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CIVIL PROCEDURE: FEDERAL I.

SUBJECT MATTER JURISDICTION Here, we know that P will be suing D in a particular state, but is it in Federal of State Court? A. Diversity of Citizenship 2 Requirements: (1) the action must be b/w citizens of different states, and (2) the amount in controversy must be > $75,000 a. Who Are Citizens of Different States? (1) Rule: No Diversity if any PLAINTIFF is the Citizen of the same state as any DEFENDANT (Draw the State lines to be sure in Qs) b. How do we determine a Litigants Citizenship? (1) Domicile is established by 2 Concurrent Factors: (1) Physical Presence in State, and (2) Subjective intent to make it his permanent home (2) Corporations (2 places): 1. State of Incorporation AND 2. State where Corps Principal Place of Business is located a. To determine PPB (2 Tests for PPB (Only 1 State (1) Nerve Center (2) Muscle Center). Usually nerve center unless all corporate activity is in one state. (3) Partnerships/Unincorporated Businesses. Use the Citizenship of all members/partners (both limited and general) (4) Decedents, Minors, and Incompetents. Look at their citizenship, not the citizenship of representative c. Amount in Controversy (must be > $75,000) (1) Aggregation*. Adding 2 or more claims to meet the amount requirement 1. We aggregate claims if 1P vs. 1D (e.g., 40K in K, and 50K in tort = 90K) 2. If 2 Ds, we do NOT Aggregate (Exception: Joint Tortfeasors: A sues B,C, & D for $75,001.) (2) Equitable Relief (2 Tests, only have to Meet 1); P sues D for an injunction to tear down part of his house that blocks Ps view: 1. Plaintiffs Viewpoint: Does the blocked view decrease the value of the Ps property by more than 75K? 2. Defendants Viewpoint: Would it cost D more than 75K to comply? d. Exclusions From Federal Court: Divorce, alimony, child custody, probate

B. Federal Question Jurisdiction. Right or Interest must be founded Substantially in Federal Law a. Well Pleaded Complaint Rule: s claim arises under Fed law. C. Supplemental Jurisdiction. Lets a Fed Court hear a claim which there is no DJ or FQ, where P already has a case/original claim in Fed Ct that meets SMJ Requirement

a. Test: The Claim we want to get into court must share a common nucleus of operative fact with the original claim. Met by the Same T/O Standard. Did this claim arise from the same TO as the original claim? b. Limitation in Diversity Case: P CANNOT Use SJ to OVERCOME a lack of Diversity (1) However, In a Fed Q Case, P can use SJ to overcome a lack of diversity 1. Thus, P(Utah) vs. D(Utah) for Federal Claim and also State claim; State Claim here could not ordinarily get into Fed Court, but we allow it since P brought FQ claim against D, so long as claim arose from same T/O (2) Also, In Diversity case, P can use SJ to overcome amount in controversy P(VA) vs. D(GA) for 100K; P can also sue D2(GA), even if claim does not independently meet 75K requirement, so long as claim arose from same T/O (3) Any other party other than P, can use Supp J to overcome either a lack of complete diversity or amount in controversy in any case (Div or FQ). A non-federal, non-diversity claim can be heard in Fed Ct if it meets the Test UNLESS it is: 1. Asserted by a 2. In a diversity of citizenship (not FQ) case AND 3. Would violate complete diversity. c. Court has discretion NOT to hear supplemental claims (1) If the FQ is dismissed early in the proceedings (sum j) OR (2) If the state law claim is complex OR State law issues would predominate

D. Removal (Defendants Only). Allows Ds to Remove case from State Fed Court a. Test: If case could have originally been filed in Fed Ct (based on Div or Fed Q) b. When? Within 30 days after service of 1st Process. For Div cases, has to be removed within one year after case filed in State Ct (commenced) c. Misc. Rules: (1) All Ds Must agree to Remove + P Can Never Remove (2) If ANY is a citizen of the state court forum, then cannot remove to fed court in Diversity of Citizenship Cases ONLY (Allowed in FQ Cases)

