CivPro Attack Outline

Missing SMJ &

Removal

*See outline for

these

Personal Jurisdiction (PJ)

Ct must have authority to req ∆ to appear in forum & defend action there
PJ Analysis:
1) 1st, see if there is a long-arm statute granting jdx International Shoe: McGee: a ∆'s
Now: contacts =
Ct did NOT make deliberate in-St
2) Then, see if jdx is constitutional essential
clear if contacts contact was merely
requirement
In Personam Jdx Analysis: were always req'd 1 factor to consider

1. Does 1 of the trad’l 4 basis for jdx in Pennoyer apply? If yes, ID the trad’l basis
2. Then, go on to do minimum contacts analysis bc 4 justices said Min. Contacts must exist in all cases (Asahi)
3. Minimum Contacts Test: from Internat’l Shoe
a. Must be a relevant contact btwn ∆ & forum
b. Purposeful availment (∆ must reach out & avail herself of the forum in some way ~ Hanson v. Denckla)
c. Foreseeability that ∆ could be sued in forum (NOT just that product could get there)
d. Fairness factor anal-- Bk says high degree of fairness can make up for lesser contact
e. Relatedness -- does the claim arise from ∆’s contact w/the forum? If yes, then SJ
f. 5 Factors to det whether fair & reas:
i. Consider the burden on ∆ (must be unconst inconvenient)
ii. Interests of the forum St in providing a forum for its citizens
iii. Π’s interests in obtaining relief
iv. Interstate judicial syst’s interest in obtaining the most efficient resolution of controversies
v. Shared interest of the several St’s in furthering fundamental substantive social policies

