Civil Procedure

Subject Matter Jurisdiction

Refers to a court’s competence to hear and determine cases of a general class and subject. Cannot be waived or agreed to by the parties.

• Federal Question Jurisdiction

• Diversity Jurisdiction

• Supplemental Jurisdiction

• Removal Jurisdiction

Federal Question Jurisdiction

Federal courts have original (subject matter) jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States.

State courts and federal courts have concurrent jurisdiction over federal question claims—except when Congress expressly provides that the jurisdiction of the federal courts is exclusive.

Well-Pleaded Complaint Rule

Federal question jurisdiction exists only when the federal issue is presented on the face of the plaintiff’s complaint. Jurisdiction must be determined based on whether the plaintiff has pleaded the necessary elements of the plaintiff’s cause of action—not on defenses, answers, or counterclaims raised by the defendant.

Diversity Jurisdiction

Federal courts have diversity jurisdiction when:

• The opposing parties are citizens of different states or when citizens of a state and citizens of a foreign state (i.e., COMPLETE diversity) AND

• The amount in controversy exceeds $75,000.

Timing: Diversity must exist at the time the complaint is filed

Complete Diversity: No diversity of citizenship if any plaintiff is a citizen of the same state as any defendant.

What is minimal diversity and when is it sufficient for supplemental jurisdiction?

Minimal diversity is when at least one plaintiff is diverse from at least one defendant, even if the citizenship of other plaintiffs and defendants overlaps.

Sufficient in the following circumstances:

• Federal Interpleader Act: Statutory interpleader actions.

• Class Action Fairness Act: Actions with at least 100 class members with claims worth more than $5 million

• Interstate mass torts if at least 75 natural persons have died in one accident and the plaintiffs and defendants are from many different states (e.g., airline crash)

How is citizenship determined for diversity jurisdiction purposes?

• Individual: Citizen of the state where the individual is domiciled (physically present with the intent to remain indefinitely)

  • Can have only one domicile at a time

  • A foreign citizen admitted into the U.S. as a permanent resident is treated as a citizen of the state of domicile

• Corporation: Citizen of every state where the corporation:

  • Is incorporated

  • Has its principal place of business (i.e., its “nerve center” or corporate headquarters)

• Unincorporated association: Citizen of every state where its members are domiciled

  • Applies to partnerships, limited partnerships, trade associations, and unions

• Legal representative: Citizenship of the legal representative controls EXCEPT:

  • The citizenship of a decedent controls for litigation involving the decedent’s estate AND

  • The citizenship of an infant or incompetent person controls for guardianship of the minor or incompetent person

• Class action members: Citizenship of the named class representative(s) controls, and unnamed class members may join without regard to citizenship.

When a corporation is a party, complete diversity between plaintiffs and defendants is still required. Therefore, you must consider EVERY state where the corporation has citizenship.

How is the amount in controversy determined for diversity jurisdiction purposes?

A plaintiff’s good-faith assertion in the complaint that the amount of controversy exceeds $75,000 is sufficient unless there is a legal certainty that the plaintiff cannot recover that amount.

Aggregation of claims is permitted for:

• A single plaintiff against a single defendant

• A single plaintiff against multiple defendants that are jointly liable OR

• Multiple plaintiffs against a sngle defendant if the plaintiffs have a common and undivided interest.

Counterclaims are generally not counted in determining whether the plaintiff has satisfied the amount-in-controversy requirement. Instead, a permissive counterclaim must meet the amount-in-controversy requirement, but a compulsory counterclaim need not because supplemental jurisdiction will apply to that claim.

Devices to create or destroy diversity jurisdiction

Diversity jurisdiction can be created or destroyed through the following actions:

• Assignment of claims

• Failure to name indispensable parties

• Voluntary change of state citizenship (permitted even if done to affect diversity)

• Replacement of parties

However, federal jurisdiction is prohibited if these actions are taken improperly or collusively to invoke such jurisdiction.

Supplemental Jurisdiction

A federal court with original subject matter jurisdiction over a claim may exercise supplemental jurisdiction over additional claims even though the court would not independently have subject matter jurisdiction over those claims. However, the additional claims must arise out of a “common nucleus of operative fact”, such that all claims should be tried in a single judicial proceeding.

• Federal Question Jurisdiction: When a federal court has federal question jurisdiction over a claim, the court can exercise supplemental jurisdiction over additional claims against the same party and/or other parties if the “common nucleus of operative fact” test is met.

• Diversity Jurisdiction: When a federal court has diversity juridiction over a claim, the court can exercise supplemental jurisdiction over additional claims if the “common nucleus of operative fact” test is met AND the claims are NOT asserted by:

  • Existing plaintiffs (not defendants) against persons made parties through impleader, compulsory joinder, permissive joiner, or intervention OR

  • Persons compulsorily joined or seeking to intervene as plaintiffs.

