Civil ProcedureLaw School LegendsProfessor Richard D. Freer

I. Personal Jurisdiction A. In Personam Jurisdiction 1. Constitutional Standard – Due Process Analysis a. Pennoyer v. Neff – The state has power, and therefore jurisdiction, over people and things within its boundaries – Four traditional bases of in personam jurisdiction i. Defendant was served with process in the forum – general jurisdiction (presence as the basis of jurisdiction) ii. Defendant’s agent was served while in the forum iii. Defendant is domiciled in the forum iv. Defendant consents to personal jurisdiction b. Hess v. Pawloski – Supreme Court expanded personal jurisdiction by expanding traditional bases c. International Shoe Co. v. Washington – The court has jurisdiction if the defendant has such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. d. Hanson v. Denckla – Purposeful availment. To be a contact, it must result from the defendant’s purposeful availment of the forum. e. World-Wide Volkswagen v. Woodson – It must be foreseeable that the defendant could get sued in the forum. f. Burger King Corp. v. Rudzewicz – International Shoe consists of two parts. (1) contact, and (2) fairness. To show jurisdiction is unfair, D must show that defending the case is so gravely difficult and inconvenient that you are at a severe disadvantage in the litigation. However, the relative wealth of the parties is irrelevant. g. Asahi Metal Industry v. Superior Court – Stream of commerce case. 2. Statutory Inquiry a. Every state claims general jurisdiction over a defendant who is served with process in the forum. b. Every state has a statute that gives general jurisdiction over a defendant who is domiciled in the forum. c. Every state has a non-resident motorist act. d. Long-Arm Statute – Every state has one, to allow jurisdiction over non-residents. Two types: i. California statute – Statute reaches to the full extent of due process ii. Laundry list statute – A non-resident defendant can be sued in the state on a claim that arises from the defendant doing something specific in the forum.

B. In Rem and Quasi-in-Rem Jurisdiction 1. Definitions. Here, the jurisdiction is over the defendant’s real or personal property. a. In Rem Jurisdiction – The case is about ownership of the property itself. b. Quasi-In-Rem Jurisdiction – Lawsuit has nothing to do with ownership of the property, but property is used for a jurisdictional basis. 2. Attachment. a. We can attach the property if it is something a non-resident defendant owns or claims to own. b. Constitutional Requirement – Property must be attached at the outset of the case. And under Shaffer v. Heitner, D must meet the International Shoe test. C. Full Faith and Credit a. In Personam Jurisdiction – If there is a valid judgment, it is valid where it was rendered, and it is entitled to full faith and credit in other states. b. In Rem and Quasi-in-Rem – Valid to the extent of jurisdiction, so the judgment is only good up to the value of that property.II. Notice and the Opportunity to Be Heard A. Service of Process 1. Process – Process consists of a summons and a copy of the complaint. 2. Rule 4(c)(2) – Service can be effected by any non-party who is at least eighteen years old. 3. Process must be served within 120 days after filing the complaint. If you do not, the court will dismiss the case without prejudice, unless you can show good cause for that delay. Rule 4(m). 4. Service of process on an individual. There are 3 alternative methods for service of process: a. Personal Service – Deliver the papers directly to the defendant – can be done anywhere in the forum state. b. Substituted Service – This is OK only at the defendant’s dwelling or usual abode, AND you must serve someone of suitable age and discretion who resides there. c. Agent Service – Serve the defendant’s agent. d. Rule 4(e)(1) – The court may also use any method for service of process that is allowed by state law of the state where the federal court sits OR in which service was effected. 5. Service of process on a corporation. You must serve an officer or managing or general agent of that corporation. Also, Rule 4(e)(1) applies. 6. Waiver of service – Method for waiving formal service of process. Send process and waiver form to defendant with a self-addressed stamped envelope. If she returns it, then she waives service of process. If she does not waive formal service, then the plaintiff will have to have service affected formally. Then, though, the defendant will have to pay for the service. 7. Rule 4(k)(1) – Can serve process throughout the state in which the federal court sits. We can serve process out of the state only if a state court could have served the process there, as well. a. Exceptions:

