Civil Procedure

Three ways to establish Subject Matter Jurisdiction

1) Federal Question Jurisdiction
2) Diversity Jurisdiction
3) Supplemental Jurisdiction

Federal Question Jurisdiction

Federal Courts are empowered to hear claims presenting a question of federal law (i.e., Constitution, federal statutes)

Well-Pleaded Complaint Rule

A question of federal law must arise in the P’s affirmative claim, regardless of any defenses D might raise

Federal Questions inside State Law Claims (SMJ)

A court can assert jurisdiction over a state law claim that raises a federal issue if the federal question is:
- necessarily raised
- actually disputed
- substantial
- capable of resolution in federal court without disrupting the federal-state balance approved by Congress

Diversity Jurisdiction

Federal courts have jurisdiction over actions between citizens of different states where the amount in controversy is more than $75,000 (both sides of the “v”)

When is diversity measured?

At the time the suit is filed, but amendment can affect diversity

Exception to diversity SMJ

Class actions where more than 100 persons and $5m, the only one P need be diverse from one D

Determining citizenship of human beings (SMJ)

State a person resides and intends to remain indefinitely

Wanderer Rule for SMJ

A human being’s citizenship does not change until the person plants roots in a new state by residing there and intending to remain indefinitely

Determining citizenship of corporations (SMJ)

Two places:
- where incorporated
- state in which they maintain their principal place of business

Where are unincorporated associations citizens of?

Any state where every member is a citizen

How much must the amount in controversy be for diversity jurisdiction?

Over $75,000

Aggregation of Claims for amount in controversy

If P brings multiple claims against one D, court will aggregate claims to see if amount in controversy is reached (no need for claims to be related)

Supplemental Jurisdiction

Allows a claim that falls outside both federal question or diversity SMJ to “piggyback” onto a claim that does.

Steps for Supplement Jurisdiction

1) Determine Relatedness (is claim in the same transaction or occurrence, if yes continue)
2) Is the claim federal question, or is the claim being brought against a D who was not jointed under rRule 14, 19, 20, or 24 (if yes, continue)
3) Is there a good reason for the court to decline to exercise jurisdiction anyways? (novel or simplex issue of state law, claim substantially dominates FQ or diversity issues, anchor claim was dismissed)

Removal

A defendant can remove a case from state to federal court if the case could have originally been filed in federal court

Removal of additional claims

Counter claims, cross-claims, and imp leader claims are not sufficient, on their own, to permit removal

Exception to removal rule

D can’t remove if:
1) federal jurisdiction would be grounded only in diversity jurisdiction and
2) the defendant is a citizen of the state where the plaintiff filed suit

Permissive Removal

If there are multiple defendants, removal is only allowed if all defendants agree to remove

Timing of Removal

A defendant must remove within 30 days of when grounds for removal become apparent

Removal Timing for Multiple Defendants

The 30-day window for removal runs from the moment the final defendant is served

Personal Jurisdiction

Power of the court over a particular party

Steps to determine if a court has Personal Jurisdiction

1) could a state court in that state assert PJ over the defendant? (if yes, PJ)
2) 14th amendment DPC

DPC Reach of Personal Jurisdiction Considerations

PJ Rarely Causes Severe Mental Anguish
Resident
Consent or Waiver
Service
Minimum Contacts
At Home General Jurisdiction

Resident PJ

If a party is a resident (domiciled) in the state where the suit was filed, PJ is constitutional

Human Beings Domicile (PJ)

Where they live

Corporation Domicile (PJ)

Where they are incorporated and where they have their principal place of business

Consent or Waiver (PJ)

Contract
Appointment (some states require appointment of agents to accept process, and therefore consent to PJ)
Rule 12 Motion - A party appears in court without objecting to PJ (waived)

Service (PJ)

Human defendants served with process while in the state where the suit was filed (tag) unless
- D coerced to enter the state; or
- D was in the state for another legal proceeding

Minimum Contacts (PJ)

1) D has established minimum contacts with forum state
2) Claim arises from those contacts
3) PJ would not offend traditional notions of fair play and substantial justice (burden on D, state interests, P’s interest, courts interests)

At Home General Jurisdiction (PJ)

Parties are subject to at-home general jurisdiction when their contacts are so substantial that they are essentially at-home in the forum state

Venue

Region within a particular state where the suit can be brought

What is venue dictated by?

Venue is dictated by:
- residency of Ds
- location of events giving rise to the suit; or
- where one D is subject to PJ (if first two not available)

Reasons you can change venue

1) Convenience (if case could have been filed there)
2) agreement of all parties
3) interest of justice (court can do if they are not proper venue)

Forum non conveniens

If the most convenient forum is not in the US, the court cannot transfer the case, but can dismiss it without prejudice so that the plaintiff can refile in the proper country

Types of Federal Question Cases

1) Ordinary Federal Q
2) Embedded Federal Q (state law claim rests on a question of federal law)
3) Federal Common law (maritime, foreign relations, misc)

When do you need to do Erie analysis?

In diversity cases where a federal court will apply both state and federal law

Erie Analysis Steps

1) Do what Congress or the Constitution says if valid and on point
2) If no federal statute or constitutional law on point, do what would avoid unfairness or forum shopping

Three things the complaint must include

1) Grounds for SMJ
2) Statement of facts that are sufficient to show that P is entitled to relief
3) Demand for judgement and relief sought

Amendment

Once as a matter of right, or with permission of other party or the court

Can amend within 21 days of serving original complaint or within 21 days of service of an answer or motion to dismiss

Relation Back Rule (adding new claims)

Amendment considered filed on the date the original complaint was filed as long as the new claim arises from the same transaction or occurrence

Adding New Parties

Adding new parties will relate back to the original filing date if:
- New claim arises from same transaction or occurrence
- New party knew of suit soon enough to not be prejudiced
- New party should have expected to be named, but for mistake in identity

What must be included in service of process

Complaint and summons

When must a D be served

Within 90 days of filing of the complaint

What happens if P fails to serve D within 90 days of complaint

Court must dismiss without prejudice, unless the P can show good cause why P must be given additional time for service

Who can serve?

