Civil Procedure
Personal Jurisdiction–waivable
Must always satisfy Due Process requirements. PJ is waivable as a defense.
To exercise PJ, a court must give the defendant adequate notice and an opportunity to be heard.
Service is adequate notice.
Domicile (a place of intended permanent residence), service physically within the state,
continuous and systematic contact, and consent through writing or action all grant general in
personam PJ. Substantially at home (over 50% of activities) treated like domiciliary.
Under 4k1a, federal court has same PJ as state court in forum.
Long-arm statutes, forum-selection clauses, or failure to object grant specific PJ. For a long-arm
statute to be constitutional under Due Process, a defendant must have minimal contacts. Minimal
contacts: Relation between the defendant, the forum state, and the litigation. Purposeful
availment is sufficient; in its absence minimal contacts are doubtful. A stream of commerce
(even reasonable foreseeability of product in state) is usually not enough for minimum contacts.
In addition to minimal contacts, consider Fair and Reasonable factors (McGee): Extent of D’s
contacts, D’s convenience, P’s convenience, forum state interest, judicial system interest, COL.
In Rem jurisdiction is used to decide the right of anyone in the world to a piece of property in the
forum state. In Rem, because it disputes title, suffices for minimal contacts.
A state has quasi in rem jurisdiction over a person based on their ownership of property in said
state. Minimum contacts test is arguably required to use quasi in rem (Shaffer).
Incorporeal property can be said to reside on owner (debt, Balk), place of origination, or at
corporate headquarters for IP.
Subject Matter Jurisdiction–NOT waivable
SMJ can be challenged at any time (including on appeal) and is not waivable as a defense.
Arising Under
FQ applies if the cause of action arises under federal laws (codes, regulations, Constitution).
A federal question must appear on the face of plaintiff’s well pleaded complaint—cannot only be
anticipated defense by defendant.
Smith-Grable: State claim has a federal issue that’s embedded (central to resolution of state
COA), substantial (central to the case) and disputed. Court will use discretion and consider:
workload balance between federal and state, substantial state interest, or dominance of state law.
When seeking a declaratory judgment, the suit that judgment seeks to prevent must have AUJ.
Imaginary plaintiff must have well-pleaded complaint.
Diversity
Complete diversity of all citizenships from the plaintiff side to the defendant side + amount in
controversy > 75000 (nominally). May aggregate claims between 1 P and 1 D.
Nonresident aliens have a citizenship diverse from U.S. citizens, but are not diverse from each
other. Lawful residents have citizenship in their domicile state. Corporations are citizens at the
state of their principal place of business, and at their place of incorporation.
Compulsory counterclaims, arising out of the same transaction or occurrence, need not reach
75000. Permissive (non-compulsory) counterclaims do.
Joinder of plaintiffs: non-diverse parties will contaminate DJ; cheap claims will not. Therefore,
ONE plaintiff must have 75k claim.
Joinder of defendants: plaintiff must abide by 1367. Each P-D pairing must meet 1332.
Supplemental
Claims forming the same case or controversy can ride along an anchoring claim into federal
court. Claims must be the same P and D, arise under the same transaction or occurrence, or share
a common nucleus of operative fact.
If original claims was diversity J, plaintiffs cannot use supplemental jurisdiction to bring joinder
of a party in a way that destroys diversity. JUST READ 1367. Defendants can implead.
No party can join as a plaintiff if that would destroy diversity. Defendants are not required to
meet diversity in counter-suing (e.g., nondiverse third party D).
Discretionary factors: novel issue of state law, predominance over anchoring claim, economy,
convenience, fairness and comity.
Removal
A defendant can remove from state to same-location federal court if the case has original federal
J. Cannot remove in any defendant’s home state if diversity J is only basis. Removal needs
consent of all defendants; hence the 30-day deadline is counted from the last-served defendant.
Must file a notice of removal in the federal court including service, then notify plaintiff and also
file with the state court. Defendant may only remove within 30 days of receiving the pleading or
service, whichever earlier. A case becoming removable (e.g., via removal of nondiverse party)
has a 30 day deadline. A plaintiff may motion to remand in response to a removal notice within
30 days. A diversity case is not removable more than 1 year after filing of complaint.
Removal is proper if the federal court has SMJ + PJ and there were no procedural defects.
