Effron Civil Procedure Outline, Fall 2014

Monday, December 1, 2014

8:26 PM

1. Subject Matter Jurisdiction: Power over claims/issues in a suit

a. Diversity Jurisdiction (DJ)(1332)
i. Exceptions to DJ: probate and domestic relations-related cases (e.g., probating a will/estate; divorce, custody/parental rights,
division of assets, etc)
ii. Amount in Controversy Met?
1) "matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs" (28 U.S.C. Sec. 1332)
2) One plaintiff can add all the claims for him/herself in order to meet matter in controversy, but multiple plaintiffs,
plaintiff/defendant claims cannot be combined to meet amount in controversy; claims against separate defendants also
cannot be combined for purposes of controversy unless defendants are joint/indivisible defendants (e.g., both signed
license agreement with plaintiff)
3) Exxon Mobil Corps. V Allapattah Serv., Inc. : As long as one named plaintiff satisfies the amount in controversy,
supplemental jurisdiction can be authorized over other claims of other plaintiffs in the suit, even if they are less than the
amount in controversy required
4) Rose v Giamatti : amount in controversy = good-faith assumption by the plaintiff for the amount in controversy
a) Cannot include value of claims by parties improperly joined; citizenship of parties brought in by fraudulent joinder
b) Injunction is based on the value of the injunction
iii. Maximum Diversity?
*Citizenship determined at the time of filing the suit or at the time of removal
1) Mas v Perry : Maximum diversity is when every PL is a resident of a different state from every Def.; domicile for a person
is the person's residence /or where the person intends to remain or return
a) Residency of an alien (e.g., country of origin) irrelevant; alien v alien/alien + state1 v. alien v. state1 means no
maximum diversity, while alien + state1 v. alien + state 2 can mean max diversity
2) Is the party a party of interest in the case?
a) Rose v Giamatti : only citizenship of "real parties of interest" matter for DJ
3) What is the residency of a person?
a) Mas v Perry : person's domicile is the state in which a person intends to remain/live in; must be actively changed
4) What is the residency of a corporation?
a) Hertz Corp. v Friend : place of incorporation and PPB (PPB = company headquarters, where officers
direct/control/coordinate company's activities;
i) Nerve center test: where the bulk of decision-making activity takes place
ii) Place of activity test: where the bulk of physical activity takes place
iii) Total activity test: balance of nerve center and place of activity tests
5) What is the residency of a non-corporate, non-natural entity?
a) Carden v Arkoma : for non-corporate entities, residency = residency of each of its principal members
6) Is this a class action?
a) Citizenship is the citizenship of the named party/parties

b. Federal Question Jurisdiction (FQJ) (1331)?

i. American __: Federal cause of action present?
1) Examples: bankruptcy, fed antitrust, patent law, postal matters, fed tax, civil rights, election disputes, most cases where
U.S. is plaintiff and some in which U.S. is a defendant
2) Yes
a) Louisville & Nashville Railroad Co. v Mottley: Federal cause of action on the face of a well-pleaded complaint?
i) Yes
ii) No (is a defense to the plaintiff's cause of action/is a counterargument to a defendant's anticipated
argument); no FQJ
b) Smith: Does the claim require construction (interpretation) of a federal statute?
i) Yes; FQJ
3) No
a) Is there an embedded federal question to the state claim?
i) Yes
One. Merrell Dow: Is there a federal implied right of action?
First. Is the plaintiff one of the class for whose benefit the statute was enacted?
Second. Is there a legislative intent to create/deny a remedy?
Third. Is a private remedy consistent with the underlying purposes of the legislative scheme?
Fourth. Is state or federal law the appropriate regulator of this area?
1. Yes; FQJ possible
Two. Is there a Federal interest in Federal courts litigating the case?
First. Grable & Sons Metal Products, Inc. V Darue Engineering & Mgf.: Cases involving questions on
how to interpret federal law (e.g., federal tax litigation) invoke a federal interest in having FQJ
over the case
1. 4 Factors:
1. Federal issue is a necessary element of the plaintiff's claim
2. Federal issue is actually disputed
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2. Federal issue is actually disputed

