1. Introduction to Civil Procedure

There are two types of questions for the court to decide: Questions of fact: Simply analyzing the facts present during the case

o Questions of fact get decided at the trial court level by, most of the time, a jury and sometimes a jury.

o Questions of fact can get appealed. Questions of law: Judge’s job is to apply the facts to the law, tell the jury what the law is,

and interpret the law. o Questions of law cannot get appealed.

Three Tier Court System:

1. Trial Court: Questions of fact and questions of law both get decided here2. Appellate Court (Court of appeals)

a. Between three to nine judges decide the cases. Always has to be an odd number.b. The judges opinions on the law and how it was applied to the appealed casec. Almost all cases get the change to be appealed once.

3. Supreme Court: Typically less that 5% of cases get heard that are appealed to thema. File a writ of Certiorari to try to get case heard by the State or Federal Supreme

Court:i. Writ of certiorari: a writ that orders a lower court to deliver its record in a

case so that the higher court my review it. b. Can pick cases it hears and dismiss othersc. Can only rule on questions of law

State and Federal Court both have the Three Tier Court System. Federal Court System

Trial courts are referred to as Federal District Courts Courts of Appeals are referred to as Circuit Court of Appeals

o Are broken down into 11 (13) different circuits Federal Supreme Court is the US Supreme Court

The Supreme Court will take on cases where the circuit courts are looking at a law and are split on their decisions or rulings of the law.

That way the Supreme Court can rule on it so there can be a uniform precedent for the other courts to look at and follow.

Three sources of law Constitution

o It sets the extent to whether or not Congress can pass a law, a statute. Statutes (statutory law) Common law

Most lawsuits based on violation of Federal law can be brought in either state or federal courts.

Civil Procedure: Need to prove that there was a “preponderance of the evidence” (more than 50% proof that it was the other parties fault).

Uses monetary damages to make the plaintiff whole

Intent: Wanting or desiring to do something. To prove intent you: Use circumstances surrounding the facts of the case. Can also ask the person, but people lie or people convince themselves of something that

may not be true.

Question of Jurisdiction

Jurisdiction: Power of the court to hear a case Not all cases can be heard by every court

Two general categories of jurisdiction: Subject matter jurisdiction: Whether the court has the authority to hear and decide a

certain type of case. Personal jurisdiction: The circumstances under which a court (state or federal) has the

authority to make decisions binding on particular parties. o The power of one court to make the defendant come in and defend themselves in

the state the court is located in. Can’t force a non US resident to come to the US though.

2. Subject Matter Jurisdiction

A. Types of Subject Matter Jurisdiction General subject matter jurisdiction: A court has the power to hear all types of cases

except for those specifically set aside (set up by statutes)o Most state courts have general subject matter jurisdiction.

Specific subject matter jurisdiction: A list of specific cases heard by the courts. If it’s not on the list it can’t be heard by that court.

o Also known as Limited Subject Matter Jurisdiction Federal district courts have limited subject matter jurisdiction

A constitutional amendment needs to be passed in order to add/hear any other cases not listed under Article 3 Section 2.

Original Subject matter jurisdiction: Like general subject matter jurisdiction, courts that have this can hear anything except what is excluded from them by statute.

o Supreme Courts have original subject matter jurisdiction

Exclusive: This subject matter jurisdiction means that this particular court has subject matter over certain cases and are the only courts that can hear cases on these subjects (i.e. juvenile)

Concurrent: This subject matter jurisdiction means that there are numerous courts that can hear the same subject matter for cases (Both federal and state)

Parties that litigate the case without raising the issue of subject matter jurisdiction can assert the lack of subject matter jurisdiction on appeal, but cannot raise it in a collateral suit.

Objection can be raised at any time by any party, prior to verdict being decided, by the final Supreme Court decision. Can even be brought by the court itself.

After the case is FINAL and all decisions are done, you cannot object to Subject matter jurisdiction because all appeals are complete.

Subject matter jurisdiction can even be raised by the losing party who originally said there was subject matter jurisdiction.

B. 28 USC §1332: Diversity of Citizenship The district court shall have original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $75,000 exclusive of interests and costs:1. Between citizens of different states2. Citizen of a state and citizens or subjects of a foreign state, except that the district

courts shall not have original jurisdiction under the subsection of an action between citizens of a state and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the US and are domiciled in the same state.