Abstention
A federal court has an unflagging obligation to hear any case properly in its jurisdiction.
Colorado River: abstain if 1) Concurrent litigation in state court and 2) special considerations–
avoiding piecemeal litigation, inconvenience of forum location, progress of cases, dependence of
federal case on state case, congressional intent/statute, or judicial efficiency.
Venue–waivable
1. If all defendants domiciled in the same state, any district where a defendant lives
(NOT any district in the state) is proper venue.
2. A district where a substantial part of the events giving rise to the claims in the case
is proper venue.
3. If neither 1 nor 2, a district where courts have PJ over a defendant.
For purposes of venue, a corporation resides in districts where it is subject to PJ (may not be all
judicial districts of its incorporation/PPB state). Districts of corporate residence determined just
like states of corporate residence.
If deemed convenient by the court, or if all parties consent, a case can be transferred to another
proper venue. Forum-selection clauses in contracts offer consent. Upon transfer, the law that the
original court uses still applies. (A case that would have used State A state law still uses said law
upon transfer to state B).
Forum non conveniens: With proper venue, a court can still dismiss a case so that another
judicial system outside U.S. federal courts can more suitably hear the case.
Horizontal Choice of Law
Procedural issues are always forum law. Statute of limitations and COL are both procedural.
Substantive issue analysis: If forum is 1st Restatement state, use substantive law of state where
cause of action arose. E.g., last act to comprise tort–where blood was spilled.
If forum is 2nd Restatement, issue-by-issue analyze: the needs of cross-jurisdictional systems;
the relevant policies of the forum and other interested jurisdictions; the parties’ justified
expectations; policies underlying the field of law at issue; principles of certainty, uniformity, and
predictability; and judicial ease in determining and applying the chosen law.
Vertical Choice of Law—Erie Doctrine
In FQ cases or where a valid federal statute directly cover the case, apply that federal law.
In DIVERSITY cases:
York—outcome determinative. Results in state law except for PI rules.
Hanna—Use a valid and applicable federal law where possible.
Valid–Const/statute/FRCP: It’s valid. Cite the source of validity though: constitution because
supremacy clause. Statutes because commerce clause/necessary and proper clause/Art. III Sec 1.
FRCP because 28 U.S.C. 2072(b). Sibbach standard–does it really regulate procedure? Yes.
Federal common law only valid under twin aims of Erie: prevent forum shopping and inequitable
administration of the laws.
Applicable–Scalia would construe broadly. When terms of the federal law conflict with the state
law, it is applicable. If the federal law does not require what the state law does, it is applicable.
Ginsburg would narrowly interpret to offer more deference to the state.
Hanna, Harlan: An issue affecting primary conduct uses state law. Otherwise the issue is
procedural and federal law controls. Primary conduct refers to pre-trial choices independent of
litigation
The Road to Trial
Notice
Was the chosen method of process “reasonably certain” to inform those affected (Mullane)? If
not, was the chosen method more likely to give notice than other feasible substitutes (Id.)? If you
actually wanted to give notice, what would be reasonable? Must mail notice if you have names
and addresses. If not, newspaper is fine. Duty to act reasonably to provide notice doesn’t stop
after the first attempt if other reasonable methods exist.
Service
Service may be through in-personal delivery, substituted service (on an agent or at residence),
and publication if no other choice. Any non-party at least 18 can serve. Service must occur
within 90 days of the plaintiff filing the complaint.
To serve, plaintiff must deliver both summons and complaint to defendant. Summons will name
the court and all parties, provide contact info for the plaintiff, give a time frame where defendant
must appear in court, notify defendant of consequences upon failure to appear, and be signed by
a clerk of the court.
Service can be waived by defendant (e.g., upon request of plaintiff). Plaintiff may send a copy of
the complaint and a request for waiver to defendant. Waiving service retains all objections to
jurisdiction or venue to be raisable later. Defendant gets 60 days to answer the complaint rather
than the usual 21 upon waiving service.
Opportunity to be Heard
Mathews factors (for existent schemes), where any being higher calls for more process:
1. The private interest(s) that will be affected. Is weakened if property in dispute is not
subsistence, if there is a bond/counterbond, or if plaintiff has pre-existing property
interest.
