CIVIL PROCEDURE BAR EXAM OUTLINE

I.

Jurisdiction and Venue

a. Federal subject matter jurisdiction
i. Federal question
1. Any claim that arises under a federal law
a. Claim must be enforcing federal right.
b. No diversity or amount is required.
i. Complaint must be well pleaded.
ii. Diversity (Tested with High Frequency)
1. Must be complete diversity between P and D.
a. Determined by domicile (people have one)
i. Domicilepresence and intent to remain.
1. Use last domicile until another is established.
2. Test for diversity at time the case is filed.
ii. Includes alienage (different country v. U.S. citizen)
b. Corporations (can have two) domiciled where incorporated and/or PPB.
i. For LLCwhere any of its members live.
2. Amount in controversy must exceed $75,000 (claim only).
a. Claim must be made in good faith.
b. You can add two claims together to meet amount.
iii. Supplemental
1. Additional claims may be brought in federal courteven if does not meet
FQ/diversity if claim arises from the same transaction and occurrence.
2. P may not add new D in case if complete diversity would be violated.
a. Statute may prevent SJ in diversity cases regarding the P.
iv. Removal
1. D may remove a case from state to federal court if proper.
a. D must do so within 30 days after service.
i. Any case involving FQ/diversity
1. In diversity, no removal if D is sued in home state.
a. No removal if in state court for over a year.
b. Personal jurisdiction
i. PJ exists in state/federal court if state statutes and Constitutional requirements are satisfied.
1. Each state is free to create its own statutes for PJ.
2. Constitution requires D to have minimum contacts w/ forum.
a. General personal jurisdiction:
i. Defendant is domiciled in the forum
ii. Defendant consents
iii. Defendant is served with process in the forum
b. Specific personal jurisdiction
i. Contact w/ forum (not systematic and continuous?)
1. D purposeful availed himself to the forum.
2. Foreseeable that D could be sued in the forum.
3. Claim arises from Ds contact/interaction with forum.
a. Fairnessthe court wont allow SPJ if D is put in
severe disadvantage.
b. State interestprotect its citizens.
c. Ps interestsue at home.
c. Service of process and notice

II.

III.

i. Process is the summons and complaint

1. Any non-party person over 18 can serve process.
2. Delivery to person or agent at Ds usual place of abode.
3. Federal court allows service in compliance with state laws for service.
d. Venue, forum non conveniens, and transfer
i. Venue is a procedural issueapply federal law only (no erie).
ii. P may lay venue in any district where all defendants reside (domiciled) or where a
substantial part of the claim arose.
1. Venue is proper if district has personal jurisdiction over the D.
iii. Forum non conveniens is a discretionary power that allows courts to dismiss a case where
another court, or forum, is much better suited to hear the case. (Convenience).
1. Forum selection clausecontractual agreement.
a. Upheld unless there is no basis for the choice of forum.
iv. A federal court may transfer to another; only if case could have been filed there.
1. Federal court can transfer to an improper district if all parties consent.
a. Courts consider interests of the parties/witnesses and justice.
Law Applied by Federal Courts
a. State law in federal courtthe Erie Doctrine
i. Federal question use federal laws.
ii. In diversity cases the federal court applies state substantive law.
1. Procedural issueapply federal procedure.
2. If state law is conflicting w/ federal lawapply federal law.
a. Supremacy clause
3. State law unclearfed court decides how state SC would decide the case.
4. Fed court may decline jurisdiction if there is a novel state law question.
b. Federal common law
i. Apply federal substantive law to federal questions.
Pretrial Procedures
a. Preliminary injunctions
i. Will be granted after notice and a hearing if a party can show:
1. Irreparable injury will occur before a trial
2. Likely to win on the merits
3. Harm to the moving party outweighs the enjoined party
4. Injunction would not harm the public
b. Temporary restraining orders
i. Can be granted w/o prior notice to the party restrained if from the facts that immediate
irreparable harm will result before adverse party can be heard.
1. If longer than 14 days, must seek a preliminary injunction.
c. Pleadings
i. Require:
1. Statement of subject matter jurisdiction
2. Short and plain statement of the claimmust but other side on notice
3. Demand for reliefwhat damages are wanted
a. Only need enough specificity as to put the other side on notice.
b. 3 claims need more specificityfraud, mistake, and special damages.
4. D must respond by motion or answer within 21 days
a. D must admit, deny, or not sureask for more info.
5. Rule 12 defenses can be included in answer or motion
1. Lack of SMJ (Can be raised anytime).
2. Lack of PJ

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5.
6.
7.

