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CIVIL PROCEDURE

PROFESSOR MARGARET LEMOS

DUKE UNIVERSITY SCHOOL OF LAW

CHAPTER 1: INTRODUCTION

A. In General

 Tested on the MBE, MEE, and state essays

 Similar to state civil procedure in most states

o State rules are often patterned on the Federal Rules of Civil Procedure

B. MBE

 Includes 25 scored questions on Federal Civil Procedure

 Important topics:

o Pleadings

o Discovery

o Motions Practice

 Motion to Dismiss

 Motion for Summary Judgment

 Motion for Judgment as a Matter of Law

 MOST important topic:

o Jurisdiction

CHAPTER 2: SUBJECT-MATTER JURISDICTION: FEDERAL QUESTION JURISDICTION

A. Introduction to Jurisdiction

1. Subject-Matter Jurisdiction

o Power of the court to decide this ______________________________ of case

2. Personal Jurisdiction

o Power of the court to decide the rights and liabilities of this

______________________________

3. Venue

o Among the courts that have subject-matter and personal jurisdiction, which district(s) have

proper venue

B. Subject-Matter Jurisdiction (SMJ)

1. In General

o Issue: Does this court have the power to decide this kind of case?

 Federal courts are courts of ______________________________ subject-matter

jurisdiction.

 State courts are generally courts of ______________________________ subject-matter

jurisdiction.

Exam Tip 1: For the MBE, unless you are given a state statute that says

otherwise, assume state courts have subject-matter jurisdiction over any kind

of case.

2. Pleading SMJ

o Basis for federal SMJ must be ______________________________ pleaded in every case.

o If challenged, it must be proved that there is a basis for SMJ.

3. Waiver

o ______________________________ for a lack of SMJ (i.e., parties cannot agree between

themselves to litigate in a court that lacks SMJ)

o Lack of SMJ cannot be waived by failing to object or by affirmative consent

4. Objection to SMJ

o Lack of SMJ can be raised by ______________________________ at

______________________________, including by:

 The plaintiff, who chose to go to the wrong court

 The court itself

 Anyone for the first time on ______________________________

C. Federal Question Jurisdiction (“Arising Under”)

1. Basis

o Exists for a claim that arises under ______________________________

2. Well-Pleaded Complaint

o Plaintiff’s claim must be based on federal law.

o Look at the face of the ______________________________ complaint.

 Only the plaintiff’s claims count for determining federal question jurisdiction; the

existence of a federal defense does not matter.

 Plaintiff does not need to anticipate or plead a response to a defense. A federal defense

does not count for federal question jurisdiction, even if it is important.

o Louisville & Nashville R.R. v. Mottley

Example 1: After an accident on the railroad, the Mottleys received lifetime

passes on the railroad in settlement of their claim. Congress subsequently

passed a statute that the railroad argued prohibited lifetime passes, and the

railroad stopped honoring the passes. The Mottleys brought suit, claiming that

(1) the railroad failed to honor its agreement with them, (2) the federal statute

did not bar lifetime passes, and (3) if it did, then it was unconstitutional.

Issue: Is there federal-question jurisdiction?

Answer: ______________________________. Mottleys’ claim was for specific

performance of a contract, which is a state law claim. Federal law is only raised

by the defendant's argument that it is barred by the federal statute from

continuing to honor its contract. These are important questions, but they are

not part of the plaintiff’s complaint and therefore they do not count for

purposes of federal question jurisdiction; the federal question MUST appear on

the plaintiff’s well-pleaded complaint.

CHAPTER 3: SUBJECT MATTER JURISDICTION: DIVERSITY JURISDICTION

A. Basis for Diversity

1. Requirements

o Cases between citizens of _________________________________________, or citizens of a

state and a foreign country, if the amount in controversy exceeds

______________________________, exclusive of interest and costs.

Exam Tip 2: The amount must EXCEED $75,000, so the plaintiff must seek at

least $75,000.01.

o Exceptions: _______________________ and

__________________________________________ actions cannot be brought in federal

court under diversity jurisdiction even if the normal requirements are satisfied.

2. Time for diversity determination

o Diversity must exist when the complaint is ______________________________.

 Does NOT matter that diversity did not exist when the cause of action

______________________________

 Does NOT matter that diversity no longer exists when the case comes to trial

B. Complete Diversity

1. General rule

o The diversity statute requires ______________________________ diversity.

o Every citizenship represented on the plaintiff's side of the case must be different from every

citizenship represented on the defendant's side.

o Does NOT mean every plaintiff must be diverse from every other plaintiff or that the

defendant must be diverse from every other defendant

Note 1: Diversity must only be complete as between plaintiffs and defendants.

Example 2: There is a three-car pileup. The cars were driven by Ann, Ben, and

Carol. Ann is a citizen of North Carolina, and Ben and Carol are both from

Maine. If Ann sues both Ben and Carol, is there complete diversity?

______________________________

Example 3: Ann had a passenger named Damon in her car. Damon is a

citizen of Maine. If he and Ann decide to sue Ben and Carol together, does

complete diversity exist? ______________________________

2. Minimal diversity (exception to complete diversity requirement)

o Exists when ______________________________ plaintiff is diverse from

______________________________ defendant, even if other plaintiffs and defendants

overlap. In the example above, there was minimal diversity, because there was one plaintiff

from NC and defendants were from ME.

o Minimal diversity is permitted in the following circumstances:

 Federal Interpleader Act (statutory interpleader);

Editorial Note 1: With regard to federal statutory interpleader, diversity exists if

any two adverse claimants are diverse from each other (discussed later).

 Class actions with more than ______________________________ class members and

claims worth more than $ ______________________________ (Class Action Fairness

Act); and

 Interstate mass torts if at least ______________________________ natural persons

have died in one accident and the plaintiffs and defendants are from many different

states (e.g., airline crash).

 Outside these limited exceptions, the general rule is that complete diversity is required.

C. Citizenship of the Parties

1. Individuals

o Citizen of the state or country of ______________________________

 Must be a citizen of the United States and a domiciliary of the relevant state

 Domicile is ______________________________, (residence + an intent to remain

indefinitely)

Example 4: A law student lives in one state but does not intend to stay there

to start her legal career. She resides in the state where her law school is

located, but she is not domiciled there.

o For purposes of jurisdiction, there can only be ______________________________ legal

domicile at a time.

2. “Aliens” (Citizens or Subjects of a Foreign Country)

o Diversity jurisdiction exists for controversies between a citizen (or citizens) of a state and a

citizen (or citizens) of a foreign country.

o A citizen of a foreign country who has been admitted to the U.S. as a permanent resident is

treated as a citizen of the ______________________________.

3. Representative parties

o Generally, the citizenship of the ______________________________ controls.

Example 5: In a suit by a Trustee on behalf of a trust, the Trustee's citizenship

will control, not that of the beneficiary.

o Exception: For litigation involving a decedent's estate, the citizenship of the

______________________________ controls.

o Exception: For the legal representative (guardian) of a minor or an incompetent person, the

______________________________ of the infant or incompetent person controls.

Note 2: General rule: Citizenship of the representative party controls.

4. Class actions

o Citizenship of the ______________________________ or

______________________________ parties count

o Class members not named may join without regard to citizenship.

5. Corporations

o Can have several citizenships simultaneously

o Citizen of:

 The state, states, or foreign countries in which it is ______________________________;

and

 The state or country where it has its ______________________________ (where its

executive offices are located)

Exam Tip 3: Remember, when a corporation is a party, you still need

COMPLETE diversity between plaintiffs and defendants, so you must consider

EVERY state where the corporation has citizenship.

6. Partnerships and unincorporated associations

o Citizen of every state of which its ______________________________ are citizens

Example 6: If you sue a partnership in federal court under diversity

jurisdiction, you must show ______________________________ diversity

between you (the plaintiff) and the citizenship of every partner in that

partnership.

o Applies to partnerships, limited partnerships, trade associations, and

______________________________ (the rule makes it much harder to get diversity in these

organizations)

D. Devices to Create or Destroy Diversity

 Actions that create or destroy diversity are permitted so long as they are not “shams” or

fraudulent.

 Moving: permitted, even if it is done with the purpose of affecting diversity, so long as the

change in domicile is genuine, not a sham

 Assignment of a claim: permitted so long as the assignment is real (for value), complete, and

not collusive

o Partial assignment of a claim for the purpose of debt collection does NOT affect citizenship if

the assignor retains an interest in the claim.

Example 7: You owe me $1,000, and you do not want to pay. I hire someone

to collect that debt from you. If he is successful in collecting, he gets to keep

30% (which means that I keep 70% and the assignment is partial). Does this

type of partial assignment change citizenship?

___________________________________________________________

E. Amount in Controversy (AIC)

1. Requirements

o Must EXCEED $

______________________________, exclusive of interest and costs

o ONLY relevant in diversity cases

o General rule: Any ______________________________ allegation will suffice (NOT whether

the plaintiff recovers $75,000)

 Only when it appears to a legal certainty that the AIC will not be met will the court

dismiss the case for lack of AIC.

Example 8: In a case in which the plaintiff is seeking to recover a debt where

everyone agrees the debt is $50,000, there is a legal certainty that the AIC has

not been met.

Example 9: If it is a tort case, a good-faith belief will suffice, even if the jury

finds the damages are much less.

2. Aggregation

o Aggregation

Adding up smaller claims to exceed $75,000

a. One plaintiff v. one defendant

 Plaintiff can aggregate all her claims, regardless of whether the claims are related.

Example 10: Plaintiff has two claims against the defendant, each worth

$50,000. Is the AIC requirement satisfied?

______________________________

b. One plaintiff v. two (or more) defendants

 Plaintiff may not aggregate her claims against ______________________________

defendants.

Example 11: After the car crash, Ann decides to sue Ben and Carol for $50,000

each. Is the AIC requirement satisfied? ______________________________

 Claims against each defendant must total more than $75,000.

c. Two (or more) plaintiffs v. one defendant

 Plaintiffs may not aggregate their claims against the defendant.

Example 12: If Ann and Damon decide to sue Ben together for $50,000 each.

Is the AIC requirement satisfied? ______________________________.

 Each plaintiff must be seeking more than $75,000 from the defendant.

Editorial Note 2: Note that if the defendants are jointly liable, they are treated

as one defendant. Thus, if plaintiff sues two defendants on a theory of joint

liability, seeking a total of $75,001, the AIC requirement is satisfied.

o Supplemental jurisdiction: Smaller-value claims are sometimes permitted as a matter of

supplemental jurisdiction (discussed later).

CHAPTER 4: SUBJECT-MATTER JURISDICTION: REMOVAL JURISDICTION

Exam Tip 4: Tested with astonishing frequency, especially on essays.

A. Removal Terminology

 Removal moves case from ______________________________ court to federal court.

 Transfer moves case from one ______________________________ court to another federal

court.

 No procedure for removal of a case from federal court to state court.

o Federal court can ______________________________ from hearing the case (in very

narrow circumstances).

B. General Rule for Removal

 Removal is proper ONLY if the case could have been brought originally in

______________________________ court.

 ONLY ______________________________ may remove.

o ALL defendants must consent to removal within ______________________________ days

of service.

 ASK: If the plaintiff had chosen to sue in federal court in the first place, would the federal court

have had ______________________________?

Exam Tip 5: The reason this is an exam favorite is because the examiners can

test federal SMJ without using the term. "Was the motion to remove properly

granted" is a sneaky way to test SMJ.

C. Removal of Federal Question Cases

 Well-pleaded complaint rule: Federal question jurisdiction on whether the federal question

appears on the face of the well-pleaded complaint.

 Removal does not change that rule: If the well-pleaded complaint discloses that the plaintiff’s

claim is based on federal law, then the defendant may remove to federal court.

o If the plaintiff's claim is based on state law, defendant ______________________________

remove to federal court, even if the defendant has raised a federal defense.