2. Risk of an erroneous deprivation upon comparison of procedures used and counterfactual.
Factors that increase “risk of error”: a clerk rather than a judge decides on the seizure, no
pre-existing property interest, only post-seizure hearing available, the party seizes
property only for security purposes, low evidentiary standard, and no bond requirement.
3. Public Interest. Government always interested in judicial efficiency. Maybe legitimacy.
Timing of seizure/deprivation matters. Sniadach held unconstitutional for clerk to garnish
defendant’s wages based on allegations before opportunity to be heard.
Fuentes held seizures with no prior hearing unconstitutional except for public interest/special
circumstances.
Mitchell held seizure with no prior hearing constitutional because risk of wrongful taking
outweighed by risk of potential waste.
Vitek factors (for building new schemes):
Adequate notice, hearing, opportunity to present and cross-examine witnesses, independent
decisionmaker, written statement by factfinder providing rationale, availability of appointed
advocate, concurrence: doesn’t need to be an attorney, effective and timely notice of these rights.
Preliminary Injunctions and Temporary Restraining Orders
Used to prevent irreparable harm or preserve the status quo in an important way. Movant must
provide notice and opportunity to be heard to nonmovant. Movant must show the court that they
are likely to succeed on the merits of their case at trial, that without the injunction they will
suffer irreparable harm with no appropriate remedy, that the harm outweighs downsides of the
order, and that the injunction serves the public interest.
TRO can be issued without notice for urgency. Takes effect when nonmovant receives the TRO;
can be challenged and will last < 14 days.
Summary Judgment
Moving party always starts with the burden of production. On issues they are burdened to
persuade, must produce evidence compelling a factfinder to conclude in their favor. Production
burden shifts to nonmovant to show a genuine issue of material fact. Only when there’s no issue
and no further discovery does SJ succeed.
On issues where the movant is unburdened to persuade, either negate an essential element of
nonmovant’s case or affirmatively demonstrate insufficient evidence from nonmovant.
Production burden shifts, get SJ if no genuine issue.
Draw all reasonable inferences in the light most favorable to the nonmoving party unless there is
evidence such that no reasonable jury would be able to accept that version of the facts
Pleadings
All pleadings need to be signed by the party or his attorney. Signatures certify that the paper is
not for an improper purpose, the claims or defenses are justified by existing law, factual claims
have evidentiary support, and any denials are supported by the evidence or seem reasonable.
Violations can be raised by opposing counsel or the court. Before filing for Rule 11 sanctions,
the movant must serve the motion to the violator; within 21 days the violator can correct the
mistake. If the court sua sponte raises the issue, no notice is required.
By filing a complaint with the court, the plaintiff commences the case. The complaint must state
grounds for jurisdiction, state the claim and the relief sought, and present enough facts to render
the claim prima facie plausible.
In response to the complaint, the defendant may file an answer, which raises defenses including
affirmative defenses, and admits or denies each claim. Deadline is 21 days after summons and
complaint are filed, 60 if waiving service. If defendant files a pre-answer motion, an answer must
follow within 14 days of ruling on said motion. The answer or PAM may deny any choice of
allegations on the substance, or state a lack of knowledge. Failure to deny is admittance.
Answers can raise affirmative defenses, which if true can defeat a claim summarily. List in
FRCP 8(c).
Answers can assert a counterclaim on the plaintiff or a crossclaim on a codefendant. Compulsory
claims are waivable here, permissive claims cannot be waived. A counterclaim is compulsory if
it arises out of the same transaction or occurrence as plaintiff’s claim and does not require
additional parties. If a counterclaim arises after service of pleading, the court may allow a
supplemental pleading. Crossclaims are not compulsory. Same transaction or occurrence
requires claims arise from the same factual events and (1) raise the same issues of law on the
same facts or (2) require the same evidence.
Before trial: 21 days after serving a pleading, the movant may amend said pleading once as a
matter of course. Otherwise, consent from the other party and permission by the court are
required. Responses to an amended pleading are due within the original pleading window or 14
days after service of the amended pleading, whichever is later. During trial, presenting new
evidence can cause the court to allow amending the pleading to match the evidence. Similarly for
raising a novel issue not in the original pleadings.
An amendment relates back to the original pleading if: (1) statute of limitations allows relation
back, or (2) the amendment arises out of the same transaction or occurrence. If changing party
named, the amendment must arise from same T or O, and give sufficient notice to the added
party, who must know or anticipate the action brought against him.
