Civ Pro Outline- For Book

8/2/2019 Civ Pro Outline- For Book

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Tips for Civ Pro exam:

1. For each issue:a. State general rule (i.e. 12(b)(6) motion to dismiss)b. State generally why youre using that rule (i.e. because PL failed to

state a claim for which relief can be granted, InsufficientPleading)c. Apply the facts to the cased. Make any counter arguments other side would makee. Draw an objective conclusion (i.e. 12(b)(6) motion should succeed

for Counts II and III, but not on Count I)

Steps for test:

1. 12(b) Motions to Dismissa. 12(b)(6) for failure to state a claim for which relief can be granted

i. Insufficient complaint/pleading, explain whyii. Court can only look at the pleadings, no evidenceb. 12(b)(7) for failure to join a necessary party under rule 19

i. State who the indispensable party is, analyzec. 12(b)(1) for lack of Subject Matter Jurisdictiond. 12(b)(2) for lack of Personal Jurisdictione. 12(b)(3) for improper venuef. 12(b)(4) for insufficient processg. 12(b)(5) for insufficient service of process

2. All defenses to a claim (besides 12(b)s as above) must be asserted inresponsive pleading

3. Motion for summary judgment (under Rule 56)a. Use when PL does not meet burden of proof/production on one orall issues

4. Erie Analysisa. What will determination result in? DoErie analysis as part of that

motion/argument.5. Motion for Judgment as a Matter of Law (JMOL) under Rule 50(a)

a. Directed Verdict, during trialb. Judgment Notwithstanding the Verdict (JNOV), after trial

6. Other possible motionsa. 12(f) Motion to Strikeb. 12(c) Motion for Judgment on the Pleadings

*12(b)(2-5) motions waived if not raised in pre-answer motion or included inanswer (is a chance for amendment per 15(a)(1), however)*12(b)(6-7) can be raised at any time, as can 12(b)(1)


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1. Pleading

a. Rule 8(a), Rule 7b. Must include (1) basis for jurisdiction, (2) short and plain statement of

the facts that show PL is entitled to relief, and (3) remedy sought

c. Insufficient pleading: include in initial 12(b)(6) motion to dismissi. Used to be that pleading had to show case was merelypossible (Conley); Now, plausible (Twombly) and morethan a sheer possibility or plausible when you take out all ofthe conclusory statements (Iqbal)

1. Only look at statements, do not assess any evidenceii. Possible problems:

1. Are statements merely conclusory?2. Does complaint show causation? Is causation plausible

(Iqbal)?iii. Pleading can include apparent duplicity (Haddle v. Garrison)

2. Responding to Complaint

a. Rule 8(b), Rule 7b. Must include in short and plain terms its defenses to each claim

asserted against it; party must admit or deny the allegations against iti. 8(b)(3) rules for denials

1. General denials allowed, if also include denial ofjurisdiction grounds

2. For specific denials, can generally deny all but thosespecifically admitted

c. 21 daysi. or, if Rule 12 motion filed, 14 days after notice of courts

decision (good way to get more time)d. Pre-answer motions: take no position, just try to end or alter the case

i. i.e. 12(b) motions; Note: 12(b) motions to dismiss must be madebefore pleading if a responsive pleading (answer) is allowed

e. Answer: respond to allegations of complainti. Other denials, Rule 8(b)

f. If no response, Default Judgment (Rule 55)

3. Amending a Complaint


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a. Rule 15(a)(1)b. (A) Once within 21 days of service, orc. (B) Within 21 days of being served an answer or pre-answer motion,

whichever date is earlier

i. Rd: chance to amend before court grants a 12(b) motion todismissd. Courts may extend timeline if justice so requires (Beeck v. Aquaslide)e. For an amendment to be allowed after running of S/L, it must relate

back to the original claim, 15(c)i. Relate back = arises out of same conduct, transaction, or

occurrence (Moore v. Baker); a.k.a. same nucleus of operativefacts (Bonerb case)

ii. Cannot lead to undue prejudice on other party (Bonerb,discovery was not over, so amendment allowed)