Example 13: Recall Louisville & Nashville R.R. v. Mottley case: Mottleys sue the

railroad on a contract claim (specific performance). They tried to go to federal

court because the real issues were based in federal law. However, the Supreme

Court said the plaintiff’s claim is a state law contract claim, so there is no

federal SMJ. If there is no jurisdiction for the plaintiffs, then the defendants

could not remove it to federal court.

D. Removal of Diversity Cases

 Removal based on diversity jurisdiction is proper only if:

1. There is ______________________________ diversity;

2. The amount in controversy exceeds $______________________________; and

3. The action is brought in a state of which no ______________________________ is a citizen.

Example 14: Ann (NC) decides to sue Ben (ME) and Carol (ME) for $100,000

each in Maine. Ann could sue them in federal court under diversity jurisdiction

because there is complete diversity and the AIC requirement has been met for

each defendant. However, if Ann decided to sue Ben and Carol in a Maine state

court, then the defendants could not remove.

 One-year limit on removal: Must remove within one year of the commencement of the action

in state court, unless the plaintiff acted in ______________________________ to make the case

non-removable.

Example 15: If the plaintiffs joins a non-diverse defendant, waits a year, and

then dismisses the non-diverse defendant, the other defendants can then seek

removal if all of that was a ploy to defeat diversity.

E. Removal Procedures

 A notice of removal is filed in the federal court, with a ______________________________ to

the state court.

 When the removal notice is filed, the state court’s jurisdiction

______________________________ instantly and automatically.

F. Improper Removal

 Plaintiff can file in federal court a petition for ______________________________, and it is on

that petition that the federal court will hold a hearing.

o If removal is proper, remand is denied, and case stays in federal court.

o If removal is improper, remand is granted, and case goes back to state court.

Note 3: Key point: The decision is made by the ____________________ court.

Removal is automatic, and then the decision about whether it was proper is

done on a petition for remand by the _____________________ court.

CHAPTER 5: SUBJECT-MATTER JURISDICTION: SUPPLEMENTAL JURISDICTION

A. Supplemental Jurisdiction

1. In General

o Basic Rule: Allows a federal court with subject-matter jurisdiction over a case to hear

additional claims over which the court would not independently have jurisdiction if ALL the

claims constitute the same case or ______________________________.

o Claims constitute the “same case or controversy” if they arise out of the same common

nucleus of operative ______________________________.

 All the claims arise out of the same ______________________________ or occurrence.

o 28 USC § 1367: Supplemental jurisdiction allows, but does not require, the court to expand

its jurisdiction.

 Decision is within the ______________________________ of the trial court and is

typically made on practical grounds.

2. Federal Question Cases

Example 16: Plaintiff has a federal question claim and a state law claim

against the same defendant. The federal question claim is the “anchor” claim,

because it forms the basis for the federal court’s SMJ over the case. The state

law claim does not qualify on its own for federal SMJ. Nevertheless, if the two

claims arise out of the same common nucleus of operative fact, the court may

exercise supplemental jurisdiction over the state-law claim.

o This applies whether or not those claims involve the joinder of an additional party.

Example 17: Plaintiff asserts a federal claim against Defendant 1 and a related

state-law claim, arising out of the same common nucleus of operative fact,

against Defendant 2. The federal court may hear both the federal claim against

D1 and the state-law claim against D2.

 Historically, this was called “______________________________-party jurisdiction.”

3. Diversity Jurisdiction Cases

o State-law claims still must be part of the “same case or controversy” (common nucleus of

operative fact).

o Additionally, the statute bars supplemental jurisdiction in diversity jurisdiction cases over:

 Claims by ______________________________ against persons made party under Rules

14, 19, 20, or 24;

 Claims by parties seeking to intervene as plaintiffs under Rule 24; or

 Claims by parties proposed to be joined as plaintiffs under Rule 19.

Editorial Note 3: If such claims are to be part of a diversity case, they must

independently satisfy the complete diversity and AIC requirements.

a. Statutory nuances

 Supplemental claims by ______________________________ are allowed if they satisfy

the common nucleus of operative fact test.

 Supplemental claims by a plaintiff are only allowed if they are brought against a

______________________________ defendant and no

______________________________ rule is involved in making that defendant a party.

b. Counterclaims

Example 18: Does a counterclaim in a diversity action have to meet the

jurisdictional minimum of $75,000.01? Generally,

______________________________, if the counterclaim is

______________________________.

 A compulsory counterclaim is one that arises out of the same transaction or occurrence

as the ______________________________ party’s claim.

Example 19: Ann (NC) sues Ben (ME) in federal court, seeking $100,000

damages for injuries from the car accident. The court has jurisdiction under the

diversity statute. Ben wants to counterclaim against Ann to recover $50,000 for

the injuries he suffered in the same car accident. This counterclaim is

______________________________ (i.e., Ben has to use it or lose it) because it

arises out of the same transaction or occurrence as Ann's claim: namely, the car

accident.

Note 4: Compulsory counterclaims are usually brought by defendants, so they

can usually come in without checking it against the AIC requirement. However,

watch out for compulsory counterclaims brought by a plaintiff, which would

run into those exclusions.

 A ______________________________ counterclaim is one that does NOT arise out of

the same transaction or occurrence as the main claim.

Example 20: Ann and Ben also have a regular Zoom poker game. Ann owes

Ben money. When Ann sues Ben for the car accident, Ben decides to

counterclaim to recover on the gambling debt. This is a

______________________________ counterclaim because it does not arise

from the same transaction or occurrence as the original claim.

 Can only be heard by a federal diversity court ONLY if it

______________________________ satisfies diversity jurisdiction (i.e., complete

diversity and $75,000+)

c. Cross-claims

 Claim by a ______________________________ (e.g., a plaintiff against another plaintiff)

 Relatedness Requirement: Must arise out of the transaction or

______________________________ that is the subject matter of the action or of a

counterclaim.

Exam Tip 6: Cross-claims by defendants will usually (but not always) qualify for

supplemental jurisdiction; you still need to apply the relatedness test.

 To qualify for supplemental jurisdiction, a cross-claim:

 Must be related to a claim over which the court has subject-matter jurisdiction (i.e.,

the “anchoring” claim); and

 Must not be asserted by a plaintiff against a person made party under Rules 14, 19,

20, or 24.

Example 21: Ann (NC) sues Ben (ME) and Carol (ME) seeking $100,000 from

each of them. Diversity jurisdiction exists because there is complete diversity

and the AIC requirement is met. Ben wants to assert a $50,000 cross-claim

against Carol for driving negligently.

Question 1: Does the cross-claim arise out the same transaction or occurrence

as the main claim? ______________________________.

Question 2: Is the cross-claim being brought by a Plaintiff against a person who

became a party under Rules 14, 19, 20, or 24?

____________________________________________________________.

Example 22: Ann and Damon decide to sue Ben and Carol for $100,000 each.

This time, Damon is a North Carolina Citizen. Diversity jurisdiction exists.

However, Damon wants to assert a $50,000 cross-claim against Ann for

negligent driving.

Question 1: Does the cross-claim arise out the same transaction or occurrence as

the main claim? Yes, these are all claims about the same car accident.

Question 2: Is the cross-claim being brought by a Plaintiff against a person who

became a party under Rules 14, 19, 20, or 24?

_____________________________________________________________.

d. Multiple plaintiffs, single defendant (permissive joinders and class action)

 If the claim of one diverse plaintiff against a single defendant satisfies the jurisdictional

amount, other diverse plaintiffs who have ______________________________ claims

against the defendant can also be heard even if their claims do NOT satisfy the

jurisdictional AIC minimum.

Example 23: Class action is brought with 5 named (representative) parties who

are all diverse from the defendant. One of the representative parties has a claim

for more than $75,000. Can the claims of other class members can be heard

under supplemental jurisdiction, even if they do not meet the jurisdictional

amount ($75,000+)? ______________________________.

 Why? Because a single defendant has not been made a party by Rules 14, 19, 20, or 24.

Note 5: Different Basis for Jurisdiction in Class Actions: Remember that there is

also statute that allows federal subject-matter jurisdiction over class actions

wherein the total amount in controversy exceeds $5 million and there are more

than 100, so long as there is minimal diversity between one plaintiff and one

defendant.

 Supplemental jurisdiction is available on the same logic when multiple plaintiffs do not

form a class, but choose to join together in the same action. If one plaintiff has a claim

worth $75K+, the others can raise claims arising from the same transaction regardless of

amount.

Example 24: Ann (NC) and Damon (NC) join together to sue Ben (ME). Ann is

seeking $100,000 from Ben and Damon is seeking $50,000. Damon cannot

satisfy the AIC requirement. Can Damon get in under supplemental jurisdiction?

______________________________.

Example 25: Same facts as previous example, except that Ann is from North

Carolina, and Damon and Ben are from Maine. Can Damon still get in under

supplemental jurisdiction? ______________________________.

B. What to Remember

 Supplemental jurisdiction works for federal question cases across the board, as long as the

additional claims are ______________________________.

 In diversity cases, supplemental jurisdiction is broadly available for related claims by defendants

but much more limited for claims by plaintiffs.

o ______________________________ counterclaims will generally get in under supplemental

jurisdiction.

o Cross-claims that arise out of the same ______________________________ or

______________________________ as the anchor claim and are asserted by a defendant

will generally come in under supplemental jurisdiction.

o ______________________________ can take advantage of supplemental jurisdiction for

related claims against a ______________________________defendant.

 Supplemental jurisdiction in diversity cases does not EVER allow you to join a non-diverse

defendant or non-diverse plaintiff.

CHAPTER 6: PERSONAL JURISDICTION; IN PERSONAM JURISDICTION

A. Personal Jurisdiction (PJ)

 Does the court have the power to reach the involuntary party (the defendant)?

1. In General

o Personal jurisdiction is an issue in federal and state court, and rules are generally the

______________________________ in federal and state court.

 Default federal rule—use the ______________________________ statute of the state

in which the federal court sits (chief means of asserting PJ over out-of-state

defendants).

Editorial Note 4: As a practical matter on the exam, whether the fact pattern

takes place in federal or state court, the court must have personal jurisdiction

and the rules are generally the same.

o Must always ask two questions:

1. Has the basis for exercising PJ over an out-of-state defendant been

______________________________ by ______________________________ or by rule

of court?

2. Is the particular basis for exercising personal jurisdiction permitted by the

______________________________ Clause of the US Constitution?

Exam Tip 7: On a civil procedure essay involving personal jurisdiction,

remember to ask and answer both of these questions.

2. Waiver

o Unlike subject-matter jurisdiction, and objection to a lack of personal jurisdiction

______________________________

be waived. Consider two scenarios:

Example 26: An out-of-state defendant is sued in a state court and wants to

contest personal jurisdiction. The defendant comes to the state and litigates the

issue of personal jurisdiction. If the court finds that it lacks jurisdiction, then the

defendant goes home. If the court finds that it does have jurisdiction, then the

case goes forward on the merits, but the defendant has successfully preserved

this question of personal jurisdiction for appeal.

Example 27: An out-of-state defendant comes to the state, litigates on the

merits to see how things are going, and then raise and objection to personal

jurisdiction when it seems that things are not going well.

o Voluntarily litigating on the merits waives any objection to lack of PJ (a

______________________________ appearance)

 A defendant waives any objection to personal jurisdiction (consents to the court’s

jurisdiction) by __________________________________________________________

on the merits before raising that objection.

 This includes almost anything other than challenging jurisdiction.

o Federal Rules: Lack of personal jurisdiction must be raised at the

___________________________________________________________, or it is waived.

 If the defendant chooses to file a pre-answer motion to dismiss she must make the

objection then or waive it, OR

 If the defendant does not file a pre-answer motion, the objection to personal

jurisdiction must be raised in the ______________________________.