3. The issue is a substantial issue of federal law/important to federal interests
4. Granting a federal forum would not disturb the congressionally approved balance of
state/federal judicial power
Second. Gunn v Minton: If litigating case will not cause broader effects to federal law, there is no serious
federal interest
1. Uniformity of interpretation
2. Competency of federal judges
3. Maintenance of a clear federal docket
ii) No (no FQJ)

c. Supplemental Jurisdiction (SJ) (1367(b))

i. Is there FQJ?
1) Yes
a) United Mine Workers of America v Gibbs : is plaintiff asserting multiple claims against a single defendant, and is
there SMJ over at least one of the claims?
i) Yes; Does the added state claim form a separate or parallel ground for relief? Is there a common nucleus of
operative fact?
One. Yes: SJ allowed
b) Was federal claim thrown out?
i) Moore v NY Cotton Exchange: Did federal claim qualify for FQJ, and was counterclaim logically related to the
federal claim? Do the claims arise from the same set of occurrences?
One. Yes: SJ allowed
2) Is there another plaintiff?
a) Yes
i) Exxon Mobil Corps. V Allapattah Serv., Inc. : Can at least one plaintiff satisfy the amount in controversy?
One. Yes; were parties added to case per 1367(b)?
First. Yes; SJ allowed
Second. No; 1367(b): Judge can use some discretion to remand a case back to state court based on 4
factors
ii. Is there only DJ?
1) Owen Equipment & Erection Co. v Kroger : cannot ask for SJ if only connection to federal court is based on DJ and if there
is a problem with maximum diversity with respect to the claim to be brought with the anchor claim

d. Removal Jurisdiction
i. Was the case filed in state court?
1) Yes
a) Could the case have been filed in federal court?
i) Yes; case can be removed to federal court
2) No; case cannot be removed when already in federal court
* Citizenship determined at the time of filing the suit or at the time of removal

e. Remand
i. Was the case removed to federal court from state court?
1) Yes; is the plaintiff a citizen of a different state?
a) Yes; is there a lack of SMJ?
i) Yes; can be remanded back to state court
b) No; cannot be removed if plaintiff is a citizen of the state in which they filed
2) No; case cannot be remanded if originally filed in federal court
2. Personal Jurisdiction: power over parties of a suit
a. Pennoyer v Neff: States cannot exercise direct jurisdiction/authority over people/property outside its jurisdiction except under
particular circumstances (Power Theory); property must be attached at the outset of a suit for quasi in rem II

b. Predicates
i. In personam
1) Jurisdiction over an actual entity
2) Personal liability to the defendant for the full amount of the judgment
ii. In rem
1) Jurisdiction over the property in an action to determine the ownership of the property itself
iii. Quasi in rem
1) Jurisdiction over the property in an action to determine ownership of the property itself as between and among the
parties in the case

iv. Quasi in rem II

1) Jurisdiction over the property owned by a party to a dispute that is unrelated to the ownership of the property
2) Liability up to the value of the property
c. Ways to attack PJ

i. Direct attack:
1) Special/limited appearance: appearing in court only to dispute PJ, not to consent to PJ
a) Rule 12(b)(2)

Collateral attack
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ii. Collateral attack: not showing up to first suit, and then challenging the suit with another suit (e.g., filing a separate suit to
challenge PJ, or challenging PJ when a suit is brought to obtain damages)
d. Is there a state/federal law basis for exercising PJ? (Rule 4(k) or state law through Rule 4(k))

i. Yes; Federal/State Long-Arm Statutes

1) Gray v American Radiator : an entity can fall under long-arm statutes referring to tortious acts if it commits a tortious act
which cause harm/an injury in the forum state, even if the tortious act was not conducted in the forum state
2) Is the legal basis general or specific?
a) General (person has such a strong connection to a state that the state always has PJ over the person)

i) Natural persons
One. Consent to PJ
First. Has someone done something in another state which provides implied consent for PJ?
1. Yes
1. Hess v Pawlowski : driving a car on a highway in another state can constitute implicit
consent to being subject to that state's highway laws, even if the person is a
nonresident
Second. Has someone done something to provide express consent to PJ?
1. Yes; voluntarily appeared in the forum state for court
1. Exception: Special/limited appearance: appearing in court only to dispute PJ, not to
consent to PJ
2. Yes; Forum Selection Clause
1. Did someone sign a contract with a forum selection clause?
1. M/S Bremen v Zapata Offshore Co. : agreeing to a forum selection clause in a
contract is sufficient for consenting to PJ in the jurisdictions specified in the
clause, as well as consenting to preclude other jurisdictions not included in the
clause
2. Did someone purchase something which included a forum selection clause in its
terms?
1. Carnival Cruise Lines, Inc. v Shute: purchasing a product with a forum selection
clause requirement/agreeing to ToS with a forum clause is sufficient for
allowing the states specified in the clause to have PJ over the person, even if
the person didn't actively negotiate the clause

ii) Non-natural persons

One. Was the entity's contacts so systematic and continuous so as to render the entity "at home"?
First. Helicopters Nacionales De Columbia, S.A. v Hall : Periodically purchasing goods in a state may not
count as "continuous and systematic" contacts for the purpose of PJ
Second. Goodyear Dunlop Tires Operations, S.A. v Brown : company subject to general jurisdiction in
state of corporation, PPBs, and where it is at home (where it has a high level of
continuous/systematic contact with a forum state)
Third. Daimler AG v Bauman : Need incorporation, PPB, or very strong contacts to forum (stronger than
minimum contacts); the company itself must have continuous and systematic contacts; cannot
transfer the conduct of a subsidiary to the parent and to a second subsidiary/vice-versa