E. The ERIE Doctrine (Rarely Tested): When must Fed Court apply State Law Diversity Cases? Rule: Must apply State Substantive law a. Clearly Substantive (State Law Governs): (1) Elements of Claim or Defense (2) SOL (3) Rules for Tolling SOL (4) Choice of Law b. If Not under (a), ask: Is there a Federal Law on Point that Directly Conflicts with State Law? If So, Apply Fed Law (Supremacy Clause) so long as it is Valid c. If Neither (a) or (b), then Analyze whether Substantive: (1) Outcome Determinative: would applying or ignoring the state rule affect the outcome of the case? If so, its probably a substantive rule, (2) Balance of Interests: does either fed or state system have strong interest in having its rule applied? (3) Avoid Forum Shopping 2

II. VENUE: Tells us WHICH Federal District the case should be sued in A. Local Actions Involving Land. Must be filed in the District where the land lies B. If not Local, then it is Transitory a. Basic Rule: In any Transitory Case, P may lay venue in ANY District where (1) All Ds Reside, or A substantial part of the claim arose b. Ds From Different States: You bring claim in the district where a substantial part of the claim arose c. Ds From Same State (Special Rule): P can lay venue in the district in which any of Ds reside, regardless of where the substantial part of the claim arose

C. Where do Ds Reside for Purposes of Venue? a. Natural Persons. Same Place of Domicile/Citizenship b. Corporations and Other Business Associations. Reside in ALL Districts where it is subject to Personal Jurisdiction when the case is Filed

D. Transfer of Venue. Can ONLY Transfer to a Venue where the case could have been Filed a. Can Transfer Based upon the Interests of the Parties; Court has Discretion to order Change of Venue based upon: (1) Public Factors (what law applies, what community should by burdened with jury service), and (2) Private Factors (convenience, i.e., where Ws and Evidence are located) b. If Venue in original Forum is Improper, then court may transfer in the interests of Justice E. Forum Non Conveniens: Court will dismiss case w/out prejudice if Much better alternative V

III. SERVICE OF PROCESS A. Basic Idea. In addition to PJ, must give notice to D. Deliver to D: (1) a summons (formal court notice of suit and time for responses) and (2) A copy of the Complaint a. Together, these 2 are called Service of Process: Must serve w/in 120 days of filing case or the case will be dismissed w/out prejudice (unless can show good cause for delay) B. How is Process Served? The Mechanics a. Personal Service: Papers given to D personally anywhere in the Forum State b. Substituted Service: 2 Requirements: (1) Must be at Ds usual Abode, and (2) Must serve someone of suitable age and who resides there c. Service on Ds Agent: OK if receiving service is w/in scope of agency; e.g., agent appointed by K or by Law; or by corporations registered agent, managing agent or officer d. State Law: In addition, can use methods of service permitted by state law of the state where the federal court is located e. Waiver by Mail: Process by mail is ok if it is mailed first class with prepaid return postage and returns waiver form w/in 30 days C. Geographic Limitation. Process is delivered to in another state OK only if Forum state law allows it (Long Arm Statute)

IV. PLEADINGS A. Rule 11: Requires attorney to sign all pleadings, written motions and papers a. Sanctions can be levied against other side for violation; designed to deter bad conduct b. Motion for Violation of Rule 11 is first filed to other party, who has 21 days to either fix the problem or withdraw the doc; if other side does not fix problem, file w/Court

B. Complaint. This is the Pleading by the Plaintiff. Filing commences an action a. Requirements: You must plead facts supporting a plausible claim (1) Statement of SMJ; Short and plain statement of the claim, showing entitled to relief; Demand for Judgment b. Special Matter: Must be pleaded with particularity/specificity Fraud, Mistake, and Special Damages (Do not normally flow from an event permanent erection case)

C. Defendants Response. D must respond either (1) By Motion or (2) By Answer, w/in 20 days after service of process (or else risk default judgment) a. Motions (Rule 12): These are NOT Pleadings; They are Requests for a Court Order (1) Motions of Form: (1) 12(e) Motion for a more definitive Statement a pleading so vague that D cannot frame a response; (2) 12(f) motion to strike (2) Rule 12(b) Defenses** (Either by Motion or in Answer) 1. Lack of Personal Jurisdiction* 2. Improper Venue* 3. Insufficiency of Process* (problem with papers) 4. Insufficient Service of Process* a. 1-4 Are waivable 5. Failure to State a Claim (may be raised at any time during trial) 6. Failure to Join indispensable Party (raised at any time during trial) 7. Lack of SMJ (can be asserted even after the trial never waived) b. The Answer: (1) Timing: must be served w/in 20 days of Process if D makes no motions; 1. if D makes a rule 12 motion that is denied, w/in 10 days of the denial; 2. If D waives Service, has 60 days from Ps mailing of waiver (2) What does D do in the Answer? 1. Respond to allegations of the complaint: (1) Admit, (2) Deny, or (3) State that you lack sufficient information to admit or deny 2. Raise Affirmative Defenses: Statute of Limitations, Statute of Frauds, Res Judicata, Self-Defense

