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Civil Procedure Final Outline 2014



Article III. Of the Constitution

Focus is on Claims (not parties)

Challenging SMJ = Rule 12(b)(1)

Article III: States have all SMJ except where Federal Courts have been given limited
SMJ by Constitution and Congress.
Federal Statutes that give SMJ
Intellectual Property
Securities cases

Well Pleaded Rule:

1) Fed Courts only look at claims in s complaint that go to s case (Twiqbal)

2) Only take case if those claims have SMJ by Article III and Statute
Mottley Claim must be in complaint, not in counterclaim or defense.
Ways To Get into Federal Courts
1) 28 USC 1331 Test Claim arises under Federal Statute/Law.
2) 28 USC 1332 Test 1) Complete Diversity; 2) $75,000.01 or More
Need Complete Diversity => If and overlap in anyway go to state
Exception: Individual Domicile = Residence with intent to stay (Look into
Corporations Citizens of: 1) Incorporation; 2) Nerve Center
Unincorporated Association citizens of: All states members are citizens
Domicile Measured at time of filing (not time of injury)
For $75,000.01, claims can be aggregated but not for multiple s
Embedded Federal Question: Split if Federal court can take case where State Claim
implicates federal law.
Merrell Dow No Federal SMJ for embedded
Grable Yes to Federal SMJ for embedded

Removal: If SMJ found, can move from state court to Federal

All s must agree to removal

Removal must happen 30 days after service except where is diversity case then
within 1yr of commencing action

Hertz Corporations Principle Place of business is where it is headquartered/nerve



Policy: Dont want to drag someone to foreign court for no reason

Due Process under the Constitution to deprive of Liberty (force you to move) and
Property (If lose suit).
Respect Sovereignty of Foreign States

In Personam: Court determines rights of persons
In Rem: Courts determine rights of property
Quasi in Rem: Court seizes property to reach person(1)/General People(2)
Pennoyer States Cant extend powers beyond boarders to bring foreign into State.
Harris Changed Pennoyer so can serve notice outside of state
Hess Cars are dangerous so give consent to be sued whatever State you dive car in

Challenging PJ = Rule 12(2) Motion to dismiss

Must be raised in answer to complaint or pre-answer motion or else waived

can counter with 1) easily available evidence; 2) Ask for limited discovery

New PJ

Statutory Basis LONG ARM

1. Enumerated Long Arm
2. Constitutionally Limited Long Arm
Interpretation => Plain language meaning, avoid absurd result, Leg hist, leg
Limiting word = Substantial vs. Any; tortious act vs. Tortious act or omission; In the
forum = does tort vs. injury happens to in forum


R.4(k)(1) = Federal Courts borrow PJ Long Arm from state that in

R.4(k)(2) = Fed Court can take case if claim comes from state law, but no state court
can take the case

Constitutionality under Due Process

Minimum Contacts
(a) Stream of Commerce
1) OConner = Stream of Commerce + (Harder) = Put product in market and
intend product to reach State
2) Brennan = Stream of Commerce = Put product in market and wherever
product reaches can be brought into that state
(b) Type of Lawsuit/Relationship:
1) Contract
2) Intentional Tort
(c) Quality, Quantity, and Nature of Contacts:
1) Property (Shaffer)
(d) Foreseeability:
1) Purposeful Availment
2) intentional business decisions = Advertisements/Marketing
3) Expect to be hailed into court
4) Benefits (seek to serve)/burdens
Not(/Maybe) mere mobility of product (WWV)
Usually need more than Fortuitous/Randomness
(e) Nature of :
1) Individual =
2) Small Business
3) Large Corp.
(f) Internet: Passive v. active Site
Zippo Active = Knowing and repeated contact with foreign jurisdiction => PJ
proper. Passive = Simply posting on site for people to see => NO PJ. Sliding
Scale between the two.
ALS Scan Have to actively 1) Direct activity to state; 2) With intent to engage
in business => PJ
Cause of Action Arises From Contacts

