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Civil Procedure Final Exam Review

Review for our Civil Procedure Final Exam.

Kayla Johnson

on 19 December 2013

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Transcript of Civil Procedure Final Exam Review

Service of Process
Basically, the delivery of the required papers (summons and complaint) to commence a lawsuit by a means or method authorized by law or statute to a party.
After the complaint has been filed, plaintiff has 120 days to serve the defendant.
Anyone who is a non-party and is over 18 may complete service.
Methods of Service to a Natural Person:
by hand
leave process at the defendant's usual place of abode with someone competent whom resides there
deliver to an agent of the defendant
follow the state's rules
Waiver - Rule 4(d)
A plaintiff may request the defendant to "waive" the requirement that it be served with a summons.
If the defendant waives service, it gets 60 days to file a responsive pleading.
If the defendant does not waive service, it has to pay for proper service.
Rules 4 & 5
Joinder of Parties
Required Joinder
Rule 19(a)(1)
Parties must join if:
(A) the court cannot accord complete relief among the existing parties
(B) a person claims an interest relating to the subject of the action, and without them relief may...
(i) impede the person's ability to protect the interest
(ii) leave an existing party subject to a substantial risk of incurring multiple, inconsistent obligations
Permissive Joinder
Rule 20(a)
Plaintiffs may join as one if:
same transaction or occurrence (STO)
any question of law or fact common to all plaintiffs will arise in the action
Defendants may be joined as one if:
same transaction or occurrence (STO)
same question of law or fact is common to all defendants
Rule 14(a)(1)
A defendant may bring in a third party if the third party may be liable to the defendant for all or part of the claim against the defendant.
(not only STO, but derivative)
Initial Disclosures
Rule 26
Basically, all information helpful to a party's case must be disclosed to the other side as soon as discovery begins, without a request.
Requests for Production of Documents
Rule 34
A party is allowed to ask the other side for their documents.
Requests for Admissions
Rule 36
Responding party must admit/deny. If there is not response, it is deemed admitted.
Rule 33
Written questions that the other party must answer under oath.
Rule 30
Oral testimony taken under oath which is always recorded & transcribed (may be videotaped), can be used as evidence, both sides are present.
Rule 45
Used when requesting information from a non-party who isn't under the court's purview. May ask them for documents, testimony, or both.
Default Judgment
Default must have been entered.
Rule 55
Motion for Judgment on the Pleadings
Similar to a 12(b)(6) motion, but the court considers any responsive pleading, as well.
Based on what has been admitted, is the movant entitled to judgment as a matter of law?
Voluntary Dismissal
The plaintiff may dismiss the case up to a certain point.
The claim may be filed again unless it has been dismissed twice.
Involuntary Dismissal
The defendant may move for dismissal of one or all claims.
This operates as an adjudication on the merits.
Rule 41(a)
Rule 41(b)
Summary Judgment
This motion is not about the quality of evidence, it's basically saying that on the key issues, there is no evidence that kills my case.
Appropriate when there is no GENUINE DISPUTE of MATERIAL FACT
The court must view all evidence in the light most favorable to the non-movant.
Rule 56
The judge rules on questions of law.
The jury decides disputed issues of fact.
Judgment as a Matter of Law
(aka Directed Verdict)
The judge looks at evidence presented at trial to determine whether appropriate.
Must be made before the jury deliberates.
Only about the sufficiency of the evidence.
Pre-requisite for a JNOV
Rule 50
Motion for a New Trial
2 major grounds for granting:
error in legal ruling by the judge (either brought to the court's attention or realized on its own)
the verdict is "against the greater weight of the evidence"
Rule 59
Judgment Notwithstanding the Verdict
("Renewed Rule 50 Motion" or JNOV)
Judgment as a Matter of Law post-verdict
Rule 50
3 main concepts govern when and how a party can seek review of erroneous rulings made by the trial court...
required before an appellate court has jurisdiction to even consider an appeal
appeal can only be taken from an adverse ruling/order (only the losing party can appeal)
can't raise a new issue on appeal, must have made some sort of motion, request, etc. prior to the judgment
Prior Adjudication
Claim Preclusion
"res judicata"
1. Claim asserted in a subsequent action is a claim that was asserted (or should have been) in a prior action (precludes STO - "transactional standard")
2. The party against whom claim preclusion is sought was a party in the prior action (or is in privy with such a party)
3. The prior judgment was a final judgment on the merits
4. The court that issued the prior judgment had subject matter jurisdiction
Issue Preclusion
"collateral estoppel"
1. Issue Preclusion is appropriate when an issue of fact or law
2. Is actually litigated and determined
3. By a valid and final judgment
4. And that determination is essential to the judgment
5. And the party against whom preclusion is sought had an "adequate opportunity and incentive" to litigate the issue in the prior proceeding.
The party asserting has the burden of proof.
(As set forth by
28 USC §1291
Joinder by
Rule 8
Must contain:
A short & plain statement of the grounds for jurisdiction
A short & plain statement showing entitlement to relief
Must show facial plausibility in both legal and factual aspects
Legal Sufficiency
Does the complaint give notice of some sort of legal claim?
Is there a valid legal basis for the claim(s) asserted?
