CIVIL PROCEDURE OUTLINE
Sources of Civil Procedure.
4. Common Law
5. Local Court Rules
6. Judge Rules
7. Party Stipulations
What is Required for Federal Jurisdiction.
1. Personal Jurisdiction
2. Subject-Matter Jurisdiction
3. Proper Venue
4. Proper Notice
5. Proper Service of Process
Jurisdiction is the power of authority for a court to legally adjudicate a matter.
Competing Goals of an Adversarial System:
1. Fairness ----> Notice to Parties & A Chance to Defend Oneself.
2. Accuracy ----> Finding the Legal Truth
3. Uniformity ---> Treat All Cases Alike; Achieved via Compliance w/ Rules
4. Efficiency ----> Conservation of Judicial Resources (Time, Money)
Personal Jurisdiction (in personam/in rem)
Notice & Opportunity to be Heard
Service of Process
Waiver (where possible; note that subject matter jurisdiction can never be
Waiver of personal jurisdiction, process, and venue is address in FRCP 12(h)(1).
1. PERSONAL JURISDICTION
(1) Is there PJ under the Long-Arm Statute?
(2) Would exercising PJ comport with the Due Process Clause
of the 14 Amendment of the U.S. Constitution?
How to Obtain PJ.
The individual or corporation may consent to PJ. This may not
later be challenged by D. D may consent in a contract to personal
jurisdiction, or to use a specific state’s laws in adjudicating a matter.
A court may exercise its power to exert the PJ granted
by Long-Arm Statutes and the Constitution.
Types of PJ.
In Personam = Jurisdiction over the D’s person. Court has the power
to issue a judgment over the D personally.
In Rem = Jurisdiction over a thing, an object, or piece of property.
Quais in Rem = Judgment over a person by way of their property,
and the court must first seize or attach the property.
However, the judgment can only be made over the
seized property, and cannot be sued over in another
FRCP (Only in Personam) = Uniform Approach (Shaffer).
Quasi in Rem jurisdiction may only be exercised
when there are such “minimum contacts” that
in personam jurisdiction also exists.
Service w/in Forum State
Burnham v. Superior Court
Service within forum state always satisfies the Due Process Requirements.
D was served divorce papers while in CA on a business trip. Court held
that CA had personal jurisdiction over D because he satisfied “minimum
contacts” requirement; and the traditional notion of state sovereignty over
those within its borders.
Miliken v. Meyer
“A state which accords privileges and affords protection to a person
and his property by virtue of his domicile may also exact reciprocal duites.”
- Jurisdiction may always be exercised over a citizen,
even if he is temporarily out of state.
The Due Process Clause of the 14th Amendment establishes the limits
of when a state may exercise PJ over an individual. However, if such
exercising PJ would be unreasonable, then a court may not choose to.
Minimum Contacts (International Shoe v. Washingtono)
The courts of a state may exercise personal jurisdiction over a person
if they have sufficient minimum contacts that it would be fair to require
him to return and defend a lawsuit there.
Nature and Extent of Contacts
Random or Fortuitous Acts.
Miscellaneous or random contact with a state, as well as fortuitous
acts connected with the forum state are not enough to support PJ.
Continuous or Systemic Behavior.
Certain isolated acts, because of their “quality and nature”
will support PJ.
In general, the more continuous and systematic that one’s contacts
are with the forum state, the more likely it is that PJ is constitutional.
(1) An individual may have minimum contacts even though he
has never foot in the forum state (e.g. may cause harm in
another state without ever going there – product in commerce).
(2) Minimum Contacts are analyzed at the time of the activity
in question, NOT at the time when suit is brought.
Relatedness of Contacts to Claim
In general, a court may exercise PJ over a person
ONLY if the claim specifically relates to the person’s
contacts with the forum state.
(1) However, if the D’s contacts are of such a continuous and
systematic nature, a court may be able to exercise general
(2) General Jurisdiction allows a court to adjudicate any claim
over the D. The claim does not have to relate to D’s contacts
with the forum state.
Purposeful Availment (Hanson v. Denckla)
D must have personally availed himself of the privileges of conducting
business within the forum state, invoking the benefits and protection
of its laws. Voluntary exposure to a state’s laws.
