissed, the party has 30 days to refile or the remainder of the statute of limitations, whichever is

1367 Summary:
allows you to bootstrap state claims in fed ct
fed cts do not have discretion w regards to fed ques claims
common law ancillary and pendant jurisdiction
would file R.12(b)(1) to try and kick state claims out of fed ct

Gibbs filed a state and fed claim in fed ct w/ no diversity, but w/ related facts


Where a fed ct has proper jurisdiction over a fed claim, it may also hear related state law claims
where both claims arise from a Common Nucleus of Operative Facts
This was the leading case regarding supplemental jurisdiction before it was codified in 28USC
Kroger / Owen the electrocution case with the boom
A fed ct does not retain jurisdiction over an action, based on diversity of citizenship, when the
adds a pendent party who destroys complete diversity
(Iowa) (Nebraska) 2 (Iowa Corp) = destroyed diversity
Finley woman who lost her family in an airplane crash and tried to sue San Francisco power and FAA
Even when there is the same nucleus of operative facts, the FTCA is specifically limited to claims
against the US
Since there were not FTCA claims against the addtl parties, the state claims relating to state
parties were out
2 things required to create jurisdiction:
1. The Const must have given the ct the capacity to take it
2. An act of Congress must have supplied it
Red Cab
Deals w/ the amount in controversy for diversity purposes
You must have a good faith basis that the amount being claimed is appropriate and if the amount
collected is less than the amount in controversy requirement, diversity is NOT destroyed

Removal: 28 USC 1441

(a) any civil action may be removed by the or the s
(b) 1st Sent Any civil action arising under the Constitution, treaties or laws of the US shall be removable w/out
regard to the citizenship or residence of the parties = 1331. 2nd Sent Any other such action shall be removable
only if none of the parties in interest properly joined and served as s is a citizen of the State in which such action is
brought = 1332: HOMESTATE RULE
(c) Whenever a separate and independent claim or COA w/in the jurisdiction conferred by 1331 of this title is joined
w/ one or more otherwise non-removable claims or COA, the entire case may be removed and the dist ct may
determine all issues therein, or, in its discretion, may remand all matters in which State law predominates [

1441 Summary:
does not come from the Constitution but was enacted by statute in 1789
Most removal occurs in civil cases
B/c the removes, he/she has the burden of proof
Removal can only go from State to Fed ct
Under subsection (b):
If there is a fed ques, diversity and citizenship dont matter
Homestate rule cannot remove if you are from the state where the
action is pending (only applies to diversity jurisdiction)
Case CAN BE REMOVED ONLY if the action could have originally been filed
in fed ct

Caterpillar bulldozer case where all claims involving non-diverse s were settled and complete
diversity then existed
A Dist Cts error in failing to remand a case improperly removed is not fatal to the ensuing
judgment if fed jurisdictional requirements are met at the time the judgment is rendered (entry of
Intl College of Surgeons building under landmark protection act and filed request w/ state
administrative agency
Allowed removal of both fed constitutional claims as well as the state administrative challenges
even when the state claims involved a factual review
Fed cts do not like to review the facts of a state issue, but here they allowed the ct to do that


Issue was whether s in a case filed in a state ct w/ claim arising under fed law, can remove the
case to fed ct where some claims made against the state, are subj to an 11th Amndt bar
o Yes s can remove the case to a fed ct and that ct can decide the non-barred claims
Lapides university waived its 11th Amndt rights when it removed to fed ct
Sup ct held that states removal of suit to fed ct constituted waiver of its 11th Amndt immunity
[28 USC 1367(c)(3)]
Murphy Bros. v. Michetti Pipe Stringing:
Service of summons, not the earlier sending of a courtesy copy by counsel, is the trigger for the
start of the 30-day period for removal.
Rogers v. Walmart Stores:
Plaintiff cannot prevent the removal of a diversity case by filling claim in state court but asking for
less than $75,000 in damages, waiting a year, and then amending her complaint to seek the greater
International Insurance Co. v. Duryee:
State cannot discourage removal by enacting a statute providing that any out-of state insurer that
removed a case to federal court was barred from doing business in the state for three years. This is
Capron v. Noorden:
Supreme court dismissed a case in which plaintiff improperly invoked diversity jurisdiction, then
lost at trial. On appeal, plaintiff pointed to the lack of jurisdiction and won dismissal of the case he
had brought
Wisconsin Dept. of Corrections v. Schacht:
Federal courts retains jurisdiction over state claims even if the federal ingredient would not
suffice for federal jurisdiction if brought separately
Lapides v. Board of Regents of Ga:
A state court waivers its Eleventh Amendment immunity when it removes a case from state court
to federal court
Syngenta Crop Protection v. Henson: Henson tried to move case to federal court asserting federal
jurisdiction under the All Writs Act 1651
The All Writs Act does not furnish removal jurisdiction. That Act, alone or in combination with
the existence of ancillary enforcement jurisdiction, is not a substitute for 1441s requirement that
a federal court have original jurisdiction over an action in order for it to be removed from a state
Beneficial National Bank v. Anderson: bank (defendant) tried to move case to federal court although the
complaint of the plaintiff had no federal claim. Bank stated that the Ps claim actually arose under federal
claims 85 and 86
Under the well pleaded complaint rule, removal is not permitted unless the complaint expressly
alleges a federal claim. However there is an exception when a federal statute completely pre-empts
a cause of action. Since Ps cause of action arose only under federal law it can be removed under
Martin v. Franklin Capital Corp: Ps requested attorneys fees be paid by Ds under 1447 which states that
a remand order may require payment of just cost and any actual expenses, including attorneys fees
Absent unusual circumstances, attorneys fees should not be awarded under 1447(c) when the
removing party has an objectively reasonable basis for removal. Conversely, where no objectively
reasonable basis exists, fees should be rewarded.
Fee awards are left to the courts discretion and are subject to review only for abuse of discretion
Kircher v. Putnam Funds Trust: Seventh Circuit court of Appeals reviewed district courts decision to
remand a case back to state court because they found the districts courts decision to be substantive and
not covered under 1447(d)
Orders remanding for want of preclusion under the Act are subject to 1447(d) and its general rule
of nonappealability. S1447(d) states that an order remanding a case to the State court from which
it was removed is not reviewable on appeal. It applies to all remands based on grounds specified
in 1447(c), including subject matter jurisdiction
Watson v. Phillip Morris: D. tried to remove case to federal court because the complaint attacked Phillip
Morriss use of the governments method of testing cigarettes and thus that petitioners had sued them for
acting under the FTC.
The fact that a federal agency directs, supervises, and monitors a companys activities in
considerable detail does not bring that company within 1442(a)(1) scope and thereby permit


removal. The removal statute applies to private persons who lawfully assist a federal officer in
the performance of his official duty but only if the private parties were authorized to act with or
for (federal officers or agents) in affirmatively executing duties underfederal law
PowerEx Corp v. Reliant Energy Services Inc: Ds stated that they were wholly owned by foreign state
under FISA Act but was denied removal to federal court. Circuit court reviewed remands stating that
1447(d) did not preclude it from review substantive issues of law that preceded the remand order.
1447(d) bars appellate consideration or review of petitioners claim that it is a foreign state for
FISA purposes
Carlsbad Technology v. HIF Bio: Ps state claims were dismissed from federal court because federal claim
was dismissed, the court refused to use supplemental jurisdiction under 1367. Circuit court did not review
because remand order was based on lack of subject jurisdiction and not reviewable
A district courts order remanding a case to state court after declining to exercise supplemental
jurisdiction over state-law claims is not a remand for lack of subject jurisdiction for which
appellate review is barred by 1447(a) and (c) .
With supplemental jurisdiction, a federal court has subject matter jurisdiction over state-law
claims, see 1367(a), (c) and its decision whether or to exercise that jurisdiction is purely
discretionary. It can be reviewed.