Is there any obvious legal bar to recovery?
Factual Sufficiency
Determine using the "Twiqbal Twostep"
1. Identify mere conclusory statements, and disregard them (they are not entitled to the assumption of truth).
2. Consider whether the remaining facts plead state a "plausible" claim.
A demand for relief sought.
pleading special matters
Rule 9(b)
When pleading fraud or mistake, you must state with particularity the circumstances that make it fraud or mistake; you can allege generally conditions of a person's mind.
defendant's options for response
All allegations in the complaint are deemed admitted.
Applicable when the defendant doesn't make an appearance in the case.
Entered by the clerk if the sum can be made certain by computation.
Entered by the court if the sum is more complicated or if the defendant is a minor or an incompetent person.
Both default and default judgment must be requested, but both may be in the same filing.
The defendant may make an appearance in the case after default has been entered, but only to dispute damages (unless they have
(1) a good reason
for being in default and
(2) a meritorious defense
Rule 12
About when & how to present any defenses/objections.
Rule 12(a) provides a time limit on responses (21 days).
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under rule 19.
May be brought anytime! (12(h)(3))
12(h)(1): May be waived by:
(A) omitting from a motion (per 12(g)(2))
(B) failing to
(i) make it by motion
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1)
12(h)(2): 12(b)(6-7) may be raised
(A) in any pleading...
(B) by a motion under 12(c)
(C) at trial
12(g)(2) Must bring any 12(b)(2-5) defense together in the initial response
Motion to dismiss for failure to state a claim upon which relief can be granted
Plausibility Standard as introduced in Iqbal:
the factual content in the complaint allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged
Identify the mere conclusory statements, and disregard them (they are not entitled to the assumption of truth)
Any problems with Rule 8(a)(1): pleading jurisdiction?
Any problems with Rule 8(a)(3): demand for relief?
If either is missing, then the complaint does NOT satisfy Rule 8.
Apply Rule 8(a)(2): Is there a "showing that the pleader is entitled to relief?"
Two Aspects
Does the complaint give notice of the legal basis for the claim?
Is there a valid legal basis for the claim(s) asserted?
Do the pleadings contain any obvious legal bar to recovery?
the "twiqbal twostep"
Examine the remaining (well-pled) facts: if treated as true (for the purposes of the 12(b)(6) motion, only), are they
enough to establish the elements of the legal claim?
If insufficient to state a claim, what is the proper remedy?
Dismissal of the complaint?
Dismiss of invalid claim(s) only?
Allow pleader to amend?
Rule 12(e) Motion for a More Definite Statement
Less common responses:
Rule 12(f) Motion to Strike
the answer
General Denial (denies all allegations of a pleading, including jurisdictional grounds)
Go paragraph by paragraph and either deny, admit, or deny for lack of knowledge sufficient to form a belief as to truth
If denied, the fact is contested and the jury must decide at trial.
If admitted, the allegation cannot later be contested; the fact is established for the remainder of the proceedings.
If an allegation is not denied, it is considered
Must contain any affirmative defenses to be asserted
applies to all pleadings (i.e. replies to counterclaims)
2 effects of failing to plead an affirmative defense
(1) the responding party has no notice
(2) burden to plead means burden of proof
Rule 8
rule 11
3 Important Aspects
1. Counsel's Obligations
2. Procedure for Filing
Motion for Sanctions ((c)(2))
Must serve it first, then file it after 21 days with no response (appropriate responses are to withdraw or amend)
The court can also question counsel on the basis of Rule 11(b) ((c)(3))
The court MAY impose sanctions, not required (11(c)(1))
May include non-monetary directives
May be ordered to pay a penalty into the court
May include attorneys' fees
(a party cannot be the subject of monetary sanctions)
videntiary support
enials are warranted
amending a pleading
Rule 15
15(a) Amendments Before Trial
(1) as a matter of course (do not need permission)
(a) if you've just served a pleading, you can amend it within 21 days of its service
(b) if it's a pleading to which there is a response required, you have until 21 days from the time the responsive pleading has been served (also 21 days under
12(b, e, f)
(2) if not a matter of course, must get written consent from the opposing counsel or the court
the court should freely give consent when justice so requires
(Beeck v. Aquaslide)
15(c) Relation Back of Amendments
(deals with a pleading that needs to be amended but the statute of limitations has run)
(1) cases when it relates back:
(A) the law allows it (uncommon)
(B) amendment's claim/defense is about the same transaction or occurrence that the original pleading set out or attempted to set out (allows a little wiggle room)
2 Important Factors in Determining STO (
Moore v. Baker
Bonerb v. Caron Foundation
1. Time frame of the two factual scenarios
2. where the case is in the litigation process
(timing is key)
(C) if the statute of limitations has run and the plaintiff discovers it has sued the wrong defendant and wants to amend the complaint, it must be the same transaction or occurrence as the original, and must meet the following:
(i) party to be brought in must be aware of the action
(ii) party to be brought in must know that they were actually the right ones to be sued
joinder of claims
by the Plaintiff
Rule 18
The plaintiff may join any claims, but it is not required.
Joined claims may be about different things as long as it's against the same party.
by the Defendant
Rule 13
across the "v"
A counterclaim is
if you have the claim against the opposing party at the time of service.
