Federal Civil Procedure Outline by justinkerner

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									                                 FEDERAL CIVIL PROCEDURE OUTLINE

                  a. Personal jurisdiction
                         i. The state must satisfy both the state’s long-arm statute and the Due
                            Process clause of the U.S. Constitution.
                                1. Both NJ & PA confer jurisdiction to the full limits of Due Process.
                        ii. Does the Δ have such minimum contacts with the forum that jurisdiction
                            does not offend traditional notions of fair play & substantial justice?
                                    1. Contact:
 My Parents Frequently Forget            a. Contact must result from purposeful availment. Δ’s
   to Read Children’s Stories               contact with the forum cannot result from fraud or mistake.
                                         b. Foreseeability: Based on Δ’s contact, it should be
M:     Minimum Contacts                     foreseeable to Δ that she could be sued in the forum state.
P:     Purposeful Availment         2. Fairness (fair play and substantial justice):
F:     Foreseeability                    a. Relatedness: Does π’s claim arise from Δ’s contacts?
                                                 i. Note that relatedness isn’t required if Δ’s contacts
F:     Fairness                                     are so substantial as to create general jurisdiction.
R:     Relatedness                                  Typically, this involves domicile, receiving service
C:     Convenience                                  of process, or continuous business in that forum.
S:     State’s Interest                  b. Convenience: Keep in mind that the forum is okay unless
                                            it puts Δ at a severe disadvantage (impossible to show).
                                         c. State’s Interest in providing a forum for its citizens.
                     b. Subject matter jurisdiction – applies to every claim presented!
                                i. Limited to Federal Question Jurisdiction and Diversity Jurisdiction.
                               ii. Federal Question Jurisdiction: claim must arise under federal law
                                   (regulations, statutes, Constitutional principles)
                              iii. Diversity Jurisdiction: there are 2 requirements
                                           1. There must be total diversity between πs and Δs,
       Diversity Jurisdiction:                a. For a person: based on domicile. Two factors: (1) physical
          Equitable Relief                         location and (2) intent to make it a permanent home.
                                              b. We only care about citizenship when the case is filed.
When π sues for equitable relief,             c. Corps reside in states of incorporation & ―nerve center.‖
jurisdiction exists if either of two          d. Unincorporated orgs have citizenship of all members.
tests are met:                                e. The young, the dead, and the incompetent: use their
1- does the issue cause π more                     citizenship, not their guardian’s citizenship.
    than $75,000 in harm?
                                           2. And the amount in controversy must exceed $75,000.
2- would it cost Δ more than
                                              a. π who wins less than $75K pays Δ’s attorney’s fees.
    $75,000 to comply with
    grant of equitable relief?                b. π may aggregate claims against joint tortfeasores.
                                              c. Otherwise, π can’t aggregate claims against multiple Δs.
                c. Supplemental Jurisdiction
                       i. Keeps claims in fed ct which otherwise lack subject matter jurisdiction.
                      ii. Test: common nucleus of operative fact
                             1. Met by claims arising out of the same transaction or occurrence
                             1. If π’s supplemental claim defeats the total diversity requirement, it
                                  cannot come in.
                                      a. Note: this applies only to claims brought by π!
                             2. If π’s supplemental claim preserves complete diversity but would
                                  otherwise fail because it doesn’t meet the minimum amount in
                                  controversy, it still comes in.
                d. Removal
                      i. If case filed in state court, Δ may ―remove‖ it to federal court if the case
                         invokes either Diversity or Federal Question jurisdiction.
                             1. Δ removes the case to the district court ―embracing‖ that area.
                     ii. SPECIAL RULES:
                             1. No removal if any Δ is citizen of the forum state!
                             2. Δ must remove within 30 days of case being removable. This is
                                 normally service of process. But if 2 Δs in a Diversity case where
                                 resident Δ is dismissed, case is removable at a later date.
                                      a. In this very limited example, must be < 1 year from filing.
                e. The Erie Doctrine
                       i. In Diversity cases, Federal courts must apply substantive state law. They
                          may apply federal law which is ―arguably procedural.‖ The test is:
                              1. Is the rule or law ―outcome determinative?‖
                              2. Does either system have a strong interest in applying its rule?
                              3. Does application of the rule encourage forum shopping?
                  f. Venue
                         i. Personal jurisdiction gets us into court, and subject matter jurisdiction gets
                            us into federal court. Venue dictates exactly which court we go to.
   Where Do the
  Parties Reside?       ii. Local actions are filed in the district where the land sits. Most local
                            actions will relate to real property (ownership, possession, or tort).