14th Amend Due Process Clause: foreseeability = ∆’s conduct & connection w/ FSt are such that he should reas anticipate being haled into Ct there
 Ways to est PJ under Due Process:
1. Consent to Jdx
2. Min Contacts w/forum St that give rise to a particular CoA
3. Continuous or substantial in-St contacts
4. in-St service of process (Burnham v. Superior Ct)
5. Domicile
In rem & quasi in rem = ct has jdx over property in the forum (land, bank act, etc.)
2 Types: Specific & General
 Specific: claim arises out of ∆’s deliberate contact w/FSt
o Min contacts, relatedness/arises out of, fairness/reasonableness
 General: ∆ has ongoing contacts w/FSt
o Sufficient contacts to be “at home,” domicile, service on ∆ while vol in FSt (transient presence ok), consent or waiver by ∆
 Notice/SOP Venue
Notice: 28 USC §1391(b): work horse venue statute
 “Simon says”  constructive or “Actual” notice ≠ enough, has to be exact per i. where any ∆ resides, IF all ∆s are residents of the St, OR
statutes ii. Where substantial party of events/omissions occurred (property part of that
 Notice = complaint + summons action) OR
SOP: iii. If no i or ii, then anywhere that Ct has PJ (fall back ~ don’t use this until
 FRCP(4)(c)(1): π BOP to serve ∆ you’ve EXCHAUSTED options 1 or 2) (pretty much just for foreign ∆s)
 FRCP4(e): methods of serving individuals May be more than 1 proper venue or none at all!
o In hand Change of Venue:
o Leave w/ capable person of age @ dwelling Case filed wrong venue Case filed correct venue
o Copy w/authorized agent Motion to 28 USC §1406 28 USC §1404 (must
Transfer balance private/public
o Follow St rules
factors)
 FRCP4(h): methods of serving corps Motion to 28 USC §1406 FNC
o Officer/agent Dismiss
o Authorized agent Transfer Factors for 28 USC §1404 (π can use this too)
o Follow St rules  Private vs public interest factors
 Proper Notice ~ must satisfy: o Private: π’s forum choice, ∆’s forum choice, where claim arose,
1) Const Due Process Req’s (Mullane); AND convenience of parties, convenience of witnesses & ease of access to evid
2) Relevant statutory req’s FRCP4 OR St provisions of service o Public: transferee’s familiarity w/governing laws, relative congestion of
calendars of potential transferee ct’s, & local interest in deciding
Pleadings & Motions controversies @ home
FRCP 7, 8, 9, 10, & 11 & 12  Exception to considering factors ~ if parties have agreed to Forum Sel Clause in a
*5 Functions of Pleading K, then Cts ignore private interest factors (essentially waiving private interest
1. Notice factor considerations)
2. Fact statements (mat’l facts)
3. State parties legal rights
4. Narrowing issues Sanctions for Violating Rule 11(c)
5. Permits you to structure the remainder of the lit 1. Party seeks to impose sanctions via motion (must be separate from any other
Rule 10: each allegation should be its own ℙ motion)
o Safe Harbor Rule - a motion for sanctions canNOT be filed right away IF
Step 1: π files complaint
Step 2: ∆ answers/responds the other side violates Rule 11 ~ have to draft a motion, serve it on other
*4 Elem’s to a ∆’s Answer: the direct response the ∆ gives in complaint (should be party w/out filing it, & wait 21 days for them to fix problem
precise&straight to pt): ○ IF fixed → NO sanctions allowed :)
1) ∆ 's Direct Response to π’s allegations ○ IF NOT fixed → party files motion w/the Ct
a) 3 types: admit, deny or say IDK (same effect as denial) 2. Ct seeks to impose Sanctions
○ Can do it any time if it thinks Rule 11 has been violated ~ discretionary
2) Affirmative Defenses ~ Rule 8(c) → 3-part Test
a) AD: Assumes the correctness of π’s allegations BUT sets up a defense w/in Ct, NOT req’d
that’s outside of the π’s allegations; adjunct to the answer ■ Function of sanctions meant to deter, NOT punish
b) Rule 8(c)(1): AD waived IF NOT included in answer or motion ; ○ ONLY need notice & hearing
Similar to π getting DJ Judgment *Hunter & Sussman cases → ex’s of sanction for violating Rule 11
c) Reis & Ingraham cases *What can be imposed?
3) Counterclaim: ∆ asserting a claim back against the π ○ NO sanctions for small stuff
○ NO monetary sanctions on:
a) Compulsory Counterclaim
b) Permissive Counterclaim ■ Party w/lawyer for frivolous legal arg’s
4) Crossclaim: ∆ includes a claim against co-∆ ~ OR ~
a) Assumes there’s a co-∆ (ex. π sues driver + owner of a car) ■ On either party w/out issuing Show Cause Order for why parties did
b) Ex. cars driver asserts crossclaim against car owner or vice-versa NOT violate Rule 11

Amended Pleadings (Step 3)

*4 stages of Rule 15:
1. Stage 1: π or ∆ has a right to amend; the party is entitled to amendment of course
a. Time measures when the right is triggered & expires
2. Stage 2: parties can always agree to an Amendment, through consent or stipulation
3. Stage 3: when time has passed/expired or other party does NOT agree, then Judges can issue Judicial Opinions → Judicial Discretion
a. ✩ *Dominant feature bc generates Judicial opinions
4. Stage 4: Rule 15(c) = specialized app of Amend Rules that applies to a smaller world
a. The judicial discretion that’s given to 15(a) & 15(b) ≠ given to 15(c)
*Rule 15:
● 15(a)(1)(A & B) → Timing req
○ 21 days = default time pd in many rules (But you can request an extension)
○ π can amend complaint on the 20th day if want to
● 15(a)(3) → 14 days to respond to amend after service or respond w/in time remaining to respond to the original pleading, whichever is later/longer
● 15(c) Amendments, assume SOL has run
○ 2 Amendment types: 1. The addition of a claim and 2. The addition of a ∆
○ 15(c) → the party to be brought in knew or should’ve known
 Joinder (of claims & parties) FRCP 13, 14, 18, 20