Must arise out of the same transaction or occurrence.
If you fail to bring a compulsory counterclaim then it's considered waived and it cannot be brought later.
(Exception: a defendant does not have to counterclaim if the claim is already the subject of another action)
Any counterclaim that isn't compulsory.
May join a permissive counterclaim, but not required to.
Major distinction between
counterclaims is that
counterclaims require their own basis for jurisdiction (
Plant v. Blazer Financial Services
A response to a counterclaim.
Governed by Rules 7 & 8 (similar to an answer)
A plaintiff may file a 12(b) motion against the counterclaim (except for (2-5))
A plaintiff may plead affirmative defenses to the counterclaim
Rule 13(g)
ALWAYS between defendants
Any claim against the co-party if:
The claim is out of the same transaction or occurrence
If it relates to any property that is the subject matter of the original action
no such thing as a compulsory crossclaim
dispositions and judgments
steps for evaluating a motion for summary judgment
The movant must show that there is no
genuine dispute
material fact
and it is thus entitled to Judgment as a Matter of Law
Read & Understand!
Identify the legal question (substantive law).
Identify the
material facts
(that actually matter to the legal question)
Who bears the ultimate
Burden of Proof
(at trial) on the legal question?
& then
is there a genuine dispute?
Movant must demonstrate
from the evidence gathered in discovery that there is no
genuine dispute
material fact
(A) If the
has the
Burden of Proof
, then the
cites its evidence and the non-movant's
complete inability to rebut
(B) If the non-movant has the
Burden of Proof
on a claim, then the
shows non-movant's
utter lack of evidence on the claim
If the
fails to make this initial showing, Motion for Summary Judgment should be
If the
makes this initial showing, proceed to the next step...
must come forward with
(from discovery) of "specific facts" to show there is a
genuine dispute
for trial
The facts must be viewed in the light most favorable to the
the facts to the rules you just articulated
provide a
that answers the call of the question.
Geographic specifications of the proper court
Determines which state, not as a matter of power, but of relationship to the parties or events
Also determines which district within a state, if there is more than one
28 U.s.c. §1391
(b) Venue in general - a civil action may be brought in
(1) a judicial district in which any defendant
(domiciled), if all defendants are residents of the state in which the district is located
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated
(3) if there is no basis under (b)(1) or (b)(2), then any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action
(c) Residency - for venue purposes means the federal judicial district...
(1) for a natural person: where
(2) for a corporate entity: where it is subject to
personal jurisdiction
with respect to the civil action in question (if a plaintiff: only in the one in which it maintains its principle place of business)
(d) Residency of corporations in States with multiple districts
...a corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district... the district within which it has the most significant contacts
forum non conveniens
Common law doctrine
Remedy is dismissal without prejudice so that the plaintiff can refile
28 U.S.C. §
Motion for Change of Venue (a/k/a Motion to Transfer)
For the convenience of the parties, the court may transfer any civil action
to another district where it might have been brought
to any district to which all parties have consented
appropriate when venue is proper under §1391, but another venue would be more efficient
28 U.S.C. §
When the action is in the wrong venue per §
, the court may dismiss or transfer the case
choice of law
, federal forum is always governed by the Federal Rules of Civil Procedure (
Hanna v. Plumer
, federal forum must respect state laws (
Erie RR v. Tompkins
subject matter jurisdiction
Materials to consider when challenging Subject Matter Jurisdiction
Attack/Challenge tests the sufficiency of the allegations of the complaint (accepting them as true)
Attack/Challenge questions whether actual facts support subject matter jurisdiction (regardless of what is alleged); the court has wide discretion to allow different types of discovery and may open up early discovery solely on the basis of jurisdiction/citizenship.
Federal Question Jurisdiction
28 U.S.C. §1331
Any cause of action arising under the constitution or federal laws/treaties.
the claims must be brought in federal court (Exclusive Jurisdiction)
cause of action must arise under the Constitution or federal laws/treaties (
Louisville & National RR v. Mottley
(determined from the complaint)
Diversity Jurisdiction
28 U.S.C. §1332
the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum of $75,000,
is between
(1) citizens of different states
(2) citizens of a State and citizens or subjects of a foreign state
complete diversity
(no one on the plaintiff's side may be from the same state as anyone on the defendant's side)
Citizenship is tested at the date of filing for subject matter jurisdiction purposes.
Amount in Controversy
The court looks at the
to determine whether this requirement is met.
The plaintiff may aggregate claims to meet the amount required.
If the plaintiff seeks non-monetary relief, the court must put a value on the relief sought.
for an insufficient amount in controversy is appropriate only if it "appears to a legal certainty that the claim is really for less."
For §1332(a)(1), a person is a "citizen" of a state in which he/she is
to establish domicile:
physical presence
in the state
to remain there
For §1332(a)(2), domicile is irrelevant;
official citizenship
of a country is required.
Under §1332(c), a corporation is a citizen of every state and foreign state in which it's