 People: domicile      iii. Transitory actions (all other actions) may be filed:
                                1. Where any part of the claim arose, or
 Corporations: in               2. In any venue where all defendants reside.
any district where it                   a. If Δs live in the same state but different districts, π may file
    is subject to                           her claim in any district where any Δ resides.
      personal         iv. Transfer of venue: parties may transfer to a district that has personal
    jurisdiction.           jurisdiction.
      a. Service of process
              i. Process = summons & complaint
             ii. Ay non-party who is at least 18 years old may serve process.
            iii. Process may be served by…
                     1. personal delivery, anywhere in the forum state.
                     2. substitute service
                        OK if service is:
                            a. Left at Δ’s usual abode, and
                            b. Left with someone of suitable age and discretion who
                                resides there.
                     3. giving it to Δ’s agent.
                            a. OK so long as receiving service is within scope of agency.
                     4. other methods, as permitted by state law.
            iv. In PA and NJ, π can serve process in other states so long as such service
                 stays within the bounds of Constitutional Due Process.
      b. Pleadings
             i. The Complaint
                   1. There are three basic requirements:
                          a. A statement of jurisdiction
                          b. A short and plain statement of the claim, demonstrating that
                              π is entitled to relief
                          c. and Demand for the relief sought
                   2. Although federal courts adhere to ―notice‖ pleading, in 2007
                      SCOTUS held that notice pleading must support a plausible (rather
                      than merely a possible) claim.
                   3. Claims for fraud, mistake, and special damages must be pled with
ii. Defendant’s Response
       1. Δ must file her first Rule 12 motion or Answer within 21 days.
       2. Rule 12 motions include:
              a. Lack of subject matter jurisdiction
              b. Lack of personal jurisdiction                  These are waivable—
              c. Improper venue                                 if not raised in the
              d. Deficiency of service of process               first rule 12 response
              e. Insufficient service of process                (motion or answer) Δ
              f. Failure to state a claim                       cannot assert them.
              g. Failure to join an indispensible party
       3. If Δ files a Rule 12 motion, Answer must be filed within 14 days.
       4. The answer:
              a. Admits, denies, or states that Δ lacks sufficient information
                   to admit or deny to each allegation in the complaint.
                       i. Failure to deny is an admission!
              b. Raises affirmative defenses.
iii. Counterclaim
        1. If it arises from the same transaction or occurrence as π’s claim, it
           is a compulsory claim and will be deemed waived if not asserted.
        2. All other claims against π are permissive claims.
iv. Crossclaims
       1. Claims between co-parties must arise from the same T / O.
v. Amending Pleadings
     1. π may amend once, by right, w/in 21 days after Δ’s first filing.
        Δ may amend once, by right, within 21 days of serving his answer.
     2. If outside the 21 day window, petition for leave of court to
        amend—likely granted so long as no delay, prejudice, or futility.
     3. ―Relation Back‖–amendment after the statute of limitation has run
            a. π files his complaint; SOL runs; π seeks to add new claim.
            b. Rule: it relates back to long as it concerns the same
                conduct, transaction, or occurrence as the original pleading.
      vi. Rule 11 – Sanctions
             1. Rule 11 requires attorneys to sign all filed paperwork.
             2. By signature, attorney certifies that
                     a. it isn’t for an improper purpose,
                     b. legal contentions are warranted by existing law (or
                         nonfrivolous arguments for change in law), and
                     c. factual contentions have or are likely to have, after further
                         investigation, evidentiary support
             3. It is a continuing certification. Each time the attorney presents his
                 position to the court (signing, filing, later advocacy) he re-ups it.
             4. The motion for Rule 11 sanctions is not immediately filed with the
                 court. First, you file it with opposing counsel. Opposing counsel
                 has a 21 day ―Safe Harbor‖ period to withdraw the document or fix
                 the problem. If she does--no sanctions. If not--file with the court.
                     a. The court may also file a sua sponte order to show why
                         sanctions should not be imposed.
             5. Sanctions may be levied against the attorney, his firm, or the party.
                 They are supposed to deter bad conduct. Thus, they can be
                 monetary sanctions (paid to the court) or non-monetary sanctions.
c. Discovery
       i. Compelled Disclosure
             1. Within 14 days of the Rule 26(f) conference (unless otherwise
                 ordered or agreed to by the parties), the parties must disclose:
                     a. The persons,
                     b. Electronically stored information, and
                     c. Documents
                 that are ―likely to have discoverable information that the disclosing
                 party may use to support its claims or defenses.‖
             2. Within 14 days of the Rule 26(f) conference (unless otherwise
                 ordered or agreed to by the parties), the parties must disclose:
                     a. Computation of damages
                     b. Insurance for any judgment
      ii. Experts
             1. As directed by the court, parties must disclose the experts who may
                 be used at trial and produce their written reports, data used,
                 qualifications, and compensation for study.
      iii. Pretrial Disclosure
               1. No later than 30 days before trial, counsel must disclose detailed
                   information about trial evidence, including documents and identity
                   of witnesses to testify live or by deposition.