b) Specific (jurisdiction for claims arising out of specific contacts with the forum state)
i) Contacts must be related to the claims/the issues within the lawsuit
One. International Shoe Co. v Washington : minimum contacts test; activities carried on behalf of a company
in a state which are "neither irregular not casual," "systematic and continuous," result in "a large
volume of interstate business" from which the company receives "the benefits and protection of the
laws of the state" are sufficient to "establish sufficient contacts or ties with the state of the forum to
make it reasonable and just according to our traditional conception of fair play and substantial justice
to permit the state to enforce the obligations which appellant has incurred there"
Two. McGee v International Life Insurance Co.: a long-arm statute can be constitutional if the suit is based on
a contract which creates substantial connection with the forum state
Three. Shaffer v Heitner : minimum contacts apply to in rem predicates as well as in personal; having property
in a forum state does not establish sufficient contacts unless the property is the subject of the lawsuit
(e.g., in rem jurisdiction)
Four. Hansen v Denckla: unilateral activity of a plaintiff who claims some relationship with a non-resident
defendant who doesn't do business or have any offices in the forum state, won't satisfy minimum
contacts requirement
Five. World-Wide Volkswagen Corp v Woodson : "financial benefits from a collateral relation to the forum
State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with
that State" including closing sales/performing services in a state, availing selves of privileges of a state,
soliciting business in a state by salesmen or ads, or selling products to residents of the state directly or
indirectly
First. Aiming/targeting forum: specifically targeting customers in a forum state/aiming
advertisements/etc at the forum state
Second. Unilateral activity of PL: Def. doesn't have control over actions that PL takes, such as driving
to another state or moving to another state

Foreseeability:
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Third. Foreseeability: defendant's conduct and connection with the forum State are such that he
should reasonably anticipate being hauled into court there
Fourth. Purposeful Availment: defendant purposefully/voluntarily directs activities towards the
forum state such that he should expect, by virtue of the benefit he receives by taking advantage
of the laws of the forum state, to be subject to the court's jurisdiction
Fifth. Fairness factors
1. Litigation in forum state burdensome to defendant?
2. Forum state's interest in adjudicating the dispute?
3. Plaintiff's interest in obtaining convenient and effective relief
4. Interstate judicial system's interest in obtaining the most efficient resolution of
controversies
5. Shared interest of the states in furthering "fundamental substantive social policies"
Six. Burger King Corp. v Rudzwiez: signing and/or negotiating a contract in a forum state, and/or actively
seeking to form a contract with a resident of the forum state, can be sufficient for the state to have PJ
over the person; interstate travel within the U.S. to litigate a case is not very burdensome (fairness
factors)
Seven. Stream of Commerce
First. Gray v American Radiator : stream of commerce theory; "it is not unreasonable, where a cause of
action arises from alleged defects in his product, to say that the use of such products in the
ordinary course of commerce is sufficient contact with this State to justify a requirement that he
defend here"
Second. Asahi Metal Industry v Superior Court of CA :
1. "Stream of Commerce Plus": merely putting a product into the stream of commerce isn't
sufficient for min contact; also need additional conduct that indicates "an intent or purpose
to serve as the sales agent in the forum State" like advertising, marketing through a
distributor who agreed to be a sales agent and who the company controls, created, or
employed, etc
2. Stream of Commerce: foreseeability of the product reaching the forum state; "A defendant
who has placed goods in the stream of commerce benefits economically from the States'
laws that regulate and facilitate commercial activity accrue regardless of whether that
participant directly conducts business in the forum State"
Third. J. McIntyre Machinery Co v Nicastro :
1. Kennedy: stream of commerce plus theory holds
2. Ginsburg: selling something in the U.S. as a whole means one is liable to damages in any
states within the U.S. (stream of commerce theory)
3. Reasonableness factors can be used to determine min contacts and as separate fairness
check

Eight. Intentional Torts

First. Calder v Jones : courts have PJ over people who do intentional torts in the forum state to citizens
of the forum state, as the nature of an intentional tort implies the defendant aimed at/targeted a
member of the forum State
Second. Walden v Fiore : "A forum State's exercise of jurisdiction over an out-of-state intentional
tortfeasor must be based on intentional conduct by the defendant that creates the necessary
contacts with the forum"; plaintiff's conduct is irrelevant for the purposes of PJ over a defendant
Nine. Internet Cases
First. MacDermid, Inc. v Dieter: due to the nature of the internet, it is possible to be subject to the
long-arm statute of a forum state even if one conducts the alleged improper activity in a different
state (e.g., so long as the data compromised resides in the forum state, etc)

3) Reasonable/fairness factors?
a)
b)
c)
d)
e)