i. Rule 4(k)(1)(B) – We can serve process from a federal court out of state as long as it is within 100 miles of a federal courthouse. However, this does not apply to service of process on an original defendant. It only applies to parties who are joined later under Rules 14 or 19. ii. Rule 4(k)(1)(C) – Federal statutes may allow for more service of process outside of the state. B. Constitutional Standard for Notice 1. Mullane v. Central Hanover Bank – Notice must be reasonably calculated under the circumstances to apprise the defendant of the suit. a. Jones v. Flowers – usually it is not required that D actually receive the service; but if P is aware that D has not, due process may require that P make further effort to ensure notice. 2. Notice by publication – Usually in the newspaper. This type of notice might be okay. Last resort. C. Opportunity to Be Heard 1. Major factors to protect the defendant: a. Defendant gets a hearing on the merits at some point. b. Plaintiff must give an affidavit of its claim. c. May require that the plaintiff’s affidavit state the facts in specificity. d. Get a writ of possession from a judge, not a sheriff. e. Plaintiff may be required to post a bond. f. Defendant gets the property back pending litigation by posting a bond.III. Subject Matter Jurisdiction – What court do we go to: state court or federal court? A. Diversity of Citizenship 1. § 1332(a)(1) – Requirements for a diversity of citizenship case. Two requirements: a. Case must be between citizens of different states. i. Complete diversity rule for invoking diversity jurisdiction – there is no diversity if any plaintiff is a citizen of the same state as any defendant. (Strawbridge v. Curtiss) ii. Test for diversity when the case is filed. A subsequent change in citizenship is irrelevant. iii. An American is a citizen of the state in which she is domiciled. Domicile is established by two concurrent factors: (1) you must be present in the state, and (2) you must form the intent to make it your permanent home. iv. The citizenship of a corporation. For a corporation, citizenship is defined by §1332(c)(1). Corporation is a citizen of all states where incorporated, and the one state where it has its principal place of business. v. Citizenship of an unincorporated business, such as partnerships or limited liability companies (LLCs). Look to the citizenship of all members. vi. What happens when representatives sue on behalf of others? (1) §1332(c)(2) – Suits on behalf of decedents, minors, and incompetents – In those cases, you look to the citizenship of

the person being represented, not the citizenship of the representative. (2) Class action suit – Look at the citizenship of the representative only, not the citizenship of those being represented. b. Amount in controversy must exceed $75,000. i. § 1332(a)(1) – The amount must exceed $75,000, not counting interest on the claim or costs. ii. The plaintiff’s claim governs unless it is clear to a legal certainty that she cannot recover that much. iii. Plaintiff’s ultimate recovery is irrelevant to subject matter jurisdiction. iv. Aggregation is where we add together two or more claims to get over $75,000. We aggregate claims if there is one plaintiff versus one defendant. You cannot aggregate if there are multiple parties on either side. However, if there have joint claims, you go with the total value. B. Federal Question 1. §1331 – A claim that “arises under” federal law. Citizenship is irrelevant and amount in controversy does not matter. a. Look only at the plaintiff’s complaint. Do not look at anything the defendant does, either in answer or counterclaim. b. Well-pleaded complaint rule – Look only at the plaintiff’s claim. To test, ask: is P enforcing a federal right? If so, it is probably a federal question case. C. Supplemental Jurisdiction 1. United Mine Workers of America v. Gibbs – Federal court has supplemental jurisdiction over claims that share a common nucleus of operative fact with a jurisdiction-invoking claim. Common nucleus test is always met by a claim that arises from the same transaction or occurrence as the claim that has invoked an independent basis of federal subject matter jurisdiction. 2. § 1367 now codifies the doctrine of supplemental jurisdiction. A case is properly in federal court, but there is a claim in the case that does not meet diversity or federal question. Supplemental jurisdiction can make it possible for the court to hear this claim. Apply §1367 in two steps. a. Does §1367(a) grant supplemental jurisdiction to this claim? i. Yes, if it meets Gibbs. Grants supplemental jurisdiction to all claims that share a common nucleus of operative fact with the claim that got the case into federal court. b. §1367(b) – Cuts back on that grant of supplemental jurisdiction, but only in certain situations. i. § 1367(b) applies only in diversity cases to the following claims: a. Claims by plaintiffs against parties joined under Rule 14, 19, 20, or 24 b. Claims by Rule 19 plaintiffs. c. Claims asserted by people seeking to intervene as a plaintiff under Rule 24.