D. Counterclaim: Must be filed with the Ds Answer 2 Types: a. Compulsory Counterclaim: Arises from same T/O as Ps Case; if not filed, then D cannot raise this claim in a separate action it is waived (use it or lose it) b. Permissive Counterclaim: Does NOT rise from the same T/O as Ps claim; you may file it with your answer in this case, or assert it in another case c. Counterclaim must meet Diversity, FQ, or Supplemental Jurisdiction

E. Cross-Clams (against a Co-Party): Must Arise from same T/O in order to get in (never compulsory)

F. Amending Pleadings (Never Tested) 4 Fact Patterns: a. Right to Amend: has right to amend ONCE before D serves his answer (1) If P amends, then D must respond w/in 10 days or the amount of time remaining on his 20 days, whichever is longer (2) D has right to amend ONCE w/in 20 days of serving his answer b. If No Right to Amend: Must seek leave of court, which will be granted if justice so requires; court looks at delay and prejudice c. Variance: When evidence at trial does NOT Match what was pleaded (1) P sues for Breach of K. Introduces evidence of assault at trial

1. If D doesnt object, P can move to amend the complaint to conform to the evidence to show the assault claim; if D Objects, evidence NOT admissible d. Amendment after SOL Runs (Relation Back) (1) If Amended pleading relates back to same Conduct, T, O, then you treat the amended pleading as though it was filed when the original was filed

V. JOINDER A. Proper Ps and Proper Ds. P is putting the case together and trying to figure out who the parties should be (These are the Parties that may be joined) a. Co-Plaintiffs may sue together if their claims: (2) Arise from same T/O, AND (2) Raise at least ONE common question (Must still assess SMJ)

B. Necessary and Indispensable Parties. This is where a Non-Party MUST be forced into the Case a. Who is Necessary (1) Without A, the court cannot accord complete relief (worried about multiple suits) (2) As interest may be harmed if he isnt joined, or (most likely) (3) A claims an interest which subjects a party to a risk of multiple obligations b. Can A be Joined? This is where A is Necessary, but is he Feasible? A is feasible if: (1) There is Personal Jurisdiction over him, and (2) Joining him will not make it impossible to maintain diversity c. If A Cannot be Joined, The Court must either: (1) Proceed without him, or (2) Dismiss the Case (analyze prejudice)

C. Impleader (Third Party Joinder). TPD is usually joined for Indemnity or Contribution a. Right to Implead w/in 10 days after serving answer; need court permission after that b. Process: File Third-Party Complaint, and Serve Process on the TPD c. After TPD is joined, P may file a claim against him if it arises from same T/O d. Subject Matter Jurisdiction: Must be analyzed (remember limitation on P)

D. Intervention. Absentee wants to join a pending sit. a. Intervention of Right: As interest will be harmed if she is not joined and her interest is not adequately represented now 6

b. Permissive Intervention: As claim or defense and the pending case have at least one common Q (discretionary decision of court)

E. Interpleader. This is where ONE holding property forces all potential claimants into a single law suit to avoid multiple litigation (Different Rules for Diversity) a. Diversity of Citizenship: (1) Rule Interpleader: Stakeholder must be diverse from every claimant (2) Statutory Interpleader: One claimant must be diverse from one other claimant b. Amount in Controversy: (1) Rule must exceed 75K, (2) Statutory - $500 or more c. Service of Process: (1) Rule same, (2) Statutory No Personal Jurisdiction problems d. Venue: (1) Rule Same, (2) Statutory any district where any claimant resides

