CIVIL PROCEDURE OUTLINE

I. OPERATION OF FEDERAL COURTS

 The US Constitution grants the federal government limited powers --> why most cases are
brought in state courts
 In order for fed courts to hear a case = authorized by the constitution + Congress enacting a
statute
 State courts can hear anything unless congress + the constitution specifically exclude it
 Article III Section 2 – provides the constitutional authority for federal courts
o Fed courts then must grant legislative authority for jurisdiction (i.e. SMJ)

II. SUBJECT MATTER JURISDICTION

Fed. R. Civ. P. 12(h)(3) = If the court determines at any time that it lacks subject matter
jurisdiction the court must dismiss the action (sua sponte)

Purpose: Provide a neutral forum for cases involving a risk of local bias (US Constitution Art. III
Sec. 2)

Historical Context
 Framers were worried that state courts would not adequately protect out of state creditors
trying to collect debts from local citizens
 More even-handed treatment of out of state litigants by federal judges (not state
appointed)

DIVERSITY JURISDICTION §1332(a)

Cases:
o Gordon v. Steele
o Mas v. Perry
o Strawbridge v. Curtis
o Hertz v. Friend
o Diefenthal

Requirements:
A) Complete diversity of citizenship (Strawbridge; Mas v Perry)
B) Matter in controversy exceeding $75,000 (Strawbridge)

A. Citizenship
 Citizenship = Domicile
 Complete Diversity required = no plaintiff can be from the same state as any defendant
(Strawbridge v Curtis; Mas)

Individuals §1332(a)(1)
 TEST: residence + intent to remain indefinitely (Krasnov; Gordon v Steele)
o Intent to remain = not necessarily an intention to remain permanently
o Residence = physical presence in the state
o Retain domicile until a new one is acquired
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 o Contradicts Mas but recognized as right
 Citizenship at the time the action was commenced/filed is important (Brough v Strathmann
Supply)
 Alienage Jurisdiction: foreign citizen has diversity under constitution and congressional
authority (Mas)
 Green carded citizens are domiciled in the state they live in - §1332(a)(2)

Corporations §1332(c)(1)
 TEST: principal place of business + place of incorporation (Hertz v Friend)
o Principal place = where the corporations highest level officers direct, control, and
coordinate the corporation’s activities – “Nerve Center”
 Typically, the headquarters
 Criticism: issues determining nerve center with telecommuting and 21st
century business models
o Partnerships/UA’s are treated as groups of individual litigants not as a corporation
 Corporations favor litigating in federal court

B. Amount in Controversy
 TEST: legal/factual basis for recovery + good faith (Diefenthal)
o If the applicable legal remedy (i.e. State law, statute etc.) limits damages to below
the min amount in controversy - even if the plaintiff believes they could claim for
more - it will fail for lack of diversity jurisdiction because they can only recover less
than the min amount anyways
o Plaintiff's are allowed to later amend their complaint with additional evidence to
bolster their damages amount in order to meet the min amount in controversy
requirement

 Aggregating Claims Rules

o Single plaintiff + Single defendant + Multiple Claims = OK
o Single plaintiff + Multiple defendants = NOT OK
o Co-plaintiffs cannot add their claims together to reach the min -- same applies with
class actions
 EXCEPTION = common undivided interest exception i.e. claim that is in some
sense "indivisible" (i.e. Beneficiaries of a trust)
o A counterclaim cannot be aggregated with the plaintiff's claim to meet the min
amount

 Historical Context
o Min amount in controversy is not in constitution
o Congress chose to interpret a min amount in controversy in order to prevent petty
cases from reaching fed courts

FEDERAL QUESTION JURISDICTION §1331

Cases:
 Louisville v. Mottley
 Gunn v. Minton

Historical Context:
 Need for uniform interpretation of federal law
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  States could undermine federal government by unsympathetic construction of federal law
 Holmes Creation Test: what law gives plaintiff a cause of action (i.e. it must be a federal law
that the claim arises under and a state law claim generally will not provide a method for
federal court)
 Justice Marshall’s Test:

Requirements:
 Well-Pleaded Complaint Rule (Mottley): the federal issue must appear on the face of the
plaintiff’s complaint
o This is an interpretation of §1331 not the US Constitution (voluntary limitation on
federal courts)
o Cannot use an anticipated defense as grounds for federal question jurisdiction