D. Removal 1. Governed by §§ 1441, 1446, 1447. a. Removal is a one-way street. It only goes from state court to federal court. b. All defendants must agree to removal. i. Minor exception under §1441(c) – A single defendant can remove if there is a separate and independent federal claim against her. c. Only defendants may remove. Plaintiffs cannot remove. d. § 1441(a) – You remove to the federal district embracing the state court where the case was filed. e. We remove within 30 days of the case becoming removable. f. Can remove if the case has federal subject matter jurisdiction. i. Two Exceptions: THESE 2 EXCEPTIONS APPLY ONLY IN DIVERISTY CASES, NOT FEDERAL QUESTION (1) No removal if any defendant is a citizen of forum. (2) Cannot remove a diversity case more than one year after the case was filed in state court.IV. Venue A. Basic Provisions 1. In removal cases, venue is in the district embracing the state court. 2. Local actions must be brought in the district where the land lies. 3. Rules for the transitory case (anything that is not a local action). a. Plaintiff has two choices of where to lay venue: i. Any district where all defendants reside, or ii. Any district where a substantial part of the claim arose. B. Transfer of Venue 1. You can transfer from a state court in one state to a different state court in the same state. However, you cannot go from a state court in one state to a state court in another state because you can only transfer within the same system. You can go from one federal court to another federal court in a different state through transfer because it is in the same system. 2. Terminology a. Transferor court – The court from which we are transferring. b. Transferee court – The court to which we are transferring. 3. Two Transfer Statutes in the Federal System a. §1404(a) – The transferor court is a proper venue, and we may transfer based upon three things: i. Convenience of the parties. ii. Convenience of the witnesses. iii. Interest of justice. b. §1406(a) – Venue in the transferor court is improper. The court may transfer in the interest of justice or it may dismiss. C. Forum Non Conveniens 1. This is where the court dismisses the case because there is a more appropriate venue. 2. Transfer is not available because the more appropriate court is in a different judicial system.

V. Challenging Forum Selection A. Special Appearance Doctrine – If D wants to challenge personal jurisdiction, she can make a “special appearance,” by which D challenges only personal jurisdiction and nothing else. By doing so, D does not subject herself to jurisdiction. B. Federal Rules – Rule 12 and Waiver 1. Rule 12 – When you get sued and receive notice, you have a choice of response. You can answer (a pleading) or you can make a motion. Rule 12(b) lists seven particular defenses that the defendant may raise in her answer or by a motion to dismiss. a. Rule 12(b)(1) – Lack of subject matter jurisdiction b. Rule 12(b)(2) – Lack of personal jurisdiction c. Rule 12(b)(3) – Improper venue d. Rule 12(b)(4) – Insufficient process e. Rule 12(b)(5) – Insufficient service of process f. Rule 12(b)(6) – Failure to state a claim g. Rule 12(b)(7) – Failure to join an indispensable party. 2. Defenses 12(b)(2) through (b)(5) must be asserted in the first Rule 12 response or they are waived.VI. The Erie Doctrine A. Black letter law – The Federal Court must apply state substantive law. 1. Hanna v. Plumer – If there is a federal rule of civil procedure on point that clashes with state law, the federal rule governs. B. Factors for applying Erie Doctrine 1. Outcome determination – (Guaranty Trust v. York) 2. Balancing of interests – (Byrd v. Blue Ridge Rural Electric Cooperative) 3. Twin aims of Erie (Hanna v. Plumer) a. Avoidance of forum shopping. b. Avoidance of the inequitable administration of the law. VII. Pleadings – Documents that set forth claims and defenses (i.e., complaint, answer) A. Rule 11 1. Requires the attorney to sign all documents except for discovery documents. Certifies to the best of your knowledge and belief, after an inquiry reasonable under the circumstances, that: a. The document is not for an improper purpose. b. The legal contentions are warranted by law, or there is at least a non-frivolous argument that the law should change. c. The factual contentions have evidentiary support or are likely to after further investigation. d. The denial of factual contentions has evidentiary support or are likely to after further investigation. 2. Three procedural matters for Federal Rule 11: a. The certification is affective every time that document is presented to the court (“continuing certification”). b. Sanctions are discretionary and are to be aimed at deterrence. Can be non-monetary. c. A motion for violation is served but is not filed.