Personal Jurisdiction
o Comes from the idea of state sovereignty
o Usually w/in the confines of the states borders w/ the exception of the Long Arm statutes
The 14th amendment reinforces those borders

28 USC 1738: State and territorial statutes and judicial proceedings; Full Faith and Credit Clause
o The acts of legislature of a state shall be affixed by the seal of such staterecords and judicial proceedings shall be
proved or admitted in other courts w/in the USand such acts and judicial proceedings shall have the same full faith
and credit in every court w/in the US.
o In personam Jurisdicion jurisdiction over the person
o In rem jurisdiction jurisdiction over the property
o Quasi in rem jurisdiction use attachment as a form of hooking on the jurisdiction
General Jurisdiction
o Based on Pennoyer-like presence
o Determined by the state of incorporation and PPB
o Claims may be unrelated to the contacts of the state
o Fed ct derives its jurisdiction from territorial jurisdiction of the state court
Specific Jurisdiction
o Presence has to be related to the claims
o Guiding case: Intl Shoe
Minimum Contacts (s in-state conduct)
Continuous and systematic v. sporadic and casual
Related to / arise out of claim
Fair Play and substantial justice
Deciding Fairness
o Interest Analysis:
5. State
6. Judicial
7. Interstate

Ints Shoe Guiding Principles

Continuous and systematic and related to COA YES jurisdiction
Sporadic and casual and related to COA YES Jurisdiction (McGee)
Sporadic and casual and not related to COA NO jurisdiction
Continuous and systematic and not related to COA Unclear

Complete Test for PJ

4. Purposeful availment
a. Express and Implied consent
b. Instate activities
5. Litigation relatedness
6. Reasonableness
a. Fairness
b. Foreseeability
c. Interest Balancing Test
Two Types of non-resident s:
o Physically present s that are tagged no need for min contacts b/c this is inherently reasonable
Due a Pennoyer analysis
o Absent s Get min contacts test
Due a Intl Shoe analysis
If cts lack PJ over you you ARE NOT amenable to service (meaning, you cant be tagged)


Pennoyer v. Neff Collateral attack on judgment where he was not properly served, he lived in another
state, and property was attached after judgment and taken away
Establishes state power over person, property or status for PJ
A state can obtain in personam jurisdiction over a non-resident only if that non-resident is
personally served w/ process while w/in the territory of the state
In rem jurisdiction can be obtained if the non-resident owns property w/in the state, and that
property is attached at the very outset of trial
Pennoyer Theory YOU HAVE TO BE THERE! (you can be tagged)
o Cts constitutionalized state boundaries under the 14th Amndt
All state proceedings and judgments are subject to the 14th Amndt Due Process
Intl Shoe the shoe sales men in Washington
2 Step Due Process Analysis:
1. Minimum contacts
i. In state activities of (continuous / systematic)
ii. Cause of action is related or under s activities
2. Fair Play and substantial justice
Shaffer Greyhound shareholders action where their stocks where sequestered
Quasi in Rem jurisdiction is focused on in this case b/c the property serving as the basis for
jurisdiction is completely unrelated to s COA
Intl Shoe inquiry applies to quasi in rem jurisdiction (min contacts must exist)
In this case, they found no jurisdiction b/c the claim was unrelated to the sporadic and casual
McGee v. Intl Life Ins. Co. beneficiary of a life ins policy held by a TX company, brought suit in CA
when Intl Life refused to pay
A state may exercise jurisdiction over a whose contacts w/ that state consist of only a single act,
provided that that act is what gave rise to the claim for which jurisdiction is being sought, and was
deliberately toward the state
Hanson v. Denckla claimants to a Delaware trust filed suit against the Delaware trustee in FL, claiming
the trust was invalid under FL law
A state may not exercise jurisdiction over a is the s contacts w/ the state are negligible and
non-deliberate, and the claim does not arise from those contacts
o In this case, the laws of Delaware allowed the trust to be created, maintained, and
administered. Allowing FL cts using FL law to invalidate the trust is, in a way, like
allowing FL cts to overturn Delawares laws to legislate instead
WWVW v. Woodson people driving Audi purchased in NY got rear-ended in Oklahoma
In order to be subject to a states jurisdiction, a must have chosen to have some contact w/ that
state; considerations of fairness, convenience, and the interests of the state in overseeing the
litigation are otherwise irrelevant
o Expands fairness analysis to a reasonable analysis
o Looks at the and his contact w/ the forum state
Purposeful availment
o Connection b/w purposeful availment, reasonableness and foreseeability
It is not unreasonable to adjudicate a who has purposefully availed itself to the
benefits of the state that it can foresee that it will be brought in court
Asahi Japanese people made a part that was placed in a product that ended up in the US
The must purposefully avail himself of the forum by more than just putting a product into the
stream of commerce w/ the expectation that it will reach the forum state
Fairness requirement is also not met b/c the would be a non-US resident
Burger King Corp BK franchise owner defaults on his payments then doesnt want to go and defend his
case in FL
The ct has PJ as long as the long arm statutes conform w/ the 14th amendment
Once it has been established that the has minimum contacts w/ a state, it is up to the to prove
that being required to defend a suit there would be fundamentally unfair


Mink developer of a comp. software brings action against purported competitors, alleging conspiracy to
copy program in violation of patent rights (the website case)
When a nonresident challenges PJ, the bears the burden of establishing the Dist. Ct has
jurisdiction over the
The Zippo decision: re: internet advertising
o Categorizes the passive website
Does not satisfy PJ
AAAA falls into this category
Washington Equipment Idaho obtained a certificate and appointed a registered agent in order to build
roads in Washington as required by State Statute of foreign corps
Ct held that a foreign corp does not consent to general PJ by complying w/ the states mandatory
requirements for doing business there.
Ins Corp of Ireland insurers failed to comply w/ the cts discovery rules
B/c of discovery violations, the party was sanctioned by the ct in that it deemed that PJ had been
Major lesson: If you challenge the inherent posers of the court, you will get sanctioned
Burnham Burnham was tagged w/ service of divorce papers when visiting his kids in CA
Jurisdiction based on physical presence alone comports w/ due process, regardless of the s
contact w/ the forum state
Carnival Cruise v. Shute forum selection clause on back of ticket
Forum selection clause was enforced b/c they had consented to it by purchasing the ticket
Forum selection clauses will be enforced
Gibbons v. Brown Brown gave Gibbons wrong directions and Gibbons sues him when he got in an
Ct held that jurisdiction over a non-resident is proper where the only contact w/ the state was
filing a lawsuit 2 years earlier against a not a party to the current suit
o A must be engaged in substantial and not isolated activity w/in the state