EXCEPTION:
 Gunn v Minton – applied the Grable exception
 Grable & Sons – a federal court may hear a lawsuit arising under state law as a federal
question when the federal issue is:
a) Necessarily raised
b) Actually disputed
c) Substantial
 Must be substantial to the federal system as a whole (not just the parties)
d) Capable of resolution in federal court without disrupting the federal/state balance
 US has a direct interest
 Federal government has expertise in the area that state courts do not
 The case will not remove an entire class of cases away from state courts

REMOVAL FROM STATE COURT TO FEDERAL - §1441(a)

Cases:
 Avitts v. Amoco

Requirements:
A) Could have been filed in federal court initially §1441(a) – but must be removed within the
same district
o Diversity Jurisdiction §1441(b)(1)
o Federal Question §1441(c)(1)(b) – if a fed question claim is joined with a state claim the
entire case can be removed and the fed court can hear both claims BUT if state claim is
predominant then fed court may remove to state court
B) D must remove within thirty days of receiving complaint §1446(b)(1)
 D cannot remove from state court when it is their home state §1441(b)(2)

Additional Removal Rules:

 §1441(f) – can be removed to fed court even though the state court lacked jurisdiction
 §1446(a) – to remove the attorney must file a notice of removal signed by the D pursuant to
Rule 11
 §1446(b)(2)(A) – all D must consent to removal
 §1446(b)(1) – if the D does not remove within 30 days this right is waived (for either fed
question or diversity)
 §1446(c) – If a diversity case is not removed within 1 year of it’s initial filing it is barred
unless it was prevented from being removed by bad faith
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  §1446(d) – when notice of removal is filed and the state court is notified the state court
loses all power over the case
 A party has 30 days after removal to move to remand (on grounds other than SMJ)
 Whether a case is removable or not is determined by the allegations of the complaint or
petition and that if the case is not then removable it can be made removable by any
statement in the petition for removal or in subsequent pleadings (Great Northern Railway v
Alexander)

Remanding to State Court §1447

 §1447(c) – if at any time before judgment the federal court lacks subject matter jurisdiction
the case will be remanded to state court
o May include an order requiring payment of just costs and any actual expenses
(attorney fees) when a defendant removes improperly

SUPPLEMENTAL JURISDICTION §1367(a)

Cases:
 United Mine Workers v. Gibbs
 Owen Equipment v. Kroger

Historical Context:
 Previously no statutory authority for supplemental jurisdiction
 Getting this power from US Constitution under Article III §2

Requirements:
 ONLY APPLIES TO FEDERAL QUESTION CLAIMS
 State and federal claims must have a “common nucleus of operative fact” or come from the
same “case or controversy” (United Mine Workers)

Rules:
 If the considerations of judicial economy, convenience and fairness are not present then the
federal court should hesitate to exercise supplemental jurisdiction
 §1367(b) does not apply when it is a federal question claim (only applies to diversity)
 §1367(d) – if a P is dismissed in federal court they have 30 days to refile in state court
 Once it appears that a state claim constitutes the real body of a case to which the federal
claim is only an appendage the state claim may fairly be dismissed
 §1367(b) – bars jurisdiction over certain claims by plaintiffs
 Cannot implead or add third party under Rule 14(a)(1) if it violates complete diversity and
the claim is brought on diversity jurisdiction (Kroger)

Will not exercise when:

 Novel or complex state law issue §1367(c)(1)
 State law claim predominates the federal claim
 All federal claims are dismissed (fed court can still hear the state claim but they have
discretion)873407
 Exceptional circumstances

III. PERSONAL JURISDICTION

Purpose: protects defendants from being sued where it would be unfair and cause undue hardship

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Historical Context:
 Pennoyer v. Neff (mostly not good law) – set rigid rules but that were not practical with
nationalization of commerce
o upheld transient jurisdiction - courts only had personal jurisdiction over a person if they
were personally served with the complaint and summons within the forum state
o is the property in the borders of the state?
o under Pennoyer - a court could exercise in rem or quasi in rem jurisdiction as long as the
asset was located within the forum state and was attached at an appropriate time
o Most of the laws under Pennoyer are no longer relevant because PJ can be shown under
specific jurisdiction

CASES:
o International Shoe
o Pennoyer
o Hanson
o McGee
o Shaffer
o Daimler
o Burnham
o Jackson
o Asahi
o World Wide Volkswagen

General Requirements for PJ:

1) The state must have a relevant Long Arm Statute (defines the reach of PJ in their courts)
o Broad = allows PJ in same capacity as constitution permits (i.e. CA) – doesn’t need a PJ
jurisdiction analysis only a constitutional one
o Limited = provides PJ in limited capacity as prescribed by the state for a specific area of law
2) Must be Constitutional – cannot violate due process clause (14amen)
o Using international shoe (minimum contact standard) for all PJ – then go on to determine
which kind of PJ is relevant i.e. Transient, Specific, Consent
 LOOK AT ACTIONS OF THE DEFENDANT ONLY

RULES:
 12(b)(2) – Motion to dismiss for lack of PJ
 4(k)(1) – Determines federal court jurisdiction (i.e. If a state court has PJ over D then so will fed
court)
 Article IV Full Faith + Credit Clause = every state is required to give full faith and credit to the
decisions of every other state but only where that other state had personal jurisdiction over that
defendant
 4(k)(1)(A) – long arm provision that applies in most federal cases
 4(k)(1)(C) – exception to the general rule + allows federal courts to exercise broader jurisdiction
whenever the court is authorized to do so under a federal statute (ie. Bankruptcy)
 4(k)(2) – personal jurisdiction is proper in federal question cases involving foreign defendants
when no state can exercise personal jurisdiction (only if consistent with 5th amen)
 4(k)(1)(B) – the “Bulge” Rule
o if a defendant has been joined pursuant to Rule 14 (third party claim) or Rule 19 (for
necessary and indispensable parties) the defendant is subject to personal jurisdiction in

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 federal court as long as the defendant is served within one hundred miles of the federal
courthouse

TYPES OF PERSONAL JURISDICTION

One Bite of the Apple = the defendant can only challenge PJ once by either (1) making a special
appearance to challenge the merits of the case or (2) collateral attack

Collateral Attack
o Defendant does not make an appearance in the forum state – a default judgment is then
entered
o When the P attempts to enforce the default judgment from the first court in a state that has
PJ over the D the defendant will challenge PJ from state 1 where judgment was entered
o D cannot challenge merits for the case
o If the D loses the judgment from state 1 is enforced (full faith + credit)

1) In Personam Jurisdiction
o Serving the defendant while they are physically present in the state

2) In Rem Jurisdiction
o Attaching property of the land owner's in order to assert jurisdiction over the property
owner
o used to control and determine the ownership of specific property (i.e. land or a bank
account)
o Can only recover damages up to the value of the property (but not necessarily the entire
value of it - can only recover as much as you are claiming)
o Defendant does not need to be served
o Shaffer narrowed to only being applicable when the property of the lawsuit itself is
attached

3) Quasi in Rem Jurisdiction

o used to declare which of the litigants has the better claim to the property without
determining whether the winner is the true owner relative to everyone else in the world
o traditionally based on attachment or seizure of property present in the jurisdiction and not
on contacts between the defendant and state -- Pennoyer traditional definition
o no longer valid (Shaffer)

4) Transient Jurisdiction
o General rule is that a State may dispense with in forum personal service on a nonresident
defendant in suits arising out of their activities in the state and the defendant's minimum
contacts may take the place of physical presence as the basis for jurisdiction
o Jurisdiction based on physical presence alone constitutes due process because it is a
continuing tradition of our legal system that defines the due process standard of TNFPSJ
(Justice Scalia’s opinion in Burnham)
o The rules developed under International Shoe only apply to an absent defendant
o Physically present defendants do not need to be treated identically as to absent ones
o Transient (tag) jurisdiction may not need a long arm statute to authorize it because it was
used under common law for centuries even though a statute never provided for it
o Not valid if D was not voluntarily and knowingly in that state

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5) Consent
o Defendant fails to make a special appearance + instead makes a general appearance =
consent to that forum's state jurisdiction
o Plaintiff consent by filing the case - relevant where the D counterclaims against P and the
P then becomes the D, they are then subject to PJ in forum state and are deemed to have
consented to everything connected with that lawsuit (Adam v Saenger)
o Forum Selection Clause - deemed to have consented to jurisdiction in whichever state is
prescribed by it
o Fictional Consent - i.e. Hess v Pawlowski where a state statute creates fictional consent
creating long arm statute and then minimum contacts will allow the state to assert that
personal jurisdiction over the D