2 Step Joinder Analysis:

1) Is there a FRCP Joinder rule that allows the joinder of party/claim?
2) Is the claim supported by Fed SMJ?
a) IF Yes → claims can be joined ✓
b) IF No → Test to see if claim invokes Supp Jdx

*Permissive vs. Mandatory Rules

● Rule 13(b), 13(g), 18, 20 = Permissive Joinder Rules (optional)
● Rule 19 & 13(a) = Mandatory Joinder Rules

Joinder of Claims:
Rule 18: Joinder of Claims
● Rule 18(a) Test: party seeking relief from an opposing party may join w/his original claim any add’l claims he has against the opposing party
● Notes: kicks in once a valid claim is made (under any FRCP). Opposing parties exist when a claim is made by one against the other, even if they’re on the same
side of the “v.” (crossclaim)
Rule 13: Compulsory Counterclaims
● Rule 13(a) Test 1: does the counterclaim arise out of the ame T/O that is the subj matter of the opposing party’s claim?
● Rule 13(a) Test 2: the counterclaim does not req adding a party that the ct canNOT assert Jdx over
● Notes: must assert counterclaim as soon as 1st claim is made if it fits Tests
Rule 13: Permissive Counterclaims
● Rule 13(b) Test: pleading may state any claim against an opposing party that is NOT compulsory

Joinder of Parties:
Rule 20: Permissive Joinder of Parties
o Rule 20(a) Usage: governs initial joinder of π’s or ∆’s in the π’s original claim
o Rule 20(a) Test 1: does the person assert a claim arising out of the same T/O (or series of T/O’s)?
o Rule 20(a) Test 2: does the person’s claim share common ?’s of law/fact w/the original claim?
o Notes: can add both πs & ∆s in the same action
Rule 19: Req’d Joinder of Parties
o Rule 19 Usage: applies when an absent person is req’d/should be added as a π or ∆
o Rule 19 Sit 1: in a person’s absence, Ct canNOT accord complete relief among existing parties
o Ex. TF leases 3 floors from GLC, then sublets to A. A wants more electrical power. TF refuses bc GLC refuses, & GLC is the owner. A sues TF.
Judgment against TF would NOT change anything bc GLC is in control, NOT TF.
o Rule 19 Sit 2: person who claims an interest related to the subj matter of the case should be made a party if proceeding w/out them might impair their ability
to protect that interest
o Ex. G sues Acme to get stock reissued in his name as well as H’s. H’s interest is affected.
o Rule 19 Sit 3: resolving the case w/out a nonparty person would expose 1 of the original parties to a risk of mult or inconsistent obligations
o Ex. Bank holds money in escrow for C. C sues Bank for money, claiming repairs were made. B sues Bank for money, claiming repairs were
inadequate. Bank whipsawed.
o Notes: satisfying any Situation req’s joinder so long as the new party does NOT break SMJ. Rule 19(b) covers what a ct does when a nonparty person should
be joined, but canNOT

Impleader (Rule 14) (3rdP Practice)

● Rule 14(a) Usage: applied when a defending party/π want to bring in a new person
● Rule 14(a) Test: defending party may (as 3rdP π) assert claim on a nonparty who is or may be liable for all or part of the claim against it.
● Notes: Rule 14(a)(2) covers the impled 3rdP’s responses. Impled 3rd.P does NOT count for SMJ, BUT does count for PJ. Rule 14(b) allows π to use Rule 14(a)
when claim is asserted against the π.