4. Personal Jurisdiction (over the )

a. Lack of PJ, include in initial 12(b)(2) motion to dismissb. First, analyze PJ under long-arm statutec. Second, analyze PJ as constitutional

i. To meet requirement for PJ, court must have both statutory(long-arm statutes) and constitutional basis (Due Process Clause,14th Amendment) in the form of power and notice

d. Traditional basis of PJ: (FromPennoyer) Serving in forum, domiciled in forum, consents); basically no longer exists

e. Modern basis of PJ:i. (FromInternational Shoe) Minimum Contacts Test

1. must have minimum contacts with the forum statesuch that the maintenance of a suit does not offendtraditional notions of fair play and substantial justice

2. Main considerations in analysis:a. Purposeful availment? --- PJ can be asserted

based on a party's "purposeful availment of thebenefits and protections" offered by a state

b. Foreseeability? --- Was it foreseeable that sactivites would lead to him being sued in thisforum?

i. Hanson v. Denckla: to protect s frominconvenient courts

ii. Reasonable to expect that product wouldbe used there?

1. World-wide Volkswagen:foreseeability of product beingused here not only issue

2. WWV(cont.): could not have


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anticipated being sued inOklahoma court, so no PJ

c. Fairness? --- Does court have an interest inadjudicating this case?

3. Possible considerations in analysis:

a. Did company advertise there? (Asahi:manufacturer did not advertise in Cali, stream ofcommerce argument not enough)

b. Burdensome to ?i. Burger King v. Rudzewicz, not deemed

burdensome even though from Michiganto Florida

c. Contract = contact? 4 considerations:i. (1) nature of prior negotiations, (2)

contemplated future consequences ofcontract, (3) its terms, (4) course of

dealing between parties (Burger King)ii. Two sorts of jurisdiction underInternational Shoe1. Specific jurisdiction ( can be sued in forum on claims

from activities that arose within forum)2. General jurisdiction ( can be sued in forum on claims

that arose anywhere in the world)a. To have GJ, though, must still have minimum

contacts in state (Helicopteros v. HallandGoodyear v. Brown)

b. Physical presence for service still a consideration(Burnham case)

iii. can also consent to PJ, i.e. by forum selection clause(Carnival v. Shute)

f. If no PJ:i. Transfer (under 1404); among federal districts, for convenience

of parties or witnesses), orii. Forum Non Conveniens (dismissal for trial in another country)

g. Can challenge by making special appearance in courth. Where to sue corporations = principal place of business or state of

incorporation; individuals = state of their domicile

5. Subject Matter Jurisdiction (over the kind of case)


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a. Lack of SMJ, include in initial 12(b)(1) motion to dismiss or12(b)(6)for failure to state a claim (because court lacks SMJ)

i. On test, use both; ifdiversity case, 12(b)(1) is only optionb. Can be established by showing claim is based on federal law (1331) or

theres diversity of citizenship (1332)i. Federal question? Look at pleading by PL, NOT anything filedor anticipated to be filed by (as perMottley case)

1. Are PLs claim asserted under federal law? If so, nodismissal

ii. Diversity? 2 requirements/considerations:1. Amount in controversy > $75,000?2. Completely diverse citizenship?

a. Rd: none of the PLs can be from the same stateas any of the s (Walker v. Norwest)

b. Domicile issues? (Harry Potter); as part of

domicile, must show physical presence + state ofmind and intent to stay (Hawkins v. MastersFarms)

c. Residency in foreign country not enough, must be citizen to establishdiversity (Redner v. Sanders)

d. No SMJ if foreign resident of US v. foreign citizen (Saadeh v. Farouki)

6. Supplemental Jurisdiction (broadening SMJ)

a. 1367b. Analyze if state claims brought in federal court along with federal

claimsc. If state claim(s) sufficiently linked to federal claim(s), then court has

supplemental jurisdiction to hear them, 1367(a)i. Claims combine to tell one story

ii. Resolution of state claims will/would affect federal claimiii. State claim part of same case or controversyiv. Claims are integrally connected

d. If case is brought in diversity action, generally no supplementaljurisdiction if it would destroy diversity, 1367(b)

e. Court has freedom to deny supp. j., if necessary, 1367(c)

7. Removal


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a. 1441b. If jurisdiction overlaps, PL can choose between federal and state courtc. However, if filed in state court, can have case removedto federal

courti. At time of removal, case must still be able to be filed in federal

court (jurisdiction still applies)

8. Notice

a. Rule 4b. Step 1: Waiver of Service, by mail, 4(d)

i. If accepted, waives any objection to sufficiency of summonsand method of service

c. Step 2: If doesnt respond, more formal summonsi. For foreign defendants, 4(f) and 4(h)

d. Duty on to avoid unnecessary expenses of serving summons, 4(d)(1)e. If requisites of PJ exist, proper service establishes jurisdiction, 4(k)(1)