When they have dual citizenship most courts have ruled that they cannot be sued under 1332 (A)(2).

You can either have a federal question or diversity jurisdiction

Hypo:20th century Fox (domiciled in CA) v. Elizabeth Taylor (Domiciled in US, Moved to Great Britain with intent to remain their indefinitely)

20th century tried suing twice to try and go to federal court:o 20th century tried suing Taylor based on 1332(a)(1), but failed because Taylor

established a new domicile in Great Britain, and no longer resided in the United States.

o Then they tried suing under 1332(a)(2), but she hadn’t given up her US citizenship so that too failed.

Instead they had to sue in state court, but they got personal jurisdiction so she came to the US for the case.

Diversity cases: cases that include citizens of different states Citizenship is equal to domicile

o To be a citizen of a state within the United States: You have to be a citizen of the US You have to have domicile in the state.

o Individual Domicile: 1. Physical presence in the state of domicile and; 2. The intent to stay there and remain indefinitely. (You have to have

presence and intent) You can only have one domicile, but you can have more than one

residency if you have more than one home.

The only time you would want to establish diversity of citizenship is when you want to move the case to be heard in Federal Court.

You can drop a case and refile in order to fulfill diversity jurisdiction, but double jeopardy could occur if not done within a reasonable amount of time prior to the verdict.

Hypos:1. A v. B case involving Federal statute.

a. Can be heard in Federal court under 28 USC 1331 and state court because it does not exclude state courts. Only state courts with general subject matter jurisdiction can hear it.

2. A from Mississippi v. B from Alabama sues for automobile accident for 100 thousanda. Most automobile accidents are covered under state claims.b. Can be brought into federal court due to 28 USC 1332. Can also be in state court

because the statute doesn’t exclude them. 3. A from Mississippi v. B from Mississippi for motor vehicle tort worth 100 thousand.

a. Can’t be brought into federal courts because there’s no federal question and both are not from different states.

4. A sues B for admiraltya. Can only be brought into federal courts because under 28 USC 1333 it excludes state

courts.

Determining the domicile of a corporation

Corporations: even though they are comprised of individuals, it’s not based off of that, but it’s a legal entity unto itself.

(1809) Corporation would be domiciled where all of it’s shareholders are domiciled (1844) Instead of seeing a corporation as domiciled where it’s shareholders are, it would be

domiciled where it’s incorporated. (1958) Corporations are citizens of the state(s) of incorporation plus its principle place of

businesso Most of the time corporations have dual citizenship due to their incorporation state

and principle place of business.

Determining a corporations principle place of business:1. Nerve center test : where the headquarters is located2. Muscle test : where the most business done by the company is located. (Ruled out and

replaced by just the nerve test; Hertz Case)

**If the state where the headquarters is incorporated isn’t where the major decisions and actions of the company occur, then your principle place of business could be disputed.

Determining the domicile of non-incorporated businesses

Partnerships: Citizenship is based on the citizenship of the partners.Limited Liability Companies: (LLC) are based just like partnerships and based solely on the citizenship of its members.

If an LLC has a corporation as one of it’s partners, you look at the state it’s incorporations and principle place of business to determine that specific citizenship for that partner.

A corporation could be a partner in a partnership or a member in a LLC.

Amount in Controversy Requirement

Limitations to amount in controversy are established in jurisdictional statutes and traditionally have served two functions:

a. They reflect the notion that a federal tribunal shouldn’t be a small claims courtb. They are a method of docket control.

Amount in controversy claims come in two different forms:1. Transactionally related : Claims come from the same occurrence or event 2. Not transactionally related: When the two claims do not arise out of the occurrence or event

(Look at chart in notebook)

C.Federal Question Jurisdiction §1331: General Federal Question Statute:

o The district courts shall have original jurisdiction of all civil actions arising under the Constitution, law, or treaties of the US.

It is a non-exclusive statute.

Anticipated defense rule/Mottley Rule: Plaintiff can’t assume that the defendant will use a defense that arises under a Federal Statute/Law; the plaintiff must file a claim arising under a Federal Question to get into Federal Court. (Has to be in the plaintiff’s case originally)

There are two issues dealing with federal questions:

1. Creation Test/Holmes Test: The Federal Question in the plaintiff’s claim is being raised under a statute of court of United States and private enforcement rights for the individual giving them the right to sue for those violations.