3. Types of Personal Jurisdiction:

o ______________________________: against the person

o ______________________________: against the thing

o ______________________________: “sort of” against the thing

B. In Personam Jurisdiction

1. Constitutional Aspect

o Due process requires minimum ______________________________ between the

defendant and the forum state.

o Ask: Are there sufficient contacts between the defendant and the forum so that it would be

consistent with traditional notions of ______________________________ and substantial

______________________________ to sue the defendant here?

o In assessing minimum contacts, courts look to see whether the defendant has

______________________________ associated himself with the forum in some way.

 Contacts between the forum and the plaintiff do NOT suffice.

 There must be minimum contacts between the forum and the

______________________________.

 Those contacts must be a result of the defendant’s own purposeful

______________________________.

2. General and Specific In Personam Jurisdiction

o Federal courts follow the personal jurisdiction law of the states in which they sit.

o There is some variation state to state, but not much.

a. General in personam jurisdiction

 The plaintiff can assert any claim whatsoever, even if it is unrelated to the defendant’s

contacts with the forum state.

b. Specific in personam jurisdiction

 Plaintiff’s claims against the defendant must arise out of—or directly relate to—the

defendant’s ______________________________ with the forum.

 State ______________________________ statutes authorize specific jurisdiction based

on some ______________________________ contacts.

Exam Tip 8: Remember: GENERAL allows suit on any claim; SPECIFIC allows

claims that have a connection to the forum state.

3. Bases for General In Personam Jurisdiction

a. Physical presence within the state

 Service of process on the defendant while she is ______________________________

present in the state

 Exceptions

 If a person was in the state only to answer a ______________________________

 Persons brought to the state by brought there by

______________________________ or ______________________________

 If person is in the state knowingly and ______________________________, then the

person can be served there.

b. Domicile

Editorial Note 5: REMEMBER: "Domicile" is where one resides with intent to

remain indefinitely.

 Domicile is independent of ______________________________.

Example 28: If you and I both live in NC, but we happen get into a car accident

when we are both vacationing in Maine, I can sue you in NC even if you are still

in Maine at the time I initiate my action.

c. Consent

 Expressly (“Yes, I’d be delighted”) or implicitly (by not raising the issue)

 Can be given by appointment of an ______________________________ for receiving of

process within the state, or by contract.

d. Corporations

 Corporations can consent to personal jurisdiction just like individuals, but the rules

regarding physical presence are a little different.

 Merely “doing business” in a state is insufficient to support general jurisdiction.

 General in personam jurisdiction applies only to corporations that are essentially

“______________________________” in the forum state.

 The state of ______________________________; and

 The state where the corporation has its ______________________________.

 Are incorporation and principal place of business the only bases for general jurisdiction

over a corporation?

 ______________________________. The Supreme Court has suggested that there

might by some "exceptional cases" where a corporation might be deemed "at

home," and subject to general jurisdiction. However, there have been no cases as

of yet.

CHAPTER 7: SPECIFIC IN PERSONAM, IN REM, AND QUASI IN REM JURISDICTION

A. Specific In Personam Jurisdiction

1. In General

o Turns on a connection between the lawsuit and the defendant's

______________________________ with the forum.

o Plaintiff's claim must ______________________________ of the defendant's forum

contacts or be directly ______________________________ to those contacts.

o Constitutional test: Defendant must have sufficient minimum

______________________________ with the forum such that the exercise of jurisdiction is

fair.

 ______________________________ contacts are needed to make jurisdiction fair when

the lawsuit is really about those contacts.

2. Statutes

o Every state has a ______________________________ statute.

o Purpose: Give courts in personam jurisdiction over out-of-state defendants but ONLY for the

particular transactions involving that state.

 Connection between the ______________________________, the

______________________________ and the lawsuit that creates the requisite

minimum contacts and that makes suing the defendant there fundamentally fair.

 Some state statutes are very broad, e.g., “the long-arm statute extends as far as the

Constitution allows”

 Others list specific activities that give rise to jurisdiction (see below)

3. Common Bases for Specific In Personam Jurisdiction

o Any ______________________________ or ______________________________ in the

state causing injury to a person or property here or elsewhere (e.g., driving car into another

state)

o An act or omission ______________________________ the state causing injury to a person

or property _____________ the state, provided that the defendant conducted activities

here or introduced goods into the flow of commerce (probably most important)

o Any claim arising out of a contract to perform ______________________________ in the

state or to pay someone in the state to perform services elsewhere, or out of the

______________________________ performance of such services

o Any claim arising out of a contract to ______________________________ to or from the

state, or arising out of the shipment of such goods

o Any claim regarding ______________________________ property

o Any action against an officer or director of a ______________________________

corporation for acts taken in that capacity

o Any contract for ______________________________ where the plaintiff was a resident of

the state when the claim arose, or the event giving rise to the claim occurred in the state.

Exam Tip 9: Almost everything is covered by a state's long-arm statute, so long

as the claim arises out of the transaction involving that state (specific

jurisdiction).

Example 29: Suppose the accident involving Ann, Ben, and Carol occurred in

North Carolina, where Ann lives, and Ann wants to sue Ben and Carol there. On

the day of the crash, Ben and Carol had never been to North Carolina and were

driving through on their way to Florida. Ben and Carol each have one and only

one contact with North Carolina−the car accident. If the case is all about the

car accident, this is okay for purposes of personal jurisdiction.

4. Federal Exceptions

o Generally, federal courts follow the state long-arm statutes of the states in which they

______________________________.

o The exceptions are ______________________________ that extend in personam

jurisdiction of federal courts ______________________________ state boundaries.

Exam Tip 10: These exceptions are often tested on the exam.

a. Federal Interpleader Act (i.e., “statutory interpleader”)

 Authorizes ______________________________ service of process

 Service anywhere in the United States establishes personal jurisdiction

 For a federal court, the relevant jurisdiction is the U.S. as a whole, so

______________________________ can authorize nationwide service of process as

means of asserting personal jurisdiction nationwide

Note 6: Note that a state cannot make a similar provision authorizing

nationwide service of process

b. The Bulge Provision of the Federal Rules

 Allows service anywhere within ______________________________ miles of the

federal courthouse, even if in another state, in two situations:

i) For ______________________________ third-party defendants under Rule 14; and

ii) For joining ______________________________parties under Rule 19. (More later

on these rules.)

c. Unusual Provision

 Use: Defendant not subject to personal jurisdiction in any state court

 Rule 4(k)(2): applies only when plaintiff is suing under federal law

 When the plaintiff is suing under ______________________________ and

______________________________ state has jurisdiction over this defendant, the

federal court can exercise jurisdiction so long has the defendant has

______________________________ with the U.S. as a whole.

 Used rarely; most relevant with ______________________________ defendants with

no particular contact with a particular state

B. In Rem and Quasi In Rem Jurisdiction

1. In Rem Jurisdiction

o Suit against ______________________________ (the res) versus suit against

______________________________

o Utility: suit can be brought against a piece of property, so long as:

 Property is located in the state where you are suing

 Suit will settle everyone's claims to the property

o The res: may be any property real (e.g., land) or personal (e.g., bank account).

o Essential: This state's courts have ______________________________ over the property.

This means that the property must be located ______________________________.

o Form of specific jurisdiction

2. Quasi-In-Rem Jurisdiction

o Suit to adjudicate the claim to property of a ______________________________ defendant

or defendants; the subject matter of the suit may or may not be related to the property.

o Historically: it was possible to use quasi-in-rem jurisdiction as a way to get a defendant's

______________________________.

Example 30: There is an out-of-state defendant whom you cannot reach with a

long-arm statute. You were in a car accident with the defendant in Maine, but

the defendant lives in North Carolina and you live in New York. However, the

defendant has a bank account in New York. Rather than sue the defendant, you

would sue the bank account. The case has nothing to do with the bank account;

it is being used as a hook for jurisdiction. If there is not enough money in the

account to cover your injuries, too bad. The case is against the bank account,

not the defendant.

o Present rule: The Supreme Court has held that quasi-in-rem action are subject to the same

______________________________ test as applies to personam jurisdiction.

 When the property is the subject of the suit, it will constitute an important “minimum

contact” between the defendant and the forum, and jurisdiction will probably be

permitted as a matter of specific in personam jurisdiction.

 When the property is not the subject of the suit, the ownership of property in the state

is not nearly enough to establish general jurisdiction over the defendant

Exam Tip 11: Not usually tested. However, if you do get this issue, remember to

apply the same minimum contacts test that you would use to test the

constitutionality of in personam jurisdiction.

CHAPTER 8: SERVICE OF PROCESS

A. Notice and Service of Process

1. In General

o Generally means service of a ______________________________ and a copy of the

______________________________ on the defendant

 Formally gives court jurisdiction over the case

 Gives the defendant ______________________________ of the action

o Personal service—used to assert in personam jurisdiction

 Should also be used for in rem and quasi-in-rem actions when the

______________________________ of an interested party is known

 Service by publication is only appropriate for in rem actions when that is the best that

the serving party can do.

 Requirement: ______________________________ authorization and

______________________________ validity

 Constitutional test: notice must be ______________________________ under the

circumstances

o Federal Rules authorize service in accordance with state law where the federal court sits.

 Default rule is that service in federal court is okay as long as it follows the law of the

state in which the federal court is based.

Example 31: State law may authorize service by mail. If it is okay for state

courts, it’s okay for federal courts, too.

o Regardless, these Federal Rules for service are always allowed:

1. In-hand ______________________________ delivery;

2. Leaving the summons at the defendant’s ______________________________ or usual

place of abode with a person of suitable ______________________________ and

discretion;

3. Delivery of the summons to an authorized ______________________________; and

4. For persons in foreign countries, service can be made by

______________________________, return receipt requested

Exam Tip 12: 1-3 refer to individuals served in the U.S. There is no order of

preference; any option will do.

Exam Tip 13: Service by mail to the attorney of record is generally NOT

accepted for service of process UNLESS state law so provides, even though

other documents are served by mail.

2. Special Rules for Service of Process

a. Infant (minor)

 Service on the infant AND on the ______________________________

b. Adjudicated incompetent

 Service must be made on the incompetent AND her guardian

c. Partnership

 Service on a ______________________________, an attorney in fact, or an authorized

agent

d. Corporation

Service on an ______________________________, ______________________________,

managing agent, or on an agent appointed for receiving service of process (corporations

doing business in the state must have an agent)

e. Non-resident motorists

 Claims arising out of in-state accidents

 Generally, service can be made on a state official who forwards a copy to the out-of-

state defendant.

Editorial Note 6: Note that this is a state law issue, not federal.

3. Service of Process for In Rem and Quasi-in-rem Actions

o You must make a ______________________________ effort to locate all claimants to the

property (res) and serve them personally.

o If the claimants cannot be located, then notice by ______________________________ is

permitted.

Exam Tip 14: You CANNOT rely on notice by publication if you actually know or

can readily find out the ______________________________ and addresses of

the other claimants; they must be served personally.

B. Waiver of Service

 Rule 4: Defendants have a ______________________________ to avoid unnecessary expenses

of serving the summons by waiving service.

 Plaintiff can notify defendant that an action has been commenced and request that defendant

waive service of the summons.

o Plaintiff can do this by first-class mail.

o Defendant has ______________________________ days to respond, or

______________________________ days if the defendant is outside the U.S.

 Why say yes to this request for waiver?

o Rules give the defendant an incentive to say yes by ______________________________ the

deadline for filing an answer.

o Usual deadline to file an answer is ______________________________ days after service of

process.

o Defendant agrees to waive service, then the defendant gets

______________________________ days to answer.

C. Injunction Notice Issues

 Injunction: a form of relief that requires a defendant to do something (i.e., a

______________________________ injunction) or prohibits a defendant from doing something

(i.e., a ______________________________ injunction).