    • The following rules also apply:

      • An additional claim asserted by a permissively joined plaintiff cannot violate the complete diversity rule (even tough the plaintiff need not satisfy the jurisdictional amount)

      • Compulsory counterclaims need not satisfy the jurisdictional amount, but permissive counterclaims must satisfy both diversity jurisdiction requirements

      • Crossclaims may be asserted by a defendant against another defendant or by a plaintiff against another plaintiff if the crossclaim arises out of the same transaction or occurrence as the initial claim.

Removal Jurisdiction

A defendant may generally remove a case from a state court to a federal district court with subject matter jurisdiction. Removal must be to the federal district court and division in which the state action is pending. Removal to the wrong district court is subject to a motion to remand the case back to the state court (or transfer it to the proper federal court.

If removal is based SOLELY on diversity jurisdiction, then then an action may be removed only if NO defendant is a citizen of the state in which the action was filed (i.e., home-court advantage or forum-defendant rule).

If federal question claims are joined with claims that are not independently removable, then the entire case may be removed.

A defendant must file the notice of the removal within 30 days after receiving or being served with the initial pleading, and ALL defendants must consent to the removal.

However, in federal question cases, only the defendants against whom the federal claim is filed must consent to or join in the removal. And in actions based on diversity jurisdiction, removal cannot occur more than one year after the action commenced unless the plaintiff acted in bad faith.

Remand from federal court

A federal court must remand a removed case to state court if the federal court lacks subject matter jurisdiction at any time before the final judgement is rendered.

A motion to remand for any defect other than subject matter jurisdiction must be fled within 30 days after the notice of removal is filed.

Issues triggered by a notice of removal

• Procedure:

  • Was the notice of removal timely filed within 30 days after receipt or service of the initial pleading?

  • Do all of the defendants consent to removal?

  • Does any defendant reside in the forum state (for diversity cases)?

• Subject matter jurisdiction:

  • Would the federal court have federal question or diversity jurisdiction (diversity is more common)?

• Applicable law:

  • Do the facts present competing laws that trigger a choice-of-law or Erie doctrine analysis?

• Venue: Is venue proper (i.e., in the federal district where the state court sits)?

Personal Jurisdiction

Refers to a court’s ability to exercise judicial power over the persons (namely, the defendants) or property involved in the case or controversy before it.

A party may expressly, impliedly, or voluntarily consent to personal jurisdiction. Therefore, a defendant’s right to challenge a court’s exercise of personal jurisdiction is waived if the defendant fails to object personal jurisdiction in a pre-answer motion or in the defendant’s answer.

The Due Process Clause precludes a federal court from exercising personal jurisdiction over a defendant unless the defendant has minimum contacts with the forum state and the exercise of jurisdiction would be fair and reasonable.

Types of personal jurisdiction

• In rem: Brought against property

• Quasi in rem: Brought against a person in reference to property

• In personam: Brought against a person for personal liability

In Personam Jurisdiction

The power that a court has over an individual party. Required whenever a judgement that would impose an obligation on a defendant personally is sought.

Bases for In Personam Jurisdiction

• Voluntary presence: A state has personal jurisdiction over a defendant who is voluntarily present in the state and served with process while there UNLESS the person was (1) in the state only to answer a summons or (2) brought to the state by force or fraud.

• Domicile

• Consent: A defendant can consent to personal jurisdiction in three ways:

  • Expressly by contract, stipulation, or authorizing agent

  • Impliedly through conduct

  • Voluntarily by appearing in court, unless the defendant appears to object jurisdiction.

• Long-arm statute: A long-arm statute is a state statute that gives courts within the state personal jurisdiction over out-of-state defendants.

• Attachment of property: If a claim is not related to ownership of attached property, then there must be minimum contacts between the defendant and the forum state to establish personal jurisdiction.

Due process requirements for in personam jurisdiction

Due process is satisfied if a basis for in personam jurisdiction exists or if a nonresident defendant has sufficient minimum contacts with the forum state such that maintaining the action does not offend traditional notions of fair play and substantial justice.

Minimum contacts can be established through purposeful availment, which occurs when the defendant’s contacts with the forum state are so purposeful and substantial that the defendant should reasonably anticipate being taken to court there.

• Specific jurisdiction: jurisdiction is warranted over a cause of action that arises out of or closely relates to a defendant’s contact with the forum state—even if that is the defendant’s only contact with the forum state.

• General jurisdiction: jurisdiction is warranted over a party—even when the cause of action has no relationship to the defendant’s contacts with the forum state—if that party is domiciled in, or has continuous and systematic contacts with, the forum state.

Once minimum contacts are established, the court must determine whether keeping the action would offend traditional notions of fair play and substantial justice. Factors for analysis include:

• the interest of the forum state in adjudicating the matter, the burden of the defendant in appearing in the case, the interest of the judicial system in the efficient resolution of controversies, and the shared interests of the states in promoting common social policies.

Alternative sources for personal jurisdiction

• Nationwide: Applies when a federal statute authorizes nationwide service of process (e.g., statutory interpleader)

• Bulge provision: Applies when a party is:

  • Added to the suit through impleader or required joinder AND

  • Served with process within 100 miles of the federal court where the suit is pending.