Anyone 18 or older who is not a party

How can a party serve?

1) manner prescribed by state court in the state where
- Federal suit has been filed
- Where D will be served
2) Manner allowed under Rule 4

How can a human being be served under Rule 4?

• Deliver process to D through third party

• Leave at D’s home with a person of suitable age and discretion that resides there

• Serve D’s registered agent

• Mail with a letter requesting D waive in-person service

What happens if D declines to waive in-person service

They become responsible for the cost of personal service

How can a corporation, partnership, or association be served under Rule 4?

• Deliver process to an officer

• Deliver process to a managing agent or general agent, or

• Deliver process to any other agent authorized by appointment or law to receive service

When is service of process necessary during a lawsuit?

When new parties have been added

Answer

Defendant admits or denies P’s allegations and lists defenses he might have

What happens if D fails to specifically admit or deny an allegation in the complaint?

The allegation is deemed admitted

What happens if a defense is not included in the answer

The defense is deemed waived, except for:
- failure to state a claim upon which relief can be granted
- failure to join a necessary party
- lack of SMJ

Motion for a more definite statement

Court will order a pleading to be clarified if it is so vague that the responding party cannot reasonably prepare a response

Motion to Strike

The court (on its own or on motion) can order material stricken if the complaint/answer contains redundant, immaterial, or scandalous material

Motion to Dismiss

Seeks dismissal, can be filed by any defending party

How long to answer a complaint if served with process?

21 days

How long to answer complaint if service was waived?

60 days

Rule 11 Standard of Conduct

Attorney certifies that, after making a reasonable inquiry, that submissions of documents to the court are based on:
- good faith (not to delay or harass)
- good facts (will likely have evidentiary support after discovery)
- good law (or non-frivolous argument for a change in law)

Sanctions

Complaining party must draft motion for sanctions, then party has 21 days to withdraw or modify any alleged violation of Rule 11

Preliminary Injunction Elements

Must notice adverse party and meet:
1) likelihood of success on the merits
2) irreparable harm
3) balance of hardships
4) public interest
5) payment of security

Temporary Restraining Order

Same test as preliminary injunction, but expire after 14 days (can be extended an additional 14 days). Difference is that they can be done ex parte (without notice)

Joinder of Multiple Claims

Multiple claims brought by one plaintiff can be brought in one lawsuit, regardless of relatedness of claims

Counterclaims

Permissive - unrelated, may bring
Compulsory - related to claim, must bring or forfeit claim in future litigation

Impleader Claim

Defendant brings a claim against a person that is not already a party. Must allege that the third party is responsible for some or all of the liability

Permissive Joinder

Multiple plaintiffs can join one suit, or multiple defendants can be sued in one suit, as long as the joined parties claim relief (P) or face liability (D) that arise out of the same transaction or occurrence AND there will arise in the action questions of law/fact common to joined parties

Mandatory Joinder

Could be forced to add a party to the suit. Test:
1) is the absent party necessary? (have an interest that might be impaired if left out)
2) if they are necessary, can they be joined (does court have PJ or does adding destroy diversity SMJ)
3) if a party cannot be joined, are they indispensable? (if yes, court must dismiss the suit)

Requirements to form a class in a class action

1) numerosity (so many that joinder is impractical)
2) commonality (common questions of law and fact)
3) typicality (claims are typical of class members)
4) representatives (reps will fairly and adequately protect the interests of the class)

Interpleader

If a party faces inconsistent liabilities, it can file interpleader claim and let the other two claimants litigate

How many days does a party have to make initial disclosures

14 days after Rule 26(f)

How many days does a party have to make expert disclosures

90 days before trial

Pretrial Disclosures

At least 30 days before trial

Relevance (evidence)

A party is allowed discovery into any nonprivileged matter that is relevant to any claim or defense

Work Product Doctrine

Document or tangible objects created by a party or their attorney in anticipation of litigation that are only discoverable when:
1) party can always obtain a statement it has made
2) can get WP if the party has a substantial need and can’t get it without undue hardship

Privilege

Privileged matter is not discoverable, such as confidential communications between an attorney and client for the purpose of obtaining and rendering legal advice

Proportionality for Evidence

Evidence sought must be proportional considering the importance of the issues at stake, amount in controversy, parties relative access to information, parties resources

Methods of Discovery

1) interrogatories
2) requests for admission
3) requests for production
4) requests for mental or physical examination
5) depositions
6) subpoenas

Interrogatories

up to 25, can seek facts or contentions, 30 days to respond

Requests for Admission

Request to admit truth or fact, 30 days to respond

Requests for Production

Documents, tangible items, access to evidence, 30 days to respond

Request for Mental or Physical Examination

Used when a party’s mental or physical state is at issue

Despositions

Can depose up to 10 witnesses, but can ask for more

Ways to Enforce Discovery

1) Motion to Compel
2) Sanctions (must be made after motion to compel)

3 Ways to Voluntarily Dismiss

1) unilateral dismissal any time before D files answer or MSJ
2) stipulation of dismissal signed by all parties (settlement)
3) permission of the court (generally will do unless D filed counterclaim)

Involuntary Dismissal

If P fails to prosecute or refuses to comply with court order, D can move to dismiss

Default Judgment Steps

1) clerk enters default
2) clerk (sum certain) or court enter default judgment

Default Judgment

P properly serves D but D never responds