and of every state or foreign state where it has its

principle place of business
Principle place of business
" is defined by
Hertz Corp. v. Friend
as "the place where the corporation's high level officers direct, control, and coordinate the corporation's activities" (the "nerve center" test)
supplemental jurisdiction
28 U.S.C. §1367
The district courts shall have
supplemental jurisdiction
over all state law claims that are "so related to the action within the original jurisdiction that
they form the same case or controversy
supplemental jurisdiction
to apply, "the state and federal claims must derive from a '
common nucleus of operative fact
United Mine Workers v. Gibbs
Supplemental Jurisdiction
be used to
the complete diversity rule.
The courts
decline to exercise supplemental jurisdiction if...
the claim involves a
novel or complex state law
the claim substantially
over the federal claim(s)
the district court has
dismissed all federal
compelling reason
for declining jurisdiction
28 u.s.c. §1441
Any civil action brought in State court over which the federal district courts have
original jurisdiction
may be
by the defendant to federal court
If any defendant is a citizen of the state in which the action is brought, it cannot be removed.
Procedure for Removal
28 U.S.C. §1446
All defendants must
30 days
of notice of the claim containing subject matter jurisdiction.
If based on §1332, Notice of Removal must be filed within
of the filing of the action.
28 U.S.C. §1447
30 days
of receiving notice, the plaintiff may contest the removal (argue that there is no subject matter jurisdiction).
Motion to
The federal court can remand all or part back to state court.
At its core, personal jurisdiction is about
due process
constitutional foundations
No person shall be deprived of life, liberty, or property without due process.
Amendment V
Amendment XIV
No state shall deprive any person of life, liberty, or property without due process. (Ensured that states were forced to follow the Fifth Amendment)
v. neff
Each state has
in personam
jurisdiction (power over the
within the state's territorial boundaries), and
in rem
jurisdiction (power over the
within the state's territorial boundaries).
First, check the Long Arm Statute

