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CIVIL PROCEDURE


SHOPPING LIST OF ISSUES

FOR CIVIL PROCEDURE

Professor Gould’s Shopping List for Civil Procedure.

1. Pleadings.

2. Personal Jurisdiction.

3. Subject Matter Jurisdiction.

4. Amended Pleadings.

5. Supplemental Jurisdiction.

6. Discovery.

7. Multi-Party and Multi-Claim Litigation.

8. Erie Doctrine.

9. Preclusive Effect.

10. Summary Judgment.

11. Trial Procedure.

The above list contains only Eleven Items and Twenty-Five Words, but it serves to remind you of all of the major common areas involved in a civil procedure essay. Also, it is timeline oriented, so that you can basically run through the items in order, as they appear in the fact pattern, and consider whether each item is an issue. Those items which contain issues should be highlighted, and any area not covered in the essay, should be deleted. Then, apply the relevant Templates for the areas which are highlighted.


THE PLEADINGS

PLAINTIFF.

The Complaint -- By Plaintiff -- Rule 8.

Commences Action.

Starts Tolling of Statute of Limitations.

Requirements.

Short and Plain Statement of the Claim Showing Entitlement to Relief.

Grounds for Court Jurisdiction.

Demand for Specific Relief / Remedies.

Rule 8 Specificity.

Notice Pleading.

No Need for High Level of Specificity.

Rule 9 Special Matters.

Special Matters Must be Pleaded with Particularity if Raised at Trial.

Includes: Fraud, Mistake, etc.


DEFENDANT.

Defendant’s Answer.

Response to Complaint.

Create Issues for Trial.

Includes: Denials.

Affirmative Defenses.

Counterclaims.

Compulsory Counterclaims.

Same Transaction or Occurrence.

Permissive Counterclaims.

Leave of Court to Amend if Not Specific.

Rule 11 -- Attorney Representations

Attorney Signature.

Verify Pleadings Not Interposed for Improper Purpose.

Claim Not Meant to Cause Harassment or to Cause Unnecessary Delays.

1. Attorney Put Forth Reasonable Inquiry.

2. Attorney Believes Claims are Viable.

3. Allegations have Evidentiary Support.

4. Claims Warranted by Existing Law or a Non-Frivolous Extension.

Rule 11 Sanctions.

For Claims, Defenses, Asserted for an Improper Purpose.

Interposed to Cause Harassment or Unnecessary Delay.

Safe Harbor

.

21-Day Time Period in Which Offending Party may Withdraw or Modify Pleadings.


PERSONAL JURISDICTION Personal Jurisdiction. Proper Jurisdiction over people or property.

Service -- Rule 4.

Territory.

100-Mile Bulge.

Third-Party Defendants.

Indispensable Parties.

Gaps Possible.

Manner.

Personally.

Substitute Service.

Agent.

Local State Law.

Service on Out-of-Staters.

Corporation.

Local State Law.

Waiver of Service Rule.

Defense to Claims of Jurisdiction.

Special Appearance.

Waived if Raises Other Rule 12 Motions without Personal Jurisdiction.


Notice and Opportunity to be Heard. Occurs where Defendant did not learn of suit until sometime after it was commenced.

Constitutional Due Process. Reasonable Notice.

Reasonableness Test. Where procedures were likely to inform Defendant.

Opportunity to be Heard.

Pre-Judgment Remedy.

1. Amount of harm to defendant’s interest from a pre-judgment remedy.

2. Risk of an erroneous deprivation of defendant’s property.

3. Strength of party interest in seeking the pre-judgment remedy.

Venue. Factors to consider as to whether there is a proper venue:

1. If a defendant resides in that district, and all defendants reside in the state containing that district.

2. If substantial part of events giving rise to the claim occurred in the district.

3. If one defendant is reachable in said district, and no other district qualifies.

Escape Hatch Provision. Overseas situations.

Forum non conveniens.

Factors. Plaintiff’s Residence.

Witnesses in Different State or County.

Evidence is in Different State or County.

Whether Forum’s Laws Govern the Action.

Jurisdiction over Things.

In rem Actions. Interest in a specific thing.

Quasi in rem Actions.

Specific Performance of Land Sale Contract

.


Out-of-State Defendants.

Long-Arm Statutes.

Minimum Contacts.

General Personal Jurisdiction. Complained of action took place outside of Forum State.

Systematic and Continuous Contacts.

Limited and Sporadic Contacts Not Sufficient.

Specific Personal Jurisdiction. Complained of action took place within Forum State.

Purposeful Availment.