• Unusual provision: Applies when:

  • The plaintiff’s claim arises from federal law

  • The defendant is not subject to personal jurisdiction in any state AND

  • The defendant has minimum contacts with the U.S. as a whole.

In personam jurisdiction over corporations

An action may be brought against a resident corporation (i.e., an entity incorporated in the forum state). In contrast, the minimum contacts and substantial fairness rules apply to foreign corporations (i.e., entities not incorporated in the forum state).

• The test to determine if general jurisdiction exists over a foreign corporation is whether the corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state.

• A corporate defendant is always at home in its state of incorporation and the state of its principal place of business (and, in exceptional cases, a state in which the defendant’s operations are so substantial and of such a nature as to render the corporation at home there as well).

In Rem Jurisdiction

Gives a court authority to determine issues concerning rights to real and personal property. Proceedings against property must satisfy due process requirements for personal jurisdiction, and the property must generally be present within the forum state. Therefore, a suit can be brought against property if:

• The property is located in the forum state AND

• The suit will settle all rights and claims to the property.

Quasi In Rem Jurisdiction

Determines only the interests of the parties to the action regarding property located in the forum state (e.g., lien foreclosure, quiet title action). The defendant whose property is subject to the judgement generally must have sufficient minimum contacts with the forum state to justify the exercise of personal jurisdiction over the matter.

Venue

Venue in a federal civil action is proper in any of the following judicial districts:

• Where any defendant resides, if all defendants reside in the same state where the district is located

• Where a substantial part of the events or omissions on which the claim is based occurred

• Where a substantial part of the property that is subject to the action is located

• If venue cannot be established in a district on any of the above grounds, where any defendant is subject to personal jurisdiction with respect to the action (i.e., fallback alternative)

Residency for venue purposes

Individuals (plaintiff or defendant), venue = the federal district where the plaintiff is domiciled.

Business entity (plaintiff), venue = the federal district where it has its principal place of business.

Business entity (defendant), venue = the federal district where the entity is subject to the court’s personal jurisdiction.

The “entity” approach for partnerships and unincorporated associations is taken only for venue purposes. It does not apply to diversity jurisdiction, where a business entity is considered a citizen of each state in which each of its partners or members is domiciled

Change of venue

If the venue is improper, then the court must dismiss the case or transfer it to a proper district if it is in the interest of justice. A case can be transferred to any district where the case might have originally be brought or to which all parties consent. A court lacking personal jurisdiction over the defendant may also transfer the case to a different venue.

Forum Non Conveniens

This doctrine allows for a federal court to dismiss an action, even when personal jurisdiction and venue are proper, if the court finds that:

• The forum would be too inconvenient for the parties and witnesses AND

• another more convenient venue in a state or foreign court is available.

Erie Doctrine/ Choice of Law

Refers to a federal court sitting in diversity determining whether state or federal law controls a given issue.

• Procedural Issues are ALWAYS governed under federal law.

• Substantive issues where there is federal question jurisdiction are governed by federal law.

• Substantive issues under either diversity or supplemental jurisdiction are governed by state law.

How to determine choice of law?

• Is there a substantive or procedural question?

  • Substantive: e.g., elements of a claim, SOL, burden of proof = STATE law

  • Procedural: e.g., judge and jury allocation, assessment of attorney’s fees = FEDERAL law

• If it is unclear whether the issue is substantive or procedural, does federal law address the issue directly?

  • Yes = Rules Enabling Act if the federal law is (1) arguably procedural and (2) does not modify a substantive right. If the federal law meets those requirements then use the federal law. If it does not, then use the state law.

  • No = Erie analysis: Is the state law outcome determinative and there is no countervailing federal policy interest? If no to the question above then apply federal law. If yes, then apply state law.

A federal district court exercising diversity jurisdiction over a case is bound by the conflict-of-laws rules of the state in which the court is located, but only to the extent that the state’s rules are valid under the Full Faith and Credit Clause and the Due Process Clause. States apply their own procedural laws and sometimes apply the substantive laws of other jurisdictions.

Service of Process

• Timing: Process (summons and complaint) served within 90 days.

• Methods of serving process (U.S.):

  • Following service rules of the forum state where service occurs

  • Serving the individual personally

  • Leaving process at the person’s house with a person of suitable age and discretion

  • Delivering process to person’s appointed agent.

  • (outside U.S.) mail requiring signed receipt.

• Special Rules:

  • Infant: Service must be made on the infant and the infant’s guardian

  • Adjudicated incompetent: Service must be made on the person deemed incompetent and the person’s guardian

  • Partnership: Service can be made on a general partner, attorney in fact, or authorized agent.

  • Corporation: Service must be effectuated by (1) delivering process to a corporate officer, director, managing agent, or agent appointed for receiving process or (2) following state law.

  • Nonresident motorist: For claims arising out of in-state accidents, service can be made on a state official who forwards a copy to the out-of-state motorist.