6) Garnishment (post judgment attachment)

o seizing a person's paycheck to pay a judgment

7) Prejudgment Attachment (for security)

o used to preserve assets so the defendant cannot do something with them

8) SPECIFIC JURISDICTION
o Claim arises out of the defendant’s deliberate contact with the forum state
o International Shoe – established minimum contact standard
o McGee – established TNFPSJ requirement
o Hanson - Defendant must have purposefully availed themselves of the state (when D's have
purposefully availed themselves of the privileges and benefits of conducting activities in a
particular forum)
o Purposeful availment = minimum contacts
o Minimum contacts does not always equal purposeful availment
o World Wide Volkswagen reasonableness factors to determine if TNFPSJ are offended:
1) Burden on the 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
i. Where are the witnesses and evidence?
ii. Where would the witnesses who would be able to testify for plaintiff located?
5) Shared interest of the several states in furthering fundamental substantive social
policies
i. Terms of the kind of law suit (i.e. Tort)
ii. Where do the states have similarities in enforcing the law? Differences?
o Foreseeability – is it foreseeable that the defendants conduct and actions would give rise to
anticipation of being hailed into court there? (WW VW)
o Burger King – Court found personal jurisdiction even though the defendant had very few
contacts with the forum state but recognized a contract as a contact
o Asahi – Stream of Commerce Theory
o Allows a state to assert PJ over a component manufacturer in a different state
o Marks Rule = take the narrowest holding from a case when there is no clear majority
o i.e. Here that is Justice Steven’s opinion that said a corporation has risen to the level
of purposeful availment considers:
 volume
 value
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  hazardous character of the components
o Claim must arise out of the defendants contacts with that state (Asahi)
o Evidence Test = A claim arises out of the D in state contacts only if the D forum
contact provides evidence of one or more elements of the underlying claim (more
rigorous)
o But For Test = A claim arises out of a contact if the claim would not have arisen but
for the D contact in that state (more expansive approach)
o Jackson – Internet Contacts
o Zippo Test = used to identify which types of websites are subject to PJ
 Highly interactive websites = PJ (sales)
 Websites with limited info exchange = maybe PJ
 Require close scrutiny to determine if PJ exists
 I.e. Websites where info is exchanged with the host computer
 Passive websites = generally no PJ
 No exchange – user is just reading from the website

9) GENERAL JURISDICTION
o Defendant is essentially “at home” within the state
o Corporations = incorporate + principal place of business (Daimler)
 Historically was a test of “continuous and systemic contacts” as to render
it at home (overruled)
o Individuals = domicile
o Defendant has so many contacts with the forum state that they can always be sued in
that state for any reason whatsoever even if the lawsuit doesn't have anything to do
with a contact in that state
o Do not need WW VW factors

Specific Jurisdiction General Jurisdiction

Requirements for  Each of the claims must arise out 
Establishing this Form of the defendant's deliberate
of Jurisdiction contacts with the forum ("min
contacts")
 AND the exercise of jurisdiction
must otherwise be consistent with 
traditional notions of fair play and
substantial justice
Claims over which the Only those claims arising out of the
Court's Personal defendant's in-state contacts
Jurisdiction Extends
Defendant's contacts are
sufficiently extensive that the
defendant would be
considered "at home" in the
state (for corporations)
OR is domiciled there (for
individuals)
 Any claim that the plaintiff has
against the defendant

IV. VENUE - §1391

§1391(b) PROPER VENUE:
1) A judicial district where a defendant resides (if multiple D’s and they are from different states it
doesn’t apply)
2) A judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred
3) If no district, then any district in which the D is subject to PJ

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1) RESIDENT DEFINED:
 Individuals - 28 USC §1391(c)(1) = domicile

 Entity - 28 USC §1391(c)(2)

o Defendant = Any state in which there is personal jurisdiction
o In any judicial district in which such defendant is subject to the courts personal jurisdiction
with respect to the civil action in question

 Corporation - 28 USC §1391(c)(2)

o Domicile -- Any State where they would be subject to personal jurisdiction if that district
were their own state
 If there is more than one district in a state = which districts within that state the
defendant is subject to personal jurisdiction if that district were a separate state
§1391(d)
o If no such district = then venue is proper in the district within which it has the most
significant contacts

2) SUBSTANTIAL EVENTS DEFINED

 §1392(b)(2) - As long as what happened in the district was an important part of the "sequence of
events" or "historical predicates" giving rise to the case, venue is proper in that district
 Uffner v La Reunion Francaise - An event need to be a point of dispute between the parties in order
to constitute a substantial event giving rise to the claim

RULES:
 12(b)(3) – D right of objection if filed in an improper venue (if not raised it is waived)
 §1441 – basic removal provision
 §1391(c) – a D that does not reside in the US can be sued in any judicial district (universal venue
across the US)
 §1631 – transfer if PJ is not proper