Of Benefits and Protections of Forum State’s Laws.

Unilateral Action by Plaintiff Not Sufficient.

Foreseeability.

Of a Potential Lawsuit in the Forum State.

Fair Play and Substantial Justice / Unreasonableness.

Due Process Fairness.

Examples of Specific Minimum Contacts Situations.

Internet Websites.

Passive Site Posting Information.

Conducting Transactions with In-Staters

.


SUBJECT MATTER JURISDICTION

Subject Matter Jurisdiction.

Party Invoking has Burden of Affirmative Showing.

Federal Question Jurisdiction -- Section 1331.

Arises Under Constitution, Laws or Treaties of the United States of America.

Constitutional Claims and Claims Based on Federal Statutes.

State Claims Requiring Federal Interpretation, and Claims Anticipating Defense Based on Federal Statute, Not Applicable.

Diversity Jurisdiction.

Citizens of Different States.

At Commencement of Action.

Domicile.

True, Fixed, and Permanent Home.

Resident Alien.

Complete Diversity.

No Plaintiff a Citizen of Same State as any Defendant.

Pleadings not Dispositive.

Court Looks Beyond Pleadings.

Nominal Parties Ignored.

Corporations.

Citizen of State of Incorporation and State of Principal Place of Business

.

Principal Place of Business.


Nerve-Center Test.

Corporate Muscle Test.

Amount in Controversy.

Must Exceed $75,000. Excluding Interest or Court Costs.

Legal Certainty Test.

But Plaintiff May Eventually Recover Less Than the Jurisdictional Amount.

Aggregation of Claims.

Single Plaintiff.

Multiple Plaintiffs.

One Plaintiff Must Meet Jurisdictional Amount on Their Own.

Unless Plaintiff’s Have Single Undivided Title or Right

.


AMENDED PLEADINGS RULE 15 -- AMENDED PLEADINGS.

One Liberal Amendment as of Right / Without Leave of Court.

Any Point Before Service of Answer.

Amendment by Leave of Court.

Freely Given When Justice so Requires.

Unless Actual Prejudice to Other Party.

Through Consent of Other Party.

Relation Back Doctrine.

Claims or Defenses Must Arise out of Same Conduct, Transaction or Occurrence as in the Original Pleading

.


SUPPLEMENTAL JURISDICTION

Supplemental Jurisdiction.

Court Would Not Normally have Jurisdiction over Some of the Claims.

Claim Arises out of Same Transaction or Occurrence as a Claim which the Court has Proper Jurisdiction Over.

Court Discretion.

May Not Allow, Especially if Major Claims Dismissed.

Removal to Federal Courts.

Defendant May Remove to Federal Court if Amount in Controversy is Met.


DISCOVERY

SCOPE OF DISCOVERY.

Scope of Discovery -- Rule 26.

Broad Scope.

Any Matter Not Privileged Which is Relevant to Subject Matter of Litigation.

Relevant Evidence is Likely to Lead to Admissible Evidence / Witnesses.

Privilege -- Only Non-Privileged Material is Discoverable.

Mandatory Disclosure.

Mandatory Pre-Discovery Disclosure.

All Witnesses with Discoverable Information.

Documents which are to be Used in the Case.

The Attorney Work Product Rule for Production of Documents.

Materials Prepared in Anticipation of Litigation by Party or Party’s Attorney.

Statements by Witness are Normally not Protected.

Notes of Attorney are Normally Protected.

Mental Impressions of Attorney are Absolutely Protected.

Party Asserting Must Make Claim Expressly.

Qualified Immunity.

Documents Prepared in Anticipation of Litigation by Party or Representative.

Hardship – Other Side May Receive Materials if:

Substantial Need to Prepare for Case.

Inability to Obtain Information without Substantial Hardship.


Absolute Immunity.

Attorney or Represenatives’ Mental Impression, Conclusions, Opinions, and Legal Theories.

Absolute Immunity even with a Showing of Substantial Need.

Discovery Concerning Experts.

Experts to Be Called at Trial.

Automatically Give List of All Experts to be Called at Trial.

Must Have Expert Prepare Report Stating: Expert Opinion and Basis, Data, Exhibits, Qualifications, Compensation, Previous Cases.

Methods of Discovery. Includes Depositions, Interrogatories, Requests to Produce, Requests for Admission and Requests for Examination.

Physical and Mental Examination -- Rule 35.

Operates only by Court Order Under Good Cause.

Physical or Mental Condition of Said Party Must be in Controversy.

Orders and Sanctions for Discovery Abuses.