• Service of Process for In Rem and Quasi In Rem Actions: A plaintiff must make diligent effort to locate all claimants to the property and serve them personally. If the claimants cannot be located, notice by publication is permitted. A plaintiff CANNOT rely on notice of publication if the plaintiff knows or can readily find out the names and addresses of other claimants.

How to waive service?

Request for waiver must be in writing and addresses to the individual defendant or an officer or agent of a corporate defendant. The request must give the defendant a reasonable time of at least 30 days after the request is sent to return the waiver. The effect of waiving process is that the time to serve an answer is extended from 21 days to 60 days (90 days for foreign defendants) after the waiver request is sent.

Types of Injunctions

• Temporary Restraining Order (TRO)

• Preliminary Injunction

• Permanent Injunction

Temporary Restraining Order (TRO)

TRO preserves the status quo until there is an opportunity for a full hearing and is effective for a limited time not to exceed 14 days, unless good cause exists or the adverse party consents. A TRO may be issued without notice to the adverse party if:

• An immediate and irreparable injury will otherwise result AND

• The movant’s attorney certifies the efforts made to give notice and explains why notice should not be required.

If a TRO is issued without notice, then the adverse party may appear and move to dissolve or modify the TRO so long as the adverse party gives 2 days notice—unless the court sets a shorter time.

A TRO is generally not immeadiately appealable unless it has the effect of a preliminary injunction.

Preliminary Injunction

A preliminary injunction can be issued to a plaintiff prior to a full hearing on the merits, upon notice to the defendant if:

• The plaintiff is likely to succeed on the merits

• The plaintiff is likely to suffer irreparable harm in the absence of relief

• The balance of equities favors the plaintiff AND

• The injunction is in the public interest.

Permanent Injunction

The standards for a plaintiff to obtain a permanent injunction are the same as standards to obtain a preliminary injunction, but the plaintiff must also show actual success on the merits. Once a permanent injunction is issued, it continues until dissolved by the court. However, any affected person may move for a modification or dissolution.

Complaint

A complaint must contain:

• A short and plain statement of the court’s subject-matter jurisdiction

• A short and plain statement of the claim establishing entitlement to relief AND

• A demand for judgement for the relief sought

Timing: Complaint is filed before service of process.

Claims alleging fraud or mistake and claims for special damages must be pleaded with particularity.

How many days does a defendant have to respond to a complaint?

21 days

Motions against the complaint

• Rule 12(b) defenses

• Rule 12(b)(6): Motion to Dismiss

• Motion for Judgement on the Pleadings

• Motion for a More Definite Statement

• Motion to Strike

Rule 12(b) Defenses

• Lack of subject matter jurisdiction can be raised at ANY time. Never waived

• Failure to state a claim upon which relief can be granted and failure to join necessary or indispensable parties can be raised in any pleading, in a motion for judgement on the pleadings, or at trial.

• Lack of personal jurisdiction, improper venue, and insufficient service of process must be raised in a pre-answer motion or answer or within the time to amend an answer as of right—otherwise these defenses are waived.

  • Under the omnibus motion rule, a pre-answer motion that raises some other Rule 12(b) defense—but omits these defenses—waives the omitted defenses. These defenses are use them first or lose them.

Rule 12(b)(6)

A claim will be dismissed if it fails to assert a legal theory of recovery or allege facts sufficient to support a cognizable claim. In deciding whether to grant a motion to dismiss for failure to state a claim, a court treats well-pleaded facts as true, resolves all doubts and inferences in the plaintiff’s favor, and views the complaint in the light most favorable to the plaintiff.

Motion for Judgement on the Pleadings

After the pleadings are closed, a motion for judgment on the pleadings allows a court to dispose of a case when the material facts are not in dispute AND a judgement on the merits can be achieved solely based on the content of the pleadings.

Motion for a More Definite Statement

The responding party may move for a more definite statement if the claim for relief is so vague or ambiguous that the party cannot reasonably draft a responsive pleading

Motion to Strike

When a pleading contains any insufficient defense—or redundant, immaterial, impertinent, or scandalous material—a court may order such defense or material stricken upon a party’s motion or its own initiative. This allows the court to avoid wasting time and money litigating invalid issues.

Answer

An answer must admit or deny the plaintiff’s allegations or plead that the defendant lacks sufficient knowledge, after a reasonable investigation, to admit or deny any allegation.

The defendant must assert affirmative defenses or they are deemed waived. Common affirmative defenses include:

• Assumption of the risk

• Contributory negligence

• Fraud

• Duress

• Release

• Statute of Frauds

• Statute of Limitations

Answer due within 21 days after defendant receives service of process. If service is waived 60 days after waiver request was sent; if in a foreign country, 90 days after the waiver request was sent.

If a FRCP 12 motion was filed, the answer is due with 14 days after notice of the court’s decision on the motion.

Reply

A reply is a response by the plaintiff to the defendant’s answer and is due 21 days after being served with a court order to reply.