Created by 28 USC 1391
(b) where jurisdiction is founded only on DIVESITY, can file
(1) where the resides (easier to prove than domicile)
(2) where the events occurred (where the claim arose)
(3) where the is subject to personal jurisdiction if there is no other district to bring the action
(c) where jurisdiction is founded on NON-DIVERSITY, can file
(1) where the resides
(2) Where the events occurred
(3) Where the is subject to personal jurisdiction, if there is no other district to bring the action
(d) when suing a corporation, it is deemed to reside in any district which has Personal Jurisdiction over the corporation.
If jurisdiction is had in more than one district, then look to area of sufficient or greatest contacts
(e) Aliens can be sued in any district
(f) When an officer or the US is involved as a , can file
(1) where the resides
(2) Where the events occurred
(3) Where the resides if there is no property involved
(g) Discusses how a foreign state can be sued

1404: Change of Venue

o concurrent w/ R.12(b)(3)
o Tells the court that if they will not dismiss on a R.12(b)(3), then it should at leas be moved to any other district or
division where action may have been brought
Applies to 1631 Transfer to cure want of jurisdiction


Forum Shopping
To file in a state and then transferring to another state while keeping the transferring state laws (Ferens)
Horizontal Forum shopping is okay b/c the same state law would apply in a diff court
Vertical Forum shopping is not okay b/c you get diff law to apply which may change the outcome of the case


Forum non convenience

o Its declining jurisdiction over a matter where, in the interest of justice, it would be more appropriately tried in
another location based upon convenience to the parties and witnesses, and the best interests of the public
o Motion will not be granted if cannot prove that has an alternative forum which can exercise jurisdiction over all
of the s and can allow for complete relief

Dee- Enterprises, Inc. the bungee cord manufacturers in an antitrust suit

Sup ct held that the general federal venue statute, 1391(d) which provides that aliens may be
sued in any district, overrides any special venue provision contained in other federal statutes such
as the one pertaining to antitrust actions
Piper Aircraft Scotts want to sue in the US
The fact that a substantive law being less favorable to s in an alternative forum should not be
given conclusive or even substantial weight in applying the doctrine of forum non conveniens
Ferens v. Deere & Co this is the case of some seriously slick lawyering!
Man lost his hand in PA but filed in MS b/c of more favorable S/L law and then moved to transfer
to PA
Transferee forum was required to apply law of the transferor ct, regardless of which party
initiated transfer
o Transferor ct = where suit is originally brought
o Transferee forum = where suit may have been brought but wasnt

You can serve in one of 2 ways: state law or R.4(e)(2)
RULE 4: Summons
o (e) How do you serve
(1) serve pursuant to state law
(2) other ways to serve
Tag jurisdiction
Leave summons w/ individual dwelling or usual place of abode w/ some person of suitable and
age and discretion then residing therein; or
Delivering a copy of the summons and of the complaint to an agent authorized by appointment or
by law to receive service of process
In some cases, certified mail is okay
o (m) Time limit for service if service of the summons and complaint is not made upon a w/in 120 days after the
filing of the complaint, the ct, upon motion or its own initiative after notice to the , shall dismiss the action w/out
prejudice as to that

Mullane v. Central Hanover Bank & Trust Co. members of a common trust were notified by publication
in a local newspaper pursuant to State statute. Mullane objected saying notice should have been given by
mail b/c the newspaper was inadequate to afford due process under the 14th Amendment.
Sup Ct held that b/c the addresses were known, notice in the paper wasnt sufficient
o The focus of this case is the phrase reasonably calculated under the circumstances
b/c in some cases there really is no way of providing a party w/ notice other than by
Murphy Bros fax v. certified mail
30-day removal period begins to run NOT when received faxed, filed stamped copy of
complaint, but rather, when was later formally served by certified mail
28 USC 1446(b) specifies that the removal notice shall be filed w/in 30 days after the receipt by
the , through service or otherwise, of a copy of the complaint
R.4(a) says the summons shall state the time w/in which the must appear and defend, and notify
the that failure to do so will result in a judgment by default against the
Dusenberry v. US FBI tried to provide notice to a prison guard via certified mail
Mullane test of reasonableness applied in this circumstance
Notice of forfeiture in this case was sent by certified mail to federal prison where arrest occurred,
and address in town where his mother lived = satisfied due process requirements


Choice of Law (Erie)

If there is no FED and STATE law conflict, presumably both will apply
1652 Rules of Decision Act
o The laws of the several states, except where the Constitution or treaties of the US or Acts of Congress otherwise
require or provide, shall be regarded as rules of decision in civil actions in the courts of the US, in cases where they
3 Types of Conflict:
1. Statutory Conflict (procedural or substantive)
i. Stewart
Guided Erie
i. Is that statute on point and controlling?
ii. Is it a valid exercise of constitutional power? Always YES
2. Rule Conflict (procedural)
i. Hanna & Woods
Guided Erie
i. Is the Rule on point and controlling?
ii. It is consistent w/ the Rules Enabling Act? Always YES
3. Policy Conflict
i. Byrd
ii. Gasperini
Swift v. Tyson
o In federal diversity cases, fed cts have independent power to declare rules of decision and can use or create federal
common law
o This resulted in
Vertical forum shopping
Inequitable administration of law
Non uniformity and inconsistency
Favor to the
Black and White Taxi (Corp reincorporated in diff state to use more favorable state law)
o Highwater mark of gamesmanship by litigants
o Swift was upheld
o W/out a change or residence, a corporate citizen of the state could avail itself of the federal rule by incorporating in
another state

Erie R.R. guy got his hand cut off while on his way to visit his mom as a trespasser in a R.R. in PA and
filed in NY for more favorable statute regarding trespassers
Overrules Swift as to its federal common law assertion
Also says when there is no conflict, you can use both state and fed law
Twin Aims of Erie (Guided Erie)
1. prevent and discourage forum shopping
2. avoid inequitable administration of the law
Does not answer the questions of what we do when we have inconsistency b/w fed and state
statues, rules, and policies
Guaranty Trust v. York S/L used as a defense
NY S/L governs the matter. Disregarding it would significantly affect the result of litigation, as
compared w/ the outcome had it been tried in state court
OUTCOME DETERMINATIVE TEST The proper method of determining if the state S/L will
be applied in fed diversity cases is to ask if th fed ct were to disregard it, would so doing
significantly affect the result of the litigation (no matter if it is procedural or substantive)
Byrd Strong Federal Policy test
Where the state and fed conflict is not outcome determinative, but there is a fed policy (in this case
7th Amndt right to jury trial) than state interest should give way to federal policy