F. Class Action (2005 Exam). This is where A Representative Sues on Behalf of Group a. 4 Initial Requirements: (1) Numerosity: Too many class members for a practical joinder (2) Commonality: There are some Qs of law or fact in common to class (3) Typicality: Representatives claims/defenses typical of those of the class, and (4) Representative (L) of class must be Adequate: b. Next, Must fit the Case within one of Three Types: (1) Prejudice Class: Class treatment necessary to avoid harm either to class members or to party opposing class (2) Injunction or Declaratory Judgment: sought because class was treated alike by other party (i.e., Employment Discrimination) (3) Damages: (a) there must be a Common Questions that is predominate over Individual Questions, and (b) class action is the superior method to handle it c. Then, the Court must determine at an early and Practical time whether to certify the case as a class action (1) If Court Certifies the class, it must define the class and the class claims and defenses and appoint a class counsel d. Court must Notify all reasonably identifiable Class members, in a Type 3 Class Action (Not required in Type 1 or 2); Also, no right to opt out of a type 1 or 2 e. Determining Classs Citizenship (1) Look to the Representatives Citizenship ONLY and only to his claim for amount in controversy (reps claim must be diverse from all Ds) (2) Class Action Fairness Act of 2005: gives diversity of citizenship to class action if ANY class member is of diverse citizenship from any D and if aggregated claims exceed $5 million

VI. DISCOVERY A. Required Disclosures. These materials must be produced even though no one asks for it a. Initial Disclosures: Must identify persons and documents likely to have discoverable info that the disclosing party may use to support its claims or defenses w/in 14 days of 26(f) b. Experts: must identify experts who may be used at trial and produce written report containing opinions, data used, qualifications, compensation for study c. Pretrial: No later than 30 days before trial, must give detailed information about trial evidence, including docs and identity of witnesses

B. Discovery Tools. May not be used until after 26(f) conference unless court order or party stipulation allows a. Depositions: (Qs can be oral or written). Can depose Parties or Non-Parties, but a Non-Party must be subpoenaed or he is not compelled to attend (1) Subpoena Duces Tecum: requires the deponent to bring material with her (2) Cannot take more than 10 depositions or depose the same person twice w/out court approval; Deposition cannot exceed 1 day or 7 hours (3) A non-party cannot be required to travel more than 100 miles b. Interrogatories: Questions propounded in writing to another party (1) Must respond w/answers or objections w/in 30 days (2) Can say you dont know the answer, but only after a reasonable investigation c. Requests to Produce: Requests to another party (or to non-party if accompanied by subpoena) requesting that she make available for review and copying various docs or things, including electronically stored info, or to permit access to property for copying (1) Opposing Party must respond (or object) w/in 30 days of service d. Physical or Mental Examination: Only available through court order on showing that partys health is in actual controversy and good cause. e. Requests for Admission: A request by one party to Another Party to admit the truth of any discoverable matters (usually docs). must respond w/in 30 days of service f. Verified Response Requirement: Parties sign substantive answers to discovery under oath; every discovery request is signed by counsel g. Duty to Supplement: Parties have duty to supplement responses

C. Scope of Discovery (what information can we get?) a. Standard. Can discover anything relevant to the subject matter of the case; means reasonably calculated to lead to the discovery of admissible evidence b. Privileged Matter is NOT discoverable c. Work Product: material prepared in anticipation of litigation is generally protected (1) Exception for Some Docs: if Party can show (1) Substantial need and (2) It is not otherwise available, then he may discover work product (2) Absolutely Protected: Mental Impressions, Opinions, Conclusions, and Legal Theories 8

d. Expert Witnesses: Required to disclose expert Ws without request. Also, other party is allowed to depose expert (1) However, if expert is retained in anticipation of litigation but will not testify at trial, NO DISCOVERY, absent exceptional Need

D. Enforcement of Discovery Rules a. Three main ways that discovery problems are presented to the court: (1) Protective Order. E.g., request is over-burdensome, or involves electronically stored info not reasonably accessible (deleted files) or involves trade secrets (2) Partial Violation. Receiving party answers some and objects to others; if the objections are not upheld, this is a partial violation (3) Total Violation. Receiving Party fails completely to attend deposition, respond to interrogatories or to respond to requests for production. b. Sanctions against a Party (The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement) (1) Partial Violation (2 Steps) 1. Can get an order compelling the party to answer the unanswered Qs, plus costs of bringing motion 2. IF the party violates the order, RAMBO sanctions + costs and could be held in contempt of court (2) Total Violation: Get RAMBO sanctions + costs. No need to get the order first (3) False Denial of Request to Admit: recover on costs of having to prove the issue (4) Failure to make required Disclosure: Other side can chose to treat as a partial violation or total violation c. The RAMBO Sanctions (1) Establishment Order (establishes facts as true); Strike pleadings of the disobedient party; Disallow evidence; Dismiss Ps Case (if bad faith is shown); Enter default judgment against D (if bad faith is shown) d. Sanctions against a Non-Party Contempt for violating subpoena or court order