Stream of Commerce.
(1) World Wide Volkswagen. The car dealer and distributor were not
subject to PJ in Oklahoma because they had not sought any direct
benefits from the state.
(2) The dealer did not sell cars there, did not advertise in the state,
and did not attempt to cultivate customers there.
(3) In Asahi, Justice O’ Connor rejects the notion that mere awareness
that a product might end up in the forum state eventually satisfies
(4) BUT: In his dissent, Justice Brennan felt that there are minimum
contacts, and even so “reasonableness” trumps minimum contacts.
(5) HOWEVER: Justice O’Connor then says that she can make the
argument that it is not reasonable to assert jurisdiction here.
Not in state’s interest.
Where the D has purposely directed activities toward the forum state,
jurisdiction is presumed to be reasonable. The D will have to make
a “compelling case” that other considerations make jurisdiction
unreasonable - Burger King. Court
1. Burden on D to litigate in foreign state.
2. State’s interest in litigating suit.
3. P’s interest in a convenient and efficient forum.
4. Judicial system’s interest in most efficient resolution.
5. Shared interest of other states.
There are situations where a D might have the minimum contacts
necessary for a state to exercise PJ. However, if it would be unfair
or unreasonable for the forum state to do so, the court may choose
not to exercise power.
Factors to consider:
1. Extent of purposeful injection into forum.
2. Burden on D of defending in forum.
3. Extent of conflict with sovereignty of D’s home state.
4. Forum state’s interest in adjudicating dispute.
5. Most efficient judicial resolution of dispute.
6. Importance of forum to P’s interest in convenient
and effective relief.
7. Existence of an alternative forum.
The Constitution only defines the limits of due process and
personal jurisdiction, it does not confer any power upon the state.
State legislatures must confer this power to their courts.
This is done through Long-Arm Statutes.
Rule 4(k) – Federal District Courts use the
Long-Arm Statutes of the state in which they reside.
Types of Long-Arm Statutes
State legislatures grant their courts jurisdiction on
“any basis not inconsistent with the U.S. Constitution.”
- Common Law approach = Special Appearance
- Collateral Attack
- Full Faith & Credit Clause
- 100-mile bulge: A special 100-mile bulge provision allows for out-of-state
service sometimes, even if local law does not permit it. When the provision
applies, it allows service anywhere (even across a state boundary) within a
100-mile radius of the federal courthouse where suit is pending. The bulge
provision applies only where out-of-staters will be brought in as additional
parties to an already pending action. There are two types of parties against
whom it can be used: FRCP 4(K)(1)(B)
2. SERVICE & CHALLENGING JURISDICTION
A. Rule 4. (See Red Pamphlet p. 12)
(d) Waiving Service.
(e) Servicing and Individual w/in Judicial District of United States.
(k) Territorial Limits of Service.
B. How to Present Defenses
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted;
(7) failure to join a party under Rule 19.
*Note: Rule 19 kicks in only when motion to dismiss.
C. Waiving & Preserving Certain Defenses.
Rule 12(h): (See Red Pamphlet p. 46)
(1) When Some Are Waived. A party waives any defense listed in Rule
(A) omitting it form a motion in the circumstances described
in Rule 12(g)(2); or
(B) failing to either;
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an
amendment allowed by Rule 15(a)(1) as a matter
(2) When to Raise Others. Failure to state a claim upon which relief can be
granted, to join a person required by Rule 19(b), or to state a legal defense to a
claim may be raised.
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time
that it lacks SMJ, the court must dismiss the action.
(i) Hearing before Trial. If a party so moves, any defense listed in Rule
12(b)(1)-(7) – whether made in a pleading or by motion – and a motion
under Rule 12(c) must be heard and decided before trial unless the court
orders a deferral until trial.
1. See Forms 5 & 6 (Red Pamphlet p. 183)
3. SUBJECT MATTER JURISDICTION
A. Sources of SMJ:
1. Article III, Sec. 2 of the Constitution – sets forth those types of cases that may be
heard in a federal court.