Improper venue
Improper process (papers)
Improper service of process
Failure to state a claimrule 12(b)6
Failure to join indispensable party
i. 2,3,4,5 are waived if not in the first response.
6. Counterclaims must be in answer DP
a. Compulsoryarises out of the same T/O of Ps claim
i. Use it or lose it.
b. Permissivecan but does not have to be filed
7. Cross claimmust arise from the same T/O as the underlying action
a. Does not have to be raised
i. Must meet FQ or diversityif not try Supp J.
1. D against D
ii. Amendments
1. A pleading may be amended only once as a matter of right under the following:
a. Complaint may be amended once before the reply is served.
b. Answer may be amended once within 20 days after D has served it (or, if it
contains a counterclaim, any time before the plaintiff serves his reply.
2. If a pleading cannot be amended as of right, a party may file a motion with the court
seeking to amend.
a. The court has discretion to grant the motion.
3. Relation back doctrine: when an amendment is allowed, the amendment is usually
treated as though it were filed on the date of the original pleading if:
a. Statute of limitations governing the cause of action allows the relation back;
b. The claim or defense in the amending pleading arose from the same
transaction or occurrence as that set forth in the original pleading; or
c. When a new party is joined, and not unfair, for the claim against that party to
be treated as if it were raised on the date that original pleading was filed.
iii. Supplemental
1. Set forth things that happened after the pleading was filed
a. Always up to the judge
d. Rule 11
i. Sanctions apply to all papers except discovery.
1. Baseless claim
a. May be ordered against, party, attorney, or law firmor any combination.
b. Party gets 21 days to remedy violations before sanctions can be imposed.
i. Court or opposing party may raise rule 11 problems.
e. Joinder
i. Joinder of parties
1. A person should be joined if:
a. Complete relief cannot be given to the parties in ones absence.
b. Absence impairs ones ability to protect his interest in the case.
c. Absence exposes existing parties to substantial risks.
i. If joinder of a party does not destroy diversity; party must be joined.
ii. If diversity is destroyed, ct decides to proceed w/o party or dismiss.
ii. Joinder of claims
1. Compulsoryarises out of the same T/O of Ps claim
a. Use it or lose it.

IV.

b. ImpleaderD may implead a person who was not an original party of the
action and liable to the D for any part of the judgment should P prevail.
i. Indemnity
1. They did it
ii. Contribution.
1. They did some of it
iii. Never compulsory
c. Intervention
i. A party choses to come into the case as either a P or D.
2. Permissivedoes not have to be filed.
f. Class actions
i. Five requirements:
1. A numerous class of individuals (joinder impracticable)
2. Common question of fact or law
3. Named representative from the class
4. Named rep, must be able to ensure fair and adequate rep of class.
g. Discovery
i. Disclosure
1. Parties may discover anything not privileged if relevant to a claim or defense.
a. Names and contact info of all witnesses to be used.
i. The subject in which they have information on.
2. A party does not have to alert other party to harmful information.
3. Attorney work product not discoverableunless there is a substantial need or undue
hardship for party to obtain the material somewhere else.
a. Automatic disclosure a party has a duty to disclose with party/court, a list of
all documents and exhibits it expects to offer.
i. A party may take depositions of another party on notice.
1. 25 written questionsparty may ask the court for more.
ii. Sanctions
1. Failure to provide automatic discloser is subject to sanctionsa party may be barred
from introducing that evidence in trial.
h. Adjudication w/o trial
i. Dismissal
1. VoluntaryP may do so any time before D serves an answer.
a. P may make a motion anytimenot guaranteed after Ds answer.
i. Pretrial conference and order
i. Is held for the purpose of formulating a plan for the trial.
1. From this conference, a court issues an order that controls the events in case.
Jury Trials
a. Right to a jury trial
i. Federal law determines right to juryseventh amendment.
ii. Demand for a jury trial must be filed within 14 days of last pleading for issue to be tried.
b. Selection and composition of juries
i. Challenges for causebias or prejudiceno limits to number
ii. Peremptoryany reason3 per side.
1. Min of 6 max of 12 jurors.
a. Fair representation of the community.
c. Requests for and objections to jury instructions
i. Parties submit proposed jury instructions to judge at close of evidence or court discretion.
ii. Parties are allowed to make objections to instructions before final arguments and instruction.