Hanna v. Plumer conflict b/w fed and state rules w/ regard to service [R.4] Guided Erie
Service of summons and complaint was left w/ Plumers wife at his residence
2 imp holdings:
1. it modified the outcome-determinative test so it is applied only in those situation where
the rule would encourage forum shopping or cause inequitable administration of the laws.
(The Twin Aims of Erie)
2. It held that where FRCP conflict w/ state rules, the FRCP will prevail
Woods Alabama allowed losing party on appeal to be penalized and FRCP didnt
Rule conflict
Follows Hanna and uses the same test
A governing FRCP controls over a contrary state statute
Stewart statutory conflict w/ regards to forum selection clauses (Fed ct allowed them, state ct didnt)
Looks at state policy verses fed statute that is on point and controlling, if so we use fed statute
Ct held in a fed diversity case, the fed ct shall not apply state decisional law if a fed procedural
statute governs the statute [broadly interpreted 1404(a)]
Gasperini NY statute allowed App Ct to review size of jury verdicts, while the Reexamination clause of
the 17th Amndt, applying to fed cts, prevented judicial review of damages (unguided Erie)
In a fed diversity case, the Reexamination Clause of the 7th Amdnt displaces substantive state
statute regarding excessive jury verdicts
Semtek Sup ct is called to decide whether claim preclusion in one jurisdiction should extend claim
preclusion to other fed jurisdictions.
Sup Ct wants the cts in Maryland to apply its own laws rather than CAs law

<----- intervention (R.24) --------/
<-----interpleader (R.22) ------->


Impleader (R.14)

3rd Party
(note: the that brought in the 3rd Party then becomes
the 3rd Party )

Known as complex litigation or multiple party litigation
Included in pleading section of 20 questions
RULE 13: Counterclaim and Cross-Claim
(a) compulsory counterclaims any related claim arising out of the same original transaction
(b) permissive counterclaims any claim against an opposing party which is not related to the original transaction
(requires independent SMJ and PJ)
RULE 14: Third-Party Practice
o Requires derivative liability
o Can implead another that is also liable
RULE 18: Joinder of
(a) Claims
(b) Remedies


RULE 19: Joinder of Persons needed for just adjudication

o Use R.12(b)(7)
o Bring in parties that need to be joined b/c they have an interest in the action or b/ they are needed to grant proper
o If the necessary party cannot be joined, the ct must decide whether to proceed w/out them
o Joined parties must be subject to PJ and joinder CANNOT destroy diversity for SMJ
o Factors to determine whether 3rd party is indispensable
The extent of prejudices to the present parties that the 3rd partys absence may bring
The extent that prejudices may be avoided or reduced by other means
The adequacy of judgment w/out third party presence
RULE 20: Permissive Joinder of Parties
(a) all persons may join if their claim arises out of the same transaction or occurrence OR common question of law or
(b) Court may use its discretion is separating trials (can also sever under R.42 : Consolidation; separate trials)

Plant v. Blazer borrows $, makes no payments, then sues the lender under the Truth-in-lending Act
Blazer counter-claimed under R.13(a) on the note for the unpaid balance
4 questions test to determine whether a claim or counter-claim arise from the same transaction
1. Are the issues of fact and law raised by the claim and counterclaim largely the same?
2. Would res judicata bar a subsequent suit on a s claim absent the compulsory
counterclaim rule?
3. Will substantially the same evidence support or refute s claim as well as s
4. Is there any logical relation b/w the claim and counterclaim?
Yes to any of the questions makes it a compulsory counterclaim
Mosley Mosely and 9 others joined together to bring a suit against GM for discrimination against blacks
and women
Rule 20(b) commonality of transaction analysis and determined that the civil rights claims though
based on different kinds of discriminations could be heard together
Permissive joinder is applicable only when
(1) a right to relief must be asserted by, or against, each or relating to or arising out of
the same transaction or occurrence, or series of occurrences; and
(2) some question of law or fact common to all the parties must arise in the action
Watergate Landmark Condo Rule 14 (3rd Party Practice) case
A third party complaint is appropriate only where the 3rd party is held liable to the
o You cannot say It was him, not me
o You can say It was ALSO him
Helzberg jewelry store sues shopping mall for violating its lease agreement
R.19(b) case fairness and procedural device
Cts are reluctant to find that a non-party is indispensable when joinder would result in dismissal
Other jewelery store wanting t lease space at shopping mall was not deemed an indispensable
party by the court
Kroger amended complaint under R.15 to add a 3rd party that was impleaded by original .
R.14 Impleader action
Original was granted SJ. Since and remaining were from the same state, diversity was
destroyed and ct lacked jurisdiction to hear the matter.
Abbott Consumers try to sue baby food manufacturers
It allowed the ct to exercise supplemental jurisdiction over the members of a class action even
though they did not all meet the required amount of controversy individually but they did as a

Allows a non-party who wishes to become a party to intervene if he meets the requirements of permissive intervention or
intervention of right
Intervention must be timely
A party will not be allowed to intervene if complete diversity will be taken


RULE 24: Intervention

(a) Intervention of Right:
(1) if a US statute allows it; or
(2) 3 pronged analysis:
i. timely
ii. interest in property or transaction / interest at risk
iii. adequacy of representation
1. diligence and competence
2. concurrent conflicts (proper representations of named and unnamed parties)
(b) Permissive Intervention:
(1) if a US statute allows; or
(2) applicants claim is related to the main action by question of law or fact
(3) Ct has discretion and should weigh any delays and prejudices to the original parties by allowing the

Natural Resources Defense Counsel environmentalists against the uranium mills

A party may intervene in an action under R.24(a)(2) if he has an interest upon which the
disposition0 f that action will have significant legal effect
Wilks white firefighters allege reverse discrimination
White firefighters challenged affirmative action plans mandated by consent decree which was
entered in an action of which they had previous knowledge but had not intervened
Ct held that a party may not be bound by a judgment rendered in which he was not a party, even if
he had previous knowledge of the action

Allows a party, against whom two or more mutually exclusive claims relating to the same property or fund have been
asserted, to join the claimants in the same proceeding and require them to litigate among themselves their rights, if any, to the
property or fund
2 kinds of Interpleader:
o Federal Statutory 1335
Other statutes pertaining to interpleader are:
1397: Interpleader Venue
2361: Process and Procedure
Statutory interpleader doesnt allow cross-claim or counterclaim actions
o Federal Rule R.22

Statutory Interpleader v. FRCP 22 Interpleader

Statutory ( 1335)
Minimal diversity; determined as
b/w claimants

Rule 22

Complete diversity; stakeholder

on one side and claimants on the
other (relates to 1332)

$500 in controversy
Service of Process


$75,000 +
Nationwide service of process
( 2361)
Residence of one or more
claimants ( 1397)

Statutory authority for injunctions

( 2361)


Need PJ; service under R.4

(1)Residence of any claimants (if
all from one state); (2) dist where
dispute arose; (3) dist where
property is; (4)dist where any
claimant found if no other basis
for venue (relates to 1391)
Only basis is provision 2283 for
stay where necessary in aid of

Cohen Imelda Marcos painting

A party has unconditional right to intervene if the party can prove a risk of practical impairment of
a relevant interest, timely application, and lack of adequate representation