Burden of the defendant

Interest of the forum state
Interest of the plaintiff
Interest of the interstate judicial system
Shared interests of the states

4) Tag Jurisdiction
a) Burnham v Superior Court of California : tag jurisdiction
1. Scalia plurality: being in a forum state is sufficient for service of process/PJ over the Def., regardless of
fairness factors/min contact
2. Brennan plurality: being in a forum state in which one is "knowingly and voluntarily" in the forum state is
sufficient for service of process/PJ; must look at min contacts/fairness factors
3. exception : enticement using deception to the forum state ruins the service of process
3. Notice
a. Mullane v Central Hanover Bank & Trust Co. : PLs should provide notice which is reasonably calculated to reach/properly apprise
relevant parties; have to sufficiently reach enough parties such that they can properly represent themselves, to the fullest extent
possible without undue burden
4. Venue (1391); judicial district where case can be adjudicated
a. Did a substantial/meaningful portion of the events which give rise to the claim occur in a particular jurisdiction (1391(b)(2))?
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a. Did a substantial/meaningful portion of the events which give rise to the claim occur in a particular jurisdiction (1391(b)(2))?
i. Yes; venue is proper
b. Are the defendants residents of the same state? (1391(b)(1))
i. 1391(c)(1): Natural person : district where person is domiciled
ii. 1391(c)(2): Non-natural persons : districts which have PJ; districts where defendants have PPB
1) 1391(d): district with most significant contacts, or district with PJ, in a particular state with multiple districts
iii. 1391(c)(3): Aliens/non-residents : any district
iv. Yes; venue is proper
c. Is the defendant subject to PJ in the jurisdiction?
i. Yes: venue is proper

d. Transfer of Venue (Federal)

i. State-to-state or fed-to-fed; no intersystem transfers
ii. Is the case in a state court?
1) Yes
a) Transfer of venue not allowed per 1404(a)
2) No; is the venue improper?
a) Yes; transfer via 1406(a) (transferee court uses its own law)
b) No
i) Ferens et ux. v John Deere Co. : Courts presiding over cases transferred under Sec. 1404(a) must still follow
choice-of-law rules in the court from which the case was transferred
ii) Atlantic Marine Construction Co. Inc. v. U.S. District Court for the W. Dist. Of Texas: Forum selection clauses
may be enforced by a motion to transfer under 1404(a) when the originally-selected venue would otherwise
be appropriate, or via 1406(a) or 12(b)(3) if it would have been improper; court should transfer in response
to such a motion unless "extraordinary circumstances unrelated to the convenience of the parties clearly
disfavor a transfer"
One. Forum non conveniens
First. Dismiss case because it is in an improper forum and it cannot be transferred to a proper venue
within the bounds of federal law
Second. When original venue is proper but a forum selection clause names a particular forum, case can be
dismissed if transfer can't be made, or if it would be more convenient for a foreign forum to take
the case
Two. Piper Aircraft Co. v Reno: possibility of unfavorable change in laws doesn't in and of itself bar dismissal
of the case in a particular venue; must look at combo of public/private factors
First. Public: local interest in having case tried at home; proper application of law
Second. Private: accessibility of evidence and witnesses; interests of private parties; burdens to parties

5. Federal or State Law for Federal Courts Sitting in Diversity

a. Erie R Co. v Tompkins: federal court sitting in diversity applies substantive state law
i. Twin aims of Erie: equality (equal treatment of plaintiffs and defendants; of diverse parties and non-diverse parties)/forumshopping and constitutionality
ii. Guaranty Trust Co. v. New York: Strict Outcome Determinative Test
a) Would the result of applying the federal or state rule affect or change the outcome?
First. Yes; apply state rule
Second. No; apply preferred rule
iii. Erie Trilogy (all take the state rule)
a) Woods: door-closing statute for registration of corporations
b) Cohen: whether a plaintiff must post a bond for a shareholder derivative suit
c) Ragan: when a claim commences for the purposes of statutes of limitations
b. Updated Roadmap: Is there a federal directive (rule/statute)?

i. Yes (Hanna Prong)