TRANSFER OF VENUES
Motion to Transfer
(can be asserted by P or D)
Motion to Dismiss
Filed in the Wrong Venue Filed in the Correct Venue
28 USC §1406 28 USC §1404
28 USC §1406 AND Federal Rule Forum non conveniens (common
12(b)(3) law doctrine) - can only be
asserted by Defendants

WHERE VENUE IS PROPER

TRANSFER - §1404
 Option to transfer to any other district or division in which it might have been originally brought
 Defendant must show:
o P originally could have filed in the proposed venue
o Considerations of convenience in the interest of justice weigh in favor of the transfer such
as (MacMunn v Eli Lilly):
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 a. Private Interest
 P choice of forum
 D choice of forum
 whether the claim arose elsewhere
 the convenience of the parties
 convenience of witnesses
 Ease of access to sources of proof

b. Public Interest
 Transferees familiarity with governing laws
 Relative congestion of the calendars of the potential courts
 Local interest in deciding local controversies at home

DIMISSAL – Forum Non Conveniens

Consider:
A. Is there an adequate alternative forum?
 If the remedy provided by the alternative forum is so clearly inadequate that it is no
remedy at all then the court may refuse a dismissal (Piper Aircraft)
 The unfavorable change in law may be given substantial weight and the district court may
conclude that dismissal would not be in the interests of justice

B. Balancing the interests of the private parties

 Dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes
a heavy burden on the D or the court and where P is unable to offer any specific reasons of
convenience supporting their choice

C. Balancing of the interests of the public

 Ordinarily a strong presumption in favor of the plaintiff's choice of forum which may be
overcome only when the private and public interest factors clearly point towards trial in
the alternative forum -- the presumption applies with less force when the plaintiff or real
parties in interest are foreign

o Court dismissing for forum non conveniens can set terms and conditions for dismissal
o Not easily applied

WHERE VENUE IS NOT PROPER

TRANSFER - §1406
 §1406(b) – no availability of collateral attack for improper venue
 §1406(a) – transfer mechanism (assumes venue is proper in the original court but that there is
another court that also would have had proper venue)

DISMISSAL - §1406 + FRCP 12(b)(3)

o A motion to dismiss for improper venue can be made under Rule 12(b)(3)

V. SERVICE OF PROCESS + NOTICE

Purpose: formally asserts court’s authority over the defendant AND informs the defendant of their case
so they can prepare to defendant it – rooted in the constitution 14 amendment due process requirement
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Process = summons + copy of the complaint
Summons = courts official notice of suit (symbol of courts power over defendant)

SERVICE – FRCP 4(e)

Steps for Serving:
1. Who is the D (i.e. Individual, corporation, minor etc.)
2. Direct to relevant subsections of Rule 4 for relevant provisions
3. If it's an individual, do we know their whereabouts?
4. If don't know their whereabouts, do we know their last known place of abode?

Serving an Individual 4(e):

1. PERSONAL SERVICE: In hand service - 4(e)(2)(A)
2. SUBSTITUTED SERVICE: Leave the summons at the D dwelling or usual place of abode with
someone of suitable age and discretion who resides there - 4(e)(2)(B)
i. 16 years old and above is suitable
3. AGENT - Deliver the summons to an agent of the D authorized by appointment or by law to receive
service of process - 4(e)(2)(C)

STATE LAW METHODS - Follow the rules for service of process of the state where the fed court sits or
of the state in which service of process is made - 4(e)(1)
o Most states have certified process by certified mail
o Notice by publication may be valid in limited circumstances where notice is reasonably
calculated under all circumstances to apprise interested parties of the action AND afford
reasonable time to respond (Mullane)
o This was further expanded in Baidoo to include electronic publications (limited
application)

RULES FOR SERVICE

o Mullane – service of process must be reasonably calculated under all the circumstances to apprise
the party of the proceeding (constitutional requirement)
o Rule 4(c)(2) = any person over 18 + not party to the suit may serve summon
o Rule 4(c)(1) = complaint + summons must be served together
o Rule 4(a) = contents of a proper summons are prescribed
o Rule 4(m) = court must dismiss an action if service is not made on the D within 90 days of filing
the complaint
o Rule 60(b) = Can file a motion to set aside the default judgment in favor of P if D never received
summons
o Rule 12(b) = motion to dismiss for insufficient service or service of process
o Rule 4(k)(1)(A) = can serve process throughout the state in which the federal court sits
o Can only serve outside of state if the state court would have been able to (long arm statute)