1. If the parties fail to make objections before the jury is given the instructions, the
parties will not be able to raise objection on appeal unless there was plain error.
V.

VI.

Motions
a. Pretrial motions
i. Face of the pleadings
1. Motion to dismiss for failure to state a claim; court looks only at face of complaint.
ii. Motion to dismiss
1. Rule 12(b)6, requires a complaint state a claim upon which relief can be granted.
iii. Summary judgment (Tested with High Frequency)
1. Granted if from pleadings & discovery material, it appears there is no genuine
dispute of material fact & the moving party is entitled to judgment as a matter of law.
a. May be filed any time up to 30 days after the close of discovery.
i. Maybe partial as to one or more issues in the case.
b. Motions for judgment as a matter of law
i. Directed verdicts (JMOL)
1. Is appropriate when a party has been heard in full and there is no legally sufficient
evidentiary basis for a reasonable jury to find for the party.
a. Judge rules for a party.
b. Can be raised during trial or after trial as RJMOL.
i. RJMOL can be filed 28 days of entry of judgment (case is over).
1. Must have moved for JMOL previously.
ii. Judgment notwithstanding the verdict
1. Reversal of a jury's verdict by a judgejudge believes there was no factual basis for
the verdict or it was contrary to law.
c. Post-trial motions
i. Relief from judgment
1. Ask the court to set aside judgment on the grounds of:
a. Clerical error, Mistake, New evidence, or Judgment is void; no SMJ
ii. New trial
1. Some error during trial requires that there should be a new trial.
a. Bad jury instructions, juror misconduct, or new evidence.
Verdicts and Judgments
a. Defaults
i. Default judgmentD fails to defend action, fails to respond to complaint in 21 days after
service or 60 days from mailing of waiver.
b. Involuntary dismissals
i. P fails to prosecute or comply w/ rules; court may grant Ds motionoperates as
adjudication on the merits.
c. Jury verdictstypes and challenges
i. Generaljust states who wins
ii. Specialjury answers questions about the facts in dispute.
1. General verdict with special interrogatoriesdoes both.
d. Judicial findings and conclusions
i. Judge may set aside jury conclusions if jury does not follow the instructions or other error.
1. Judge may ask the jury to reconsider or order a new trial.
a. Cannot inquire into the jurys mental process.
2. Damage award to plaintiff shocks the conscience
a. RemittiturInstead of new trial ask P to take less award
b. AdditurInstead of new trial ask D to give more (state court only).
e. Claim preclusion

i. Once a cause of action has been litigated, it may not be relitigated.

1. Final judgment ruleneed valid final decision on the merits.
2. Sufficiently identical causes of action
a. Original and new causes of action are the same.
3. Sufficiently identical parties
a. P and D are the same and in the same roles.
f. Issue preclusion
i. Once an issue of fact has been determined in a proceeding b/t two parties, they may not
relitigate that issue even in a proceeding on a different cause of action.
1. Final judgment ruleneed valid final decision on the merits.
2. Same issuemust be identical
3. Does not have to be same parties against each other (one has to be same).
g. Final judgment rule & appeal
i. Appealable issues are commonly limited to final judgments. The final judgment rule, gives
jurisdiction of appeals of final defcisions to the courts of appeals in most cases.