(a) Prerequisite to a Class Action: (need to meet all 4 requirements, then go to R.23(b) ) One or more of the members
of a class may sue or be sued as representative parties on behalf of all only if:
(1) NUMEROSITY: class is so numerous that joinder of all members is impracticable
(2) COMMONALITY: there are questions of law OR fact common to the class
(3) TYPICALITY: the claims or defenses of the representative parties are typical of the claims OR
defenses of the class, AND
(4) ADEQUACY: the representative parties will fairly and adequately protect the interest of the class
(concurrent representation of the parties)
(b) Class Actions Maintainable: (just need to satisfy one of the 3 requirements) A class action will be maintained if
R.23(a) is satisfied AND in addition:
(1) the prosecution of separate actions by or against individual members of the class would create the
risk of [dont get to opt out of this provision]
(A) Inconsistent or varying adjudications w/ respect to indiv. class members of the class
which would establish incompatible standards of conduct for the party opposing the class;
(B) Adjudications for an indiv member which would substantially impair or impede other
members from taking action or protecting themselves (limited fund problem); OR
(2) The opposing party has acted similarly adverse to the entire class, thereby making appropriate
final injunctive relief or corresponding declaratory relief (note: damages will muck up your
24(b)(2) class); OR [dont get to opt out of this provision]
(3) The ct finds that the question of law OR fact common to the members of the class predominate
over any ques affecting only individual members, AND that a class action is superior to all other
available methods for the fair and efficient adjudication of the controversy. Matters pertinent to
the finding include: [if you dont opt out, youre in!]
(A) Interest of members of the class
(B) The extent and nature of any litigation already commence by other class members
(C) The desirability or undesirability of concentrating the litigation of the claims in the
particular forum;
(D) The difficulties likely to be encountered in the management of a class action

Communities for Equity class action brought for discrimination in girl sports
Ct takes into account the impracticability, commonality, typicality, and adequacy of representation
when considering the issuance of class actions
Heaven Heaven leased a car from SunTrust and sued them for failure to comply w/ disclosure
requirements of the Consumer Leasing Act
Cannot certify class action for COA which includes counterclaims b/c that would involve multiple
separate factual determinations which would undermine the commonality under R.23
Hansberry v. Lee black land purchaser was subject to discrimination
There must be adequate representation of the members of a class action or the judgment is not
binding on the parties not adequately represented
Shutts holders of royalty interests brought a class action against Phillips Petroleum to recover royalty
A state may exercise jurisdiction over absent s in a class action suit even if the s have no
contacts w/ the state
In this case, the s raised PJ question over the s (usually its the other way around)
Amchem v. Windsor people exposed to asbestos products created a settlement-only class to settle current
and future asbestos related clams
A class action settlement agreement may be approved by the ct if it is fair adequate and reasonable
In this case, the class did not meet the requirements of R.23 in common question


Federal Rules of Civil Procedure

Rule 1

Scope & Purpose of Rules

Rule 2
Rule 3
Rule 4

One form of Action

Commencement of Action


Service of Other Process

(Not summons/subpoena)

Rule 5

Service & Filing Pleadings &

Other Paper

Rule 6


Rule 7

Pleading Allowed; Form of


- Govern procedure in US district courts for civil suits (exceptions Rule 81)
- Trials: Construed/administered just, speedy, inexpensive manner
- merges law and equity into court
- Civil Action
- File complaint w/ Court
(a) Form: signed by clerk, bear seal, identify court/parties, directed to ,
name & address of s attorney/, time w/in must appear & failure =
judgment for
- Summons allowed to be amended.
(b) Issuance: after file clerk for seal
(c) A summons shall be served together with a copy of a complaint.
(d)(2)(B)/(C) Service by first-class mail/reliable means, accompanied by
complaint & court filed in
(e) Unless otherwise provided by federal law, service upon an individual
from whom a waiver has not been obtained and filed may be effected in
any judicial district of the United States:
(1) pursuant to the law of the state in which the district court is located, or
in which service is effected, for the service of a summons upon the
defendant in an action brought in the courts of general jurisdiction of the
(2) by delivering a copy of the summons and of the complaint to the
individual personally or by leaving copies thereof at the individuals
dwelling house or usual place of abode with some person of suitable age
and discretion then residing therein or by delivering a copy of the
summons and of the complaint to an agent authorized by appointment or
by law to receive service of process.
(f) = reasonable time to return waiver 30 days from date which request
sent/ 60 days if outside US
(h) delivering a copy of the summons and of the complaint to an appointed
officer able to receive service, also by mailing a copy to the defendant.
(m) Time Limit for Service: 120 days w/n filing complaint or there can be
a dismissal
(a) Served by US marshal/deputy US marshal/person specifically
(b)(2)(B) complete upon mailing service
(a) Everything = Served (unless otherwise provided)
(c) Numerous s: ct may order that service of the pleadings of the
defendants need not be made between the defendants, just notice to the
(a) Computation: by local rules of DC/court orders/ applicable statute
- day of act/event/default designated pd or time not included
- last day of pd = included, unless Sat., Sun., Legal Holiday or act = file in
court and weather conditions not permit
- Pd runs till end of next day
- pd <11 days, intermediate Sat/Sun/legal holidays excluded
(a) complaint, answer, reply counterclaim, answer cross-claim, 3rd party
complaint, 3rd party answer
(b) Motions & Other papers:
(1) motion is an application for an order.
- Made @ hearing or in writing
- State grounds & relief
- Signed according to Rule 11
(c) Demurrers, Pleas abolished: Replaces by Rule 12(b)(6)


Rule 8

General Rules of Pleadings

Rule 9

Pleading Special Matters

( heightened pleading standard)