Time Limits
o Rule 4(d)(1)(F) = gives the D 30 days to respond to the waiver of service
o Rule 4(d)(3) = D has 60 days to answer the complaint after waiver of service was sent
o Exclude day of event
o Count Sat, Sun, & Fed Holidays
o BUT if last day of the period falls on Sat, Sun, or Holiday the D gets one more day

WAIVER OF SERVICE FRCP 4(d)

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Rule 4(d) = P may ask the D to waive formal service of process

Advantages for D Waiving:

o Longer period for them to rely with their defensive response
o D have a duty to avoid the costs of formal service and the P can request the D waive service of
summons
o D have a duty to avoid the costs of formal service and the P can request the D waive service of
summons

Unavailability of Waiver for:

 Minors or incompetent persons - 4(g)
o Must follow state law
o Or where they are found
 United States – 4(i)
 Foreign governments state and local governments 4(k)

FAILURE TO WAIVE 4(d)(2)

Consequences:
o Pay expenses later incurred in making service AND
o Pay the costs of formal service including the attorney’s fees for any motion to collect the costs

VI. TRIAL + PRETRIAL

MOTION SEEKING TO DISMISS AS A MATTER OF LAW

12(b)(6) 12(c) 56 50(a)(1) after P's 50(a)(1) after
case P's & D's case
Facts in Facts in complaint Undisputed facts in Facts in record after Facts in full trial
complaint and answer movant's and P's case record
nonmovant's
materials
Factual Record for Decision

SUMMARY JUDGMENT - FRCP 56

REQUIREMENTS 56(a):
1) No genuine dispute as to any material fact (Slaven)
a. All the judge has to do is apply the law as to those facts

2) The movant is entitled to judgment as a matter of law

a. assume the evidence produced in connection with the motion were introduced at trial
b. If a reasonable juror correctly applying the governing law could come to only one
conclusion, then the movant is entitled to judgment as a matter of law
c. If these two are met --> court should grant the motion for summary judgment

RULES:
o Any party can move for summary judgment (i.e. Third party, P, D)
o 56(c)(1) – a party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:

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 o (A): citing to particular parts of materials in the records i.e. Depos, documents etc. OR
o (B): showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact
o 56(c)(4) – affidavits or declarations must be:
o Made on personal knowledge
o Set out facts that would be admissible in evidence
o Show that the affiant or declarant is competent to testify on the matters stated
o Rule 56(d) - the court may allow time to obtain affidavits or declarations or to take discovery

VII. PLEADING + MOTIONS

Historical Context:
o Common law system used a declaration to bring a lawsuit into royal court
o System of “Notice Pleading” originally – did not require a lot of detail + goal was to put the other
side on notice
o Prior to 2007 – the P and D were allowed to state inconsistent claims in a complaint and discovery
was used to determine the actual facts
o Conley v Gibson – presumption of truth to complaint (only need be conceivable)
o Twombly – no longer applied presumption of truth to legal conclusions (was limited to antitrust
cases)
o Identify 'legal conclusions' - threadbare recitals of the elements of a cause of action (No
presumption of truth)
o Do remaining well-pleaded factual allegations 'plausibly give rise to an entitlement to
relief'? (Presumption of truth)
 Once all conclusory elements are eliminated - can the claim the P wants the court to
find be plausibly inferred?
o Iqbal – Rule 8 requires a pleading to contain a short and plain statement claim showing that the
pleader is entitled to relief
o These claims must be factually plausible not just possible
o A claim has factual plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable and plausible inference that the defendant is liable for the
misconduct alleged, and does not allege a mere possibility.
o Effects of the Iqbal Decision:
o Defendants make more Rule 12(b)(6) motions -- increase in dismissals
o Plaintiffs are pleading more specific facts (increased cost of litigation to plaintiffs)
o Twombly-Iqbal is context specific
o The more complex the claim the higher the plausibility bar
o

COMMON LAW FEDERAL RULES

Traverse Denial
Plea in confession and Affirmative Defense
avoidance

Demurrer Rule 12(b)(6) motion to dismiss for

failure to state a claim

TYPES OF PLEADINGS – 7(a)

o Complaint
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 o Answer to a complaint
o Answer to a counterclaim designated as a counterclaim
o An answer to a cross claim
o Third party complaints
o An answer to a third party complaint
o If the court orders one, a reply to an answer