2. Substantial/Importance: If the federal issue is so substantial/important then the court will find Federal Jurisdiction even if there is no enforcement power to the individual.

To get into a Federal Court if you’re determining a Federal Question:1. Statute has to be applicable2. Have to prove there is something within the statute that congress wrote into the statute

that there is private enforcement rights for the individual. (The court will look at the legislative intent if it’s not directly written into the statute)

D. Supplemental Jurisdiction §1367: When a person brings a case invoking Federal Subject Matter Jurisdiction, but also

has an individual claim that does not include Federal Subject matter jurisdiction.o Federal courts can hear these two different claims so long as they are related to the

underlying dispute as to constitute part of the same “case or controversy” under article 3. This is called pendent or ancillary jurisdiction.

o Allows plaintiff’s to bring both claims to Federal court so that the Federal Court can decide the Federal question and it saves the courts time and money.

E.Removal Jurisdiction §1441 Permits the defendant to “remove” a case that was originally filed in state court to federal

court if the plaintiff was able to originally file in Federal Court.

o Case must be one that the Federal Courts have subject matter jurisdiction over. This can only go from state to Federal, not Federal to state or from one state to another. Defendant files notice of removal and sends a copy of notice of removal to plaintiff

promptly. o Plaintiff has 30 days after filing of notice to object to the removal. (Not 30 days from

when plaintiff receives notice)

Removal happens because:1. The defendant may prefer unelected federal article 3 judges or are concerned with possible

local bias.2. They may prefer federal court procedures or believe the federal court has greater expertise, 3. The defendant’s lawyer may simply have greater familiarity with federal court practices.

§1446: Procedure for removal of civil actions: (Rule of unanimity) All defendants who have been properly joined and served with process must agree to the

removal.o If a defendant is not served and there’s more than one defendant, the case can still

be removed because the others were served.o In most states, a plaintiff is not required to state a dollar figure for damages. In most

states, even when you do, you can recover more than that if the case is adjudicated.

Three ways a Federal Court gets subject matter jurisdiction:1. Federal question2. Diversity3. Supplemental jurisdiction

Whichever party wants to get the case removed to Federal court, the burden to prove there’s a Federal question, diversity, or supplemental jurisdiction falls on them.

3. Personal jurisdiction

Personal jurisdiction: the circumstances under which a court (state or federal) has authority to make decisions binding on the particular parties.

By invoking the authority of the court, the plaintiff consented to the power of that court to issue binding orders to her.

o Courts power to bring an out of state defendant into the state to defend themselves.o For personal jurisdiction, cases identify the contacts or non-contacts test.

Types of judgments Injunctive relief: The plaintiff gets a judgment in which the defendants are ordered by the

court to do or refrain from doing something. Awarding monetary damages is more common.

o Courts will only issue an injunctive relief if money damages are inadequate. If defendant refuses to pay judgment voluntarily, the burden is on the

person who secures judgment to seek enforcement.

To enforce or execute a judgment, the plaintiff can attach property owned by the defendant. Physical property other than real estate can be seized by the sheriff.

Real estate is attached by posting notice on the property and making a notation in the property records.

o After attachment and notice to the owner of the property, if the owner does nothing, the property is auctioned and proceeds got to the judgment holder.

Any excess of the judgment amount goes back to the judgment debtor.

International Shoe Co. v. Washington1. Whether, within the limitations of the due process clause of the 14th amendment, appellant, a

Delaware corporation, has by its activities in the state of Washington Rendered itself amendable to the proceedings in the courts of that state to recover unpaid contributions to the state unemployment compensation fund enacted by state statutes, and;

2. Whether the state can exact those contributions consistently with the due process clause of the 14th Amendment.

a. Facts:i. Appellant is a Delaware corporation with its principle place of business in St.