Rule for amendments of pleadings

A party may amend a pleading once as of right no later than 21 days after serving it if the pleading is one to which NO responsive pleading is required. If a responsive pleading IS required, then a party may amend within 21 days after being served an answer or Rule 12(b) motion. Otherwise, a party may amend a pleading during and after trial if it conforms to the evidence and the opposing party has an opportunity to prepare.

A court should freely give leave to amend a pleading when justice so requires and the opposing party will not suffer undue prejudice.

Relation-Back Doctrine

Applies when the statute of limitations has run and a party wants to amend the pleading.

If a new claim is asserted: The amendment will relate back to the date of the original pleading if the amendment asserts a claim or defense that arises out of the same conduct, transaction, or occurrence as the original pleading.

If a new party is added: The amendment will relate back to the date of the original pleading if the amendment asserts a claim or defense that arises out of the same conduct, transaction, or occurrence as the original pleading AND the new party:

• Receives notice of the action within 90 days after the original pleading was filed AND
  Knew or should have known about the action but for the mistake concerning the proper party’s identity.

On the exam, look for the limitations period, the date of the original pleading, and the date of the amendment. When you see that the original pleading was timely but the amendment was not, then you know you are being asked about the doctrine of relation back.

Certification of Pleadings

Most pleadings are not required to be verified. But pleadings and other documents must be certified, i.e., signed by an attorney of record and provide the attorney’s contact information. The signature certifies that there is an appropriate factual and legal basis for the filing and that to the best of the attorney’s knowledge:

• There is not improper purpose (e.g., to harass or needlessly increase costs)

• The legal contentions are warranted by existing law or by non-frivolous argument for a change in the law AND

• The factual allegations have evidentiary support or are likely to have such support after an opportunity for discovery.

Violation of the certification requirement can be raised by the court or by a party in a motion for sanctions.

Capacity to sue (minors, mentally incompetent, and partnerships)

Minors and people deemed incompetent may sue or be sued only through a guardian.

Partnerships can sue or be sued as an entity if jurisdiction is based on a federal question. If jurisdiction based on diversity is alleged, then every partner must be listed as a party to the litigation and every partner’s citizenship must be considered in evaluating diversity.

Permissive Joinder

Plaintiffs and defendants may join and be joined in one action if:

• Any right to relief is asserted jointly, severally, or with respect to or arising out of the same transaction, occurrence, or series thereof AND

• A question of law or fact that is common to all plaintiffs or defendants will arise.

Subject matter jurisdiction must exist over the action with the joined plaintiffs or defendants. And in a diversity jurisdiction action, supplemental jurisdiction:

• Does NOT apply for joined defendants, so there must be complete diversity between the plaintiffs and the defendants and each claim must exceed $75,000 BUT

• Is permitted for joined plaintiffs even if the amount in controversy is not established (but there must still be complete diversity).

Compulsory Joinder

Ask the following questions to determine whether or not the party must be joined

• Is the absent person a required party?

  • Required party: the person’s absence will (1) prevent complete relief to existing parties, (2) prejudice the absent person’s interest, OR (3) result in multiple or inconsistent obligations.

    • No = Proceed without the person

    • Yes = is joinder feasible?

      • Joinder feasible": (1) personal jurisdiction exists over the required party, (2) subject matter jurisdiction will be preserved, and (3) proper venue remains

        • Yes = Join the required party

        • No = Is it equitable to proceed without the required party?

          • Equitable: (1) Judgement would impose slight prejudice, (2) Protective measures can prevent injustice, (3) Judgement without the party would be adequate, (4) Plaintiff has no other adequate remedy

            • Yes = Proceed without the required party

            • No = Dismiss the suit

Intervention as of Right

A nonparty has a right to intervene in an ongoing action if a federal statute confers that right or the nonparty timely moves to intervene when:

• The nonparty has an interest in the property or transaction that is the subject matter of the action

• The disposition of the action may impair the nonparty’s interest AND

• The existing parties do not adequately represent the nonparty’s interest.

Permissive Intervention

A court may allow a nonparty to intervene in an ongoing action—after the court considers any undue delay or prejudice to the original parties that may result—if:

• The nonparty has a conditional right to intervene under a federal statute OR

• The nonparty’s claim or defense and the original action share a common question of law or fact

How will a court determine the timeliness of an action to intervene?

The court will consider:

• The length of time the nonparty knew or reasonably should have known that its interest was threatened before moving to intervene

• The prejudice to the existing parties if intervention is permitted AND
  The prejudice to the nonparty if intervention is denied.

Subject matter jurisdiction and Intervention

A nonparty cannot intervene unless the court maintains subject matter jurisdiction over the case. Supplemental jurisdiction does NOT apply if the case is based exclusively in diversity jurisdiction.