B. Complaint – When the complaint is filed, the lawsuit is commenced. 1. Rule 8(a) – Tells what must be in the complaint. a. Grounds for subject matter jurisdiction. b. A short and plain statement of the claim showing that you are entitled to relief. c. A demand for judgment. 2. General Rule – Complaint must put the other side on notice. a. Exceptions: i. Rule 9(b) – Circumstances constituting fraud or mistake must be pleaded with particularity. ii. Rule 9(g) – Items of special damages must be pleaded with specificity. C. Defendant’s Response 1. Rule 12 – Within 20 days of service of process, defendant will either answer or bring a motion. 2. Answer a. Rule 8(b) – Respond to the allegations of the complaint i. Admit ii. Deny iii. Lack sufficient information to admit or deny b. Failure to deny is treated as an admission on all allegations except damages. c. Raise affirmative defenses (e.g., statute of limitations, statute of frauds, res judicata). D. Amending Pleadings 1. Rule 15 – a. 15(a) – Gives us three basic rules of amendment. i. Plaintiff has the right to amend once before defendant serves her answer. ii. Defendant has the right to amend once within 20 days of serving her answer. iii. If there is no right to amend, you seek leave of court. The amendment shall be freely given when justice so requires. b. 15(b) – Variance: Where the evidence at trial does not match what was pleaded. It goes beyond the scope of what was pleaded. Whenever there is a variance at trial, either: i. The other side will not object to the variance, in which case we treat the pleading as though it is amended to show the new information; or ii. The other side will object to the variance, in which case, the evidence is inadmissible, but even at trial, the party that is coming up with this evidence can seek leave to amend. c. 15(c) – Amendments after the statute of limitations has run i. 15(c)(1)(B) – Amendment is to add a new claim – Amended pleadings will relate back if they concern the same conduct, transaction, or occurrence as the original pleadings.

ii. 15(c)(1)(C) – Trying to amend to add a new defendant – Allowed if you sued the wrong person the first time around, but, somehow, the right person knew about it and can be charged with knowledge of it and that but for a mistake he would have been charged in the original complaint. iii. 15(c)(1) – Relation-back if a statute allows it.VIII. Joinder A. Claim Joinder by the Plaintiff – Rule 18(a) – Plaintiff can assert any and all claims against the defendant. B. Claim Joinder by the Defendant. 1. Counterclaim – A claim against an opposing party. a. Rule 13(a)(1) – Compulsory counterclaim: arises from the same transaction or occurrence as the plaintiff’s claim. 2. Crossclaim – Rule 13(g). A claim against a co-party that must arise from the same transaction or occurrence as the underlying dispute. C. Proper parties 1. Rule 20(a) – Question of who may be joined by co-plaintiffs or co-defendants in a single case. D. Necessary and Indispensable Parties 1. Rule 19 – Who must be joined in a pending case. Three tests: a. Rule 19(a)(1)(A) – Without the absentee, can the court accord complete relief among those who are already joined? If the answer is no, then absentee is necessary. b. Rule 19(a)(1)(B)(i) – The absentee’s interest might be harmed if she is not joined. c. Rule 19(a)(1)(B)(ii) – Does the absentee’s interest potentially subject the defendant to multiple or inconsistent obligations? 2. Rule 19: Is joinder of the absentee feasible? a. Not feasible i. Personal Jurisdiction – Not feasible if there is no personal jurisdiction. ii. Subject Matter Jurisdiction – Not feasible if it would destroy diversity jurisdiction. b. Feasible – Join absentee to the case. 3. Decide whether to proceed without the absentee or dismiss the case. a. Rule 19(b) E. Impleader (“Third-party Practice”) 1. Allows defendant to join somebody new (the TPD) because the TPD is or may be liable to the defendant for all or part of the plaintiff’s claim. F. Intervention 1. An absentee seeks to bring herself into a case. It is up to the absentee to decide which side to come on. 2. Two types of intervention. Must be timely. a. Rule 24(a)(2) – Intervention of Right – Satisfied if you can show that the absentee’s interest will be harmed if she is not joined and her interest is not adequately represented now.