Abuse of Discovery.

Party Uses Discovery to Harass.

Court May Order Discovery Stopped Under Protective Order.

Compelling Discovery.

Party Fails to Provide Information to Other Party.

Court Provides Order Compelling Discovery.

Sanctions.

Payment of Fees, Case Dismissal, Default Judgment, Etc

.


Pre-Trial Conference -- Rule 16.

Simplify and Formulate Issues for Trial.

Facilitates a Settlement.

Scheduling Order. Within 120 Days of Filing, Document which Sets Time Limits.

Pretrial Order. If No Pretrial Conference.


Multi-Party And

Multi-Claim Litigation

Counterclaims -- Rule 13.

Brought by Defendant against Plaintiff.

Permissive Counterclaims.

Claims Not Related to Transaction or Occurrence of Plaintiff’s Claim.

Compulsory Counterclaims.

Claims Arise out of Same Transaction or Occurrence as Plaintiff’s Claim.

Must be Asserted, or Defendant will Lost Right to Assert.

Third-Party Counterclaims.

May be Made by Any Party Against any Opposing Party.

Third-Party Defendant.

May Counterclaim Against Defendant or Plaintiff.

By Plaintiff.

If Defendant Counterclaimed Against Plaintiff.

Joinder of Claims -- Rule 18.

Party Making Claims may Add Claims, but Joinder is Not Required.

All Joined Claims Must Have Subject Matter Jurisdiction.


Joinder of Parties -- Rule 20.

Permissive Joinder.

Joinder of Plaintiffs.

If Based on Same Transaction or Occurrence.

And Question of Law or Facts Relates to All Plaintiffs.

Joinder of Defendants by Plaintiff.

If Based on Same Transaction or Occurrence.

And Question of Law or Facts Relates to All Plaintiffs.

Compulsory Joinder -- Rule 19.

Certain Parties Must be Joined or Unfair or Uneconomical to Litigate.

Necessary Parties.

Necessary but Not Vital, Should be Joined.

Indispensable Parties.

Must be Joined or Action Dismissed.

Class Actions -- Rule 23.

Jurisdiction -- Only Representatives must Satisfy Jurisdiction.

Judgments are Binding on Absentees.

Certification and Denial of Class Status.

Certification Signifies that Court says Class Action Requirements Have Been Met.

Size. Generally 25 or More, Must be an Impractical Size for Joinder.

Common Questions of Law of Fact Common to Class.

Claims Must be Typical of Those in Class

.

Fair Representation by Representatives of Class Interests.


Requirement of Notice.

Absent Class Members Must Normally be Given Notice of Suit.

Individual Notice to All Readily Identifiable Class Members.

Publication Notice for Those Class Members Who Cannot be Ascertained.

Contents of Notice Must Include Opting Out Option and Judgment’s Effects.

Binding Effect.

Of Judgment for All Member of the Class.

Opting Out of a B3 Action -- A Person May Opt Out of a Class, but May Not Assert Collateral Estoppel if the Class Wins.

Settlements.

Settlements Approved Only if Interests of Absent Class are Adequately Protected.

Intervention -- Rule 24.

Of Right Intervention.

Interest in the Lawsuit which Relates to Subject of Action.

Likelihood of Impairment if Not Allowed to Protect Their Interests.

Adequate Representation Not Already Present.

Permissive Intervention.

Claim or Defense Involving Question of Law or Fact in Common with Pending Action.

Discretion of Court to Allow or Deny.


Interpleader. Meant to Prevent Double or Multiple Liability.

Federal Statutory.

Nationwide Service for Claimants to Stakeholder.

Amount in Controversy is Over $500.

Rule Interpleader -- Rule 22.

No Effect on Jurisdictional Issues.

Amount in Controversy is More Than $75,000.

Impleader -- Third-Party Practice -- Rule 14.

Defendant Impleads Another Defendant as a Third-Party Defendant.

Claim Must be Derivative.

Jurisdictional Requirements Less Stringent.

Cross-Claims.

Claim Made by Party on Same Side of Existing Claim.

Must Arise out of Same Transaction or Occurrence as Original Action.

Actual Relief Must be Requested

.


APPLICABLE LAW /

THE ERIE DOCTRINE

Applicable Law -- The Erie Doctrine.

Forum Shopping.

The Erie Doctrine is Meant to Reduce Forum Shopping.

Helps Prevent Litigant from Seeking a Court Most Favorable to Their Side.

Erie. In Diversity Cases Federal Court Must Apply State Common Law if Applicable.

Procedure Versus Substance.