Interpleader

Allows a person holding property to force all potential claimants to that property into a single lawsuit. Two types:

• Rule Interpleader

• Statutory Interpleader

Rule Interpleader

• Subject matter jurisdiction: Complete diversity between stakeholder and claimants + amount in controversy > $75,000 OR federal question jurisdiction

• Personal jurisdiction: Governed by the general requirements for in personam jurisdiction in federal court

• Venue: Governed by traditional venue rules

Statutory Interpleader

• Subject matter jurisdiction: Minimal diversity between claimants + amount in controversy ≥ $500

• Personal jurisdiction: Nationwide personal jurisdiction and service of process permitted

• Venue: Proper in any district where a claimant resides.

Counterclaim

A counterclaim is a claim for relief against an opposing party after an original claim has been asserted. An answer to a counterclaim is due within 21 days of service: Two types:

• Compulsory counterclaim

• Permissive counterclaim

Third parties can assert counterclaims against the original plaintiff or defendant, and these counterclaims are governed by the usual rules for counterclaim and joinder.

Compulsory Counterclaim

Arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim and do not require adding another party over whom the court has no jurisdiction. A court will have supplemental jurisdiction over a compulsory counterclaim, so it does not need to satisfy federal question or diversity jurisdiction.

Permissive counterclaim

Any counterclaim that is not compulsory, and for which a party has discretion to assert in the current action. Subject matter jurisdiction over a permissive counterclaim MUST be established by federal question or diversity jurisdiction.

Crossclaims

A crossclaim is a claim made against a co-party (e.g., by a defendant against another defendant). An answer to a crossclaim is due within 21 days of service.

A crossclaim may be asserted if it arises out of the same transaction or occurrence as the original action or a counterclaim. Any new parties are subject to joinder rules.

Personal jurisdiction will be satisfied because the parties are already before the court. And because venue will be determined by the original claim, a party cannot object to venue over a crossclaim.

Crossclaims will often fall under supplemental jurisdiction—but not always. Remember to analyze whether the crossclaim satisfies federal subject matter jurisdiction on its own or through supplemental juridiction.

Impleader (Third-Party Claims)

Impleaded claims are made by a defending party (i.e., third-party plaintiff) against a nonparty (i.e., third-party defendant) for all or part of the third-party plaintiff’s potential liability on an original claim.

Impleader can be asserted any time after the complaint is filed. However, a third-party plaintiff must obtain court permission to file more than 14 days after service of the original answer.

If the original claim is based solely on diversity jurisdiction, then claims by a plaintiff against a third-party defendant must meet the requirements for diversity and federal question jurisdiction on their own.

In personam jurisdiction must be established over the third parties.

Class Actions

Basic Requirements:

• Numerosity: The class must be so numerous that joinder of all members is impracticable.

• Commonality: There must be questions of law or fact common to the class.

• Typicality: The claims or defenses of the class representatives must be typical of the class.

• Adequacy: The class representatives must fairly and adequately protect the interests of the class.

Subject matter jurisdiction: For diversity jurisdiction, the named class representatives must be diverse from the adverse party, AND at least one class member must satisfy the amount-in-controversy requirement.

Settlement, Dismissal, or Judgment: The claims, issues, or defenses of the certified class must be settled or dismissed only with approval of the court. The court must direct notice to all class members who would be bound by a proposed settlement or dismissal.

A valid judgment generally binds all members of the class except those who opted out.

Class Action Fairness Act

Made it easier to satisfy subject matter jurisdiction for certain large class actions. Subject matter jurisdiction is met if:

• The class action involves at least 100 members

• The primary defendants are not states, state officials, or other government entities against whom the district court may be foreclosed from ordering relief

• The action does not involve certain securities-related cases or litigation concerning the internal affairs or governance of a corporation

• The aggregate amount in controversy exceed the sum or value of $5,000,000, exclusive of interest and costs; AND

• minimum diversity exists

Mandatory Disclosures

• Initial Disclosures

• Expert witnesses

• Pretrial disclosures

Initial Disclosures

Required:

• Individuals with discoverable information

• Documents supporting claims or defenses

• Computation and backup of damages

• Any relevant insurance agreement for satisfying the judgement

Time to Disclose

• Within 14 days after the initial scheduling conference

• Within 30 days after the post-conference service of process or joinder

• As the court orders or the parties stipulate

Expert Witness Disclosure

Required:

• Expert’s identity

• Expert’s written report

• If no report, subject matter and summary of testimony

Time to Disclose

• At least 90 days before trial

• Within 30 days after disclosure of opposing party’s expert evidence

• As the court orders or the parties stipulate

Pretrial Disclosures

Required:

• Testifying witnesses

• Deposition testimony to be used at trial

• Documents and exhibits to be used at trial

Time to Disclose

• At least 30 days before trial

• Objections to the use of a disclosure at trial must be made within 14 days after the disclosure.

Discovery Scope and Limits

Discovery is generally permitted with regard to any non-privileged matter that is (1) relevant to any party’s claim or defense and (2) proportional to the needs of the case. The information sought need only be relevant—NOT admissible—to be discoverable.

Privileged information is not discoverable. Privilege is determined under federal common law or federal question claims and state law for diversity jurisdiction or supplemental jurisdiction claims.