But For cause (broad) vs. Essential evidence of claim (narrow)

Contact has to have some connection to cause of action
Cant just use property owned in that state unless can show that is place of

Fairness Factors (Only look to if meet minimum contacts)

had burden to show if unfair

1) The burden on the defendant (Must be constitutionally inconvenient under due
process of severe disadvantage in comparison to his opponent).
2) The forum states interest in adjudicating the suit.
3) The plaintiffs interest in obtaining convenient and effective relief.
4) The interstate judicial systems interest in obtaining the most efficient resolution of
5) The shared interest of the several States in furthering fundamental substantive social
Look at foreign policy


Alternative Bases for Jurisdiction

A. TAG!!!/Transient Jurisdiction = If within the jurisdiction, can serve
Can get around by coming to court to contest PJ, but not to be served
Doesnt work if fraudulently induce presence in state
Pennoyer Tag is still alive from this
Burnham Upheld TAG!!! But for different reasons. Scalia = Precedent, Brennan =
There are contacts and fair,
B. Consent = Parties can agree what forum to take suit to
Can Consent before or after and can be express or implied consent
Have to look to see if Contract is valid (no K defenses: adhesion, fraud,
unconscionability, duress), and that doesnt deprive of forum.
Carnival Cruise Line Forum Selection Clause works
C. General Jurisdiction

International Shoe Introduced Minimum Contacts, Arises from, and Fairness

McGee High point of minimum contacts where unilateral act of counts
Denckla Minimum contact must be purposeful and not unilateral act of
Shaffer Use International Shoe for all forms of jurisdiction including property.
World Wide Volkswagen Negligent Torts. Benefits must be direct to get burden, and
Purposeful Availment for PJ in foreign court => Can anticipate being taken to court
Calder Intentional Tort case. Is enough that printed libel in magazine that knew would
be distributed to California (What volume is enough?)

Noonan Even though intentional tort in magazine, not enough volume of distribution
and is only fortuitous that magazine got to Paris => No PJ
Asahi International Tort. OConnor Stream of Commerce + vs. Brennan Stream of
Commerce. No Contacts by Stream+ because didnt intend tire valve to get to California
and not even fair because burden and foreign policy. Stream Reg meets min contacts, but
not fair.
Burger King Minimum contact established by Contract, but burden on has to be
unconstitutionally inconvenient. Fairness factors are sliding scale
McIntyre Only looked at Minimum contacts for foreign manufacturer that had national
distributor and did not specifically advertise/focus on NJ market. Purposeful availment
not met because by stream+ need actions (not expectations). Dissent says only need more
than random/fortuitous contact to meet stream+


Policy: Can drag someone into state if already there or At Home

Dont Need Minimum Contacts

Bauman Test = Corporations forum affiliations are so continuous and systematic as to

render it essentially at home in the forum state

Individuals = At home in domicile (Where live + Where intend to reside)

Corporations = At home in 1) Place of Incorporation; and 2) Nerve Center/Principle
Place of Business
Dunlop Corporations must have such continuous and systematic contact to be
essentially at home for GJ. No GJ for foreign subsidiaries
Bauman Corporations contacts must be great relative to contacts in other states.
Rejects Sotomayors that reasonableness factors are separate from Deciding if
affiliations are systematic & continuous enough for corp to be home

Policy: Minimum efforts must be given to so that has ability to contest/fight suit

Due Process under the Constitution

Process (noun) = Court Summons to to appear in court

Service (verb) = Delivering Process to

Reasonable Service Test:

Reasonably Convey Info

Give Reasonable amount of Time to Appear
Must actually inform of problem and how to address it
Look At ALL circumstances

Rule 4

served with summons and complaint [c(1)]