1) Hanna v Plumer
a) Is the law/rule valid?
First. Constitutional (for laws): Does Congress have the authority to make a rule for the issue/is the law arguably
procedural?
Second. Rules Enabling Act (for rules): Does the federal rule abridge, enlarge, or modify substantial state law rights in
a significant way?
One. Scalia Approach: most laws generally presumptively valid/presumed procedural unless rule could be
seen as exceeding power of constitutional/REA in a general sense
Two. Ginsburg Approach: case-by-case basis of state rights in specific cases
b) Is the law/rule applicable to the issue/case?
First. Based on interests/purposes of federal/state rules and whose are stronger
Second. Broad reading: direct clash between state/federal rule; federal rule prevails
One. Burlington Northern: a federal rule confers discretion to allow something in all circumstances (all
discretionary standards) versus a state rule mandates the thing in one particular situation
Two. Stewart Organization, Inc. v Ricoh Corp: choice of forum clause unenforceable (state) versus judge has
discretion to transfer suits for improper venue (fed)
Three. Shady Grove v. Allstate: (state) no class actions for collection of statutory penalties versus (fed)
standards for certifying class; state rule lists an exception to the federal rule, rather than clashes with
it, so federal rule prevails
Third. Narrow reading: state/federal rules can coincide side-by-side; go to unguided Erie to see if state law should
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Third. Narrow reading: state/federal rules can coincide side-by-side; go to unguided Erie to see if state law should
apply
One. Walker: federal law can be read narrowly if it can exist with the state rule
Two. Gasperini v. Center for Humanities: standard of review = de novo review of whether award materially
deviates from reasonable compensation (state) versus standard of review = whether award shocks the
conscience (fed); state law prevails

ii. No (Unguided Erie Prong)

1) Byrd v. Blue Ridge Rural Elect. Corp.: Balancing Test
a) Purely Substantive (law is bound up with state law-created rights and obligations)?
First. Yes; state law rules per 10th Amendment
b) Form and Mode (procedural rule meant to further a substantive ideal)?
First. Yes
One. Hanna v. Plumer: Modified Outcome Determinative Test
First. Would the difference between the federal and state rules have affected the choice of forum prior
to the filing of the suit?
1. Yes; apply state rule
2. No; apply preferred rule
Two. Byrd Balancing Test
First. Consider interests of federal/state judicial system with preference to state rule
c) Purely Procedural (law specifies law procedure)?
First. Yes; federal law governs due to interests of judicial system

6. Federal Rules of Civil Procedure

a. Rule 4: Summons/Service of process
i. 4(a): summons must include the name of the court/parties, time where the defendant must appear, and consequences of
failing to show
ii. 4(c): summons must be served with a copy of the complaint by someone 18+ years old and not a party of the suit
iii. 4(d): a defendant can waive service of the summons; if defendant is in the U.S. and has no good cause for not waiving,
defendant will be responsible for the expenses for service
b. Rule 7: Disclosure Statement
c. Rule 8: Pleadings
i. 8(a): Complaints/Claims for Relief
1) 8(a)(1): statement of the grounds of the court's SMJ
2) 8(a)(2): statement of the claim
3) 8(a)(1): demand for relief
ii. 8(b): Answer (admissions and denials)
iii. 8(c)(1): Affirmative defenses
1) Accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy;
duress; Estoppel; failure of consideration; fraud; illegality; injury by fellow servant
d. Rule 9: Pleading special matters
i. For claims or defenses where certain matters must be pleaded with particularity
ii. 9(b): Fraud and mistake
iii. 9(g): special damages

e. Motions to Dismiss
i. Parties
1) Claimant: party presenting a claim
2) Claim opponent: party opposing the claim
3) Moving party: party making a motion
4) Non-moving party: party opposing the motion
ii. Failure to state a claim (12(b)(6)): Case must be legally and factually sufficient
1) Legally sufficient: is there a legal basis for the claimant's claim
2) Factually sufficient: has claimant alleged enough facts in order to have sufficiently pleaded claim
a) Bell Atlantic Corp. v. Twombly: claimants must assert sufficient facts in a complaint for the complaint to be
plausible (e.g., that it's more likely than not that the plaintiff is right); cannot merely allege that a harm was
committed/provide conclusory statements of law without providing reasons for alleging that the defendant caused
the harm
b) Ashcroft v. Iqbal
First. Separate factual allegations from merely conclusory statements; and
Second. Accept the factual allegations as true and determine whether they give rise to a plausible inference of
wrongdoing/plausible claim for relief

iii. Rule 11: Sanctions

1) 11(a): all non-discovery papers must be signed by an attorney of record or by the unrepresented parties
2) 11(b): all signed papers constitute a certification by the submitting party or attorney that the papers, to the signer's
knowledge, information, and belief after a reasonable inquiry:
a) (1): Are not presented for an improper purpose (e.g., harassment, to cause unnecessary delay)
b) (2): Include legal contentions which are warranted by existing law, or include nonfrivolous arguments to change
existing law
c) (3): Include factual contentions which have evidentiary support or are likely to after discovery
d) (4): Include denials or factual contentions which are warranted by evidence or are reasonably based on belief or
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3)
4)

5)
6)
7)
8)

9)