Work Product Rule

A party may not discover documents and tangible things prepared in anticipation of litigation or for trial UNLESS the party shows that it:

• Has a substantial need for the materials to prepare its case AND

• Cannot obtain a substantial equivalent by other means without undue hardship.

If a court orders discovery of work product, then the court must protect against the disclosure of mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative.

Experts (Discovery Scope and Limits)

Testifying experts may be deposed, and their reports are discoverable. However, drafts of expert reports and Rule 26(a) disclosures are protected—as are any communications between the party’s attorney and the expert witness—UNLESS they:

• Relate to the expert’s compensation OR

• Identify facts, data, or assumptions provided by the party’s attorney and used or relied upon by the expert in forming their opinion.

If an expert is NOT testifying, then discovery is prohibited absent exceptional circumstances.

Protective Orders

Upon a showing of good cause, the court may enter orders to protect parties and other persons from annoyance, harassment, embarrassment, oppression, or undue burden or expense resulting from discovery.

Discovery Conference

Except in a proceeding exempted from the initial-disclosure rules or if the court orders otherwise, Rule 26(f) requires that the parties confer as soon as practicable (at least 21 days before a scheduling conference is be be held or a scheduling order is due under Rule 16(b)). The purpose of a Rule 26(f) discovery conference is to:

• Consider the nature and basis of the parties’ claims and defenses and the possibilities for promptly resolving the case

• Make or arrange for the required initial disclosures

• Discuss any issues about preserving discoverable information AND

• Develop a proposed discovery plan.

Methods of Discovery

• Deposition

• Interrogatories

• Request for Production or Inspection

• Requests for Admission

• Physical or mental exam

Deposition

• Written or oral examination of a party or witness under oath that can occur any time after the discovery conference

• Each party is limited to 10 depositions unless good cause is shown

• A subpoena duces tecum requires a nonparty deponent to bring specified documents or things to the deposition

A deposition of an adverse party is admissible as an opposing party’s statement. A deposition of a witness can be used to impeach that witness. If the witness does NOT testify then the witness’s deposition may be used if the witness is unavailable (i.e., dead, beyond the court’s subpoena power, more than 100 miles from the trial courthouse, or otherwise unavailable).

Interrogatories

• Written questions served on a party that must be fully and separately answered under oath unless timely objected to with specificity

• A party may serve no more than 25 written interrogatories on another party

• Written responses are due within 30 days of service

An answer to an interrogatory is admissible against the answering party as an opposing party’s statement.

Request for Production or Inspection

• Request served on a party to produce and allow inspection of documents, electronic information, tangible items, or land

• No limit on the number of requests

• Written response is due within 30 days of service OR 30 days from the parties’ first discovery conference if the request was served prior to that conference

Requests for Admission

• Requests served on a party to admit the truth of facts within the scope of discovery

• Once admitted, the fact is conclusively established

• No limit on the number of requests

• Written response is due within 30 days of service

Physical or mental examination

• Exam of a party whose physical or mental condition is in controversy

• Ordered by the court or agreed to by the parties

Motion to Compel

A party can move to compel disclosure or discovery against a party who failed to make automatic disclosures or to respond to discovery requests (including evasive or incomplete disclosures).

Sanctions

The court may immediately impose sanctions for a party’s failure to attend their own deposition, respond to interrogatories, or respond to a request for production or inspection. In addition, if a party fails to obey a court order regarding discovery, the court may impose sanctions. Any sanctions are subject to the abuse-of-discretion on appeal.

Electronically Stored Information

If information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, then the court may order measures to cure the prejudice. And if the party acted with the intent to deprive another party of the information, the court may instruct the jury that it may or must presume that the information was unfavorable to the party, dismiss the action, or enter a default judgment.

Pretrial Conferences

A court may direct counsel and unrepresented parties to appear at pretrial conferences to promote effective case management, expedite disposition of the action, and faciliate settlement.

Voluntary Dismissal

A plaintiff can voluntarily dismiss its claim without leave of the court by filing:

• A notice of dismissal at any time before the opposing party serves an answer or a motion for summary judgment OR

• A stipulation of dismissal signed by all parties who have appeared in the action.

Such dismissal is usually without prejudice, unless the two-dismissal rule applies (can’t voluntarily dismiss an action twice with a court order).

A plaintiff can also voluntarily dismiss its claims by motion and court order. The decision to dismiss with or without prejudice is left to the court’s discretion. The court will consider whether a dismissal without prejudice unfairly affects the defendant. The two-dismissal rule is generally not implicated.

Involuntary Dismissal

A defendant may seek an involuntary dismissal when the plaintiff fails to prosecute its case or comply with the Fed Rules of Civ Pro or a court order. If granted, the dismissal is with prejudice and operates as an adjudication on the merits.

Default and Default Judgment

When a party has failed to plead or otherwise defend an action, a court clerk must enter the party’s default, which may be set aside for good cause. Once a default is entered, the plaintiff may seek a default judgment.