b. Rule 24(b)(2) – Permissive Intervention– Absentee’s claim or defense has at least one question in common with the pending case. G. Interpleader 1. Involves a dispute over property. Somebody holding property (the stakeholder) can force all potential claimants into a single case. 2. Two types of interpleader: a. Rule Interpleader (Rule 22) – A diversity of citizenship case. b. Statutory Interpleader – You need one claimant diverse from one other claimant. You do not need complete diversity. H. Class Action 1. Initial requirements a. Rule 23(a)(1) – Too numerous for practicable joinder b. Rule 23(a)(2) – Commonality c. Rule 23(a)(3) – Representative’s claims must be those typical of the class. d. Rule 23(a)(4) – Representative will fairly and adequately represent the class. 2. Must fit the case within one of three kinds of class actions a. Rule 23(b)(1) – Prejudice Class Action – Where class treatment is necessary to avoid harm to the class members or to the party opposing the class. b. Rule 23(b)(2) – Party opposing the class acted on grounds that are generally applicable to the class, and that makes an injunction or declaratory judgment appropriate. c. Rule 23(b)(3) – Damages class i. Must show that common questions predominate. ii. The class action is the superior method for resolving this dispute. 3. Notice to the class a. Rule 23(b)(3) – Class representative pays to give individual notice to all members reasonably identifiable. Must tell class-members various thing, including: i. They may opt-out. ii. They will be bound if the do not opt-out. iii. They may enter a separate appearance through counsel if they want. 4. If the court certifies the class, it must define the class and class issues and must appoint class counsel under Rule 23(g). 5. Every class member is bound by judgment except those who opt out of a 23(b)(3). 6. Settlement or dismissal must be approved by the court. 7. Can seek immediate appeal from the grant or denial of class certification under Rule 23(f). 8. Subject Matter Jurisdiction – a. For citizenship, look at the representative of the class. b. Amount in controversy – Exxon Mobil v. Allapattah -- OK as long as representative’s claim exceeds $75,000, even if other class members’ claims do not. Class members’ claims can invoke supplemental jurisdiction. IX. Discovery

A. Required Disclosures 1. Rule 26(a) – Parties must produce information at three different times in the course of litigation. a. 26(a)(1) – Initial Disclosure i. Must identify people and documents with discoverable information that you may use to support your claims or defenses. ii. Plaintiff must give a computation of damages. iii. Defending party must tell about insurance that she has for all or part of a claim. b. 26(a)(2) – Experts c. 26(a)(3) – Trial Evidence B. Discovery Tools 1. Deposition 2. Interrogatories 3. Request to Produce 4. Physical or Mental Examination 5. Request for Admission C. Scope of Discovery 1. Standard – Rule 26(b)(1) – Can discover anything relevant to a claim or defense of any party. 2. Things Protected from Discovery: a. Privileged Material b. Work Product, unless i. Substantial Need ii. Substantial Hardship Even then, “opinion” work product is absolutely protected. D. Discovery Sanctions 1. Rules a. Rule 37(c)(1) – Addresses what happens when a party fails to make one of the required disclosures. b. Rule 37(c)(2) – Fail to admit something that should have been admitted under Rule 36. c. Rule 26(c) – The one from whom discovery is sought asks the court for a protective order. 2. Sanctions a. Partial Failure to Comply – Can make a motion to compel the answers under Rule 37(a)(2). Can recover costs, including attorney’s fees for bringing motion, if you win on the motion. b. Total Failure to Comply – Rule 37(d) – Can get sanctions right away and can recover costs. i. Striking the pleadings ii. Disallowing evidence X. Pre-Trial Adjudication A. Voluntary Dismissal – Rule 41(a) – Where the plaintiff wants to dismiss the case. 1. Stipulation of the parties 2. Court order

