Civil Procedure

Relevant federal Rules, statutes, and amendments for the final

Rule 3

A civil action is commenced by filing a complaint with the court.

Rule 4

• Process consists of summons and copy of complaint.

• Service can be made by ANY non-party that is at least 18 y/o.

Rule 4(e)(1)

Allows P to use methods of service that are permitted under state law.

• Either the state where the federal court sits or the state where the service is effected.

• Can use notice, service of process by certified mail.

Rule 4(e)(2)

Gives three choices for how to serve process on the D:

• Personal service: Non-party personally hands D the two documents at any location.

• Substituted service: Serving someone other than the D at the D’s dwelling or usual abode; the person being served must be at least 18 y/o and also reside there.

• Serve D’s agent: D can appoint agent by contract or by operation of law.

Rule 4(h)(1)

How to serve process on a business:

• Can serve an officer or managing general agent.

• Ensures P serves somebody w/ sufficient responsibility.

• Rule 4(e)(1) applies here too!

Rule 4(d)

Waiver of Service

• Is NOT service by mail; it’s waiver by mail.

• Done by first-class mail.

• P mails to D process and two copies of a waiver form w/ a self-addressed stamped envelope.

• If D signs a waiver form and mails it back to P within 30 days, D has waived formal service of process; we do NOT have to go through formal service of process.

• This is not only cheaper for P, but D does NOT waive any defense; all D waives is formal service process.

Rule 4(k)(1)(A)

• We can serve process throughout the state in which the federal court sits.

• Can also serve outside the forum if a state court could do so as well.

Rule 8(a)

(1) Statement of subject matter jurisdiction.

(2) Short and plain statement of the claim.

• Must plead facts supporting a plausible claim.

(3) Demand for relief.

• P tells court that he wants damages/an injunction.

Rule 8(b)

• Defendant must respond to the complaint (admit, deny, or state you lack sufficient information to admit or deny).

• Failure to deny will constitute admission on any allegation except damages.

Rule 8(c)

• Affirmative defenses.

  • Defendant must plead or affirmative defenses are waived.

Rule 9

• Heightened pleading requirements.

• Details and particulars for certain claims:

  • Fraud, mistake, or special damages.

Rule 11

• Avoiding frivolous or baseless documents in litigation.

• Applies to all documents except discovery documents.

• Requires an attorney's signature on all documents.

• Sanctions for the violation of this rule are discretionary.

• A motion for sanctions cannot be filed immediately.

Rule 11(b)

Certification

(1) Documents are NOT for an improper purpose.

(2) Claims, defenses, and legal contentions are warranted.

(3) Factual contentions will have or likely have evidentiary support.

(4) Denials of factual contentions will also or likely will have evidentiary support.

Safe Harbor Provision

• Motion for sanctions under Rule 11 cannot be filed right away.

• Must be served onto the other party and given them 21 days to rectify behavior.

  • If it is fixed within 21 days, then there can be no sanctions.

Rule 12

• When getting sued, D can respond by motion or answer.

• Must respond no later than 21 days from service.

  • If D waives process under Rule 4(d), then D has 60 days to respond.

Rule 12(b)

• Seven defenses that can be used to motion to dismiss.

• These defenses can be asserted in the motion to dismiss or in the answer as an affirmative defense.

(1) Lack of subject matter jurisdiction (never waived).

(2) Lack of personal jurisdiction.

(3) Improper venue.

(4) Insufficient process (problem w/ the summons and/or complaint).

(5) Insufficient service (service was not proper).

(6) Failure to state a claim upon which relief can be granted.

(7) Failure to join an indispensable party under Rule 19.

Rule 15

(a) P has a right to amend within 21 days after D serves first Rule 12 response.

• D has a right to amend once within 21 days after serving their answer.

• If time has lapsed, D must make a motion to ask the court for permission to amend.

(b) Variance (can only come up at trial)

• Evidence at trial does NOT match what was pleaded.

• Other party can object or choose not to.

  • If there is no objection, then evidence enters as if it was pleaded.

  • If there is an objection, then evidence is NOT admissible.

(c) Amendment after the statute of limitations has run (relation back).

• Law of statute of limitations allows relation back.

• Amendment asserts a claim that arises from the same conduct, transaction, or occurrence.

• Amendment changes the party within the filing and service period if the party being added:

  • Received such notice that they will not be prejudiced in defending on the merits, AND

  • Knew or should have known the action would have been brought against them if it wasn’t for a mistake.

Rule 54

Judgment, costs

Rule 55

Default judgment

Rule 56

• Motion for summary judgment.

• Party moving for summary judgment must show:

  • (1) There is no genuine dispute on a material fact.

  • (2) She is entitled to judgment as a matter of law.

• Permits resolution of the case prior to trial.

• Court is assessing the facts and determining whether the plaintiff has sufficient facts that, if believed by the jury, can be proven.

Section 2201

• Declaratory judgment

• A court may declare the rights and other legal relations of any interested party whether or not further relief is sought.

  • Any such declaration has the power of a final judgment.

• There is an actual dispute b/w the parties but it hasn’t ripened to the point where there is an action enough for an injunction.

Section 2202

Further relief may be granted after hearing and notice to adversely affected party.