2. Congress – must then grant this power to the Federal District Courts.
B. Two Types of Federal SMJ:
1. Diversity Jurisdiction.
2. Federal Question.
C. DIVERSITY JURISDICTION
(1) Article III, Sec. 2 – Fed Courts have original jurisdiction in cases “between
citizens of different states”
(2) 28 U.S.C. S 1332 – Fed. Courts have original jurisdiction in diversity cases
where the amount in controversy exceeds the sum or value of $75,000.
(1) Amount in controversy must exceed $75,000 - There only needs to be a
“good faith” claim for damages, the D does not actually have to recover this
- In a joinder case, usually only one P has to have such a claim.
- A P may add claims against the same D to reach threshold, but
may NOT add claims against several D’s.
- Several P’s CANNOT add their claims together, each P must
- Under S 1332(b), if the P is awarded less than the sum or value of
$75,000 the court may deny costs to the P or even impose costs.
(2) Complete Diversity of Citizenship – S 1332. See Red Pamphlet p. 242.
(1) Citizenship is equated to domicile, so there is only one.
(2) Resident Aliens are to be “citizens” of the state in which
(3) Domicile = Present Residence + Intent to Remain
Indefinitely. There is no fixed point that one will move.
*State does not count as citizen*
2. Corporations – Two Citizenships:
(1) State of Incorporation.
(2) “Principal Place of Business”
- A corporation will most likely be perceived as local
where it employs the most people, conducts the most
activities, or has the most interaction with the public.
*Remember, the purpose of diversity jurisdiction is to protect the D*
1. A definable center of productive activities, it is
usually where the most business is done. Where
the most people are employed.
2. Corporate Nerve Center. For a large and diverse
corporation like an airline or FedEx, they have contact
in every state. Therefore, look to the place where they
control or coordinate the company’s activities from.
3. Parties collusively joined or made
U.S.C. S 1359 – A district court shall not have jurisdiction of a civil action in
which any party, by assignment or otherwise, has been improperly or collusively
made or joinder to invoke the jurisdiction of such court.
D. FEDERAL QUESTION JURISDICTION
1. U.S.C. S 1331 – The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.
2. Well-Pleaded Complaint Rule
(1) A complaint, on its face, must state a federal cause of action.
(2) Must allude to a violation of federal law, treaty, etc.
(3) In good faith.
(4) Federal Question Jurisdiction cannot rest on an anticipated defense.
It must be an original cause of action.
3. Policy Advantages
(1) Efficiency. Makes SMJ determination early,
conserves judicial time and resources.
(2) Gatekeeper. Allow only clear federal questions into court.
(3) Federal Judicial Expertise.
(4) Promotes Federalism. Leaves clear state law questions
to state courts to decide.
(5) Gives P Choice of Court.
4. Policy Disadvantages
(1) Fairness. May be lost because of a “poor complaint,” even though
there is a clear underlying federal issue. Forces such as P’s
into state court.
(2) Efficiency. Prolongs an important federal question.
(3) Values. Places a premium on technicalities and distinctions.
5. Test for Federal Questions
(1) Substantial. Is there really a substantial and important issue?
Is this a challenge to constitutionality, or merely a violation of a federal statute?
(2) Necessary. Are there other possible theories of recovery?
Is so, then it might not be necessary to hear the case in federal court.
6. Specific Parties & Issues
(1) Bankruptcy Cases & Proceedings
U.S.C. S 1334(a) – Except as provided in subsection (b) of this section,
the district courts shall have original and exclusive jurisdiction of all
cases under title 11.
(2) Commerce & Antitrust Regulations
U.S.C. S 1337 – See Red Pamphlet p. 249.
(3) Patents, plant variety protection, copyrights, mask works,
trademarks and unfair competition
U.S.C. S 1338 – See Red Pamphlet p. 249.
(4) Civil Rights & Elective Franchise
U.S.C. S 1343 – See Red Pamphlet p. 250
(5) United States as Plaintiff.
U.S.C. S 1345 – See Red Pamphlet p. 250.
(6) United States as Defendant.
U.S.C. S 1346(a) – See Red Pamphlet at p. 250.
28 U.S.C. S 1257 – Decision from the highest court in a state may be reviewed by the
Supreme Court if they seem repugnant to Constitution.