10)
11)

d) (4): Include denials or factual contentions which are warranted by evidence or are reasonably based on belief or
lack of information
11(c)(1): if the certification is violated, sanctions may be ordered on the attorney, law firm, or party responsible
11(c)(2): sanctions can be imposed after a motion made by a party to do so; motion must be provided to the offending
party 21 days before it is filed with the court such that the offending party has a chance to correct or withdraw any
materials which violate the certification
11(c)(3): sanctions can be ordered sua sponte by pointing out a violation and requiring an attorney/party to show that
there is no violation
11(d): For any legal paper presented to the court except for discovery materials
Christian v. Mattel: Meritless claims and unreasonable investigation can form basis of chapter 11 sanctions; not enough
that a lawyer/party's conduct or inquiry is lacking or that the claim presented was simply meritless
Hickman v. Taylor: "Memoranda, statements and mental impressions fall outside the scope of attorney-client privilege";
cannot use discovery procedure to benefit from other's diligence; can seek production of documents/evidence that
others obtained if it would be extremely difficult to get the information (e.g., testimony of a witness since deceased), but
cannot ask for information that can be easily acquired
a) Attorney work product: materials prepared in anticipation of litigation; materials that are privileged
Grumman System Sup. Corp. v. Data Gen.: in jurisdictions with compulsory counterclaims, counterclaims using same
operative facts as originating claim must be brought at the proper time in the particular lawsuit, rather than in a separate
lawsuit
Guidry v. Marino: to join claims, claims must arise from the same set of facts/occurrences; as long as the parties'
questions/claims overlap, they can all be joined (same cause of action not necessary)
Republic of Philippines v. Pimentel: Courts can decide sua sponte to dismiss a case for nonjoinder of necessary parties
under Rule 19(b) if the necessary parties for some reason can't be joined to the case (e.g., lack of SMJ, PJ, or valid venue
objection) and if other substantial/procedural factors exist which encourage dismissing the case

iv. Rule 12: Defenses

1)
2)
3)
4)
5)
6)
7)
8)
9)
10)

f.

g.

h.
i.

j.

12(b)(1): motion to dismiss for lack of SMJ

12(b)(2): motion to dismiss for lack of PJ
12(b)(3): motion to dismiss for improper venue
12(b)(4): motion to dismiss for insufficient process
12(b)(5): motion to dismiss for insufficient service of process
12(b)(6): motion to dismiss for failure to state a claim upon which relief can be granted
12(b)(7): motion to dismiss for failure to join a party under Rule 19
12(c): motion to include defenses in an argument per 12(h)(2)(B)
12(e): motion to obtain clarification about pleadings/etc
12(g)(2): motion to dismiss 12(b)(2-5) motions after filing a motion, when motions could have been brought at the time
of filing first motions per 12(h)(1)(A)
11) 12(h)(1)(A): defenses from motions dismissed under 12(g)(2) are waived
12) 12(h)(1)(B): defense under 12(b)(2-5) motion waived if wasn't brought up before
13) 12(h)(2)(A): allow defense under 12(b)(6-7) motion to be included in pleading if applicable
14) 12(h)(2)(B): motion to allow 12(b)(6-7) motions to be brought up after a pleading via 12(c)
15) 12(h)(3): 12(b)(1) motion can be brought at any time
Rule 13: Counterclaims
i. 13(a): Compulsory counterclaims: counterclaims relating to the same transaction or occurrence as the plaintiff's claims must be
brought at the time of filing a response
ii. 13(b): Permissive counterclaims: can be related or unrelated to the plaintiff's claim
iii. 13(g): Cross-claims are permissive but must involve the same transaction/occurrence
Rule 14: Impleader
i. 14(a)(1): If a plaintiff is suing a defendant and a third-party defendant, the defendant can use indemnification to make a claim
against the third-part defendant, who is/may be liable to the defendant for some/all of the claim against the defendant
Rule 18: Joinder of claims
i. 18(a): Claims from the same plaintiff can be joined regardless of whether they come from the same set of facts
Rule 19: Joiner of Parties
i. Is absent party required?
1) 19(a): a party is required if it claims an interest relating to the action or if the court cannot complete relief without the
presence of the party; court must dismiss a party if joiner would make venue improper and the joined party objects to
the venue
ii. Is joinder feasible (SMJ, PJ, venue)?
1) No; can action proceed anyway?
a) 19(b): if a party can't be joined, court may use the following factors to decide if case should be dismissed:
First. The extent to which a judgment rendered in the party's absence might prejudice the party or the present
parties;
Second. The extent to which any prejudiced could be lessened/avoided by protective provisions in the judgment, in
shaping the relief, or through other measures;
Third. Whether a judgment rendered in the person's absence would be adequate;
Fourth. Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder
Rule 20: Permissive joinder of parties
i. Parties can be joined if the claims arise out of the same transaction or occurrence, or if they involve at least one common
question of law/fact; commonality doesn't need to exist between each and every party so long as each party has at least one
commonality with another
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commonality with another