 After the court has fully heard the case, it can issue a ______________________________

injunction.

 Ways to stop behaviors:

o Preliminary injunction: Relief that can be issued prior to a

______________________________ hearing on the merits. Requires:

 ______________________________ to the defendant and

 ______________________________ on whether the injunction should be granted.

o Temporary ______________________________ order (TRO): used to preserve the status

quo until the court can make a decision on the preliminary injunction.

 Temporary measure

 Cannot last more than ______________________________ days, unless the other party

agrees or the court finds ______________________________ for an extension for

"______________________________."

 A TRO can be issued ______________________________ notice to another party.

 Moving party has to establish, under ______________________________, that

there will be immediate and irreparable ______________________________ if

there is a delay.

 Moving party's attorney has to ______________________________ in writing any

efforts that have been made to give notice and the reason why notice is not

required.

 If TRO is issued without notice, then the other party can make a motion to

______________________________ the TRO.

 TROs are not appealable, unless they have the effect of a preliminary

______________________________.

D. Summary

 There are several bases for general in personam jurisdiction:

o Physical presence of an individual at the time of service of process

o ______________________________ / “at home”

o Consent

 Specific jurisdiction: State long-arm statutes allow very broad reach against out-of-state

defendants so long as the claim arises out of the ______________________________ contact

with the state.

 In every case, there must be a rule or ______________________________ authorizing PJ and

the assertion of PJ must be based on minimum contacts between the defendant and the forum

state such that it is fundamentally ______________________________ to sue the defendant in

the state.

 PJ of federal court is usually the same as that of the state in which it sits.

o Federal courts have nationwide in personam jurisdiction in statutory

______________________________ cases and expanded PJ (100 miles) under the

“______________________________ provision” when the defendant is trying to implead a

third-party defendant (Rule 14), or trying to bring in a ______________________________

party (Rule 19).

CHAPTER 9: VENUE

A. In General

 Where among the courts in this judicial system is the appropriate court to hear the case

o Federal system: Whether this ______________________________ is a proper court to hear

this action

 It is the ______________________________ responsibility to object if venue is improper.

o Failure to make a timely objection results in waiver.

 Federal law—claim of improper venue must be made at the first

______________________________ or it is waived.

o Either a pre-answer motion to dismiss if the defendant chooses to file one, or the

defendant’s ______________________________, if no pre-answer motion is made

 State and federal venue rules are completely different.

B. Federal Rule

 Federal venue concerns which ______________________________ should hear a case.

 Federal venue is proper in a district:

i) Where any defendant ______________________________, as long as ALL defendants

reside in the same ______________________________; or

Example 32: Ann sues Ben and Carol in their home state of Maine. Because

both Ben and Carol reside in Maine, venue would be proper in the district where

either of them lives.

ii) Where the claim arose

 Where a “substantial part of the events or omissions” on which the claim is based

occurred or where a “substantial part of the ______________________________”

that is the subject of the action is located.

iii) If neither of the above (rare), any district where the defendant is subject to

______________________________ has venue.

 Federal venue generally does not rest on the plaintiff’s ______________________________.

1. Residence

o Individuals: Residence means ______________________________.

o Business entities: Any business entity (capacity to sue or be sued) resides in every district in

which ______________________________ exists.

2. Special Provisions

o For a case begun in state court and removed to federal court, venue is automatically proper

in the federal district where the ______________________________ court sits, even if that

district would not have been proper originally.

3. Transfer (one federal court to another)

Exam Tip 15: Transfer is frequently tested.

o General rule: transfer is only to a district with ______________________________.

 Exception: Transfer to a district without proper venue may occur when ALL parties

agree.

o A case brought in a district ______________________________ proper venue may be

transferred for convenience to another district with proper venue.

o A case brought in a district ______________________________ proper venue may be (1)

dismissed or (2) transferred to a district with proper venue.

C. Conflict of Law (Which state’s law applies?)

 If suit was brought in a district ______________________________ proper venue and the case

is transferred to another district, the law of the transferor (first) forum controls.

o Apply the choice-of-law rules of the state in which the action began; “Take your law with

you.”

 If suit was brought in a district ______________________________ proper venue and

transferred to another district, the law of the transferee (second) court controls.

o Do NOT get to take your law with you; no advantage to filing in the wrong court.

CHAPTER 10: CHOICE OF LAW: THE ERIE DOCTRINE

A. General Rule under Erie

 In a diversity case, a federal court applies state ______________________________ law.

B. State Substantive Law

 The substantive rules that govern conduct, i.e. what must be proved to win a case and what

defenses may be asserted;

 State statutes of ______________________________ on state causes of action;

 The burdens of proof on state claims or defenses; and

 State rules on ______________________________

Editorial Note 7: Conflict of Law v. Choice of Law

“Conflict of laws” refers to the laws and rules of a jurisdiction that are applied

in cases with connections to multiple states to determine which state's laws will

determine the parties' rights.

“Choice of law” more commonly refers to a federal court sitting in diversity

determining whether state or federal law controls a given issue.

Example 33: A federal court in Maine with diversity jurisdiction over a state

tort claim will apply state law on (i) the existence and definition of that tort, (ii)

the statute of limitations period within which that cause of action may be

brought, (iii) the burden of proof for any elements of the tort claim or any

defenses, and (iv) in a situation in which there is a question as to which state’s

law governs, the federal court will apply Maine law on conflict of law.

Note 7: States’ conflict-of-law rules tend to favor applying their own law.

Remember: if a case is transferred, the law of the transferor (first) state controls

as long as venue is proper in the first court.

C. Federal Procedures

 Hanna v. Plumer: Anything covered by the Federal Rules of Civil Procedure is

“______________________________” for purposes of Erie—federal law applies, even if the

substance of the claim is governed by state law.

D. No Federal Statute or Rule on Point

 The court must determine whether to follow state law (i.e., the matter is deemed

“______________________________

”) or to follow federal law (i.e., the matter is deemed

“

______________________________

”

 The twin aims of Erie:

i) To avoid ______________________________ shopping; and

 Situations in which parties have incentives to choose (or avoid) federal court based on

perceived advantages and disadvantages of federal law versus state law

ii) To avoid the ______________________________ administration of justice

 Situations where there is a different result in state and federal courts, so winning and

losing turns on the accident of diversity of citizenship

Example 34: Plaintiff is deciding between federal and state court. If the

decision involves choosing the court based on which has the more favorable

rules, then we run into the problems Erie was trying to avoid (forum shopping or

inequitable administration of justice).

 Two common applications of Erie:

i) If the choice of the procedure would be ______________________________ determinative

(change the result), the federal court should usually apply

______________________________ law to prevent forum shopping.

ii) The role of the ______________________________ in federal court is entirely controlled by

federal law.

E. Federal Common Law

 Judge-made federal law that overrides (preempts) any ______________________________

state or local law or rule

 Federal courts make federal common law ONLY when they encounter important federal

interests that are not covered by ______________________________.

 Examples where federal common law applies:

o Boundary disputes between ______________________________

o ______________________________ preclusion

 Federal courts sometimes “borrow” state law but do so as a matter of federal common law.

F. Determining Applicable State Law

 Follow precedent from the highest ______________________________ court.

 If there is no precedent, predict how the highest state court would rule.

 Give ______________________________ attention to the decisions of lower state courts (not

______________________________).

CHAPTER 11: PLEADINGS

A. Commencement of Proceedings

 Federal civil action is begun by filing ______________________________ a with the court clerk.

 For diversity actions, ______________________________ law controls when an action is begun.

B. Types of Pleadings

1. The Complaint

o Used to state a claim for ______________________________

o The plaintiff or the defendant may file a claim against a co-party, called a

______________________________ complaint.

o A defendant files a third-party complaint to implead a third-party defendant.

2. The Answer

o Filed by the opposing party in response to the complaint

o It may contain responses to the allegations of the complaint, affirmative defenses, and/or

______________________________.

3. The Reply

o Used by the plaintiff to answer a ______________________________

C. Requirements of a Complaint

 A complaint (or any pleading in which a claim is made) must include:

o A short and plain statement of the court’s ______________________________;

o A short and plain statement showing the claimant is entitled to relief; and

o A claim for the ______________________________ sought by the pleader.

1. Claim for Relief

o Recovery is not limited by the claim for relief as stated in the complaint, except for

______________________________ judgments.

o You get what you prove, not what you ask for.

2. Notice Pleading

o Historically, pleading was difficult because each kind of claim had its own special rules of

pleading, and the pleading had to match the proof.

 Litigation was often resolved on the pleadings, rather than the merits.

o One of the chief aims of the Federal Rules was to reform pleadings.

 ______________________________ pleading across all civil actions

 Simplify pleading

 Shift emphasis from pleading to the ______________________________ of the case

o The Federal Rules generally require only ______________________________ pleading:

 A pleading need not detail the facts of the plaintiff's case or spell out the legal theory

 Must only give ______________________________ of the pleader’s claim

 Rule to remember: All that is required is a ______________________________ and

______________________________ statement of the claim showing that the pleader is

entitled to relief.

D. Special Pleading

1. Definition

o No particular form of words

o Alleged with particularity/specificity/detail

2. Types of Claims Requiring Special Pleading

o ______________________________ or ______________________________ must be

specially pleaded.

o Claims for ______________________________ must be specially pleaded (i.e., damages

that do not ordinarily follow from the wrong)

Example 35: Ann is hit by an automobile and Ann claims medical expenses,

pain and suffering, lost wages—all these may be alleged generally. But if Ann

claims that she lost a major business deal because the accident prevented her

from making an appointment and the opportunity slipped away, that is not the

type of damages that ordinarily result from the accident, so those damages

must be stated with ______________________________.

E. Recent Decisions

 Supreme Court cut-back on notice pleading, due to concerns about excessive discovery and

fishing expeditions.

o Bell Atlantic v. Twombly (2007)

o Ashcroft v. Iqbal (2009)

 Require that the allegations in the complaint state a ______________________________ case

for recovery

 Conclusory Claims: Disregard allegations not entitled to presumption of truth

 Two-step inquiry:

1. Identify allegations that are “conclusory” or “mere ______________________________

conclusions.”

2. Look at remaining, factual, allegations, and ask whether they add up to a “plausible” case for

recovery.

 “Plausible” falls somewhere between “probable” and merely “conceivable” or

“possible.”

 The two cases do NOT abandon notice pleading; they curtail it by empowering district judges to

dismiss, before discovery, complaints that they think are obviously

______________________________ (i.e., lack of factual detail, if it tells rather than shows)

Exam Tip 16: The examiners cannot be demanding about how you apply these

cases. You would have to go deep into the plaintiff’s substantive claim, which is

not what procedure questions test generally. The most likely way that you will

be tested on Iqbal and Twombly is ______________________________. You

will be expected to recognize that, even under notice pleading, unconvincing

and implausible allegations with no factual support should be

______________________________.

CHAPTER 12: DEFENSE MOTIONS

A. Defense Motions Against the Complaint

1. Motion to Dismiss

o May be used to raise:

 Lack of ______________________________

 Lack of ______________________________ jurisdiction, (including both lack of power

and defects in service of process)

 Improper venue

 Failure to state a claim upon which relief can be granted

 Failure to join a ______________________________ party

 Forum non conveniens

o Claim of no personal jurisdiction or a claim of improper venue must be made at the

______________________________ opportunity (either a pre-answer motion to dismiss or

the answer).

o Lack of subject-matter jurisdiction ______________________________ be waived; can be

raised by any party at any time, including for the first time on appeal or by the court itself.

o Most claims (including lack of PJ and venue) are waived if NOT raised by defendant before

______________________________ on the merits.

Example 36: If the defendant thinks the plaintiff’s claim is inadequate and files

a motion to dismiss for failure to state a claim on which relief can be granted,

but she also thinks the court lacks personal jurisdiction over her or is an

improver venue, then the defendant ______________________________ to

include those objections in the motion.