State Common Law Rules for Substantive Law Situations.

Federal Rules for Procedural Situations.

No Rule Yet a Procedural Matter.

Balancing Test.

Federal and State Interests Balanced as Against Each Other.

Outcome Determination is Used as Part of Balancing Test.

Also Consider Tradition, and Rights of Party Bound with State Law.


PRECLUSIVE EFFECT OF

FORMER ADJUCICATIONS

Claim Preclusion / Res judicata. Also Called Merger and Bar.

Prevents Entire Claim from Re-Litigation.

Plaintiff is Prevailing Party.

Merger. Cannot Sue Again as Claim is Merged into Final Judgment.

Plaintiff is Losing Party.

Bar. Plaintiff is Barred from Suing for Same Claim.

Prior Adjudication Must be on Merits.

Claim Dismissed Without Prejudice.

Not Decided on Merits, So May Bring Another Claim on Same Facts.

Claim Dismissed With Prejudice.

Failure to State a Claim Upon Which Relief May be Granted.

Decided on Merits, So May Not Bring Another Claim on Same Facts

.


Issue Preclusion / Collateral estoppel.

Prevents Re-Litigation of Issues of Fact or Law.

Same Findings of Fact or Law will Prevail in Subsequent Litigations.

Reasonable Foreseeability.

Requirements for Issue Preclusion.

Exact Same Facts and / or Law as the First Issue.

Must Have Been Fully and Fairly Litigated in First Issue.

Issue Must Have Actually Been Decided in First Issue.

Issue Must Have Been Necessary to Outcome / Judgment of First Issue.


SUMMARY JUDGMENT

Summary Judgment -- Rule 56.

No Genuine Issue of Material Fact.

Both Parties Agree as to the Material Facts in the Claim.

There is No Controversy as to the Material Facts.

Moving Party (Movant) Entitled to Judgment as a Matter of Law.

Behind Pleadings / No Mere Allegations.

Parties Must Produce:

Affidavits.

Other Fruits of Discovery Other than Mere Pleadings.

Construction is Most Favorable to the Non-Moving Party.

Summary Judgments are Considered in the Light Most Favorable to Non-Movant.

Partial Summary Judgment.

May Be Granted for Smaller Specific Claims Within a Larger Lawsuit.


CIVIL TRIALS

Judgment as a Matter of Law / Directed Verdict -- Rule 50.

Opposing Party has Been Heard on Relevant Issues.

Reasonable Jury Could Not Differ as to Result.

Judgment Notwithstanding the Verdict JNOV / Judgment as a Matter of Law JML.

Judge Sets Aside Jury Verdict and Enters Judgment for Other Party.

Adjudication Without Trial -- Rule 41.

Note: “Prejudice” Indicates that a Plaintiff May Not Re-Litigate the Claim, and “Without Prejudice” Indicates that a Plaintiff May Re-Litigate a Claim.

Voluntary Dismissal by Plaintiff.

Without Prejudice Before Answer or Summary Judgment Motion.

Involuntary Dismissal.

Dismissal by Court.

With Prejudice.

Plaintiff’s Failure to Prosecute Claim.

Plaintiff’s Failure to Obey Court Orders.

Without Prejudice.

Lack of Jurisdiction.

Failure to Join Indispensable Party.

Improper Venue.

Lack of Sufficient Service

.


Jury Trials -- 7th Amendment Rule 38.

Right to Jury Trial Under 7th Amendment for Federal Suits.

Does Not Apply to States.

Jury Trials.

Voir dire.

Jury Selection Process Through Questioning.

Dismissal for Cause. Any Number for Bias or Connection.

After Trial. Possible New Trial if Biased.

Challenges Without Cause. Preemptory Challenge, Three Allowed.

Instructions.

Judge Instructs Jury.

Must Object Before Jury Retires, Unless Plain Error.

Jury Misconduct.

Verdict Set Aside for Misconduct.

Jury Impeachment Rule. Majority.

Must Have Evidence from a Third Party.

Federal Rule. Juror May Testify to Some Information.

General Verdict with Interrogatories -- Rule 49.

General Verdict Support with Interrogatories and Findings of Fact

.


New Trial -- Rule 61. A new trial, or partial trial for limited issues, may occur for errors which are not harmless error and are serious enough to affect substantial rights, for verdicts against the weight of the evidence, for excessive or inadequate verdicts, or where there is newly discovered evidence.

Harmless Error.

New Trial for Errors are Serious Enough to Affect Substantial Rights.

No New Trial for Errors are Serious Enough to Affect Substantial Rights.