k. Rule 24: Intervenor
i. People can intervene as plaintiffs or defendants:
1) As of right (24(a)): parties can intervene when a federal statute provides an unconditional right to do so or when the
party claims an interest relating to the property/transaction that is the subject of the action, such that the party would be
less able to protect its interesting unless existing parties adequately represented the party's interest instead
2) Permissive (24(b)): parties can intervene when they are given a conditional right to do so by a federal statute, when they
have a claim/defense that shares a common question of law/fact with the existing action, or when a governmental
officer's claim/defense is based on a federal rule/law/regulation
l. Summary Judgment (Rule 56): is there a genuine issue of material fact?
i. Can be granted in whole or in part to various aspects of the claims
ii. Celotex Corp. v. Catrett
1) If the moving party is the claimant, he must produce evidence showing there is no genuine issue of material fact
a) plaintiffs must show evidence which could be admissible in some form at trial in order to convince the court to
allow the evidence to be used to defeat a SJ
2) If the moving party is the claim opponent, only has to point to an absence of sufficient facts in the record
a) Claim opponent does not have a burden to produce anything to support a motion for SJ; just need to point out
factual insufficiencies in the record to the court
iii. Anderson: nonmoving party must produce sufficient evidence from which a reasonable jury could find in favor of the
nonmoving party (based on standards applied to jury at trial)
iv. Matsushita: nonmoving party should receive the benefit of all reasonable doubts as to whether there is a genuine dispute of
material fact, but speculation is not permitted when the nonmoving is a claimant and has set forth an implausible theory of
liability
v. Affidavits, etc can be used in SJ as evidence
vi. Scott v. Harris: it is the moving party's burden to show there is no genuine issue of material fact; however, if the non-moving
party only provides evidence that couldn't lead a rational tried of facts to agree with the non-moving party, the court can find
there is no genuine issue of material fact and dismiss the case

m. Rule 26: Discovery

i. 26(a)(1): Initial/automatic disclosures: identification of people/documents which will be used to support claims and defenses;
information about damages/insurance
ii. Discovery materials = non-privileged materials relevant to any party's claim or defense (old)/relevant to an expectation that it
could be relevant to a party's claim or defense, or that such materials could be found (new proposed)
1) Does not need to be admissible at trial
2) Scope must be specific to dates/subject matter/etc of lawsuit
iii. 26(c): Protective Orders
1) Court can issue, in good cause, an order to protect a party from annoyance, embarrassment, oppression, or undue
burden or expense, e.g., by forbidding disclosure or discovery of some or all of existing materials, by specifying how
discovery is conducted, etc
iv. Rule 30: Deposition
1) oral question/answer session; can ask inadmissible questions and can depose non-parties
2) Only one party and lawyers/court reporter/stenographer are present; objections can be raised in noted in record; judge
may decide later whether to sustain objection when testimony is presented in court
v. Rule 33: Interrogatories
1) written questions (25-question limit); parties given questions must perform reasonable diligence to figure out answers to
questions
2) 33(a)(2) Contention interrogatories: can ask questions of fact or law applied to fact (e.g., whether one had a duty to
another)
vi. Rule 34: Document Discovery/Requests for Production
1) Parties can ask other parties with custody or control over certain materials (documents, electronic recordings, images,
data compilations) to produce the materials; other parties can either produce the materials or object via 34(b)(2)(B)
vii. Rule 35: Mental/Physical Exam
1) Court-ordered medical/physical exam when good cause is shown; requesting party pays for the exam, and delivery of the
exam report makes previous and subsequent exams of the same condition discoverable
viii. Rule 36: Request for Admissions
1) Duty of reasonable inquiry to admit/deny various aspects of the case
ix. Duty to update discovery materials (e.g., deposition/interrogatory responses) if one finds new information which may change a
given answer

7. Prior Adjudication
a. Res Judicata/Claim Preclusion
i. Precluded from bringing same issue
ii. Same parties
1) Same plaintiff and same defendant?
a) Mitchell v. Federal Intermediate Credit Bank: PL and Def. can switch if in a jurisdiction with compulsory
counterclaims
b) Taylor v. Sturgell: Virtual representation overturned; exceptions which allow for non-party preclusion
i) Consent (agreeing to be bound by someone else's verdict/judgment)
ii) Pre-existing legal relationships (parties already bound together by a legal relationship relating to
property/etc; e.g., marriage)
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property/etc; e.g., marriage)