4. SUPPLEMENTAL SUBJECT MATTER JURISDICITON
A. Supplemental Jurisdiction
Rule: Federal Courts have pendant jurisdiction over state law claims
that are joined with a permissible federal claim, or an anchor claim.
The two claims must arise from the same common nucleus of operative
*However, courts are NOT required to entertain related claims.
1. Plaintiff must assert a sufficient federal anchor claim.
2. The two claims must derive from a CNOF.
3. Claims must be such that P would “ordinarily be expected
to try them all in one judicial proceeding.”
B. Supplemental Jurisdiction
U.S.C. S 1367:
Except as otherwise provided in (b) and (c), District Courts have
supplemental jurisdiction :
Over all other claims that are so related to claims in the action that
they form part of the same case or controversy; and
This shall include claims that involve the joinder or intervention
of additional parties.
In diversity cases, courts shall NOT have supplemental jurisdiction over
claims by P’s against persons made parties under Rule 14, 19, 20, or 24.
District Courts may decline to exercise supplemental jurisdiction if:
1. The claim arises a novel or complex issue of state law.
2. The claim substantially predominates over the original claim.
3. District Court has dismissed all claims over which it has original
4. In exceptional circumstances, there are other compelling reasons.
Reasons to Join Additional Parties.
1. Spread the claim around.
2. Seek Deeper Pockets.
3. Leverage Against Other Parties.
4. Economically Advantageous for Joint Discovery.
5. Join All D’s in a Single Court.
Policy for Joinder.
1. Consistency – All outcomes relating to single transaction
or occurrence should be consistent.
2. Efficiency – Greatest when claims have evidentiary overlap
and everyone is there.
3. Finality/Global Settlement – Concluding all claims at one time.
4. Encourages joinder of all claims, even if unrelated.
Summary of S 1441:
1. The District Courts must have original jurisdiction over the action.
- Diversity of Citizenship
- Federal Qusetion
2. Federal question cases may be removed
regardless of the citizenship of the parties.
3. Cases based on diversity of citizenship may ONLY be
removed if none of the D’s are citizens of the forum state.
4. The case can only be removed to the District Court in which
the current court sits.
5. ONLY the D may remove the case, P already exercised his venue choice.
6. If a federal question is joined with a non-removable claim, entire case
may be removed.
28 U.S.C. S 1441:
(a) “…any civil action brought in a State court of which the District
Courts of the U.S. have original jurisdiction, may be removed
by the D or D’s, to the district court of the U.S. for the district and
division embracing the place where such action is pending…”
(b) “Any civil action of which the district courts have original
jurisdiction founded on a claim or right arising under the Constitution,
treaties or laws of the United States shall be removable without regard
to the citizenship or residence of the parties. Any other such action shall
be removable only if none of the parties in interest properly joined and
served as D’s is a citizen of the State in which such action is brought.
Federal Question Case = No Limit on Removal
(c) “Whenever a separate and independent claim or cause of action
within the jurisdiction conferred by section 1331 (Federal Question)
of this title is joined with one or more otherwise non-removable claims
or causes of action, the entire case may be removed and the district court
may determine all issues therein, or, in its discretion, may remand all
matters in which State law predominates.
(f) The court to which a civil action is removed under this section is not
precluded from hearing and determining any claim in such civil action
because the State court from which such civil action is removed did not
have jurisdiction over that claim.
B. Procedure for Removal
28 U.S.C. S 1446 – (a) through (e)
Red Pamphlet p. 263
D files removal papers with local district court,
containing a short, plain statement of the grounds
for removal and a copy of all documents.
Notice of Removal must be filed within 30 days
of the original complaint.
D must then notify all parties and the state court.
C. Procedure After Removal (Remand)
28 U.S.C. S 1447 – (a) through (e)
Red Pamphlet p. 264
Motion to Remand on any defect in the removal
must be made within 30 days of removal.
If Court lack SMJ, it may remand the case at any time.
If P then seeks to join additional parties who would
destroy SMJ, court may deny the motion or permit
joinder and remand the case (based upon P’s good faith).