Louis, Missouri.1. Maintains places of business in several states, other than Washington.2. No office in Washington. Makes no contacts for sale or purchase of

merchandise there.ii. Between 1937 and 1940, they employed 11 to 13 salesmen under direct

supervision and control of sales managers located in St. Louis.1. These men lived in Washington, had their principle activities confined

there, and were compensated based on commissions. (Commissions were under $31,000)

iii. By the salesmen living in the state and being able to carry out activities for the state, that gives the corporation presence in the state to be taxed.

Full faith and credit clause: Every state must enforce the judgments of every other state. (Except if the previous state never had personal jurisdiction)

Shall be given in each state to the public arts, records, and judicial proceedings of every other state.

o Extended by Congress to the Federal Courts.

McGee v. International Life Ins. Co.1. A California citizen purchased a life insurance policy from an Arizona Insurance co.

a. Texas insurance co. took over the Arizona one.i. They mailed a reinsurance certificate to insured. Insured sent his premiums

from California. Basically asking if they can take the California insurance policy over for the insured.

1. The insured died in California and his life insurance policy was to be collected.

b. Texas insurance company said the policy was void because insured supposedly committed suicide.

c. The insured’s inheritor won and the California court held that they had jurisdiction over the Texas insurance company. They held that the due process clause did not preclude the California Court from entering judgment.

i. The insurance co. did not go to California, she needed to go to Texas to enforce the decision, and give the Texas court the California courts decision. Under the Full Faith and Credit Act, the Texas court needed to uphold their

decision unless California never had personal jurisdiction. Texas court said California never had personal jurisdiction so they did not need to uphold the decision.

States can only have personal over a defendant if the defendant consents or if the defendant is domiciled with physical presence in the States.

Implied consent: knowing that if you go into a state where you don’t live and get into an accident, you consented to personal jurisdiction when you entered the state.

There are two types of personal jurisdiction:1. In personum personal jurisdiction: Can get power to force defendant to come in to have

power over defendant.a. Due process only requires that in order to subject a defendant to a judgment in

personum, he be not present within the territory of the forum, but he have certain minimum contacts with the state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice”

b. Problems that arise under due process:i. Rule 4(k)(1)(c): provides for jurisdiction when authorized by a Federal

statute. These statutes are referred to as nationwide service of process. They:

1. Permit the defendant to be served anywhere in the US and provide personal jurisdiction regardless of whether there would have been jurisdiction in any state court.

ii. Rule 4(k)(2): Provides for personal jurisdiction in any federal court where:1. The claim is based on Federal law2. Jurisdiction is constitutional3. There is no state which would have personal jurisdiction

2. In rem personal jurisdiction: Can get jurisdiction through the property owned by defendant.a. Property must be present within the state and the state court takes control of it.

(Attachment has to be at the beginning of the lawsuit)

Look at chart in notebook

Objecting to personal jurisdiction Must be raised by the defendant at a certain time, certain way, and at the beginning of the

claim.Two ways to raise a direct objection to in personum jurisdiction:

1. Direct attack: Defendant goes to the forum state or has an attorney go and challenge whether there is personal jurisdiction or not.

a. Special appearance rule: state has said that if the defendant goes to forum state to object to personal jurisdiction and goes, but also gives rise to any other issue, then they waive their right to object to personal jurisdiction rule.

b. Federal rules of civil procedure: Rule 12, defendant can go to Federal court and object to personal jurisdiction and can also give rise to new issues without the defendant waiving their right to object.

i. Has to be raised at the time of first response otherwise rights are waived.

2. Collateral attack: When the defendant completely ignores the original suit entirely and waits for a default verdict from the court. Then the plaintiff needs to go and enforce it in the state in which the defendant lives.

a. The defendant can then raise an objection on personal jurisdiction and whether or not the original state had personal jurisdiction in the first place.

Both of these allow the defendant to appear before trial in the forum for the sole purpose of objecting in personum jurisdiction.

The right to object to a courts lack of personal jurisdiction is a personal right that can be waived at any time by the defendant.

Consent to jurisdiction is sometimes manifested by appointing an agent for service of process within a state

Filing a complaint can constitute consent Failure to raise a timely objection to jurisdiction constitutes a waiver of the objection. Submitting to the jurisdiction of the court for the purpose of challenging jurisdiction can be

enough.

Hanson v. Denckla1. Dora Donner, a resident of Pennsylvania, established a trust in Delaware, naming a

Delaware bank the trustee.a. Mrs. Donner kept the power to change the appointed beneficiaries at anytime.