9. Venue

a. 1391b. Include in 12(b)(3) motion to dismiss for improper venuec. In diversity cases, 1391(a): can be brought in judicial districts

i. Where any resides, if all reside in same stateii. Where a large part of the claim occurred, or

iii. where any is subject to PJd. In other cases, 1391(b): only (iii) above is different

i. iii: where any may be founde. An alien can be sued in any district, 1391(d) (Heveafilcase)

10. Issue Preclusion (a.k.a. collateral estoppel)

a. Elements:i. Issue litigated fully (with conclusion)

ii. Was essential to the previous judgment1. Illinois Gulf Central RR v. Parks, where court says issue

preclusion mightapply, if issue was key to jurysdecision

iii. Party against whom preclusion is sought had a full and fairchance to litigate in previous case

b. Not necessarily between same two parties, but burdened part mustvebeen involved in previous case, had chance to litigate (Parklane v.Shore)

11. Claim Preclusion (a.k.a. res judicata)


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a. Elements:i. Same parties (or parties in privity)

ii. Judgment on the meritsiii. Same claim

12. Joinder

a. Rule 19, Compulsory Joinder of Partiesi. Is party indispensable? Test under 19(a)(1)

1. 19(a)(1)(A)- can court complete relief without the party?2. 19(a)(1)(B)(i)- will partys interest be harmed if not

joined?3. 19(a)(1)(B)(ii)- will existing party be subject to risk of

incurring double/multiple/inconsistent obligations as aresult of ruling?

ii. Is joining the party feasible? (Would it destroy personal

jurisdiction or diversity?iii. Joint tortfeasors (parties that, like you, would be jointly andseverally liable) are permissive! (Temple v. Synthes Corp.)

b. Rule 20, Permissive Joinder of Partiesi. 2 requirements:

1. Must be entitled to relief (or right to relief has beenasserted against them, for s) arising out of the sametransaction or occurrence, and

2. Must be a common question of law or fact common toall parties (all PLs or all s, wherever joinder isoccurring)

ii. Ex. of success in joinder,Larson (insurance co + biased lawyercase)

c. Rule 18, Permissive Joinder of Claimsi. Single plaintiff against single ; pretty general rule, seems loose

13. Misjoinder

a. Rule 21; not a ground for dismissing an action; courts can only decideto add/drop a party or sever the claims

14. Impleading (bringing in a 3rd party)

a. Rule 14b. , as third-party plaintiff, may bring in a 3rd party who is or may be


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liable to it for all or part of the claim against it, 14(a)(5)i. Within 14 days of serving its original answer, orwith

permission, 14(a)(1)

15. Intervention

a. Rule 24b. Allows a party that no one wants to join, to joinc. Intervention of Right, 24(a): court mustallow party to join suit

i. 4 requirements, 24(a)(2):1. Intervention must be timely2. Intervenor must have an interest in the property or

transaction that is subject to the suit3. That interest must be in some strong way at risk4. Even if they meet these 3 criteria, if their interest is

already adequately represented in the suit, court will still

denyd. Permissive Intervention, 24(b), court may allow party to joini. For those with weaker bases for insisting on joinder

ii. Significant protectable interest is enough (NRDC v. US NuclearRegulatory Commission)

16. Class Actions

a. Rule 23b. Goal of class = to become certified under 23(c)

i. To do so, must (1) meet 4 requirements under 23(a), and(2) fitinto one of the 3 categories under 23(b)

1. 23(a): Numerosity, Commonality, Typicality, Adequacy2. 23(b):

a. (b)(1) class, mass production version of rule 19b. (b)(2) class, when PLs are primarily seeking

injunctive or declaratory relief (i.e. civil rights)c. (b)(3) class, all others, $$$

i. Small claims suits (Ticketmaster)ii. Mass tort suits (Buffalo Creek)

c. Placing case in 23(b) requires judge to weigh advantages anddisadvantages, can make or break a case

d. 23(b), representative PL must initially pay for individual notice to allclass members; inability to do so could end case right there

17. Cross-claims and Counter-claims

a. Rule 13b. Counterclaims (against PL)

i. Compulsory, 13(a)