Form of Pleadings


Signing Pleadings; Motions &

Other Papers; Representations to
Court; Sanctions


Defenses & Objection

- When & How
- Pleading or Motion
- Motion for judgment on

Can be used in Subject Matter

Jurisdiction and for Summary

(a) Claims for Relief: short plain statement

(1) Jurisdiction,
(2) Entitlement to relief- claim/remedy
(3) Demand for judgment
(b) Defenses; Forms of denials- general and specific
(c) Affirmative defenses- Qualified Immunity
- assumption of risk, arbitration, contrib. neg., bankruptcy, estoppel, failure
consideration, fraud, duress, illegality erc.
(d) Effect of Failure to Deny: if not deny in response = considered
(b) plead particularity in fraud, mistake, and condition of the mind.
- knowledge, intent, and malice can be plead generally or
(a) Caption; Names of Parties- every pleading shall contain a caption
setting forth the name of the court, title of action, file number, and a
designation as in rule 7 (a).
(b) s; separate statements- numbered
(c) Adoption by Reference; Exhibits
(a) Everything must be Signed by @ least 1 lawyer/party
(b) Represent to court by filing- certify that to the best of the persons
knowledge, information or belief it is
(1) not being presented for improper purpose (harass, delay, cost)
(2) claims/defense/contentions warranted by existing law
(3) evidentiary support or will after discovery/investigation
(4) denials are warranted on evidence
(c) Sanctions
(1) How Initiated
(A) Motion: Safe Harbor Prov. served by Rule 5, but NOT
filed/presented to court unless w/n 21 days after service of motionnot
withdrawn or appropriately corrected by
(B) Courts Initiative: court order specific conduct (Safe Harbor not
apply here)
- sanctions limited to what is sufficient to deter repetition of conduct.
(a) When presented:
(1)(A) shall serve an answer to a complaint w/n 20 days of being served
a summons/complaint
(1)(B) Timely waived on request, Rule 4(d) w/n 60 days of request for
waiver = sent or w/n 90 days of date addressed outside US
(2) Cross-claim answer 20 days from served, reply to counterclaim
w/n 20 days
(3)(A) US agency/officer/employee sued in official capacity answer w/n 60
(B) sued in individual capacity 60 days
(b) How presented: every defense to a claim for relief shall be asserted in
the responsive pleading; the following defenses may be made by motion
(Dismissal replaced Demurrer)
1) SMJ- Constitutional competency attacks 1331, 1367, 2) PJ- power, 3)
Improper Venue, 4) Insufficiency of process- need a summons and
complaint 5) Insufficiency of service of process, 6) failure to state claim
upon which relief can be granted (demurrer) 7) failure to join parties under
Rule 19
(c) Motion for Judgment on Pleadings:
- available to any party after pleadings are closed. Treated as one for


Need to join indispensable party


Counterclaim and Cross Claim


Third Party Practice

summary judgment and disposed of as in Rule 56.

- If matters outside pleadings presented & not excluded by court = motion
summary judgment + disposed Rule 56 parties = reasonable opp. to
present material for motion
(d) Preliminary Hearings:
- Defenses (b)(1)-(7) & motion for judgment (c) heard + determined b4
trial unless otherwise ordered
(e) Motion for more definite Statement:
- Order obeyed w/n 10 days
(f) Motion to Strike:
(g) Consolidation of Defenses in Motion:
(h) Waiver/Preservation of Certain Defenses
- 1. following defenses are waived if omitted from a consolidation motion
(12g) or if neither made by motion nor included in a responsive pleading
(15a): lack of personal jurisdiction, venue, process, or service of process;
2. following defenses will be allowed at any time: failure to state a claim
upon which relief can be granted, failure to join an indispensable party;
failure to state a legal defense to a claim. 3. court shall dismiss an action
for lack of subject matter jurisdiction
-*12h- waiver- if you dont bring up affirmative defenses you waive
them and you dont get to bring them back. ,except for 1, 6, 7,
-12(b)(1)- matter of competence- court would not have competence, cant
- 12(b)(6)- no way relief can be granted, no basis for claim
- 12(b)(7)- affecting someones interest but they are not there, failed to
a) Compulsory Counterclaims: a pleading shall state as a counterclaim any
claim which at the time of serving the pleading the pleader has against any
opposing party, if it arises out of the transaction or occurrence that is the
subject matter of the opposing partys claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire
b) Permissive Counterclaims: a pleading may state as a counterclaim any
claim against an opposing party not arising out of the transaction or
occurrence that is the subject matter of the opposing partys claim.
c) Counterclaim exceeding Opposing Claim: counterclaim can exceed the
pleading of the opposing party
d)Counterclaim against the US: shall not be construed to enlarge beyond
the limits now fixed by law the right to assert counterclaims against the US
g) Cross claims against Co Party: a pleading may state as a cross-claim any
claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a
counter-claim to the original action.
h) Joinder of Additional Parties: Persons other than those made parties to
the original action may be made parties to a counterclaim or cross-claim in
accordance with the provisions of Rules 19 and 20.
a) When may bring in third party: A defending party, as a third party
plaintiff, may cause a summons and complaint to be served upon a person
not a party to the action who is or may be liable to the third-party plaintiff
for all or part of the plaintiffs claims against the third party plaintiff.
b) When may bring in third party: When a counterclaim is asserted
against a plaintiff, the plaintiff may cause a third party to be brought in
under circumstances which under this rule would entitle a to do so.



Amended & Supplemental


(a) Amended Pleading- pleading that replaces an earlier pleading and

contains matters omitted from or not known at the time of the earlier
pleading. May be amended 20 days after original service. Response within
a minimum of 10 days to an amended pleading
(b) Amendments to Conform to the Evidence- If evidence is objected to at
trial because it was not within the pleadings, the court may allow the
pleadings to be amended and the objecting party to meet such evidence.
(c) Relation back of Amendments- cant amend pleading to set forth a new
and different claim or defense unless it involves the subject matter of the
original pleading
(d) Supplemental Pleadings


Pre-Trial Conferences

The court can do anything motion.

Parties, Plaintiffs, Defendants

Joinder of claims and remedies

Every action shall be prosecuted in the name of the real party and interest.
- Capacity to be sued or to sue.
a) Multiply claims
b) Multiply remedies
Indispensable rule; see 12 (b)(7)


Joinder of persons needed for just

Permissive joinder of parties
Misjoinder and Non-joinder of
Interpleader- a party who owes
something to one or more persons
can force them all into court to
decide issue in a single action.
Class Action


Substitution of Parties


Consolidation; Separate Trials

42 (a) in conjunction with 20 (a)
42 (b) in conjunction with 20 (b)

Failure to Make or Cooperate in

Discovery; Sanctions

(a) Multiple parties- can join as many plaintiffs and defendants (42 (a))
(b) There can be separate trials (in conjunction with 42 (b))
Misjoinder: is not ground for dismissal of action.
- you can add or drop parties by order of court
Complete diversity needed; federal question must exist; amount in
controversy must be at least $75,000.
(a)(2) There has to be questions of law and fact common to the class.
Intervention as of a right- unconditional by statute; ability ot protect
interest may be impaired directly.
-a) must claim an interest relating to property or transaction which is
subject matter of the action
-b) discretionary with trial court; applicants claim or defense and the
main action must have questions of law or fact in common.
Death or incompetency can be substituted.
a) Motion for order compelling disclosure or discovery
1) Appropriate Court
2) Motion
reverse costs, assume facts, prohibit evidence, default/ strike.
b) (2) Sanctions by court in Which Action Is Pending.
(A) An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for the purposes
of the action in accordance with the claim of the party obtaining the order.
a) Consolidation: When actions involving a common question of law or
fact are pending before the court, it may order a joint hearing or trial of any
or all the matters in issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning proceedings therein
as may tend to avoid unnecessary costs or delay.
b) Separate Trials: The court may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any
number of claims as declared by the 7th amendment.