Server Must Be 18yrs or older [c(2)]
Have 120 days to serve after file complaint [m]; if not then complaint dismissed
w/o prejudice
Government gets more time to answer complaint
Can serve any local or foreign person (individual, corporation, Govt, association)
Must 1) Personally Serve; 2) Waiver Serve (Get longer to reply if just get notice
mailed) [d]
Personal Service to individual = 1) Give to person; 2) Leave at dwelling/usual
place of abode with reasonable person who lives there 3) Agent [e]
Can serve corporation in same way as individual + Officer/Managing Agent [h]
Fed Courts reach is State courts reach from long arm [k(1)(a)]
International Service: 4(k)(2)

Mullane Notice must be 1) reasonable under circumstances; and 2) Comport with Due
Process. Notice by publication: Bad for known Beneficiaries, Ok for unknown
Beneficiaries (Jurisdiction By Necessity).

Policy: Focus on Microlocational convenience of party once know what state youre
Venue Clarification Act 2011:

Can choose venue if both and consent

Considers burdens on based on residency = Where lives (not citizenship)

Challenging Venue: Done with Rule 12(b)(3)

Transfer: Can change venue when proper/improper, or where no PJ

Can only transfer to other venues that have proper PJ and Venue
Both Parties can agree to transfer
If one party want to move, then have to motion for transfer => But by judges
discretion to stop forum shopping
Based on convenience of parties and witnesses

FNC: Lets party change venue where grossly, manifestly inconvenient for and
therefore Constitutionally Unfair.

Good for international suits => Basically saying cant have venue in entire
Sovereign because inconvenient
Hard to do because of Burger King and American system says parties have to pay
suit fees => Need more than this
Dismisses case => Have to re-file
Might go away with PJ fairness factors

Piper Dont want to allow forum shopping for substantive law in international suits.
Can do FNC if: 1) heavy burden on and 2) doesnt have good reason for venue.
Except if alternative forums substantive law sooooo inadequate that would afford
basically no remedy at all.


Judge should Control Jury vs. Bias of Judge in deciding without jury
Same As JAML
Rule 1 = Right to Expedient Trial vs. Right to be heard at trial by jury
SJ. Court shall grant if
1) No genuine dispute of material fact;
2) Movant entitled to SJ as matter of law
Given discovered facts => Rational Jury couldnt come up with different finding

It is a matter of law if burden is produced

Inferences drawn in light most favorable to non-movant (dont weigh evidence)
Look to 1) Disputed fact; 2) Fact is material
has burden of production
If Credibility, motive, or intent Question => Go to Jury

What must Moving Party Show: 1) Point to/Cite absence of evidence in discovery for
claim/defense (dont have to prove a negative)

Argue/Just say: 1) doesnt have enough evidence to support; 2) No genuine


What Must Opposing Party Show: Cite/submit evidence and explain/demonstrate why
1) do meet burden of production or 2) Not material dispute. Can also Ask for more time
for discovery!
Moving Party Counter: Materials submitted/Arguments 1) Dont show genuine dispute;
2) Cant produce evidence that could become admissible in court
What Materials Can be used to Support/Oppose:
1. Affidavits and Written Documents
2. Evidence doesnt need to be admissible trial form, but has to be capable of being
in admissible trial form
3. Specific Evidence > General
4. Positive evidence > Negative Evidence
5. Cant use pleadings
R.56 Summary Judgment
Motion for Summary/Partial Summary Judgment: Moving party IDs claim that want
SJ. Court shall grant if
1) No genuine dispute of material fact;
2) Movant entitled to SJ as matter of law. Court then gives reasons for
Time to File Motion: Anytime until 30days after close of all discovery, Unless different
time set
Supporting Factual Positions Have to support absence/presence of dispute of fact by
(A) Citing Materials in record; OR
(B) Showing that cited materials dont show absence/presence because not admissible
as evidence
Materials not cited Dont look at
When Facts Unavailable to Nonmovant: Court can
1) Defer/deny SJ motion
2) allow nonmovant more time
3) Do other things
Failing to Properly Support/Address Fact: Court can do above options or Grant SJ
Judgment Independent of Motion: After giving notice and time to respond court may
do what they want like 1) grant SJ for nonmovant; 2) Grant SJ for their own reasons; 3)
Consider SJ for IMF they find.
Bad Faith Sanction: Expenses, contempt, or other sanctions listed in R.11