                                iv. Discovery Tools
                                          1. Depositions
                                              a. Can depose parties and non-parties.
Evidence needn’t be admissible to be
            discoverable!                            i. Notice of deposition sufficient to compel party
    A party may discover anything                   ii. Non-parties should be subpoenaed; they are not
    relevant to a claim or defense.                      otherwise compelled to attend.
                                                             1. Unless he agrees, a non-party cannot be
Privileged matters aren’t discoverable.                         compelled to travel over 100 miles from his
                                                                residence or place of regular business.
                                              b. Cannot take more than 10 depositions or depose the same
 Work product – material prepared in             person twice without court approval or stipulation.
 anticipation of litigation – generally       c. Deposition cannot exceed one day of seven hours without
          isn’t discoverable.                    court approval or stipulation.

A party may compel the other party to       2. Interrogatories
   disclose witness statements if it           a. May only be sent to other parties.
                                               b. Answered under oath, in writing, within 30 days.
       (1) substantial need, and
                                               c. Receiving party may respond after reasonable investigation
  (2) unavailability by other means.
                                                   that he does not know the answer.
  But mental impressions, opinions,            d. If the answer could be found in business records, party may
  conclusions, and legal theories are              state that it is burdensome to find the answer and allow the
        absolutely protected.                      interrogating party access to those records.
                                               e. Cannot serve more than 25 without court order or
    If a party partially violates the
                                            3. Requests to Produce
   discovery rules, opposing party
                                               a. Requests to another party, or to a non-party by subpoena
should: (1) get an order compelling an
 answer; (2) and, if that doesn’t work,
                                                  duces tecum.
    jump to RAMBO SANCTIONS.                   b. 30 days to respond with requested material or objection.
                                            4. Physical / Mental Examination
If a party totally violates the discovery
                                               a. Only by court order on showing that party’s health is in
      rules, jump right to RAMBO
                                                  actual controversy and there’s ―good cause‖ for it.
                                            5. Requests for Admission
     RAMBO SANCTIONS include                   a. Served on other parties, to request admissions as to the
     establishment orders, striking               truth of discoverable matters. Respondent may either admit
   pleadings, disallowing evidence,
                                                  or deny request—failure to deny is an admission.
dismissing π’s case, or enter judgment
           against defendant.               6. Parties must supplement if responses are incorrect/incomplete.
     (The last 2 require bad faith.)
                                            7. Discovery responses are under oath but not subject to Rule 11.
       a. Party joinder
               i. Permissive Joinder
                     1. It’s permissible to join any parties to a case whose claims arise out
                        of the same transaction / occurrence and raise at least one common
                     2. Of course, to join a party, the court must have personal jurisdiction
                        over him. And joining him must not defeat complete diversity.
              ii. Compulsory Joinder: Necessary and Indispensable Parties
                     1. Necessary parties meet any of these tests:
                             a. Without this party, the court cannot accord complete relief;
                             b. This party’s interest may be harmed if he isn’t joined; or
                             c. This party claims an interest which subjects a party (usually
                                a defendant) to a risk of multiple obligations.
                     2. Of course, to join a party, the court must have personal jurisdiction
                        over him. And joining him must not defeat complete diversity.
                     3. If a necessary party cannot be joined, the court must continue with
                        him or dismiss the case. To decide, the court considers:
                             a. whether an alternative forum is available (incl. state court);
                             b. whether there is an actual likelihood of prejudice; and
                             c. whether this court can shape relief to avoid prejudice.
                     4. If the court chooses to dismiss, the party is ―indispensible.‖
             iii. Impleader
                     1. Δ brings a third party to the case for indemnity or contribution.
                     2. Δ brings the third party into the case if:
                             a. Δ files a third-party complaint naming 3PΔ;
                             b. Δ serves the 3rd Party Δ (after determining that this court
                                has personal jurisdiction).
                     3. After Δ brings in 3PΔ, π and 3PΔ may assert claims against each
                        other if the claim arises from the same transaction or occurrence.
             iv. Intervention
                             a. An absentee wants to join an existing case.
b. The Class Action
       i. Initial requirements:
              1. Numerosity: no magic number—too many class members for
                   practicable joinder
              2. Commonality: common questions of law or fact
              3. Typicality: the Representative’s claims and defenses are typical of
                   the class members’ claims
              4. Representative adequate: the Class Representative will fairly and
                   adequately represent the class
      ii. Case must fit within one of these three types:
              1. ―Prejudice‖—class treatment is necessary to avoid harm to class
                   members or to the opposing party
              2. Injunction or declaratory judgment (not damages) sought because
                   the class was treated alike by the other party.
                       a. Common example: employment discrimination.