AMENDING A PLEADING – RULE 15

o Discretionary
o Must amend within 21 days after filing – 15(a)(1)
o Relation Back Doctrine:
o 15(c)(1): An amendment to a pleading relates back to the date of the original pleading
when:
 (C) amendment changes the party or the naming of the party against whom a claim
is asserted
 A P might know that a D exists but made a mistake as to who the proper party to sue
is -- quality's as a mistake as to 15(c)(1)(C)
o If applies – then use Foman
o If not – no leave to amend
o 15(a) leave to amend should be freely given unless there is:
o Undue delay
o Bad faith
o 15(a)(2) – amendment can either be signed by the other party or court’s approval (Beek)
o 15(c)(2) – provides that where a party seeks to amend its pleading to assert a claim that would
otherwise be time-barred the claim may be saved by relation back to the date of the original
pleading when the claim or defense asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the original pleading (Bonerb)
o Look to the "operational facts" set forth in the original complaint
o Determine whether the D was put on notice of the claim that the P later seeks to add

Foman Standards:
Under Rule 15(a) leave to amend should be freely given unless there is:
1. Undue delay (by nonmoving party)
2. Bad faith
3. Dilatory motive by movant
4. Repeated failure to cure deficiencies by amendments previously allowed
5. Undue prejudice to the opposing party (preparation prejudice) - will the nonmoving party have the
opportunity to prepare a response to whatever the amended pleading is
6. Futility of amendment

Cases:
o Beek v Aquaslide n Dive
o Bonerb v Richard J Caron Foundation
o Krupski

RULE 11 – CARE + CANDOR IN PLEADING

Purpose: to avoid frivolous lawsuits
o Applies to all documents EXCEPT discovery
o Requires the attorney to sign all documents – certifies various things
o Rule 11(b) – what you are certifying
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 o Not for an improper purpose
o Legal contingencies are valid (or nonfrivalous argument that the law should change)
o Factual contentions will have evidentiary support
o Continuing certification

RULE 11 - SANCTIONS:
o Sanctions for violation of Rule 11 are discretionary
o 11(c)(2) - Motion for sanctions cannot be filed right away (must give 21 days to fix the problem) –
safe harbor
o 11(b) - to conduct an inquiry reasonable under the circumstances
o Authorizes sanctions in particular circumstances
o 11(c)(1) - if after notice and a reasonable opportunity to respond the court determines that Rule
11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm,
or party that violated the rule or is responsible for the violation
o Court is not obligated to impose sanctions
o 11(c)(3) - a court acting sua sponte must order the offender to show cause why conduct
specifically described in the order has not violated Rule 11(b)
o 11(c)(4) - sanction must be limited to what suffices to deter repudiation of the conduct or
comparable conduct by others similarly situated
o May include an order to pay attorneys fees for the other party
o Nonmonetary directives
o An order to pay a penalty into court
o The Snapshot Rule = looking at what the law was in the moment the claim was filed
o 11(b)(2) - the lawyer certifies the claims are warranted by existing law
o Or by a nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law
o Only the lack of any legal or factual basis is sanctionable (Hunter v Earthgrains)
o 11(c)(5)(A) - court may not impose monetary sanctions against the represented party for
violating Rule 11(b)(2)
o 11(d) - Sanctions do not apply to discovery matters (including interrogatories) -- exception to
Rule 11
o Rule 26(e) - obligation to correct discovery answers that have become invalid
o Hays v Sony – objective standard applied to attorneys conduct

RESPONDING TO PLEADINGS
Defendant's Options:
 Do Nothing -- Rule 55(a) Default Judgment
 Answer -- Pleading in response to the complaint
 Pre-Answer Motion -- Rule 12(a)(4)

Times for filing an answer -- Rule 12(a)(1)(A):

 21 days if the complaint is served with the summons and complaint
 If it has been timely waived service under Rule 4(d), within 60 days after the request for a waiver
was sent

RULE 12(b)(6) MOTIONS – failure to state a claim

o Complaint should be dismissed if P can prove no set of facts in support of his claim which would
entitle him to relief
o Defendant can assert by:
o Answer
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 o Pre-Answer Motion

Two Step Process for Deciding 12(b)(6) motions

(1) Identify allegations alleging the conclusion the pleader wishes the court to make regarding an
element of the claim (i.e. conspiracy)
 Do not presumption of truth

(2) Can we plausibly infer from the remaining allegations in the complaint, the conclusion in #1
 Attach presumption of truth (Gibson)

VIII. CHOICE OF LAW

I. Swift v Tyson - federal "broody omnipresent"
a. Problem = encouraged forum shopping + inconsistent laws applied
II. Erie RR - no federal common law
 When sitting in diversity (§1332) apply:
 substantive state law
 federal procedural law
Rules of Decision Act (§1652) - federal court will follow the laws of the state
Klaxon = choice of law = substantive
John Deere = transfer issue = SC = Substantive

ANALYZING AN ERIE QUESTION

I. Is this case brought under diversity §1332?

II. Is there a valid federal law on point?

 §2072 - Rules Enabling Act (authority for courts to issue this rule book)
 Reinforced by Hanna
 On point = directly on point
 SC case holdings are considered on point
 Federal practices are not laws on point

If YES = analysis ends, that rule applies (Hanna; Guaranty Trust)

If NO….