iii) Adequate representation by a party with similar interests (e.g., parties have a mutual interest in a rule and
are represented by the same person; requires explicit proof that one party was looking out for the interest of
another, using a specific procedure of proof)
iv) Assumption of control of the previous litigation (nonparty working on the previous litigation to some capacity
even if it wasn't named in the litigation, e.g., the nonparty helped to write the complaint, pay the lawyer, etc;
evidence has to show that the nonparty was somehow calling the shots in the litigation)
v) Avoiding preclusion by litigation through a proxy (nonparty brings up some claim because the first party was
precluded from doing so; requires proof of such a relationship, which must be proven by the defendant)
vi) Express foreclosure by a statute
c) Yes; Same claim (any claim that was brought/should have been brought in first suit)?
i) Rush v. City of Maple Heights: same/similar claims must be brought within the same lawsuit, even if arising
out of different causes of action (e.g., state/federal) or require different facts to prove
ii) River Park, Inc. v. City of Highland Park: relational test/ transactional/occurrence test (claims arising from
single group of operative facts/facts related in time, space, origin, or motivation, must be brought in same
trial)
One. Same evidence test (previous test): claims which would require different evidence to prove can be
brought within different lawsuits
iii) Federated Department Stores, Inc. v. Moitie: changes in law/circumstances do not create exceptions to res
judicata rule; cannot file different suit to contest a wrongful judgment (have to appeal to do that)
iv) Mitchell v. Federal Intermediate Credit Bank: when a right of action is indivisible, a plaintiff can't split it into
multiple causes of actions in multiple suits; however, recovering for a part of the action can bar subsequent
actions for the rest/entirety of the suit; same applies to defenses and counterclaims
v) Yes; Final (nothing left for the district/trial court to decide), valid (court had SMJ/PJ) judgment?
One. Yes; On the merits (dismissed with prejudice); Rule 51?
First. All dismissals on the merits unless it's for lack of jurisdiction, improper venue, or for failure to
join a party under rule 19(b)
Second. Two factors:
1. Was at least one right between the parties adjudicated?
2. Did the defendant incur a burden/inconvenience of mounting a defense?
Third. Costello v. United States: failing to file the right documents can prevent a court from having
jurisdiction over the parties, and therefore can prevent the case from being adjudicated on the
merits; cases without resolutions due to defects in the pleadings/other aspects of the cases are
not considered as having been adjudicated on the merits
iii. Barred from bringing same case at all; suit is dismissed
b. Issue Preclusion/Collateral Estoppel: a party is barred from re-litigating an issue
i. Mutual: Estoppel available if both parties would have been bound by the original judgment
ii. Offensive non-mutual: used by nonparty of lawsuit #1 to establish liability in lawsuit #2
i) Parkland Hosiery Company Inc. v. Shore: judges have discretion in determining when offensive collateral estoppel is
appropriate
i. Could plaintiff have easily joined the earlier litigation/does it seem like plaintiff waited for the end of the litigation
to see if it would be worth suing the defendant?
ii. Was the first litigation inconsistent with other rulings involving the defendant?
iii. Did the defendant have a full and fair opportunity to vigorously litigate in the first lawsuit?
iv. Were there procedural advantages defendant was/wasn't able to take advantage of in the first lawsuit that could
now be utilized in the second lawsuit?
iii. Defensive non-mutual: used by nonparty of lawsuit #1 to defeat liability in lawsuit #2
i) Bernhard v. Bank of America Nat. Trust & Savings Ass'n: a defendant in a second lawsuit may use a prior judgment
involving another defendant to defeat liability
iv. Different parties, or parties bound/advantaged by previous decision?
1) Taylor v. Sturgell: exceptions which allow for non-party preclusion
i. Consent (agreeing to be bound by someone else's verdict/judgment)
ii. Pre-existing legal relationships (parties already bound together by a legal relationship relating to property/etc; e.g.,
marriage)
iii. Adequate representation by a party with similar interests (e.g., parties have a mutual interest in a rule and are
represented by the same person; requires explicit proof that one party was looking out for the interest of another,
using a specific procedure of proof)
iv. Assumption of control of the previous litigation (nonparty working on the previous litigation to some capacity even
if it wasn't named in the litigation, e.g., the nonparty helped to write the complaint, pay the lawyer, etc; evidence
has to show that the nonparty was somehow calling the shots in the litigation)
v. Avoiding preclusion by litigation through a proxy (nonparty brings up some claim because the first party was
precluded from doing so; requires proof of such a relationship, which must be proven by the defendant)
vi. Express foreclosure by a statute
2) Yes; Same issue?
i. Yes; Litigated and determined?
i) Little v. Blue Goose Motor Coach Co.: if an issue within a claim (e.g., negligence) has already been litigated
and determined in a previous suit, the plaintiff cannot bring a subsequent action arguing the issue again
ii) Kaufman v. Eli Lilly & Co.: only issues which have been properly adjudicated can be used to create collateral
estoppel for the particular issue
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estoppel for the particular issue

iii) Yes; Final, valid judgment?
i. Yes; Issue was essential to the judgment?
v. Barred from relitigating an issue that has already been determined in an earlier suit; suit not necessarily dismissed if there are
other issues to render a judgment on
c. Collateral attack (challenge outcome of a decision/issue in a new lawsuit) versus appeal (challenge outcome of a decision/issue in a
court of appeal in the same lawsuit)
d. Stare decisis: court must follow rules and holdings established by prior cases in the same jurisdiction (e.g., precedence)

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