28 U.S.C. S 1391- (a)-(e):
See Red Pamphlet p. 254-255
Subsections (a)(b): Individuals.
(1) If all D’s reside within the same state, P may pick any one
of their districts.
(2) P may choose a district in which a substantial amount of the
events or omissions occurred, or a substantial amount of property
in question is located.
(3) Wherever the D may be found, or is subject to PJ at the time
the action is commenced.
Subsection (c): Corporate Residences.
(1) Corporation reside in any judicial district for which they can be
found to have the “minimum contacts” of PJ.
*Purely statutory. The rules for venue are purely statutory, and established
under U.S.C. S 1391. Plaintiff must choose one on the possible venues in the
statute, from those that already meet PJ and SMJ requirements.
7. TRANSFER OF ACTION
Transfer – Traditionally, a P’s choice of forum is not, unless the current venue violates S 1391
or there is clearly a more convenient venue. However, this bias does not exist for foreign P’s.
A. Change of Venue
28 U.S.C. S 1404(a) – “For the convenience of parties and witnesses,
in the interest of justice, a district court may transfer any civil action
to any other district or division where it might have been brought.”
*More Convenient Venue Statute – Used in conjunction with 12(b) motion,
this statute allows a case to be transferred to a more convenient venue. Grants
wide latitude for judge to act. Judge can place stipulations or conditions upon
any potential transfer.
B. An Improper Venue Statute
28 U.S.C. S 1406 – Used in conjunction with 12(b) motion. If venue is improper,
the court may dismiss the case or transfer it to the proper venue. If venue is not
C. Forum Non Conveniens – Common Law doctrine used to dismiss a case for the purpose
of holding trial in another venue. Used when the case CANNOT be transferred, therefore used
mostly to transfer outside of the country. Consider things such as:
(1) Public interest factors;
(2) Does current venue have sufficient interest
to merit resources necessary for trail; and
(3) private interest factors (e.g. convenience of
litigants, current venue oppressive to D etc.).
8. APPLICABLE LAW IN DIVERSITY CASES
A. State laws as rules of decision.
28 U.S.C. S 1652 – “The laws of the several states, except where
the Constitution or treaties of the U.S. or Acts of Congress otherwise
require or provide, shall be regarded as rules of decision in civil
actions in the courts of the U.S., in cases where they apply.”
RULES OF DECISION ACT (RDA)
York Case = “Outcome Determinate” Test
B. Rules of Procedure & Evidence; Power to Prescribe.
28 U.S.C. S 2072 –
RULES ENABLING ACT (REA)
Congress Says: Supreme Court can write FRCP
See Red Pamphlet p. 287.
9. MODERN PLEADING
A. Pleadings Allowed; Form of Motions & Other Papers
Rule 7: All documents filed with the court to initiate litigation,
not limited solely to complaint.
7(a) – Pleadings.
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a cross-claim
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
7(b) – Motions & Other Papers.
(1) In General. A request for a court order must be made by motion.
The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order;
(C) state the relief sought.
(2) Form. The rules governing captions and other matters
of form in pleadings apply to motions and other papers.
B. General Rules of Pleading.
8(a) – Claim for Relief.
(1) a short and plain statement of the grounds for the court’s
jurisdiction unless the court already has jurisdiction and the
claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing
that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include
relief in the alternative or different types of relief.
8(d) – Pleading to Be Concise & Direct;
Alternative Statements; Inconsistency.
8(d)(3) - A party may state as many separate claims
or defenses as it has, regardless of consistency.
C. Signing Pleadings, Motions, & Other Papers; Representations ot the Court; Sanctions
11(b) – Representations to the Court.
“By presenting to the court a pleading, written motion or other paper –
whether by signing , filing, submitting, or later advocating it – an
attorney or unrepresented party certifies that to the best of the person’s
knowledge , information, and belief, formed after an inquiry reasonable
under the circumstances: See Red Pamplet at p. 41
D. Defenses & Objections.
Rule 12: Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following defenses
12(b) – How to Present Defenses.
(1) lack of SMJ;
(2) lack of PJ;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted;
(7) failure to join a party under Rule 19.