Example 37: If the defendant does not file a motion to dismiss, then she must

include the objections in the ______________________________ or she will

have waived them.

2. Motion for Judgment on the Pleadings

o Applies when the pleadings agree entirely on the ______________________________ and

only the law is in dispute

o If facts in affidavits or discovery documents must be considered, must file for summary

judgment instead of judgment on the pleadings

3. Motion for a More Definite Statement

o Asks that a pleading be made more specific

o Judges usually disfavor this motion.

4. Motion to Strike

o Can be used to delete from a pleading scandalous or prejudicial matters that are NOT

______________________________ to the case at hand

o Also used by the plaintiff to strike a legally invalid ______________________________

B. Answer

1. In General

o Used to respond to any form of ______________________________

o May contain responses, affirmative defenses, and counterclaims

2. Responses

o The failure to respond constitutes an ______________________________

o Unless cured by amendment, the admission is ______________________________ in the

action.

o Usual practice: a “boilerplate” denial of everything not specifically admitted

3. Affirmative Defenses

o Defenses which, in fairness, require ______________________________

o Common affirmative defenses: assumption of ______________________________,

contributory negligence, fraud, ______________________________, release, statute of

frauds, and statutes of limitations (i.e., anything with a name).

4. Timing

o Must ordinarily be served within ______________________________ days of service of the

pleading to which it responds

o If defendant agrees to waive service of process, the answer is due within

______________________________ days of when the request for waiver was sent out

(______________________________ days if the request for waiver was sent to the

defendant outside of the U.S.).

o If defendant files a motion to dismiss and the court denies it, the answer is due

______________________________ days after notice of the court's action.

C. Reply

 Plaintiff’s answer to a counterclaim

 Rules governing ______________________________ apply to a reply.

CHAPTER 13: AMENDMENTS TO PLEADINGS

A. Amendments to the Pleadings

1. Types of Amendments

a. As of Right

 May be amended once at any time within ______________________________ days of

service of the pleading or within ______________________________ days of the

defendant’s response, if there is one

b. By Leave of Court

 After the party has amended once, leave to amend must be sought from the court.

 Amendment by leave of court should be ______________________________ granted.

 Judge must have a reason for denying leave to amend.

 Example: Amendment is too late and would be prejudicial to the other side, or the

pleader has had a prior opportunity to amend but has not corrected the problem.

2. Doctrine of Relation Back

o In some circumstances, an amendment is deemed to ______________________________

to the date the original pleading was filed.

 The key date for purposes of tolling the statute of limitations is the date the

______________________________ pleading, rather than the date of the

______________________________.

 If the statute of limitations has NOT yet run (still open), this doctrine does not

matter.

 If the statute of limitations has run out, then relation back determines whether the

amended pleading is allowed (relates back) or time-barred (does not relate back).

Exam Tip 17: On the exam, look for the limitations period, the date of the

original pleading, and the date of the amendment. When you see that the

original pleading was timely, but the amendment was not, then you know you

are being asked about the doctrine of relation back.

o Rules to remember:

 An amendment relates back to the date of the original filing IF it concerns the same

______________________________, transaction, or occurrence as the

______________________________ pleading.

 The key concept here is ______________________________; it cannot have the effect

of surprising the other party.

3. Amendment to Add or Change a Party

o An amendment to add or change a party against whom a claim is asserted must:

 Concern the same conduct, transaction, or occurrence as the

______________________________ pleading; and

 The party ______________________________ (new party) must have known or had

reason to know that the action should have been brought against that party but for the

______________________________.

Example 38: A corporate subsidiary is sued, and the complaint is later

amended to name the parent company as the defendant. Meanwhile, the

statute of limitations has run.

The complaint was served on the subsidiary on Day 1. The subsidiary answers

on Day 20. There are now 21 days to amend the complaint as of right. The

amended complaint naming the parent corporation is filed on Day 35. The

statute of limitations ran on Day 10. Is the amended pleading timely as against

the parent company?

______________________________. The amended pleading concerned the

same transaction as the original pleading and the original complaint against

the subsidiary told the parent what was occurring.

Suppose a plaintiff slips and falls on a sidewalk in a shopping area and sues a

store. After the statute of limitations has run, it becomes clear that the plaintiff

has sued the wrong store. If the plaintiff tries to amend the complaint to sue

the correct store (i.e., change the defendant), the amendment is

______________________________ because the original complaint did not

give the correct store notice of the claim. Key concept:

______________________________.

o Incorrect party-in-interest (plaintiff)

 Example: suit brought by a parent corporation when it should have been brought by a

subsidiary.

 Suit should not be dismissed for having the wrong plaintiff until a

______________________________ time has been allowed for substitution of the real

party in interest.

 Amendment to substitute the real party in interest only works if the amendment

concerns the same conduct, ______________________________, or occurrence and

the original complaint gave notice to the ______________________________.

B. Certification of Pleadings

 Verification: Most pleadings are NOT verified (not sworn to), nor do they have to be.

 Certification: Pleadings and other documents—including motions and discovery requests—must

be signed by ______________________________ and provide the attorney’s contact

information.

o The signature certifies that there is an appropriate ______________________________ and

______________________________ basis for filing.

o Attorney certifies that to the best of her knowledge after

______________________________:

 There is NO improper purpose (e.g., harass or needlessly increase costs);

 The legal contentions are warranted by existing law or by a non-frivolous argument for a

change in the law; and

 The factual allegations have ______________________________ support or are likely to

have such support after an opportunity for discovery.

 Denials must have such support or must be ______________________________ based on lack

of information or belief.

 Violation of certification requirement can be raised by court or by a party in a motion for

sanctions.

o Move to dismiss or seek sanctions (Rule 11)

o The attorney can be ordered to bear the ______________________________ of baseless or

improper filings.

CHAPTER 14: MULTI-PARTY LITIGATION

A. Capacity to Sue and be Sued

 Minors (under 18) and people deemed incompetent may sue or be sued only through a

______________________________.

 Partnerships can sue or be sued as an entity if jurisdiction is based on federal question.

o If jurisdiction is based on ______________________________, then every partner’s

citizenship counts; every partner must be listed as a party to the litigation (complete

diversity applies).

B. Permissive Joinder of Parties

 Joinder by ______________________________ is governed by Rule 20.

 Any number of plaintiffs may join if:

i) They assert claims arising out of the same ______________________________ or

occurrence or series of transactions or occurrences; AND

ii) There is a common question of ______________________________ or

______________________________.

 Any number of defendants may be joined in the same action if:

i) The claims against them arise out of the same ______________________________ or

occurrence (or series); AND

ii) There is a common question of ______________________________ or

______________________________.

Example 39: Ann and Damon can ______________________________

together as plaintiffs to sue Ben and Carol under Rule 20 because Ann and

Damon are both suing about the same occurrence (the car accident) and there

will be common questions of fact.

It is all right for Ben and Carol to be joined as defendants under

______________________________ because the claims against both of them

arise out of the same occurrence (the car accident) and there are common

questions of law or fact.

Note 8: These rules apply assuming there is SMJ. All joinder rules assume that

there is SMJ. Saying that something can be done as a matter of the joinder

rules is not to say that the court will necessarily have jurisdiction over this claim

or this party.

 Diversity cases

o NO party can be joined whose presence would destroy ______________________________

diversity, even if the joinder rules are otherwise satisfied.

Example 40: Under the joinder rules, a single plaintiff may sue multiple

defendants at once. However, if her claims against some of the defendants do

not satisfy the amount in controversy requirement, she is not going to be

allowed to bring them. Note: Claims by plaintiffs against persons made parties

under Rule 20 are ______________________________ from supplemental

jurisdiction in diversity cases.

Example 41: In a suit by multiple plaintiffs against a single defendant, if

complete diversity is maintained, and if one plaintiff has a claim that exceeds

$75,000, other plaintiffs with smaller claims can come in under supplemental

jurisdiction.

C. Compulsory Joinder of Parties

 Joinder is about what defendants can ______________________________ plaintiffs to do and is

governed by Rule 19.

Example 42: Plaintiff sues defendant and defendant says Nina should be a

party.

Question 1: Is bringing Nina into the case necessary for a just adjudication? If

yes, then Nina is a "______________________________" party; proceed to

Question 2.

 A necessary party is someone whose participation in the lawsuit is necessary for a

just adjudication because:

o Absent that party, complete relief cannot be accorded to the existing parties;

o The necessary party has an ______________________________ in the subject

of the litigation which will be impeded by this litigation (some risk of prejudice

to Nina); or

o There is a substantial risk of double or inconsistent liability imposed on others if

the party is not brought into the case.

o Worried about prejudice to the ______________________________ parties

Question 2: Is it feasible to add Nina to the litigation? If not, proceed to

Question 3.

 Necessary parties MUST be joined if feasible.

o Feasible if (i) it will not deprive the court of SMJ (e.g., will not destroy complete

diversity) and (ii) the court can assert ______________________________

jurisdiction over the necessary party.

o Bulge provision: In addition to other grounds for serving an out-of-state party, a

necessary party may be served anywhere within

______________________________ miles of the federal courthouse.

Question 3: Should the court proceed without Nina, or throw the entire case

out?

 If a necessary party CANNOT be joined, the court decides whether to

o Continue without the necessary party (typically the case) or

o Dismiss the whole suit (rare) (i.e., the party is described as being

______________________________.)

o The judgment is fact specific.

D. Intervention

 Outsider who ______________________________ to enter a lawsuit

 Chiefly a tool for people hoping to join as ______________________________; governed by

Rule 24.

 Types of intervention:

o Intervention as of right—Is available when the outsider claims an interest in the subject

matter of the lawsuit that, as a practical matter, may be

______________________________ by the disposition of the pending action.

o Permissive intervention—May be allowed whenever there is a common question of

______________________________ OR ______________________________ between the

intervenor’s claim and the main claim (very relaxed standard).

 Must ask the court's permission—matter of court’s sound discretion

 Both types must be timely: “______________________________ promptness”

 There is no ______________________________ jurisdiction for either kind of intervention when

jurisdiction is based on diversity.

o Diversity case: intervenors must satisfy ______________________________diversity AND

have a claim that exceeds $75,000.

E. Interpleader

1. In General

o Used to resolve the problem of competing claims to the same property

o Designed to avoid inconsistent obligations or multiple claims

o Property at issue is called the ______________________________.

 May be real or personal, tangible or intangible

o Person holding the property is the ______________________________.

o Persons claiming the property are ______________________________.

o If stakeholder claims a right to keep the property, then the person is called a

______________________________.

o Stakeholder can invoke interpleader either as a plaintiff OR a defendant:

 Stakeholder-plaintiff sues all the claimants as defendants.

 Stakeholder-defendant is one who has been sued by a claimant; all the other claimants

are joined as plaintiffs.

2. Rule Interpleader

o Authorized by Rule 22

o Remedy available in a lawsuit otherwise within the court’s

______________________________.

3. Statutory Interpleader

o Comes from Federal Interpleader Act and only applies in

______________________________ court

o Has special provisions:

 Special jurisdictional amount: Need only be $ ______________________________

Note 9: The special jurisdictional amount does not need to exceed $500; it

must be $500 or more.

 SMJ based on minimal diversity (i.e., when any two claimants are from different states)

 Authorizes ______________________________ service of process

 Venue is proper in any district where any ______________________________ resides.

Exam Tip 18: Statutory Interpleader is meant to make access to federal court

easier. All usual roadblocks are much lower: AIC need only be $_____________,

there is nationwide service of process, venue is proper anywhere any claimant

resides, and only minimal diversity is required.