VII. PRETRIAL ADJUDICATION A. Voluntary Dismissal (P files written notice of dismissal, AKA non-suit) a. P may do this once w/out prejudice before D serves his answer or a SJ motion B. Default and Default Judgment (Usually tested under VA law) a. Entry of default is merely ministerial, shown as an entry on the docket sheet. One cannot collect any money on a default for that, you need a judgment

b. Entry of Default is a prerequisite to default judgment. Default is actually entered by the court clerk after P shows that D failed to respond w/in the required time. D can respond anytime until the default is entered on the docket (1) The Clerk can enter default judgment ONLY if Four things are true 1. D has made NO response at all 2. Ps Claim is for a Sum Certain (or calculable) (+ costs of litigation) 3. P gives an affidavit that the sum is owed, and 4. D is not a minor or incompetent (2) If ANY of the 4 is NOT True, P must go to the court to get the judgment. The judge can hold a hearing on damages or other issues. D ONLY GETS NOTICE if he made some appearance in the case c. In Default Judgment cases, P cannot recover more than she asked for in her complaint, but if case is tried, P can recover more d. D can move to set aside default or default judgment but must show good cause for the default and a viable defense

C. Failure to State a Claim. Under 12(b)(6), It tests only the sufficiency of Ps allegation a. Standard: the court assumes all the allegations are true, and ask this: If P proved all she has alleged, would she win a judgment (1) In ruling on the motion, the court cannot look at evidence, only the face of the complaint (2) If Ps complaint sets forth elements of a claim but also on its face shows that there is a complete defense that bars his claim, Court may dismiss (3) P Can Make the Same Motion (Motion for Judgment on the Pleadings), after D files his answer D. Summary Judgment: Moving Party must show (1) there is no genuine dispute as to a material issue of fact, and (2) that she is entitled to judgment as a matter of law a. Here the court CAN look at evidence, and generally views it in light most favorable to the non-moving party

VIII. CONFERENCES AND MEETINGS A. The 26(f) Conference (never tested). Where parties meet at last 21 days before trial to discuss discovery, claims, etc; must for discovery plan and present it to the court w/in 14 days B. Pretrial Conference: Record in pretrial conference order supersedes the pleadings

IX. TRIAL, JUDGMENT, AND POST-TRIAL MOTIONS A. Jury Trial (juries determine Facts) a. Right to Jury Trial in Fed Court. 7TH Amendment preserves the right to jury in civil actions at law, but not suits in equity 10

i. Must demand in writing no later than 10 days after service of the last pleading b. Jury Selection (voire dire): each side has unlimited strikes for cause (bias, prejudice). Each side also gets 3 preemptory challenges i. In Civil Cases, no fewer than 6 jurors and no more than 12

B. Motion for Judgment as a Matter of Law. take the case away from the jury a. Can only be brought after the other side has been heard. b. Standard: Reasonable people could not disagree on the result

C. Renewed Motion for Judgment as a matter of law a. Must Move w/in 10 days of entry of judgment; Same Standard as the original Motion b. Only allowed if Party originally made motion for judgment as a matter of law

D. Motion for a New Trial Errors at trial require a new trial. Must move w/in 10 days of judgment a. Grounds. (1) prejudicial error at trial make judgment unfair (wrong jury instruction or evidentiary ruling) (2) New evidence that could not have been obtained with due diligence for the original trial (3) prejudicial misconduct of party or attorney or third party or juror (4) Judgment is against the weight of the evidence (serious error by jury) E. Motion to set aside Judgment (never tested) (32) X. APPEAL A. Final Judgment Rule. As a general rule, can appeal only from a final judgment; must file notice of appeal in trial court w/in 30 days after entry of final judgment a. Ask: after making this order, does the trial court have anything left to do on the merits of the case? If so, its not final

B. Interlocutory (non-final) Review. May be appealable, even though not a final judgment a. Interlocutory Orders Reviewable as of Right: orders granting, modifying, refusing injunctions; appointing, refusing to appoint receivers; findings of patent infringement where only an accounting is left to be accomplished by trial court; orders affecting possession of property (e.g., attachments)

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