Celotex Wrongful death exposure to asbestos. points to holes in s burden of

evidence, and has to submit explain why met burden of production (doesnt need to be
admissible evidence at trial)
Bias must support explanation that son was not cocaine user and/or could have gotten
Jumbo insurance that didnt ask about drug use with specific evidence.
Scott v. Harris Cop rammed car in chase and made a paraplegic. Evidence of
videotape in police car is enough that jury couldnt come to any other conclusion even
when taken in light most favorable to .



Dont want jury to make incorrect inferences/Biases vs. Judge Biases and court as
a play that citizens can engage in
Same as SJ

Number of Witnesses: If witnesses give clashing testimony => Up to Jury (not judge) who
to believe

Number of witnesses doesnt usually matter except when would bias jury

Evidence: Look at ALL evidence and inferences can draw from them in light most
favorable to non-movant

Probabilistic Evidence: Needs to be strong probabilistic evidence (75-80% sure)

to be brought to jury so they can make the inference gap for a rational jury

R.50 Judgment as a Matter of Law => Looks at Adequacy of Evidence

(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or
defense that, under the controlling law, can be maintained or defeated only with a
favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the
case is submitted to the jury. The motion must specify the judgment sought and the law
and facts that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court
does not grant a motion for judgment as a matter of law made under Rule 50(a), the court
is considered to have submitted the action to the jury subject to the court's later deciding
the legal questions raised by the motion. No later than 28 days after the entry of judgment
or if the motion addresses a jury issue not decided by a verdict, no later than 28 days
after the jury was dischargedthe movant may file a renewed motion for judgment as a
matter of law and may include an alternative or joint request for a new trial under Rule
59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law. Etc.
R.59 New Trials and Amendments of Judgments => Looks at both Adequacy of
Evidence and Process
a)(1) In general: The court may . . . Grant a new trial. . .
(A) in an action in which there has been a trial by jury, for any of the reasons for which
new trials have heretofore been granted in actions at law in the courts of the United
States; and
(B) in an action tried without a jury, for any of the reasons for which rehearings have
heretofore been granted in suits in equity in the courts of the United States.
Reasons New Trials Have been Granted
verdict against the weight of the evidence
excessive or insufficient verdict
newly discovered evidence
-Consider also R. 60
conduct of counsel that tainted the case
jury misconduct
verdict based on false testimony
unfair surprise
substantial errors in the admission/rejection of evidence
giving or failure to give jury instructions
Guenther Tire explosion at mechanic. Conflicts in witness testimony resolved by Jury.
Probabilistic evidence must be strong (75-80% sure) to be brought to Jury. Conflicting
Testimony between and his witnesses is not enough for SJ

Boeing JNW takes into account both sides of argument, but in light most favorable to
non-movant. Need conflict of substantial interest to make jury question.
Galloway Cannot allow juries to speculate. Inferences bridge gaps, but they cant go
too far to replace proof with speculation
Rules about Juries:
1. Juries should not be given cases where the plaintiff contradicts his own witness.
2. Juries should not be given cases that involve inferring negligence or causation
from statistics because statistics address a generic state of affairs rather than a
specific fact. Guenther; Agent Orange
3. On a case-by-case basis, there are cases in which the inferential gap will lead to
speculation and the possibility of a non-rational verdict. Gallagher
4. The number of witnesses per side shouldnt matter but sometimes it does.
5. It is for the judge to decide, as a question of law, whether the burden of
production has been met. Schwarzer