Article III

Limits federal subject matter jurisdiction to two types:

• Diversity of citizenship

• Federal question

Section 1331

• The federal district courts have jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the U.S.

  • This jurisdiction is federal-question jurisdiction.

Section 1332(a)(1)

Diversity of Citizenship Jurisdiction — Citizens of different states

• Complete diversity: No P can be from the same state as any D.

• Natural person: A U.S. citizen is a citizen of the state where she is domiciled.

  • Every human has only one domicile.

• How to affirmatively change one’s domicile: (1) physical presence in new state, and (2) must form intent to make that state one’s permanent home (new job, buying a house, registering to vote, etc.)

Amount in controversy

• Amount must exceed $75,000.

• Aggregation: where we must add multiple claims to get over $75,000.

  • One P v. One D = Yes aggregation

  • Two Ps v. One D = No aggregation UNLESS undivided interest

  • One P v. Two Ds = Claims against each D must be more than $75,000

Section 1332(c)(1)

Diversity of Citizenship Jurisdiction — Citizenship of corporations

• A corporation is a citizen in all states where incorporated.

• Also a citizen of the one state where it has its principal place of business.

  • Can be a citizen of multiple states, unlike humans.

• No corporation can have more than one principal place of business.

• Principal place of business: where managers direct, control, and coordinate corporate activities; aka the nerve center or headquarters.

• For a non-incorporated business, you use the citizenship of ALL its members.

  • For a partnership, the members are the partners.

Section 1367

Q1. 1367(a) Is there a common nucleus of operative fact?

• Always met if new claims arise from the same transaction or occurrence.

Q2. Does 1367(b) take away supplemental jurisdiction?

• 1367(b) applies only in diversity of citizenship cases

This statute kills supplemental jurisdiction only for some claims made by P.

Section 1441

Removal jurisdiction

• D sued in state court can have case removed to federal court w/o permission.

• Can only remove from state to federal court.

• Only og Ds can remove a case.

• Ds cannot remove a diversity case if any D is a citizen of the forum.

• Must remove within 30 days of service of process.

• All Ds who have been served w/ process must jointly petition for removal.

• 30 days for removal starts afresh for each newly served D.

Section 1391

Basic Rules of Venue

• (1) P may lay venue in any district where all Ds reside.

  • If all Ds reside in the forum state, then venue may be laid where any one of them is domiciled.

• By statute, a business resides in all districts where it is subject to personal jurisdiction for this case.

• (2) P may lay venue in any district where a substantial part of the claim arose.

• (3) Only applies when there is no district in the U.S. that will meet the previous two choices.

• These rules do NOT apply to cases removed from state court to federal court.

• Only apply when P is initially filing in federal court.

Section 1404

Transfer of Venue

• Transferor court must grant motion to transfer to transferee court.

• Cannot transfer from one state court to a different state court.

• Transferee must be a proper venue and have personal jurisdiction over the D.

• Transferor (og federal district) is a proper venue.

  • Court may transfer to another district based on convenience of the parties and witnesses and based on the interests of justice.

Section 1406

Transfer of Venue

• Applies when transferor is an improper venue.

  • Court may transfer in the interest of justice or it may dismiss the case.

• If the court transfers the case, the transferee court applies its state law.

• Transferee must be a proper venue and have personal jurisdiction over the D.

Seventh Amendment

• “The right to trial by jury shall be preserved.”

• Preserves the right to a trial by jury in suits at common law, where the value in controversy shall exceed $20.

• Prevents reexamination of any facts found by a jury.

• In a derivative action seeking a remedy, you can get a jury trial.

Fourteenth Amendment

• Due Process Clause

• Defines how far a state’s jurisdictional grasp can reach.

• State long-arm statutes (only for in personam) cannot go beyond the bounds of this amendment.

Rule 26(a)

• Required initial disclosures.

  • Names of parties w/ discoverable information.

  • Copies of descriptions of things parties may use to support their case.

  • Calculation of damages.

  • Any existing insurance agreements.

• All parties must disclose who their experts are and their reports.

• Pre-trial disclosures.

Rule 26(b)(1)

Scope of Discovery

• Discover material relevant to a claim or defense.

  • Ex: Hearsay; relevant as long as it is calculated to lead to discoverable material.

• Proportional to needs of the case.

• Privileged matter is not discoverable.

Rule 26(b)(3)

Work-product privilege

• Trial preparation materials.

• Work product = prepared in anticipation of litigation.

  • Can be generated by the party or any representative of the party.

• Absolutely protected:

  • Mental impressions, conclusions, opinions, and legal theories.

Rule 32

Discovery Tool

• Deposition: testimony by deponent under oath.

• Limit of 10 depositions.

• Party and non-party (subpoena).

Rule 33

Discovery Tool

• Interrogatories: written questions answered in writing under oath.

• 30 days to answer.

• Only parties.

Rule 34

Discovery Tool

• Request to produce.

• Tangibles and intangibles.

• 34(c) parties and non-parties.

Rule 36

Discovery Tool

• Request for admission: asks to admit or deny any discoverable matter.

• Once something is admitted, it becomes a given.

• Failure to deny = admission.

• Can only send these to parties of a case.