purposeful availment
Minimum contacts are established by one of the following:
Transient Jurisdiction
General Jurisdiction:
Principle Place of Business
The Effects Test
Intentional Torts
Stream of Commerce
Last, look at Reasonableness Factors
transient jurisdiction
Based on
in personam
jurisdiction, if a person is
served process while within a state's boundaries
, then that state has personal jurisdiction over them.
Noted in
Pennoyer v. Neff
, then confirmed after
International Shoe
Burnham v. Superior Court
A defendant may consent to personal jurisdiction in the forum state...
by making an appearance in the case without contesting personal jurisdiction
through a contract (
Carnival Cruise Lines, Inc. v. Shute
long arm statutes
In addition to DUE PROCESS considerations, there must be a state statute authorizing exercise of personal jurisdiction over an out of state party.
State law provision that the state itself has some sort of authority to say under what circumstances non-residents are subject to its jurisdiction.
reasonableness factors
Once the court finds minimum contacts and the long arm statute is satisfied, there is another inquiry regarding the reasonableness of the forum.
The plaintiff has the burden of showing that the forum does have personal jurisdiction over the defendant. If that showing is made, the defendant still has an opportunity to argue that fighting the suit in the forum would be unreasonable/disadvantageous.
This is where
traditional notions of fair play and substantial justice
kicks in!
general jurisdiction

with the forum state to establish.
Continuous corporate operations
so substantial and of such a nature as to justify suit on
(i.e. location of the corporation's
or where it's
"Affiliations with the state are so '
continuous and systematic
' as to render them essentially at home in the forum state"
(i.e. where a person is
All that due process requires is
minimum contacts
with the forum state, which must not offend traditional notions of fair play and substantial justice.
(International Shoe Co. v. Washington)
There must be some act by which the defendant
purposefully avails
itself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of the state's laws.
(Hanson v. Denckla)
specific jurisdiction
The defendant participates in limited activity within the forum state, but the claims in question arise out of that very activity.
the effects test
Requires the plaintiff to establish that
(1) the defendant committed an
intentional tort
(2) the plaintiff felt the brunt of the harm in the forum state, such that the forum can be said to be the
focal point
of the harm
(3) the defendant expressly
aimed his tortious conduct at the forum
, such that the forum can be said to be the focal point of the tortious activity.
Website Categories
: defendant enters contracts with residents of another state through the website that involve the knowing and repeated transmission of computer files
: low volume of transactions, but some exchange of information with the defendant's computer takes place
: merely informational
A state may, consistent with due process, exercise judicial power over a person outside of the state when that person
(1) directs electronic activity into the State
(2) with the manifested intent of engaging in business or other interactions within the State, and
(3) that activity creates, in a person within the State, a potential cause of action recognized within the State's courts.
CareFirst of Maryland, inc. v. carefirst pregnancy centers, inc.
A contract itself is not enough to establish minimum contacts
(No PJ)
case by case
Additional factors to be considered when determining minimum contacts:
Prior negotiations and contemplated future consequences
the terms of the contract
the parties' actual course of dealing
burger king, corp. v. rudzewicz
stream of commerce (products liability)
The defendant has to have delivered products into the
stream of commerce
with the
that they will be
purchased by consumers in the forum state
(necessary for purposeful availment).
(World-Wide Volkswagen v. Woodson)
The defendant must have
the forum with its transmission of goods; it is not enough that the defendant might have predicted the goods would reach the forum state.
(J. McIntyre Machinery, Ltd. v. Nicastro)
(the plaintiff has the burden to show minimum contacts)
If done incorrectly, 12(b)(7) motion!
Full transcript