CHAPTER 15: MULTI-CLAIM LITIGATION, IMPLEADER, AND CLASS ACTIONS

A. Joinder of Claims

 As between the same plaintiff and the same defendant, ______________________________

claims may be joined (need not be related)

 Diversity case: Plaintiff can aggregate all claims against the same defendant to exceed the

jurisdictional minimum

 Federal question case: If diversity is lacking for additional state-law claims, additional state-law

claims can be joined only if they are covered by ______________________________ jurisdiction

(i.e., arise from the same transaction or occurrence as the original claim).

B. Counterclaims

1. Definition

o Claim by an opposing party, usually by the defendant against the plaintiff

o Pleaded in the defendant’s ______________________________

o Types of counterclaims: ______________________________ and

______________________________

2. Compulsory Counterclaims

o A compulsory counterclaim is lost if not pleaded in the current action.

 Permissive counterclaims can be raised now or later.

o A counterclaim is compulsory if it arises out of the same transaction or occurrence as the

claim to which it responds.

o ______________________________ jurisdiction will generally be available for compulsory

counterclaims.

 If there is SMJ over the main claim, there is SMJ over a compulsory counterclaim.

 Diversity case:

 If counterclaim raised by a defendant, then it is ______________________________

barred by any of the plaintiff's diversity supplemental jurisdiction exclusions.

 Amount of ______________________________ counterclaim USUALLY does not

matter

o Statute of Limitations (SOL): Filing of the original complaint tolls the SOL for the original

claim AND any compulsory counterclaim(s).

3. Permissive Counterclaims

o Counterclaim that ______________________________ arise out of the same transaction or

occurrence

o May be pleaded now OR raised later

o Requires an ______________________________ jurisdictional basis: Must be a federal

claim OR there must be complete diversity of citizenship with $75,000+ in issue.

o Statute of Limitations: A permissive counterclaim must be timely as of the date it is filed or

it’s time-barred.

Example 43: Ann, Ben, and Carol are involved in a three-car accident together.

Ann sues Ben and Carol, alleging they are both at fault and seeking $100,000

from each of them. Rule 20 allows Ann to join her claims against Ben and Carol

into one action because the claims arise from the same accident and will involve

similar questions of law and fact. As long as the parties are diverse, there will

be subject-matter jurisdiction in federal court.

Suppose Ben thinks the accident is Ann’s fault and wants to recover $50,000 in

damages from her for his injuries. Ben should file a compulsory counterclaim

against her. The court can exercise ______________________________

jurisdiction over this claim because it arises out of the same common nucleus of

operative fact (transaction or occurrence) as Ann's claims. It is also a claim by a

defendant (not a plaintiff), so it is not barred by any of the exceptions to

supplemental jurisdiction for diversity cases.

If Ann owes Ben money from an unrelated gambling debt, that would be a

______________________________ counterclaim because it did not arise from

the same event as Ann’s claim. Therefore, supplemental jurisdiction would not

apply, and Ben could only bring the claim if it had an independent jurisdictional

basis (e.g., if the claim between these diverse parties met the AIC requirement).

C. Cross-claims

 Claims asserted against a ______________________________.

o Plaintiff v. co-plaintiff, defendant v. co-defendant

 Must arise out of the same transaction or occurrence as the original claim or a

______________________________

Exam Tip 19: Cross-claims will often fall under supplemental jurisdiction, but

not always. Remember to analyze whether the cross claim satisfies federal SMJ

on their own or through supplemental jurisdiction.

Example 44: Continuing from the previous example, if Ben also assert a cross-

claim against his co-defendant, Carol, for $50,000, alleging that she is also

liable for the accident, is there supplemental jurisdiction?

______________________________

Example 45: Now suppose that Ann's passenger Damon is another plaintiff in

this case. Damon now wants to assert a cross-claim against his co-plaintiff Ann

because he thinks that she is also at fault in causing the accident. Is there

supplemental jurisdiction? ______________________________.

 Cross-claims are ______________________________ compulsory.

D. Impleader (Third-Party Practice)

1. In General

o Impleader is a device by which the defendant brings into the suit someone who is or may be

liable to the ______________________________ for all or part of the

______________________________ claim against him

2. Application

o Impleaded party: Third party defendant

o Original defendant: Third party plaintiff as against the third-party defendant

o Often applies to indemnification contracts

Example 46: A general contractor makes a contracts with an electrical

subcontractor. The contract requires the subcontractor to indemnify the

general contractor for any defect in the subcontractor’s work. If the building

owner sues the general contractor, the general contractor (defendant) can

implead the subcontractor, who may be liable to the general contractor (the

defendant) for all or part of the owner/plaintiff’s claim against him.

o Also often applies to ______________________________ among joint tortfeasors

Example 47: This time the general contractor and electrical subcontractor

have no indemnification contract. Someone comes into the building and is

injured by bad electrical wiring. The general contractor is at fault because it is

in charge of the building site, but the harm is also due to some negligence by

the subcontractor. So, the general contractor and the subcontractor are joint

tortfeasors.

If the plaintiff sues the general contractor, but not the subcontractor. The

general contractor has a right to seek ______________________________

from the subcontractor for its share of the plaintiff's injuries.

o Reasoning

 Impleader is not allowed because the other tortfeasor may be liable to the plaintiff.

 Impleader is allowed because, given the right of ______________________________,

the second tortfeasor may be liable to the defendant for part of the defendant's liability

to the plaintiff.

3. Subject-Matter Jurisdiction

o Diversity cases: Impleader comes within the court’s ______________________________

jurisdiction.

 ______________________________ of the third-party defendant does NOT matter.

 Amount of claim against third-party defendant does NOT matter.

 Only extends to claims by the defendant against a third-party defendant

o Supplemental jurisdiction does ______________________________ extend to claims by the

original plaintiff against the impleaded third-party defendant (because those would be

claims by a plaintiff against a person made party under Rule 14).

 Plaintiff cannot make a claim against the third-party defendant UNLESS complete

diversity is met (or there is federal question jurisdiction for the claim).

Example 48: In the car example, Ben and Carol were drivers of two of the cars.

Carol believes that the accident was partly caused by Eve. Eve was a passenger

in Carol's car and was making a commotion at the time of the accident. Carol

can implead Eve on a theory of contribution: if Carol is liable to Ann, Ben, or

Damon, then Eve is liable to Carol for some of the costs. There is supplemental

jurisdiction for this claim because this is part of the same case or controversy,

and it is not a claim by a plaintiff.

Note 10: If Ann and Eve were from the same state, it would not be possible for

Ann to add a claim against Eve because there would be no complete diversity,

and there is no supplemental jurisdiction when a plaintiff brings a claim against

someone made a party under Rule 14.

4. Personal Jurisdiction

o Bulge provision: In addition to all other methods for asserting personal jurisdiction,

impleader allows the assertion of PJ by service of process anywhere within

______________________________ miles of the courthouse.

E. Class Actions

1. Prerequisites

o Prerequisites for a class action are:

1) Numerosity (i.e., too many parties to be joined conventionally);

2) ______________________________ questions of law or fact;

3) ______________________________ of claims by the class representatives; and

4) Adequacy of ______________________________

o Burden is on proponent of class certification to establish that these prerequisites are met.

2. Dismissal or Compromise (Settlement)

o Requires ______________________________ approval

3. Diversity Jurisdiction

o Named representatives must be completely diverse from the defendants AND at least one

plaintiff must have a claim worth over $75,000.

4. Class Action Fairness Act of 2005

o Allows very large class actions, involving at least ______________________________

members with more than $______________________________ at stake

o Only minimal diversity required (i.e., any plaintiff diverse from any defendant)

CHAPTER 16: SCOPE OF DISCOVERY

A. Mandatory Disclosures

1. In General

o Designed to streamline discovery

o Requires disclosure without having to wait for a discovery request

2. Three Stages

a. Initial disclosures

 ______________________________ and ______________________________ (contact

information) of persons with potentially discoverable information

 Copies or descriptions of relevant ______________________________ or things

 Computation of the ______________________________ claimed

 Applicable insurance agreement(s)

b. Disclosure of expert witnesses

 Names of expert witnesses who will be called at trial

 Qualifications, publications, opinions, information on which they will base their

opinions, other cases in which they have testified, and

______________________________

c. Pretrial Disclosures

 ______________________________ days before trial

 List of witnesses and exhibits

 Any objections must be made within ______________________________days after

disclosure or they are waived unless excused by the court for

______________________________.

B. Scope of Discovery

1. In General

o Applies to all six discovery devices

o General rule is ______________________________.

 You can discover anything that might be admissible at trial OR that might

______________________________ something that might be admissible at trial.

o Key point: The scope of discovery is NOT limited to ______________________________

evidence.

Example 49: If you are at trial and you try to introduce hearsay testimony, the

other side can object; it’s not admissible. However, in a deposition, if you ask

the deponent about hearsay, there is no viable objection. Hearsay is not

____________________________, but is ______________________________.

2. Proportionality

o Limited to matters that are ______________________________ to the needs of the case

o Courts consider the importance of the issues, amount at stake, parties’ resources and access

to information, value of discovery in the case, and, most importantly, whether the

______________________________ or ______________________________ of discovery

outweighs its likely ______________________________.

3. Exceptions to Discovery

a. Evidentiary ______________________________

 Anything covered by an evidentiary ______________________________ is not

discoverable.

b. Work-product rule

Exam Tip 20: This is a high priority topic for the bar exam.

 Basic idea: Preparation for litigation by one party cannot be discovered by the other.

 The attorney work product rule protects:

______________________________ and things (not

______________________________);

Example 50: A lawyer has made notes after interviewing a witness to a car

accident. The lawyer's notes are protected by the work-product rule and cannot

be discovered by the other side. The other side, however, can ask for the names

and addresses of the witness. The other side may then interview those

witnesses and discover the same information and introduce it at trial. Only the

lawyer's notes recording the testimony of the witnesses is protected as work

product.

2. Prepared in ______________________________ of litigation

______________________________ or for trial;

o Documents prepared before the cause of action arose (e.g., ordinary business

records) are NOT protected by the work product rule.

3. By or for another party or the party's ______________________________.

 Result: Creates a ______________________________ immunity from discovery that

can be overcome only if the party seeking discovery shows:

 A ______________________________ for the document or thing; and

 That the information cannot be ______________________________.

Example 51: A lawyer interviews a witness and has notes of the witness’s

statements. The notes are protected work product. But, if the witness dies

after the interview, suddenly becomes senile, or refuses to talk about the

matter, the other side may be able to access the lawyer’s notes because it needs

the information and cannot get it elsewhere.

 Special Cases

 Notwithstanding the above, you can:

o ______________________________ get a copy of

______________________________ statements whether you are a party or a

mere witness.

o ______________________________ discover the

______________________________ impressions of the lawyer.

4. Experts

o Distinguish between experts who will be called to ______________________________ and

those who will not

o Other side can ______________________________ discover the report of the testifying

expert.

o If expert is going to testify, the other side, in fairness, has to prepare for cross-examination.