*A motion asserting any of these defenses must be made before pleading
if a responsive pleading is allowed. If a pleading sets out a claim for relief
that does not require a responsive pleading, an opposing party may assert at
trial any defense to that claim. No defense or objection is waived by joining
it with one or more other defenses or objections in a responsive pleading or
E. Derivative Actions.
(a) Prerequisites -
This rule applies when one or more shareholders
or members of a corporation or an unincorporated association
bring a derivative action to enforce a right that the corporation
or association may properly assert but has failed to enforce.
For more --- See Red Pamphlet p. 71.
“The forms in the Appendix suffice under these rules and illustrate the
simplicity and brevity that these rules contemplate.”
*See Forms 10, 11 & 15. (Red Pamphlet p. 186-189).
A. General Rules of Pleading.
See Red Pamphlet p. 32
- State the Jurisdictional Grounds.
- Demand for Judicial Relief.
- “Short and plain statement of the claim
showing that pleader is entitled to relief.”
- Defenses; Admission and Denials
- General & Specific Denials
- Lacking Knowledge or Information
- Effect of Failing to Deny
- Affirmative Defenses
B. Motion for a More Definite Statement.
“A party may move for a more definite statement of a pleading
to which a responsive pleading is allowed but which is so vague
or ambiguous that the party cannot reasonably prepare a response.”
“The motion must be made before filing a responsive pleading
and must point out the defects complained of and the details
desired. If the court order a more definite statement and the
order is not obeyed within 10 days [proposed revision to allow
14 days] after notice of the order or within the time the court sets,
the court may strike the pleading or issue any other appropriate order.”
C. Motion to Strike.
“The court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.”
“The court may act: (1) on its own; or (2) on motion made by a
party either before responding to the pleading or, if a response
is not allowed, within 20 days [proposed revision allow 21 days]
after being served with the pleading.”
D. Fraud or Mistake; Conditions of Mind.
“In alleging fraud or mistake, a party must state with
particularity the circumstances constituting the fraud
or mistake. Malice, intent, knowledge, and other conditions
of a person’s mind may be alleged generally.”
E. Special Damages.
“If an item of special damage is claimed, it must be specifically stated.”
A. Responding to Claim
1. Pre-Answer Motions: Under Rule 12
2. Answer the Complaint: Must Respond within 20 days after service.
3. Do Nothing: Default judgment will be entered, limited to amount sought
in the complaint.
Why take this approach?
- Would cost more to defend suit.
- Fear that you might lose.
- Fear of discovery.
- Court does not have either PJ, SMJ, or Venue.
B. Rule 12(a):
“D shall serve an answer within 20 days after being served, or ten days after
denial of the motion, or 10 days after a more definite statement is given.”
C. Rule 8(b):
Defenses; Admission & Denials.
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses
to each claim asserted against it; and
(B) admit or deny the allegations asserted against
it by an opposing party.
- Claims can be admitted or denied in general or in part.
- A D may claim that he has insufficient knowledge as to
a particular knowledge, this has the effect of a denial.
See Red Pamphlet p. 32
D. Affirmative Defenses
Rule 8(c): “A party shall set forth all affirmative defenses and avoidances
in the answer.”
Confession & Avoidance.
D says, “Everything you allege is true, but
I have reasons why I am not liable.”
Burden of Proof.
Clearly, the D because he only can plead an affirmative defense.
Four less favorable defenses:
1. Lack of PJ.
2. Improper Venue.
3. Insufficiency of Notice.
4. Insufficiency of Service of Process.
Three favorable defenses:
1. Failure to state a claim.
2. Failure to join an indispensable party.
3. Failure to state a legal defense to a claim.
Highly favored defense:
Lack of SMJ: May be raised at ANY time, even sua sponte.
12. CHALLENGES TO THE PLEADING
Rules 12 (a)-(c), (g) & (h):
See Red Pamphlet p. 44-46
13. JOINDER OF CLAIMS
A. Counterclaim & Crossclaim
(1) In General. A pleading must state as a counterclaim ANY claim that
- at the time of its service – the pleader has against an opposing party
if the claim:
(A) arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claims; and
(B) does not require adding another party over whom the court
cannot acquire jurisdiction.