3. Plaintiff may dismiss without prejudice once by serving a notice of dismissal before the defendant serves her answer or motion for summary judgment. B. Involuntary Dismissal 1. Failure to Prosecute 2. Failure to Abide by the Federal Rules 3. Failure to Abide by a Court Order C. Default 1. Rule 55(a) – Plaintiff must request the entry to default from the clerk of the court when the defendant has not responded within 20 days after service of process. D. Rule 12(b)(6) Motion 1. Motion to dismiss for failure to state a claim. 2. The court does not look at evidence. Instead, it looks only at the face of the complaint. E. Motion for Summary Judgment 1. Court can look at evidence. 2. Standard for granting a Motion for Summary Judgment a. Moving party must show that there is no genuine issue as to any material fact, and b. That she is entitled to judgment as a matter of law. XI. Trial and Related Motions A. Right to a Jury Trial 1. Seventh Amendment – Preserves the right to a jury trial in actions at law, but not at suits at equity. 2. Three Important Issues a. We determine the right to a jury trial issue by issue. b. If an issue of fact underlies both the remedy at law and the remedy at equity, you must have a jury. c. Generally, we will try the jury issues first. B. Selection of a Jury 1. Rule 48 – Governs how many jurors there are in a civil case in federal court a. Each side has unlimited strikes of potential jurors for cause. b. Each side has three peremptory strikes. However, you must have a race-neutral and gender-neutral reason for using peremptory strikes. C. Motions Related to the Trial 1. Motion for Judgment as a Matter of Law – Rule 50(a) – The judge steps in and takes the decision away from the jury. a. You can move for this only after the other side has had its chance to present its case. 2. Renewed Motion for Judgment as a Matter of Law – Rule 50(b) – The judge has let the case go to the jury, and the jury has returned a verdict for one party. The court enters a judgment. The losing party brings this motion and if the motion is granted, we take the judgment away from the person who won the verdict and we enter judgment for the person who lost the verdict. a. A Motion for Judgment as a Matter of Law at an appropriate time at trial is a prerequisite to a Renewed Motion for Judgment as a Matter of Law.

3. Motion for New Trial – Rule 59(a) – Judgment has been entered but there have been errors at trial that require the case to be retried. XII. Appeal A. Final Judgment Rule – Court wraps up the whole case. 1. You cannot go to the Court of Appeals until the trial court enters a final judgment. B. Interlocutory Review 1. §1292(a) – Certain interlocutory orders that are reviewable as a right 2. §1292(b) – Allows appeal of an interlocutory order if the trial judge certifies that it involves a controlling issue of law and that there is a substantial ground for difference of opinion. The Court of Appeals must also agree to hear the interlocutory appeal. 3. Federal Rule 23(f) – Court of Appeals has discretion to review an order either granting or denying class action status. 4. Federal Rule 54(b) – Involves cases with multiple claims or multiple parties. The trial court can expressly direct final judgment as to one or more of these and can make an express finding that there is no just reason for delaying appeal. 5. Collateral Order Rule – Gives the Court of Appeals discretion to take an interlocutory issue, but three things must be true: a. It must raise an important issue that is separable from the merits. b. The court order completely resolved that issue. c. The issue is affectively unreviewable if we wait until final judgment. 6. Extraordinary Writ – An original proceeding brought in the appellate court asking for an order compelling the trial judge to do something or to vacate an order. C. Standard of Review 1. Question of Law – Court of Appeals gives no deference to the trial court 2. Finding of Fact by a Judge – Court of Appeals can reverse only if it finds that the trial judge was clearly erroneous. 3. Finding of Fact by the Jury – Entitled to enormous deference by the Court of Appeals. It is okay if the jury might reasonably have found this. 4. Discretionary Issues – Reviewed by the Court of Appeals under the abuse of discretion standard. The Court of Appeals will allow whatever the trial court judge did unless the trial court judge abused her discretion.XIII. Preclusion Doctrines A. Res Judicata (Claim Preclusion) – You get one case in which to vindicate your claim. 1. You must show that Case 1 and Case 2 were brought by the same claimant against the same defendant. 2. Case 1 must have ended in a valid final judgment on the merits. 3. Case 1 and Case 2 must involve the same claim. B. Collateral Estoppel (Issue Preclusion) 1. Show that Case 1 ended in a valid final judgment on the merits. 2. Show that the same issue was actually litigated and determined in Case 1. 3. Show that the issue on which we want collateral estoppel was essential to the judgment in Case 1. 4. Against whom is collateral estoppel being used. You can only use collateral estoppel against someone who was a party to Case 1. 5. By whom is collateral being asserted. Mutuality is not required by due process.