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1. 13(a)(1), Must state counterclaims in responsivepleading that:

a. Arise out of same transaction or occurrence asPLs claim, and

b. Do not require adding another party that the court

does not have PJ over2. 13(a)(2), Exceptionsii. Permissive, 13(b), any claim not part of 13(a)

iii. If compulsory counterclaim not made, it is waivedc. Cross-claim (against co-)

i. Proper if claim arises from the same transaction or occurrence asthe subject matter of the original action, or

ii. Relates to any property that is subject matter of original actioniii. Can include claim that a co-party is or may be liable for all or

part of the claim against you1. i.e. Indemnification agreements; insurance companies

18. Choice of Law (TheErie Doctrine )

a. In Motion, include in 12(b)(1) and/or12(b)(6) motions to dismissb. If state law should be applied, and party in federal court has failed to

comply with that state law, claim is barred, 12(b)(6) will succeedc. Twin aims of Erie (see:Hanna test):

i. To prevent forum shopping, andii. To prevent inequitable administration of justice

d. Steps of analysis:i. Does a state rule or practice conflicts with federal rule or

practice?1. If no, apply both rule2. If yes, continue analysis (Note: lack of federal rule or

practice is can still be considered federal practice)ii. Is there a federal rule/statute on point that does not violate the

Rules Enabling Act (2702)?1. If yes, then apply the federal rule (Hanna)

2. If no, only federal practice Is the state law outcomedeterminative?

a. If no, apply the federal rule (Guarantee Trust v.York)

b. If yes, apply the state rule (Byrd)i. ByrdTest: State rule must be tied to thesubstantive rights and obligations; statemust have an interest in having thisspecific rule/practice applied

c. If yes, are there countervailing federal policies?i. If so, apply federal law if balance favors

it (Byrd)


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iii. ApplyHanna Test:1. Will using federal law over state law result in people

flocking to federal court, violating the twin aims ofErie?e. Under Erie, if no state precedent:

i. Make best guess about what state would do, or

ii. Ask state court in process called certification

19. Discovery

a. 3 stages:i. Mandatory disclosure, Rule 26

1. Initial disclosure, Rule 26(a)(1), what the party will useto support its claims/defenses

2. Disclosure of experts, 26(a)(2)a. Requires identity, some information on

qualifications, and experts written report (if he

will be testifying)b. 90 days before trial or30 days after argumentraised by opposing party, if rebuttal witness

3. Disclosure of witnesses and documents or exhibits, 26(a)(3)

a. 30 days before trial; opposing party can objectwithin 14 days under 32(a)

ii. Further discovery, without any special showing, limited byrelevance

1. Interrogatories, 25 questions max without courtapproval, only to party (no non-party witnesses), Rule 33

2. Requests for admission, on facts or application of law tofact orgenuineness of documents, only against parties,Rule 36

3. Requests for production of documents, things, land, andbytes, Rule 34

a. Docs must be produced a they are kept in usualcourse of business, or must be organized, 34(b)(2)(E)(i)

b. From a non-party, embody request in a subpoena4. Deposition (Oral, Rule 30; written, Rule 31)

a. 10 per side max without permission, 30(a)(2)(A)(i)

b. One day of 7 hours only, 30(d)(1)c. Only one time without permission, 30(a)(2)(A)

(ii)iii. Broader discovery, into thesubject matterinvolved in the

action, if a party demonstratesgood cause to the courtb. Enforcement, Rule 26(g) and 37c. Duty to preserve evidence (Spoliation), Silvestri v. GM(case where car


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wasnt preserved, prejudice too high to , case dismissed)d. Limitations on discovery: Info sought must be:

i. Relevant, 26(b)(1)1. Must tend to prove or disprove something that

substantive law says matters; see: Steffan v. Cheney (gay

cadet + discovery case)ii. Unprivileged, 26(b)(1)1. i.e. attorney-client, doctor-patient, privilege against self-

incrimination, spousal, etc.2. orwork product (lawyers notes case,Hickman)

iii. Potential for annoyance/embarrassment or undue burden orexpense must not outweigh value, 26(b)(2)(c)

e. Special limits on physical and mental examinations, Rule 35i. Issues must be in controversy andgood cause must be shown

f. Issue with experts; determining if person is expert or just a fact witness(expert testimony discoverable, witness not)

i. Chiquita v. M/V Bolero: fact expertise + relevance = expert wit

20. Dismissals

a. Default Judgmenti. Rule 55

ii. Can be voided on appeal (see:Peralta case)b. Involuntary Dismissal (to keep PLs from filing meritless suits to hang