Intervention (Rule 24) Interpleader (Rule 22 & Statutory)

Intervention by Right Rule 22: Rule Interpleader
● Rule 22 Usage: Rule interpleader provides a remedy for any person who is, or may be
o Rule 24 Usage: applied when an absent person takes initiative to join in a
exposed to double or multiple liabilities. The stakeholder may invoke Rule 22 as a π, or
case
by counter-claiming in an action already started against him by 1, or more, claimants.
o Rule 24(a) Test 1: does the absent person claim an interest relating to the There is no deposit req’d to be made w/ the Ct for a Rule 22 interpleader action. The
property or transaction that is the subj matter of the action? stakeholder may claim that they are not liable in whole, or in part, to any or all the
o Rule 24(a) Test 2: will that interest, as a practical matter, be impaired if claimants.
the person is not allowed to participate in the case? ● Diversity: complete diversity btwn stakeholder & all claimants req’d
o Rule 24(a) Test 3: the absent person’s interest is NOT adequately ● AIC: Stake must exceed $75k
● Notes: Rule 22(b) explains how it interacts with Rule 20 & §1335 Interpleader
represented by existing parties
§1335: Statutory Interpleader
o Notes: must meet all 3. Gen’lly if person fits Rule 19(a)(1)(B(i), they meet
● §1335 Usage: allows an individual with a stake which is, or may be, claimed by 2 or more
Rule 24(a)(2) as well. Rule 24(a)(1) covers statutorily-granted intervention adverse claimants, to interplead those claimants and bring them into a single action. A
Permissive Intervention Statutory Interpleader action is commenced by the stakeholder who must initially deposit
o Rule 24(b) Usage: applied when an absent person takes initiative to join a w/ the Ct, the AIC, or post a specific bond w/the Ct. The stakeholder may, however, at
case, but canNOT use Rule 24(a) trial claim they don’t owe money to the claimants at all.
o Rule 24(b) Test: absent person has a claim or defense that shares a ● Diversity: Diversity is satisfied as long as there are 2 claimants of diff St’s. For ex, if you
have 3 claimants, 2 of which are residents of FL, & 1 is from CA, diversity would be
common ? of law/fact w/ the main action
satisfied. They diversity of the stakeholder, however, is irrelevant to the rule.
o Notes: Rule 24(b)(3) limits scope if intervention creates undue
● AIC: Stake in claim = AIC; must be > or = $500
delay/prejudice ● Service: under §2361, a person anywhere w/in the US may be served by the stakeholder
 Pre-Trial Case Management (Discovery)
After commencement of an action → Discovery gen’lly proceeds in 2 stages:
1. Stage 1: Rule 26(a) → parties req’d, w/out awaiting any formal discovery requests, to exchange info that they may use in support of their claims/defenses
a. Names, addresses, + telephone #s of fact witnesses, copies or descriptions of Doc’s, & mat’ls underlying computation of damages [Req’d Disclosures]
b. Req’d Disclosures: intended to arm the parties as early as possible w/the basic info they need to prep for trial & to make informed settlement decisions
2. Stage 2: parties may take Discretionary Discovery using the 5 Tools of Discovery
a. Depositions (oral/written exam of live witnesses under Oath before a Ct reporter)
b. Interrogatories (written ?’s that must be answered in writing under Oath)
c. Doc Production Requests (DPR)
d. Phys & mental exams
e. Requests for admissions

Discovery: Steps to Approach a Discovery Prob:

1. What is requested?
2. Is it properly requested?
a. Is it the right tool used timely & properly?
3. Is what is requested w/in the scope of Rule 26(b)?
a. Spell out the relevance w/the facts provided
4. Does any privilege or exclusion shield the info from discovery?
5. Are there objections as to the scope?
a. Be specific

Rule 56: Summary Judgment

 Test: is there a genuine dispute as to any mat’l fact? MTD Failure to State a Claim
 When Raised: @ any pt in the proceedings Rule 12(b)(6): Failure to State a Claim Upon Which Relief can be Granted
 Notes: evid viewed in light most favorable to non-moving party.  Test: Assuming the facts in the pleading are true, does the party assert all the necessary
Dispute must be mat’l, rather than just a minor quibble over elements / make a legal claim the Ct can grant relief to?
inconsequential details. Partial SJ means a party wins on 1 issue,  When Raised: pursuant to 12(b) / 12(h)(2)
BUT may still need to prove the rest of the case (usually for π’s)