 Can discover the amount of compensation, and the facts, data, and assumptions

provided to the expert by the lawyer

Note 11: Draft reports and communications between the lawyer and the expert

are generally NOT discoverable.

o If expert is NOT going to testify, no discovery absent ______________________________

circumstances

5. Protective Orders

o For good cause shown, court can basically do anything, in its discretion, that

______________________________ may require.

CHAPTER 17: DISCOVERY DEVICES

A. Six Discovery Devices

1. Oral Deposition

o Questions are asked and answered ______________________________ and under

______________________________.

o Limited to ______________________________ depositions, unless the court allows more

o Each is limited to one day of ______________________________ hours, unless the court

allows more.

o Any kind of notice suffices for the deposition of a ______________________________; but

a deposition of a nonparty (“mere”) witness requires a ______________________________.

o Subpoena duces tecum—requires the deponent to bring specified documents or things

o To depose an organization, serve notice or subpoena on organization; organization then

selects person who will be deposed

o Can be taken any time after the party has made ______________________________

disclosures

o May be taken before any notary public who is not otherwise disqualified (usually

stenographer)

2. Written Deposition

o Questions asked in writing are delivered to a hearing officer who asks the questions orally

and the witness answers orally under oath.

o Rarely used because they are so inflexible

3. Interrogatories

o Questions asked in ______________________________ to be answered under oath in

writing

o May only be used against a ______________________________

o Presumptively limited to ______________________________ interrogatories, unless the

court allows more

o Responses required within ______________________________ days

o May respond by producing business records if the answer can be ascertained and the

burden of deriving the answers is substantially the ______________________________ for

the party serving the interrogatories as for the responding party

4. Discovery and Inspection of Documents and Land

o Called a request to ______________________________ and

______________________________ inspection

o Applies only to documents, things, and land under the control of a

______________________________

o The thing to be produced and inspected must be described with

______________________________.

o Response is due within ______________________________ days

5. Physical and Mental Examination - Requirements:

o Available only against a ______________________________;

o Only permitted when the party’s physical or mental condition is in controversy; and

o Only for ______________________________ shown

6. Request for Admission

o Used to streamline the litigation

o Failure to respond within 30 days is an ______________________________.

Exam Tip 21: Recall that because responses to requests for admissions (and all

other documents) must be signed by the attorney of record, and the signature

certifies that there is a reasonable basis and good faith for denying the request,

failure to respond to a request for admission may be a violation of Rule 11.

o Admissions are binding in litigation, but have no ______________________________ effect

(i.e., only binding in the current lawsuit; cannot be used against the party in any future

proceeding).

B. Use of Depositions at Trial

 Discoverability does not equal ______________________________.

 Deposition of an adverse party is admissible as an ______________________________ of a

party opponent.

Editorial Note 8: An opposing party’s statement is not the same as the

statement against interest exception to hearsay. See the Themis Evidence

materials for a more detailed discussion.

 Deposition of a mere witness can be used to ______________________________ that witness.

 Deposition of a witness who does NOT testify can be used if the witness is dead, beyond the

court’s subpoena power, or otherwise unavailable.

o Can also be used if the witness is more than ______________________________ miles from

the place of trial.

C. Enforcement Sanctions

 The court can immediately impose sanctions in three instances of complete default:

1. Failure to attend one’s own ______________________________;

2. Failure to respond to ______________________________; and

3. Failure to respond to a request for documents or things.

There is no way that you can, in good faith, fail to show up or respond.

 In other cases, the party seeking discovery must go to court and obtain an order compelling

discovery.

Example 52: If a person shows up to her deposition but is evasive in answering

questions, you may need to get an order compelling discovery. Or, if a person

responds to interrogatories in a cryptic way, you need to obtain an order

compelling discovery. Why? The order will clarify ambiguities, resolve disputes,

and make clear what is required so that there is no possibility of good faith

error.

o The court should first issue an order to compel based on the party’s request before

imposing sanctions.

o If that order is disobeyed, the court may do what it deems is necessary.

 If the order compelling discovery is granted, the cost of compelling discovery, including

attorney’s fees, is often placed on the opposing party unless the court finds their refusal was

substantially ______________________________ or the award of costs would be otherwise

unjust.

D. Electronically Stored Information (ESI)

 Normally should be preserved

 If lost through ______________________________ conduct of a party, the court may order

measures to cure the prejudice to the other party.

 If the material was destroyed with the ______________________________ to prejudice the

other party, the court may instruct the jury to presume the information was unfavorable, or

even order the end of the litigation.

E. Summary

 Work ______________________________ Rule;

 ______________________________ of Discovery; and

 Basic Discovery Device ______________________________.

CHAPTER 18: PRE-TRIAL PROCEDURE AND MOTIONS TO TERMINATE

A. Pre-Trial Conference

 Must be attended by the attorneys who will conduct the trial

 Must file a pretrial ______________________________ detailing claims and defenses,

itemization of damages, requests for stipulations and admissions, list of all witnesses and

exhibits, etc.

 Failure to comply usually means that the attorney pays the costs and the other side’s

______________________________ fees.

B. Termination Without Trial

1. Devices

o Judgment on the ______________________________;

Note 12: Rarely used; appropriate only when the pleadings agree on all of the

facts

o ______________________________ judgment (defendant has not shown up);

o ______________________________ dismissal (dismissal without prejudice);

o ______________________________ dismissal (dismissal with prejudice); and

o ______________________________ judgment.

2. Voluntary Dismissal

o Ordinarily ______________________________ prejudice

 Without prejudice: Party whose claim is dismissed can bring that claim again in a new

lawsuit.

o Plaintiff has a right to a voluntary dismissal once at any time prior to the defendant serving

an ______________________________ or a motion for

______________________________.

 The defendant’s motion to dismiss (e.g., for lack of jurisdiction or improper venue)

before filing an answer does NOT cut off the right to a voluntary dismissal.

o After a defendant has filed an answer or motion for summary judgment, or if the plaintiff

has already voluntarily dismissed once, plaintiff must seek leave of court for dismissal

without prejudice.

 Plaintiff will have to pay the costs if she ends up later filing the same action against the

same defendant.

3. Involuntary Dismissal

o Typically ______________________________ prejudice

o Involuntary dismissal for lack of jurisdiction, improper venue, or failure to join an

______________________________ party is ______________________________ prejudice.

o In all other cases, involuntary dismissal is with prejudice.

 Dismissal with prejudice is an adjudication on the ______________________________,

which means that, under federal law, it is given full ______________________________

(preclusive) effect, which bars any attempt at relitigation of the same claims.

o May be imposed for plaintiff’s failure to ______________________________ or for failure

to comply with the FRCP or any court order

o Standard for appellate review is ______________________________.

4. Summary Judgment

o Compare with motion to dismiss for failure to state a claim upon which relief can be granted

(12(b)(6)):

 Failure to state a claim under 12(b)(6) tests only the legal sufficiency of the plaintiff’s

claim.

 Summary judgment can be used to test both the facts AND the law.

o Partial summary judgment: summary judgment can be granted for the entire case, or only

for certain parties, certain claims or defenses, or certain issues.

o Standard: There is no ______________________________ dispute as to any material fact

and the moving party is entitled to judgment as a matter of

______________________________.

 “No genuine dispute” means that no reasonable ______________________________

could find for the nonmoving party.

o Must be supported or opposed by particular materials in the record, such as:

 ______________________________

 Answers to ______________________________

 Affidavits

 Stipulations

o Materials in the record must generally be ______________________________ statements

to be considered in deciding a motion for summary judgment.

 Pleadings are generally NOT sworn statements, but if verified, or taken under oath, they

become an ______________________________ as well as a pleading.

 Mere assertion or denial of a fact in a pleading does NOT create a genuine dispute.

o Sworn statement ordinarily must be based on ______________________________.

Example 53: Ann sues Ben for injuries in the car accident. Ann then moves for

summary judgment and supports her motion with her own affidavit, describing

the accident. If Ann's allegations are true, Ben loses.

Ben cannot oppose summary judgment simply by relying on the denials in his

answer, nor by saying that he will call witnesses who will testify in a certain

way. Rather, Ben must file a sworn statement based on personal knowledge

that raises a genuine dispute as to a material fact. For example, Ben could file

an affidavit asserting that he was out of town at the time of the accident.

CHAPTER 19: RIGHT TO JURY AND MOTIONS TO OVERRIDE THE JURY’S VERDICT

A. Trial by Jury

1. Right to Jury Trial

o 7th Amendment right to trial by jury depends on the division between law (juries) and

equity (no juries) as of 1791.

o Remember: there is no right to jury trial for equity issues such as

______________________________, ______________________________, or Admiralty

issues.

o Claims for damages are the classic remedy at law and trigger the right to jury trial

o When legal and equity issues overlap in one lawsuit, try the

______________________________ issues first, no matter the order in which they arose.

Example 54: The plaintiff sues the defendant for an injunction (equity); the

defendant counterclaims for money damages (law). The defendant wants a jury

trial. What result? The court must try the counterclaim first so that it will be

heard by a jury.

2. Demand for Trial by Jury

o May be made by any party either in a ______________________________ or separate

motion

o Must be made not later than ______________________________ days after service of the

last pleading directed at the issue

o Often made in the complaint or answer

3. Jury Selection

o Minimum of ______________________________ jurors; maximum of

______________________________ jurors

o All must participate in verdict unless dismissed for good cause.

o Each litigant gets ______________________________ peremptory challenges (no need to

explain or justify).

 Cannot be used for reasons of ______________________________ or

______________________________

4. Bench Trial

o Judge is required to make findings of ______________________________ on the

______________________________ and state conclusions of law.

5. Jury Instructions

o Parties may ______________________________ specific instructions.

o Judge must inform the parties of his actions on those requests and the court’s proposed

instructions before final argument.

o Court must provide an opportunity to object to proposed instructions:

 Objections must be on the record (preserved), for stated reasons (so the appellate court

can follow the argument), and made BEFORE the ______________________________

retires to deliberate.

 Only a timely objection preserves the issue for appeal.

6. Jury Verdict

o Jury's verdict must be ______________________________, unless the parties have

stipulated otherwise.

o Verdict must be returned by ______________________________ jurors, unless parties have

agreed otherwise.

B. Motion for Judgment as a Matter of Law (JMOL)

 Formerly called Motion for Directed Verdict

 Essentially a motion for summary judgment ______________________________ the trial has

begun.

 Standard: Viewing the evidence in the light most favorable to the

______________________________ party, the ______________________________ cannot

support a verdict for that party, and the ______________________________ party is therefore

entitled to judgment as a matter of law.

o Rule 50 provides the court must find that there is insufficient evidence for a jury reasonably

to find for the nonmoving party.

 Credibility of a witness: If the case turns on this issue, then there is a dispute as to an issue of

material fact and the motion for JMOL will be denied; the issue is for the jury.

 Made by defendant at the end of plaintiff’s case or by either party at the close of all the

evidence

C. Renewed Motion for Judgment as a Matter of Law (formerly J.N.O.V.)

 A motion for JMOL made at the close of all the evidence and denied by the court may be

______________________________ within 28 days of the jury returning a verdict.

 Standard is the same: The evidence cannot support the jury’s verdict and the moving party is

therefore entitled to judgment as a matter of law.

 Prior motion is required: It is a condition precedent to a post-verdict motion that the motion for

JMOL had been made at the close of all evidence.

Example 55: If the losing party appeals and the appellate court thinks the trial

court was wrong to grant the JMOL, the case will need to be retried. But, if the

judge instead the court lets it go to the jury and then grants the renewed

motion for JMOL, the verdict is on the books if the trial court is reversed on

appeal.

D. Motion for a New Trial

 Usually made with a Renewed Motion for JMOL; both must be made no later than 28 days after

the entry of judgment

 Not restricted in the same way as a Renewed Motion for JMOL

 A new trial may be granted in the sound discretion of the court for many reasons, including:

o Legal errors

o Newly discovered ______________________________

o Prejudicial ______________________________ by a lawyer, party, or a juror

o Judge concludes that the verdict is against the great weight of the evidence, either in

substance of the verdict or amount of ______________________________ awarded

 Remittitur: If the court determines that a verdict was seriously excessive, then it may offer a

remittitur to reduce the verdict and grant a new trial on the condition that the remittitur is not

accepted.

 The new trial order must specify the reasons for the new trial to allow for appellate review.

o If the reason is a question of law, it is reviewed ______________________________.

o Other grounds for a new trial are reviewed for abuse of

______________________________.

CHAPTER 20: APPEALS

A. Motions to Terminate Without Trial

 Some preliminary motions are no longer relevant on appeal once there has been a full trial.