(2) Exceptions. The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject
of another pending action; or
(B) the opposing party sued on its claim by attachment or other process
that did not establish PJ over the pleader of that claim, and the
pleader does not assert any counterclaim under this rule.
B. Permissive Counterclaim
“A pleading may state as a counterclaim against an
opposing party any claim that is not compulsory.”
C. Omitted Counterclaim
“The court may permit a party to amend a pleading to add a counterclaim
if it was omitted through oversight, inadvertence, or excusable neglect
if justice so requires. [A proposed revision would eliminate Rule 13(f)].
D. Joinder of Claims
1. A plaintiff may join all claims that he has against the same defense.
2. This joins claims with no transactional nexus.
“In general. A party asserting a claim, counterclaim, crossclaim,
or third-party claim may join, as independent or alternative claims
as many claims as it has against an opposing party.”
E. Separate Trials
“For convenience, to avoid prejudice or to expedite and economize,
the court may order a separate trial of one or more separate issues,
claims, crossclaims, counterclaims, or third-party claims. When
ordering a separate trial, the court must preserve any federal right
to a jury trial.”
F. Jurisdiction & Venue Affected
“These rules do not extend or limit the jurisdiction of the district courts
or the venue of actions in those courts. An admiralty or maritime claim
under Rule 9(h) is not a civil action for purposes of 28 U.S.C. SS 1391
A. Crossclaim Against a Co-party
“A pleading may state as a cross claim any claim by one party against a co-party
if the claim arises out of the transaction or occurrence that is the subject matter
of the original action or of a counterclaim, or if the claim relates to any property
that that is the subject matter of the original action. The crossclaim may include
a claim that that the co-party is or may be liable to cross-claimant for all or party
of a claim asserted in the action against the cross-claimant.”
B. Joining Additional Parties
“Rule 19 & 20 govern the addition of a person
as a party to a counterclaim or cross-claim.”
15. JOINDER OF PARTIES: PERMISSIVE JOINDER & CONSOLIDATION
A. Persons Who May Join or Be Joined
1. Any parties may be joined as D’s or P’s:
- Whose claim stems from a Common Transactions
- Any question of law or fact common to all P’s will
will arise in the action.
2. Common Transaction or Occurrence.
- Claims only need to be reasonably related to the main
- Are there enough ultimate factual concurrences that it
it would be fair to the parties to require them to defend
jointly against them.
See Red Pamphlet p. 63-64
B. Misjoinder and Nonjoinder of Parties
“Misjoinder of parties is not a ground for dismissing an action.
On motion or on its own, the court may at any time, on just terms,
add or drop a party. The court may also sever any claim against a party.”
C. Consolidation; Separate Trials
“Consolidation. If actions before the court involves a common question
of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.”
A. Third-Party Practice
(a) When a D party may bring in a Third Party.
(1) Timing of the Summons & Complaint.
“A defending part may, as third-party P, serve a
summons and complaint on a NON-PARTY who
is or may be liable to it for all or party of the claim
*Must be in nature of indemnity.
“But the third-party P must, by motion, obtain the court’s
leave if it files the third-party complaint more than 10
days [proposed revision to allow 14 days] after serving
its original answer.”
(2) Third-party D Claims & Defenses.
A Third-Party D may:
1. Counterclaim the D.
2. Cross-claim any other third-party D.
3. Assert a defense against P’s claim.
4. May assert a separate claim against the
P, arising from same T&O.
- The P may assert any claim against the third-party
D he might have arising from the same T&O.
- Third-party D’s may proceed against any person not
a party to this action. In other words, he may bring in
a fourth-party D.
See Red Pamphlet p. 52
Summary - When a P may bring in a third-party.
- When a counter-claim is asserted against a P,
the P may cause a third-party to be brought in
under circumstances which would entitle a D
to do so.
17. SUMMARY JUDGMENT
See Red Pamphlet p. 146-148
18. JURY INSTRUCTIONS
See Red Pamphlet. p. 137-138
19. VERDICT FORMS
See Red Pamphlet p. 133-134
20. RES JUDICATA: MERGER
21. COLLATEARL ESTOPPEL