Judgment as Matter of Law in

Jury Trial
Alternative Motion for New
Conditional Rulings
a) Burden of Production
b) Burden of Persuasion

(a) party fully heard on issue and there is no legally sufficient evidentiary
basis for reasonable jury to find for party on issue. Therefore, court
determines issue against party & grants motion for judgment as matter of
law (s burdern)
(b) Movant renews request for judgment as matter of law by filing motion
w/n 10 days of judgment entry Rule 50 can be used in tandem with Rule
59 (for new trials) (s burden)
jnov- judgments as a matter of law
- can bring up Rule 50 three times: (a) twice at trial (1-, 1-)(anytime
before submission to the jury), and (b)once post verdict


Findings by Court
Judgment on Partial Findings
Bench Trial

(a) Effect court finding facts w/o jury

(b) Amendment filed w/n 10 days courts amend filing or judgment
(c) Court can find on issue & enter judgment as matter of law during trial
(reversible only if clearly erroneous)


Summary Judgment (SJ)

(a) can move for SJ after 20 days of start of action w or w/o affidavits
(b) may move @ any time for SJ w/ or w/o affidavits
(c) Motion served w/n @ least 10 days b4 fixed hearing time
- Opposing party can serve affidavits prior to hearing
- 2 Grant SJ as matter of law if no genuine issue to any material fact and
that moving party is entitled to a judgment as a matter of law
- Interlocutory SJ on liability issue = no genuine issue as to damages
(d) The court has a right to determine the facts that apply and the remedy
that should be provided if it is not in accordance with a motion filed.
(e) Affidavits made of personal knowledge, admissible in evidence, affirm
affiant can testify to matters. Sworn/certified/attached. Can be
- Motion for SJ rest upon adverse partys response by affidavits or other
specifications when the facts show no genuine issue for trial. Therefore,
burden is on the adverse party. (movant)
(f) Affidavits = unavailable court may refuse application for judgment or
order continuance to get info obtained
(g) Affidavits in bad faith/delay court order employing party to pay
other partys incurred expenses, including reasonable attorneys fees
- other party/attorney may be adjudicated guilty of contempt
- Procedure for obtaining = accordance w/ Title 28 2201-2202; actual
case of controversy, further relief based on a declaratory judgment may be
granted after reasonable notice and hearing

Burden of Production with regard to

the movant


Declaratory Judgments (DJ)


Entry of Judgment
New Trials (NT)
Amendments of Judgments

(a) Grounds: to all/any parties & on all/any of issues

(1) action where = trial by jury for any reasons US courts already granted
new trials
(2) action w/o jury for any reasons US courts already granted rehearing
- Court may open judgment already made, take additional testimony,
amend findings of fact/conclusions of law, make new findings/conclusions,
direct entry of new judgment
(b) Motion filed no later than 10 days after judgment entered
(c) Affidavits must be filed w/ motion if = basis for NT
- 10 days after service, file opposing affidavits (till 20 days)
(d) Courts initiative order new trial w/n 10 days of judgment that would be
justified if = motion



Seizure of Person of Property




Offer of Judgment

- After parties = notice, opp. 2b heard court grant NT & reason not sated in
motion & specify grounds
(e) Motion to amend/alter judgment file no later than 10 days after entry of
- have to be pursuant to state law; arrest, attachment, garnishment,
replevin, sequestration, and they are available whether or not the
remedy is ancillary to state action or the remedy must be obtained
by an independent action.
5 factors in private law area for attacking a state statute:Fuentes
1) private interest affected by prejudgment hearing;
2)Risk of erroneous deprivation;
3) Probable value of safeguards;
4) Party seeking prejudgment hearing might be covenant in their property
5) ancillary govt interest.
Needed for injunction:
1) no adequate remedy at law
2) Irreparable harm
3) Probability of success on its merits
4) Balance and equity
5)Public interest
It is a pre-trial rule (10 days before the start of the trial) If plaintiff rejects
settlement offer by the defendant and then recovers less than the offered
1) plaintiff may not collect his own costs after the offer
2) plaintiff must pay defendants costs incurred after the offer


Final Decisions of District Courts


Interlocutory Decisions- an
appeal before the final decision


Federal Question


Diversity of Citizenship
- Prejudice statute


Supplemental Jurisdiction

The court of appeals shall have jurisdiction of appeals from all final
decisions of the district courts of the United States. The jurisdiction of the
United States Court of Appeals for the Federal Court shall be limited to
the jurisdiction described in sections 1292 (c) and (d)
The court of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States thereof,
granting, continuing, modifying, refusing, or dissolving injunctions, or
refusing to dissolve or modify injunctions.
The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.
Can not be an affirmative defense or a counter-claim
The district courts shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum value of $75,000 (excludes
interest and costs) and is between:
1) citizens of different states
2) citizens of a State, and citizens and subjects of a foreign state.
3) citizens of different States and in which foreign states or citizens an in
the parties.
Domicile is the place of residence or intent to stay- Individual
Domicile is the principal place of business- Corporation
(c) (1) a corporation shall be deemed to be a citizen of any state by which
it has been incorporated and of the state where it has its principal place of
business. Dual Citizenship
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.
The federal claim must be substantial enough to support federal question



Venue Generally

jurisdiction, and the federal and non-federal claims must arise from a
common nucleus of operative fact such that they should be tried in one
a) In any civil action of which the district courts have original jurisdiction,
the district courts shall have supp. Jurisdiction over all other claims that
are so related to original jurisdiction that they form part of the same case
of controversy under Article III (1331)shall include the joinder or
intervention of additional parties 12 (b)(1) would attack state claims; 12
(b)(6) would attack federal claims.
b) In any civil action of which the district courts have original
jurisdiction founded solely on 1332, the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by plaintiffs
against persons made parties under Rule 14, 19, 20, or 24 of the FRCP, or
over claims by persons proposed to be joined as plaintiffs under Rule 19
of such rules, or seeking to intervene as plaintiffs under Rule 24.
c) The court may decline to exercise supplemental jurisdiction in its
1) the claim raises a novel or complex issue of State law,
2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
3) the district court has dismissed all claims over which it has
original jurisdiction,
4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
d) The period of limitations for any claim for any claim asserted under a)
and for any other claim in the same action that is voluntarily dismissed at
the same time as or after the dismissal shall be tolled while the claim is
pending and for a period of 30 days after it is dismissed unless State law
provides for a longer tolling period.
(a) A civil action wherein jurisdiction is founded only on diversity of
citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside
in the same State,
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred
(3) a judicial district in which any defendant is subject to personal
jurisdiction at the time the action is commenced, if there is no district in
which the action may otherwise be brought.
(b) A civil action wherein jurisdiction is not founded solely on diversity of
citizenship may be brought in
(1) a judicial district where any defendant resides, if all defendants reside
in the same State
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred.
(3) a judicial district in which any defendant may be found
(c) a defendant that is a corporation shall be deemed to reside in any
judicial district in which it is subject to personal jurisdiction at the time the
action is commenced
(d) an alien may be sued in any district
(e) Officer of the state or USA