Joinder
Joinder of claims: Between one plaintiff and one defendant, joinder of claims allows for any
combination of claims into one lawsuit, regardless of any relation. For cross claims, once a cross
claim is filed, joinder of any cross claims between the parties is allowed. Impleader claims allow
defendants to allege responsibility onto a third party. Can implead automatically for 14 days after
serving an answer or with permission from the court.
Joinder of parties allow multiple plaintiffs to seek relief together or separately, and multiple
defendants to face liability jointly and severally. Parties can join if their claims all arise from the
same transaction or occurrence, and the case involves a common question of law or fact. If
there are required parties, courts use compulsory joinder to bring them into the case. A required
party is one who, if absent may: impair the party’s ability to protect their interests, create
inconsistent or duplicate liability, or prevent complete relief in the case. If the court has PJ and
adding will preserve SMJ, the party is joined. If not, consider whether the party is
indispensable. Evaluate extent of injustice, possible remedies if the case proceeds, and remedies
if the case is dismissed to determine whether the case can nevertheless continue or must be
dismissed.
Class Actions
A named plaintiff can litigate on behalf of the class if claimants are so numerous that joinder is
infeasible, questions of law and fact are common to the class, claims of the named plaintiff are
typical among the class, and the parties to the suit can represent interests of the class.
Commonality can pose a HCOL issue: to apply one state’s law uniformly, defendant minimal
contacts may be required.
PJ Snafu: if class is treated as one entity (like a trust), PJ becomes proper where the entity was
harmed (i.e., any place where a class member was wronged by D). But if class is treated as
joinder on steroids, parties (even plaintiffs) without relation to a state create PJ challenge.
Right to Jury Trial
In order for there to be a jury, the issue must be on the law side of the law/equity distinction and
the fact side of the law/fact distinction.
Look for historical analogies for cause of action/relationship of parties, but more importantly
legal/equitable remedy sought. (Terry) If both, right to jury trial preserved.
Remedies at law: compensatory damages, punitive damages, ejectment from land, writ of
mandamus.
Remedies at equity: specific performance/injunction, restitution, disgorgement of unjust gains,
contract rescission, enforcement of trusts, quantum meruit.
In a case with both, must evaluate equity claims after or concurrently with law claims.
Jury Instructions
If a party proposes a jury instruction that is close but not quite legally correct, the judge has an
obligation in some circuits to correct the proposed instruction and give it. Otherwise an abuse of
discretion (Kennedy). In other circuits a judge does not commit an error.
Verdict and Judgment
Judgment as a Matter of Law
JMOL round 1: must move before the case goes to jury, otherwise there’ll be no round 2. Most
likely will be deferred for round 2—judge wants to use verdict to shield self against remand for
new trial.
JMOL round 2/JNOV: must renew from round 1 <28 days after entry of judgment (jury
verdict?).
Drawing all reasonable inferences for the non-mover, can a rational jury find for the non-mover?
No burden shifting involved. Reviewed de novo upon appeal.
Motion for New Trial
Move for either 1) trial judge made a reversible error (e.g., incorrect evidence ruling) that
affected the case’s outcome or 2) jury verdict was against great weight of the evidence. Does not
make inferences for the non-mover, nor requires irrationality. Appealed as abuse of discretion.
FRCP 6(b) imposes a non-negotiable hard deadline for JNOV and New Trial.
Additur - Court gives a choice to the defendant: new trial unless you accept higher damages. Not
allowed in Federal Courts under 7th Amendment.
Remittitur - Court gives a choice to the plaintiff: new trial unless you accept lower damages.
Appeals
Standard of Review: De novo for pure legal rulings. Clear error for factual findings. Abuse of
discretion for procedural rulings/handling of evidence/witnesses/everything else. Plain error only
for errors so glaring that even unraised at trial, unreasonable enough to be reversed (almost
certainly fails).
Appeals courts do not need to reverse harmless errors; can even dodge finding error.
Appellate Jurisdiction
§1291 - Appeals from Final Decisions (district court’s final judgement) are the default. Summary
judgement ruling on liability without dealing with damages is NOT a final judgement (Liberty
Mutual). Jury verdict is not appealable until final judgment. Injunctions are appealable;
1291a(1).