over )i. Rule 41(b)

c. Voluntary Dismissal (allows PLs to dismiss before answers, oranytime if all parties agree)

i. Rule 41(a)(1)(A)ii. Does not bar a future refiling

21. Summary Judgment

a. Rule 56, can move at any time, usually not awarded until after discoveryi. Can be issued as to the merits of the entire case, or of specific

issues within case; decided on by the judgeb. Basis:

i. If PL does not show/have sufficient evidence on any oneelement of the claim then there is no genuine issue of material

fact because they have not met their burden of production, noreasonable person could find for the party (Celotex)

1. Whoever had burden of pleading an element of the claimhas the burden of production for evidence on that claim

c. How to analyze:i. State who the moving party is (because evidence in motion must

be viewed in light most favorable to non-moving party)


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ii. Even in most favorable light, is non-moving parties evidencesufficient? Has she met burden of production? At all possible ajury (rd: reasonable person) would find for her?

1. Analyze by each counta. State what elements PL must meet to bring

specific claimb. If there still exists a genuine issue of materialfact to be disputed, SJ will not succeed/will notbe granted

2. If issue is non-moving partys lack/absence of evidence,moving party only has to point out that absence inmotion for SJ (as perCelotex)

a. Before Celotex,Adickes said that moving partyhad to affirmatively prove the absence ofevidence on issue

iii. Can non-moving party adequately dispute the motion for SJ?

1. To do so, they must show specific evidence that there arestill material facts in dispute (Bias case)

22. Directed Verdict (a.k.a. JMOL)

a. Rule 50; Jury trials onlyb. When:

i. Party has been fully heard on an issueii. Court finds that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the party on that issuec. Basically, when party with burden of production has failed to carry that

burdend. DV can be granted when (1) no conflict of direct evidence, and (2)

witnesss testimony could be seen equally in two lights (for PL or)(Pennsylvania Railroad v. Chamberlain)

e. Same analysis as for SJf. Party with the burden of production and persuasion must show

affirmative evidence to create a sufficient genuine issue of material fact23. Judgment Notwithstanding the Verdict (JNOV)

a. Rule 50; Post-verdict reversal of a jurys decisionb. JNOV granted when:

i. Having taken the evidence as most favorable to the non-movingparty, the court finds that a reasonable person could not possiblefind for the non-moving party (Norton v. Snapper PowerEquipment)

c. When insufficient facts to support the verdict or incorrect application ofthe law

d. For JNOV to apply, movant must have moved for DV/JMOL during thetrial (JNOV motion is like asking for court to reconsider)


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e. Can file up to 28 days after judgment entered

24. Sanctions against Attorneys

a. Rule 11

b. Sanctions appropriate if:i. Suit is bought for an improper purposeii. Claims are not warranted (whatever did was legal)

iii. Theres no evidence for the facts raised1. Cannot plead something hoping discovery will produce

evidence to supportc. Pleading must be supported by reasonable factual investigation by

lawyer,Bridges v. Diesel Service (PL did not file charge with EEOCcase)

d. Ex. of meritless claim, Christian v. Mattele. Ex. of lawyer being dumb, Walker v. Norwest(not complete diversity

case)

25. Miscellaneous Probable Non-issues

a. Remediesi. Specific (restoring whatever took from PL, i.e. with an

injunction or rehiring a person)ii. Substitutionary (providing PL with a reasonable substitute)

1. Punitive damages, at most 9:1 v. compensatory, StateFarm v. Campbell

iii. Declaratory relief, Rule 57 (declaration of the potential forfuture relief, not specific, almost hypothetical)

b. Attorneys feesi. Fee waivers generally allowed (Evans v. Jeff D. and

Buckhannon case)c. Provisional/Pre-judgment remedies

i. Preliminary injunctions, Rule 65(a)1. When (1) case has a fair chance to succeed, (2) damage

PL may suffer is sufficiently serious, (3) balance ofequities in PLs favor, (4) injunction is in public interest(Winter v. NRDC)

ii. Temporary Restraining Orders, Rule 65(b)d. Jury Instructions

i. Rule 51e. Control of judge

i. 144, Bias or prejudice of judge, leads to dismissal of judgeii. 455, Disqualification of judge, when J should disqualify

himself

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Civ Pro Outline- For Book