              3. Damages: common questions predominate over individual
                   questions, and class action is the superior method to handle the
                       a. Most common example: mass tort.
     iii. Court certification
              1. Court must determine whether to certify the case to proceed as a
                   class action.
              2. If it does, it must define the class and the class claims, issues, or
              3. It must also appoint class counsel.
     iv. In a ―type 3‖ case, the court must notify class members (individual notice
          to all reasonably identifiable members) that:
              1. They can opt out
              2. They’ll be bound if they don’t opt out
              3. They can enter a separate appearance through counsel
          The Representative pays to give this notice.
      v. Parties may only settled or dismiss a certified class action with court
     vi. Subject matter jurisdiction may be met through either Federal Question or
              1. Diversity: for citizenship and amount in controversy, consider only
                   the Representative (and ignore the other class members).
IV.   Adjudication
      a. Pretrial
              i. FRCP 12(b)(6): Motion to Dismiss for failure to state a claim
                   1. Court assumes that all of π’s allegations are true, and tests to
                       determine whether, even based on this assumption, π could win.
                   2. Court may not look at any evidence (including affidavits).
             ii. Motion for Judgment on the Pleadings
                   1. Essentially the same Motion, but made after Δ filed his Answer.
            iii. Motion for Summary Judgment
                   1. Appropriate where:
                            a. There are no genuine disputes as to material facts, and
                            b. Δ is entitled to judgment as a matter of law.
                   2. The court may look at evidence but must view it in the light most
                       favorable to the non-moving party.
                            a. Affidavits are the most often considered evidence for MSJ.
                                    i. Must not contain inadmissible hearsay—must be
                                       based on firsthand knowledge.
                            b. Pleadings generally aren’t evidence.
                                    i. Unverified pleadings may be considered to the
                                       extent that they admit opposing party’s allegations.
                            c. Pleadings may be evidence if verified under oath.
                            d. If non-moving party has not entered any evidence,
      b. Conferences
             i. Rule 26(f) conference
            ii. Scheduling orders
           iii. Pretrial conferences: at the court’s discretion, the pretrial conference order
                supersedes the pleadings and determines the issues to be tried and
                evidence to be proferred.
      c. Trial
             i. Right to a jury trial
                   1. Guaranteed by the Seventh Amendment of the U.S. Constitution
                        for civil actions at law, but not civil actions at equity.
                            a. In a mixed case: first the jury decides the facts underlying
                                the damages claim, and then the court rules on the equity
                   2. Jury demands must be in writing and issued no later than 14 days
                        after service of the last pleading raising a jury triable issue.
                   3. Each side gets unlimited strikes for cause and 3 peremptory strikes.
                            a. Strikes must be race neutral.
             ii. Motion for Judgment as a Matter of Law
                   1. Takes decision away from the jury.
                   2. Brought after the other side has closed its case.
                   3. Standard: reasonable people could not disagree on the result.
            iii. Renewed Motion for Judgment as a Matter of Law
                    1. Same as JML, but it comes up after trial.
                    2. Party cannot move for RMJML unless they earlier moved for JML.
                    3. Same standard.
                    4. Most move for this within 28 days after entry of the judgment.
            iv. Motion for a New Trial
                  1. Move within 28 days after entry of judgment.
                  2. Standard: due to trial errors, the court must hold a new trial.
                  3. Grounds:
                           a. Bad evidentiary ruling
                           b. Wrong jury instruction
                           c. New evidence that could not have been obtained with due
                              diligence for the original trial
                           d. Prejudicial misconduct of party or attorney or third party or
                           e. Judgment is against the weight of the evidence

V.    Appellate Review
      a. Appeal
              i. File notice of appeal within 30 days after entry of final judgment.
                     1. Final judgment: does this court have anything left to do with this
                         case? If so, it’s not a final judgment. If not, it’s final.
             ii. Appeal the ultimate decision by the trial court, on the merits.

VI.   Preclusion
      a. Claim preclusion (res judicata)
              i. You only get to sue on a claim once. So you only get one case in which to
                 vindicate all rights to relief for that claim. Thus, claim is precluded where
                    1. Case 1 and Case 2 were brought by the same claimant against the
                        same defendant.
                    2. Case 1 ended in a valid judgment on the merits.
                    3. Case 1 and Case 2 asserted the same claim. A claim is any right to
                        relief arising from a transaction or occurrence.

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