Defendants or Property in
Different Districts in Same State
Change of Venue


Cure or Waiver of Defects


Multidistrict Litigation


Actions Removable Generally


Federal Officers or Agencies Sued

or Prosecuted

(f) foreign state

Any civil action, of a local nature, involving property located in different
districts in the same State, may be brought in any of such districts.
(a) a district court may transfer any civil action to any other district of
division where it might have been brought
(b) Upon motion, consent or stipulation of all parties, any action, suit or
proceeding of a civil nature may be transferred in the discretion of the
court. Transfer of proceedings in rem brought by or on behalf of the US
may be transferred under this section without the consent of the US where
all other parties request transfer.
(c) a district court may order any civil action to be tried at any place
within the division in which it is pending.
(a)The district court of a district in which is filed a case laying venue in
the wrong divison or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district in which it could have been
(a) When civil actions involving one or more common questions of fact
are pending in different districts, such actions may be transferred to any
district for coordinated or consolidated pretrial proceedings.
a) any civil action brought in a State court of which the district courts of
the US have original jurisdiction, may be removed by the defendant or
defendants to the district court of the US for the district and division
embracing the place where such action is pending.
b) any civil action of which the district courts have original jurisdiction
founded on a claim or right arising under the Constitution shall be
removable without regard to the citizenship or residence of the parties
Any other such action shall be removable only if none of the parties in
interest properly joined and served as defendants is a citizen of the State in
which such action is brought (homestate rule- no disadvantage).
c) Whenever a separate and independent claim or cause of action within
the jurisdiction conferred by section 1331 of this title is joined with one or
more non-removable claims or causes of action, the entire case may be
removed and the district court may determine all issues therein and may
remand all matters in which State law predominates.
d) any civil action brought in a State court against a foreign state may be
removed by the foreign state to the district court. Upon removal the action
shall be tried by the court without jury.
e) the court to which such civil action is removed is not precluded from
hearing and determining any claim in such civil action because the state
court from which the civil action is removed did not have jurisdiction over
that claim.
a) a civil action or criminal prosecution commenced in a state court
against an of the following may be removed to the district court of the US:
1) The United States or any agency thereof or any officer of the US sued
in an official or individual capacity for any act under color of such office
or on account of any right claimed under an Act of Congress.
2) A property holder whose title is derived from any such officer, where
such action of prosecution affects the validity of any law of the US
3) Any officer of the courts of the United States, for any act under color of
office or in the performance of his duties
4) Any officer of either House of Congress, for any act in the discharge of
his official duty under an order of such house.



Civil Rights Cases


Nonremovable actions


Procedure for removal


Procedure after removal


b) A personal action commenced in a court of a State of the US against

any citizen of a State who is a civil officer of the US and is a nonresident
of such State, wherein jurisdiction is obtained by the State court by
personal service of process, may be removed by the defendant to the
district court of the US for the district and division in which the defendant
was served with process.
Any of the following civil actions or criminal prosecutions commenced in
a state court may be removed by the defendant to the district court of the
1) against any person who is denied or cannot enforce in the courts of such
State a right under any law providing for the equal rights of citizens of the
2) for any act under color of authority derived from any law providing for
equal rights, or for refusing to do any act on the ground that it ouwld be
inconsistent with such law.
a) A civil action in any state court against a railroad or its receivers or
b) A civil action in any state court against a carrier or its receivers or
trustees to recover damages for delay, loss, or injury of shipments unless
the matter in controversy exceeds $10,000, exclusive of interest and costs.
c) A civil action in any state court arising under the workmens
compensation law of such state may not be removed.
d) A civil action in any state court arising under section 40302 of the
Violence Against Women Act of 1994 may not be removed.
a) a defendant or defendants desiring to remove any civil action or
criminal prosecution from a State court shall file in the district court of the
US for the district within such action is pending a notice of removal
signed pursuant to Rule 11 and containing a short and plain statement of
the grounds for removal, together with a copy of all process, pleadings,
and orders served upon such defendant or defendants in such action.
b) The notice of removal of a civil action or proceeding shall be filed
within 30 days after the receipt by the defendant of a copy of the initial
pleading setting forth the claim for relief upon which such action is based,
or within 30 days after the service of summons upon the defendant if such
initial pleading has then been filed in court and is not required to be served
on the defendant, whichever period is shorter.
d) promptly after the filing of such notice the defendant or defendants
shall give written notice thereof to all adverse parties and shall file a copy
of the notice with the clerk of such state court, which shall effect removal
and the state court shall proceed no further unless and until the case is
a) the district court may issue all necessary orders and process to bring
before it all proper parties whether served by process issued by the State
b) it may require the removing party to file with its clerk copies of all
records and proceedings in such state court or may cause the same to be
brought before it by writ of certiorari issued to such State court.
c) a motion to remand the case on the basis of subject matter jurisdiction
must be made within 30 days after the filing of the notice of the removal
under 1446a. Case shall be remanded if court lacks SMJ.
d) an order remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise, except pursuant to 1443.
e) if after removal the plaintiff seeks to join additional defendants whose
joinder would destroy subject matter jurisdiction, the court may deny



Process after removal


Transfer to Cure Want of



State Laws as Rules of Decision


State and Territorial Statutes and

Judicial Proceedings; Full Faith
and Credit


Proceedings in Forma Pauperis


Counsels Liability for Excessive



Creation of Remedy


Further Relief


Costs and Fees

joinder, or permit joinder and remand the action to the State court.
In all cases removed from any State court to any district court of the US in
which any one or more of the defendants has not been served with
process or in which the service has not been perfected prior to removal,
such process served proves to be defective.
Whenever a civil action is filed in a court, is noticed for or filed with such
a court and that court finds that there is a want of jurisdiction, the court
shall, if it is in the interest of justice, transfer such action or appeal to any
other such court in which the action or appeal shall proceed as if it had
been filed in or noticed for the court to which it is transferred on the date
upon which it was actually filed in or noticed for the court from which it is
The laws of the several states, except where the Constitution or treaties of
the United States or Acts of Congress otherwise require or provide, shall
be regarded as rules of decision in civil action in the courts of the United
States, in cases where they apply.
The Acts of the Legislature of any State shall be authenticated by affixing
the seal of such State.
The records and judicial proceedings of any court of any such State shall
be proved or admitted in other courts within the US by the attestation of
the clerk and seal of the court annexed, if a seal exists, together with a
certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records, and judicial proceedings so authenticated, shall have
the same full faith and credit in every court within the US as they have by
law or usage in the courts of such State from which they are taken.
A prisoner seeking to bring a civil action or appeal a judgment in a civil
action or proceeding without prepayment of fees in addition to filing the
Any attorney or other person admitted to conduct cases in any court of the
US or any Territory thereof who so multiplies the proceedings in any case
as to increase costs unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and attorneys fees
reasonably incurred because of such conduct.
In a case of actual controversy within its jurisdiction, any court of the US
may declare the rights and other legal relations of any interested party
seeking such declarations whether or not further relief is or could be
sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.
Further necessary or proper relief based on a declaratory judgment or
decree may be granted, after reasonable notice and hearing, against any
adverse party whose rights have been determined by such judgment
US has to be a party and position has to be substantially justified or no

3 Sanctions
Rule 11
Inherent Powers (Chambers)
Qualified immunity and absolute immunity applies to govt entities, agencies and officials

11th amendment applies to states; states cant be sued

Defendant has to plead qualified immunity
Objective standard in seeking immunity
5th amendment due process applied to fed actions
7th amendment civil jury trials
8th amendment cruel and unusual punishment
14th amendment due process applied to state actions
II. Remedies and Attorneys Fees