III. Is there a federal practice?

If YES = is there a conflict with state law?

IV. Will applying state vs federal law be outcome determinative?

o If YES = state law applies (Guaranty Trust)
o Outcome Determinative Test - Led to crazy arguments that everything could be outcome
determinative

Look at the twin goals of Erie (Hanna):

1. Encourage forum shopping
2. Inequitable admin of justice = will there be different results at the end? (not necessarily
about what's fair)

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 If NO to both - apply federal law
If YES to both - you might apply state law -- then go on to analyze IV
If YES to one and NO to the other - balance the factors / depends on circumstances

IV. Is there an overriding federal interest?

o Byrd - decided before Hanna
 Constitution guarantees you a right to a jury trial even in a civil case - South Carolina said
judges can do it without a jury trial
 Byrd ignored the state law and said there will be jury trials for diversity federal cases
o Court efficiency (Ex. Paper size)

IX. DISCOVERY
 Rule 26(b)(1) - targets any matter that is non privileged
 Rule 26(b)(5) - to invoke a privilege, it requires that a claim expressly and describe the nature of the
documents, communications, or tangible things not produced or disclosed and do so in a manner
that without revealing information itself privileged or protected, will enable other parties to assess
the claim
 Rule 37(a) : Motion to Compel
 Rule 37(b)(2) : Sanctions
 Rule 37(b)(3)(C)
 Rule 26(g)(1) : Signature Required

Discovery Mechanisms
 Interrogatories (Rule 33)
 Requests for production of documents (Rule 34)
 Physical and mental examinations (Rule 35)
 Requests for admission (Rule 36)
 Depositions (Rules 27-31

 Rule 26(f) : Discovery Conference

 Rule 26(a)(1)(A) : all mandatory disclosures be made unless:
o Stipulated by parties OR
o Ordered by the court
 Rule 26(a)(1) : what has to be disclosed
 Rule 16(b) : scheduling order must issue within 90 days of defendant's appearance
 Rule 26(a)(1)(C) : initial disclosures must be
 Rule 26(f)(1) : Discovery Conference must be held at least 21 days before Rule 16(b) scheduling
conference
 Parties must exchange required disclosures within 14 days of the Rule 26(f)(1) discovery
conference
 Defendant will appear when it files an answer or pre-answer

 Jury Control:
o Rule 50(a) - motion for judgment as a matter of law (directed verdict)
o Rule 50(b) - renewed motion for judgment as a matter of law (JNOV)
 Must first move for a 50(a)
o Rule 59 - motion for new trial

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  Same standard as a 12(b)(6) motion -- only difference is these three motions are filed at the trial
and not before
 JNOV = judgment not withstanding the verdict
 Burden of Production - producing enough evidence so it would be rational for the jury to find for the
P
o The party bearing the burden of production is the one that would lose if neither side
introduced any evidence
 When it is a bench trial (judge deciding) -- Rule 52(c) is equivalent to Rule 50(a)
 Burden of Persuasion - convincing the trier of fact that it is more probable than not that P is correct
(ordinary civil case)
o Beyond a preponderance of the evidence
 Clear and Convincing evidence -- higher burden of proof used in specific civil cases (i.e. Fraud)

Zubulake
 Presumption = responding party ordinarily bears the cost of discovery requests
 Costs may be imposed on the requesting party when they impose an "undue burden or expense" on
the responding party
 Only impose when the evidence is inaccessible
 To determine whether cost-shifting is appropriate the court should consider (pg. 837):
 The extent to which the request is specifically tailored to discover relevant info
 The availability of such information from other sources
 The total cost of production, compared to the amount
 Rule 26(b)(2)(C)(iii) - incorporates the factors

Timeline for initial discovery

Filing --> Service --> 26(f) Meet & Confer --> 26(a)(1) Required Disclosures & 26(f) Proposed Plan
--> 16(b) Scheduling Conference & Order

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