 A motion to dismiss for failure to state a claim, motion for judgment on the pleadings, motion

for summary judgment, or motion for JMOL made before the jury retires are

______________________________ if the moving party proceeds with trial once the motions

are denied.

 Appellate review is based on the judgment rendered after full trial, not the earlier motion.

B. Appeals

1. Final Judgment Rule

o Ordinarily, appeals are available only from a ______________________________ judgment.

 A final judgment resolves ALL the claims of ALL the parties.

o Partial final judgment: The court may enter a final judgment on some claims by

______________________________ designating the order as final.

o Judgment becomes final when entered by the ______________________________ on the

court’s ______________________________ (i.e., not when announced).

o Notice of appeal must be filed in the trial court within ______________________________

days of entry of judgment.

 A timely post-judgment motion will ______________________________ the 30-day

limit.

2. Interlocutory Orders

a. Interlocutory orders immediately appealable as of right:

 Any order granting or modifying an ______________________________

Note 13: Unlike injunctions, TROs are ordinarily not appealable, unless an order

is styled as a TRO, but is operating like an injunction (i.e., extended well beyond

14 days).

 Any order that changes or affects ______________________________ of property

b. Discretionary interlocutory review

 Any interlocutory order is appealable with ______________________________ of

______________________________.

 BOTH the trial and appellate courts must agree to allow the appeal.

 The trial court issues a certificate for interlocutory appeal stating:

 That the issue involves a ______________________________question of law with

substantial ground for difference of opinion; and

 That the immediate appeal may ______________________________ advance

termination of the litigation.

 The appellate court must then agree to accept the appeal.

3. Class Actions

o Appellate courts have discretion to hear interlocutory appeals from orders

______________________________ or refusing to ______________________________ a

class action.

4. Collateral-Order Doctrine

o Authorizes immediate appeal of “collateral orders”

o “Collateral orders” are separable from and collateral to the main suit and too

______________________________ to deny immediate review (Supreme Court).

o Remember: Denial of a motion to dismiss for ______________________________.

5. Writ of Mandamus

o Provides for immediate appellate review of an order that is an abuse of

______________________________

6. Standards of Review

a. Questions of law

 Appellate review is ______________________________

 Did the trial court make an error?

 Was the error prejudicial?

b. Findings of fact

 Jury verdicts must be affirmed if supported by ______________________________

evidence.

 Judge’s findings of fact must be affirmed unless they are clearly erroneous.

c. Matters of discretion

 Many issues decided by lower courts (continuances, new trials, discovery limitations)

 Standard of appellate review is abuse of ______________________________

 Any reasonable decision will be upheld.

C. Full Faith and Credit

 Courts in the U.S., both state and federal, must give full faith and credit to judgments rendered

by courts of other states, provided that the rendering court had

______________________________.

CHAPTER 21: CLAIM PRECLUSION (RES JUDICATA)

A. Introduction

 Preclusion consists of two distinct doctrines:

o ______________________________ preclusion (res judicata)

o ______________________________ preclusion (collateral estoppel)

 Ask two questions IN THIS ORDER:

1. Is the claim in the second suit precluded by the prior adjudication? If yes, the inquiry ends.

2. If not, are there any issues in the second suit precluded by the prior adjudication?

Exam Tip 22: Always ask these questions separately and in order.

B. Claim Preclusion (Res Judicata)

1. Rule

o A final judgment on the ______________________________ of a claim bars re-litigation of

that claim by the same ______________________________ or their successors in interest

(those in privity with the parties).

o Precludes re-litigation of every claim that was raised or ______________________________

have been raised in the first suit.

2. Three Requirements

1. There must have been a final judgment on the ______________________________ in the

first suit;

2. The second suit must be between the same ______________________________ or their

successors in interest; and

3. The second suit must involve the same ______________________________ or cause of

action.

3. Final Judgment on the Merits

o Includes a ______________________________ judgment,

______________________________ judgment, and dismissal

______________________________ prejudice

o NOT necessary that there had been a trial

4. Re-litigation between the Same Parties

o Both ______________________________ must have been parties to the first action or

successors in interest to the original parties.

o A successor in interest stands in the shoes of the original party and is treated, for preclusion

purposes, as the same party.

o Examples of predecessors and successors in interest include:

 The assignor and assignee of a claim;

 A decedent and the executor of the estate; and

 The executor of an estate and persons who claim under the will.

o Class action: Each ______________________________ is generally bound by the judgment;

they are considered to have had their opportunity in court even if not a named

representative.

 Damages class action certified under Rule 23(b)(3), a valid judgment does not bind class

members who ______________________________ out of the lawsuit.

5. Re-litigation of a Sufficiently Identical Claim or Cause of Action

Example 56: Parent is criminally prosecuted by the government for failing to

pay child support and is acquitted. Other parent then brings a civil action for

child support. Is the second suit barred by claim preclusion?

Answer: ______________________________. The first action was a

government prosecution brought by the government, and the second was a civil

action brought by the other parent. Different plaintiffs, different parties,

different claims.

Example 57: After the car accident, Ben believes that his brakes failed and that

his injuries were caused by a car defect. Ben then sues the dealer who sold him

that car, and the dealer wins. Then, Ben sues the manufacturer for the same

defect. Can the manufacturer bar the second suit?

Answer: ______________________________. The first suit was against the

dealer, and the second was against the manufacturer. No re-litigation between

the same parties.

o ALL legal theories to recover for harm arising out of a single transaction or occurrence count

______________________________ claim for purposes of claim preclusion.

o Unless state law provides otherwise, if both contract and tort claims seek redress for the

same harm, they are the ______________________________ claim.

o Also bars claims that could have been brought in the first case but were not.

Example 58: Ann and Ben get in a car accident, and Ann sues Ben to recover

damages for her personal injuries. Ann wins. Later, Ann tries to sue Ben a

second time for property damage to her car based on the same car accident. Is

the claim precluded? ______________________________. It arose from the

same event and was required to be brought in the first action along with the

claim for personal injury damages.

Question is: ______________________________ Ann have advanced the same

legal theory, argument or demand in Case 1 that is being advanced in Case 2?

o Installment Sales: Creditor must sue for all that is “due and owing” at the time of the suit.

 All debt owed at the time of the action is one claim even if it was due in 3 or 4 separate

payments.

 Future debts or obligations are another claim.

Example 59: A tenant is in default on the rent for three months (January,

February, and March). On April 1st, the landlord brings suit but unwisely sues

only for the January rent and wins. He subsequently brings a second suit to

collect the February and March rent. Can he collect?

Answer: ______________________________. All the rent that was due when

suit was brought in April is one claim, even though it involved three payments.

Example 60: Suppose now that the landlord sues the tenant for all the rent due

and owing as of April 1, and wins. The next month, the same dispute arises, and

the landlord sues again, seeking to recover unpaid rent for April. Can he

collect?

Answer: ______________________________. The landlord couldn’t anticipate

future obligations when he sued the first time, so the second suit is not

precluded. The next month is a new claim.

Exam Tip 23: Look out for installment sales contracts that provide that if a

purchaser misses a payment, the entire outstanding balance becomes due and

owing (i.e., an acceleration clause). In that case, the entire balance is one claim.

The seller can and must sue for everything at once or be barred.

CHAPTER 22: ISSUE PRECLUSION (COLLATERAL ESTOPPEL)

A. Three Requirements

i) The same issue of ______________________________ must arise in two suits;

ii) That issue must have been actually and ______________________________ decided in the first

suit, by a valid and ______________________________ judgment; and

iii) The party to be ______________________________ must have been a party to the first suit.

1. Same Issue of Fact

o It does not matter if the two suits involve entirely different claims, so long as there is a

common issue of fact.

Example 61: As before, Ben sues his car dealer and loses because the jury

determines that the car was not defective. Ben then sues the manufacturer of

the car for the same injury.

Question: Is there claim preclusion?

Answer: ______________________________. The second suit involved a

different defendant and therefore a different claim.

Question: Is there issue preclusion?

Answer: ______________________________ The same issue arose in both

suits and it was actually and necessarily decided in the first suit. Finally, the

party to be precluded, the injured person, was a party to the first suit.

2. Actually and Necessarily Decided

o Only applies to issues actually litigated, not to those that

______________________________ have been litigated

o Default judgment: Results in full claim preclusive effect, but no issue preclusive effect

because nothing was actually litigated

o To be actually litigated, must be some sort of adversarial stance by the parties and an actual

resolution of the issue by a factfinder or judge

3. Party to be Precluded Must Have Been a Party to the First Suit

o The party against whom preclusion is asserted must have been a

______________________________ to the first suit or a successor in interest.

Example 62: Assume that Ben was injured by a defective motor vehicle. He

sues the dealer and loses. The jury finds that the vehicle was defective. Ben

then sues the manufacturer for the same defect. Is there issue preclusion?

Answer: ______________________________. The manufacturer was not a

party in the first case. Therefore, the first action cannot be used to prevent the

manufacturer from litigating the issue of its own defense.

o The party invoking preclusion ______________________________ have been a party to the

prior action, nor in any way involved in the action.

o NO requirement for ______________________________ of estoppel (at least applies to the

defensive use of issue preclusion)

Example 63: Assume that Ben was injured by a defective motor vehicle. He

sues the dealer and loses. The jury finds that the vehicle was not defective.

Then Ben sues the manufacturer for the same defect. Is there issue preclusion?

Answer: ______________________________. Even though the manufacturer

was not a party in the first case, the manufacturer can use the finding in the

first case to preclude the injured party, from making the same argument she

made in the first case.

 Whether a succession of ______________________________ could invoke issue

preclusion offensively is not clear.

Example 64: Ann and Ben are involved in an auto accident with Carol and Eve.

Ann sues Carol, the driver of the other car, and loses because the jury found that

Carol’s car was not operated negligently.

Ann then sues Eve, the passenger in Carol’s car, claiming that she caused the car

to be operated negligently. Can Eve preclude re-litigation of the negligence

issue in the second suit?

Answer: ______________________________. There is no claim preclusion

because the first suit was against a different defendant and thus raises a

different claim. But there is ______________________________. Ann was a

party to the first suit. The issue of negligent operation of the vehicle was fully

litigated and actually decided against her. Ann is precluded from re-litigating

the issue of negligence.

Example 65: Ann and Damon are involved in an auto accident with Carol and

Eve. Ann sues Carol, the driver of the other car, and loses because the jury

found that Carol’s vehicle was not operated negligently.

Damon, the passenger in Ann’s car, then sues Carol, claiming that she operated

her vehicle negligently. Can Carol, who has already litigated and won this issue,

preclude Damon from re-litigating it in the second suit?

Answer: ______________________________. No claim preclusion because a

suit by a different plaintiff is a different claim. There is no issue preclusion

because Damon (the party to be precluded) was not a party to the first suit. He

has not had his day in court. Issue preclusion cannot be invoked against him.

B. Summary

 Remember that claim preclusion and issue preclusion are separate doctrines and must be

addressed separately and in order.

o Ask first whether claim preclusion bars the second suit. If so, that ends the matter.

o If not, ask whether issue preclusion bars the second suit.

CONCLUSION

 Remember to concentrate your attention on the areas most often tested:

o Jurisdiction (subject-matter, personal, and venue): MOST important;

o Pleadings, especially amendments;

o Discovery, especially the work-product rule;

o Motions practice, especially summary judgment and the two stages of motion for judgment

as a matter of law; and

o The effect of former adjudication, namely claim and issue preclusion

Exam Tip 24: On essay questions, subject-matter jurisdiction, personal

jurisdiction, and venue are often tested together. If you see one issue, be on

the lookout for all three.

Exam Tip 25: Discuss claim and issue preclusion separately and in order.

Good luck!

[END OF HANDOUT]

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