FRCP 54(b) - Interpretation of §1291 - Multiple Claims. When there is more than one theory of
relief, some but not all have been decided finally by the district court, and the district court
expressly finds there is no just reason for delay, then it can enter final judgement with respect
to some theories, which become appealable.
Collateral Order Doctrine (Cohen exception) – An issue collateral to the merits of the case,
which has been finally decided but is unreviewable later can be appealed.
§1292(b) - Double Discretion Doctrine - Allows district court to get an issue to the appeals when
the issue is really important and the district court needs guidance. The district court must state in
writing (1) there is a controlling (important) issue to the case, (2) to which there is a substantial
basis for a difference of opinion, and (3) an appeal would materially advance the litigation.
The party seeking the appeal must appeal within 10 days. The court of appeals has discretion to
hear. Double discretion from district + circuit courts.
§1651 - Petition for Writ of Mandamus
Procedure: File a NEW legal proceeding in the court of appeals AGAINST the District Court
Judge
Party must persuade the court that (1) right to relief is clear and indisputable (circuit court has to
sure that the petitioning party is right on the merits) and (2) some exigent circumstances
(urgency to act now and (3) issuance is in good conscience with judicial administration.
Supervisory Writ - District courts are repeatedly doing something that the circuit court doesn’t
like, and in this case the circuit court will issue a supervisory writ to get the district court to stop
doing something.
Writeup: The jury’s verdict is on, not collateral to, the merits (Cohen); there is no injunction
(1292(a)(1)); there is no trial judge certification of an important issue (double discretion); there
is only one claim (FRCP 54); there is no class action (FRCP 23); there is no irreparable harm,
nor a pattern of judge misconduct (1651).
Res Judicata—Claim Preclusion
Between the same legal entities (or those in privity), final judgment on the merits will preclude
ALL possible theories of relief from the same transaction/occurrence.
Each financial instrument is its own transaction. Installments already past due are collapsed into
one cause of action.
Merits: Jury Verdict, Judgement after Trial, MSJ followed by Final Judgement, MTD for Failure
to State a Claim followed by Final Judgement. Not Merits: Lack of SMJ/IPJ/Venue. Statute of
Limitations is borderline.
A court may limit its preclusive effect by dismissing “without prejudice”.
If rendering court lacks SMJ, what the court was unable to hear is not precluded. (Marrese)
Collateral Estoppel—Issue Preclusion
The same factual issue that was actually litigated and that was necessary to the decision can
be asserted against the loser on the issue. Consider mutuality rules (if any) and rule against
offensive non-mutual CE.
“Necessary to the decision” is a but-for analysis. If either is sufficient, neither is necessary (in
federal courts; state courts may specify otherwise). Is a dispositive motion followed by a
settlement “necessary”? Split.
Mutuality requirement—4 versions: NY mutuality is none. Preclude regardless.
Switch mutuality: same parties, may swap plaintiff/defendant stances.
Defensive-required mutuality, used by federal courts: defendant may assert CE against another
plaintiff; plaintiff may not assert CE against a new defendant. Parklane Hosiery exception
applies where plaintiff seeking CE was unable to join first lawsuit; may use CE.
POLICY: Incentive structure. If we allow DNMCE we incentivize the single plaintiff to sue both
defendants at once because the plaintiff is not allowed to relitigate better if they lose the first
time,they are issue precluded. ONMCE is not allowed because if it was allowed, we would
incentivize P2 to sit out of the first lawsuit to see if P1 wins and then to use the ruling if P1 won.
But if P1 loses, no effect on P2 because it would be a DP violation. Don’t want to incentivize P2
sitting out and waiting, want to encourage P2 to join with P1 in L1.
Strict mutuality: must be same parties in the same procedural stances to use CE.
Cross-Jurisdiction Preclusion
State to State: controlled by Full Faith & Credit clause, 1738.
State to Federal: controlled by 1738. At least as much preclusive effect.
Federal to State: Federal common law authority. In diversity cases, second court must give the
federal court judgement at least as much preclusive effect as the state law where the first federal
court sits (Semtek) In FQ, use Parklane Hosiery federal common law.
Federal to Federal: Same as above. Most likely using FQ.
Semtek reasoning based on prevention of forum shopping, just like Erie.