Motion for Summary Judgment

Timing: The motion may be filed until 30 days after the close of discovery or a time set by a local rule or court.

Burden of proof:

• The movant must establish the standard for granting through pleadings, affidavits, declarations, discovery, or other materials containing admissible facts

• If this initial burden is met, the burden then shifts to the nonmovant to:

  • Show specific disputed facts through affidavits, declarations, discovery, or other materials containing admissible facts (cannot rely on pleadings) OR

  • Request postponement for additional discovery and support this request with affidavits or declarations

Standard for granting:

• No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law

• The evidence must be viewed in the light most favorable to the nonmovant, and all doubts must be resolved in the nonmovant’s favor.

Right to Jury Trial

An action at law (e.g., for damages) is generally tried on demand to a jury, while action in equity (e.g., injunction, specific performance, admiralty) is not. When legal and equitable issues overlap in one lawsuit, the court will try the legal issues first.

For state-law claims in diversity actions, federal law will determine whether there is a right to a jury trial. For all civil cases in federal court, there is a right to a jury trial if the amount in controversy exceeds $20. Additionally, a party must serve a demand for a jury trial within 14 days after service of the last pleading directed to the issue that is to be tried by jury.

Jury Composition (Civil)

A jury must have at least 6 and no more than 12 members. Once selected, a juror must participate in the verdict unless dismissed for good cause. There is no provision for alternate jurors in federal court.

Peremptory Challenge

• Only 3 allowed per party

• Any juror can be disqualified for any reason except for race, ethnicity, or gender and with no explanation needed

For Cause Challenge

• Unlimited number

• Can strike jurors for cause based on bias or lack of impartiality

Jury Instructions

A party may request the court to give specific jury instructions at the close of evidence.

Prior to final arguments, the court must inform the parties of any instructions it proposes to give the jury. The parties may object to the court’s proposed instructions on the record and out of the jury’s hearing.

Unless a party objects on the record to an erroneous instruction given or proposed or to the court’s failure to give an instruction requested by the party, the party generally cannot raise the matter on appeal.

Jury Verdicts

Unless the parties stipulate otherwise, a jury verdict must be unanimous AND returned by a jury of at least 6 jurors. There are three permissible types of verdicts:

• Special: A written finding made by the jury on each issue of ultimate fact. The judge determines the legal consequences of those findings.

• General: A decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages.

• General with special interrogatories: A general verdict coupled with a special verdict that is used to ensure that the jury independently considered the material facts of the case in arriving at its verdict.

Bench Trial

The court must issue findings of fact and conclusions of law (1) on the record at the close of evidence or (2) in an opinion or memorandum of decision filed by the court. On appeal, the court’s findings of fact can be set aside only if clearly erroneous.

Judgment as a Matter of Law

A motion for judgment as a matter of law challenges the sufficiency of the evidence in a civil jury trial. Prior to submission to the jury, a party may file a motion for JMOL/ directed verdict.

• Directed verdict = court should view the evidence in light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of that party.

After the verdict and entry of judgment, a party renew its motion for JMOL (i.e., judgment not withstanding the verdict).

• If the court does not grant JMOL, then the movant can renew is motion no later than 28 days after the entry of judgment or the jury is discharged. A renewed motion for JMOL can be granted only on the grounds that were raised in the JMOL. The court may (1) allow judgment on the verdict, (2) order a new trial, (3) direct the entry of judgment as a matter of law.

Motion for New Trial

A court may grant a new trial, with respect to some or all issues, to prevent a miscarriage of justice.

Alteration of or Relief from Judgment

A court may correct a clerical or other mistake on motion by a party or on its own initiative.

A court can relieve a party from final judgement within a reasonable time—no later than one year following the entry of judgment—based on:

• Mistake, inadvertence, surprise, or excusable neglect

• Newly discovered evidence that could not have been discovered previously through reasonable diligence OR

• Fraud, misrepresentation, or misconduct by an opposing party.

Notice of Appeal

Generally must be filed with the district court clerk within 30 days after the judgment or order being appealed is entered.

Final Judgment Rule

Federal appellate courts generally only have jurisdiction to hear appeals from a final judgment (i.e., a district court decision that fully resolves the dispute on the merits and leaves nothing for the court to do but enforce the judgement). However, if a case has multiple claims or parties, a district court may direct entry of final judgment as to fewer than all claims or parties—but only if the court expressly determines that there is no just reason for delay.

Interlocutory Review

Although most interlocutory orders are not immediately appealable, a court of appeals has the discretion to permit an appeal of such an order if the district court certifies in writing that:

• The order involves a controlling question of law on which there is substantial ground for difference of opinion AND

• An immediate appeal may materially advance termination of the litigation.

Appellate courts also have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class action.

Collateral-Order Doctrine

A court of appeals has discretion to hear and rule on a challenge to a district court order that (1) conclusively determines a disputed question, (2) resolves an important issue that is completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgement.

Writ of Mandamus

An appellate court can immediately review an order of a lower court that is abuse of judicial authority.