2. Mrs. Donner moved to Florida and several years before her death she executed her last will and testament. (changing it)

a. Leaving most of her estate to her two daughters.b. Same time she enacted her power to change the appointed beneficiaries under the

trust.i. She designated 2 of her grandchildren as beneficiaries of the rest of her

assets. (children of her third daughter)c. Ms. Donner dies and the two daughters sued saying under Florida law the trust was

invalid.i. Florida court needs personal jurisdiction over Delaware trustee.

3. Defendants argued that the suit couldn’t go forward because the Florida Court had no personal jurisdiction over the Delaware trustee.

a. Supreme Court found that because the trustee’s contacts with Florida were less than minimal, they had no personal jurisdiction.

There are two tests to determine personal jurisdiction:

1. Minimum contacts test:a. Contacts are with the forum stateb. The claim arises out of contact with the forum statec. Are the contacts from the defendant purposefully availing themselves in the forum

state? (This is not foreseeable)i. What constitutes purposeful availment if foreseeability does?

1. Advertising, having sales or opening dealerships, and shipping to that state.

ii. Purposeful availment cannot be a unilateral act of the plaintiff that causes the contact within the forum state, subjecting them to the laws and benefits of that state.

2. Reasonableness test:a. The plaintiff’s interestb. The States’ interestc. The defendants’ inconvenience

Not all three of these things have to proven in order for the reasonableness test to be reached. At least one of them has to be a strong argument though.

Both tests need to be met in order to have personal jurisdiction. Minimum contacts needs to be met first and then reasonableness.

For personal jurisdiction to be proper: The case must fall within the terms of the state statute Jurisdiction must be constitutionalIf the state has elected not to assert jurisdiction over a case, then the fact that it could constitutionally have done so is irrelevant.

Federal courts will look at the state long arm statute to determine the extent they can have personal jurisdiction.

Long arm statute: statutes created by states that decide whether there’s personal jurisdiction or not. (can be general or specific)

o There are two types:i. Full extent: to the full extent permitted by the constitution is what our

courts will have as personal jurisdiction. (broad)1. Is easier for people in their state to bring a suit against an out-of-

state defendant.2. Under the full extent long arm statute a constitutional analysis needs

to be done: (two tier test)a. Does it fit into one of the examples laid out in the statute?

i. If no, then there is no personal jurisdiction under the long arm state

ii. If yes, then do a constitutional analysis1. Which is the minimum contacts and

reasonableness test.ii. Limited: the courts don’t have full extent, but only have personal

jurisdiction on the grounds laid out in their state statute. (narrow)

General jurisdiction: would allow personal jurisdiction so long as the contacts were so substantial to allow personal jurisdiction over the defendant being constitutional.

This is when the claim doesn’t arise out of contacts that the defendant has with the forum state.

o What makes the contacts so substantial in general jurisdiction? State of incorporation Principle place of business Corporate headquarters

Transient jurisdiction: personal jurisdiction over a defendant who is served with process while in the forum state while they’re temporarily there on travel. (The defendant is a nonresident of the forum state)

Courts have struck this down when the defendant was tricked into going to the forum state. Just as an individual can be sued in their state of domicile, a corporation can be sued in its

state of incorporation.o Appointing an in-state agent means the corporation consents to jurisdiction in that

state.

In rem jurisdiction: when a plaintiff attaches the property to a nonresident to get jurisdiction over them. (Minimum contacts needs to be met to have in rem)

There are two types of in rem jurisdiction:o Pure in rem: the rightful ownership over the property, over everyone in the world,

in which the state takes that property by eminent domain.o Quasi in rem: claims which are related to the property itself

If you proceed in rem jurisdiction you can only collect what the property is worth as damages. If you proceed in personum jurisdiction you can also get what you sue for if it is more than the value of the property.

4. The three requirements for a case to be heard in court are:1. Personal jurisdiction: applied to states, determines whether a court system has power

over a defendant.2. Subject matter jurisdiction: determines what categories of cases a court system has

authority to decide.3. Venue: determines where within a court system a case can be brought.

a. All states have venue statutes or rules, which determine where within the state cases are to be filed. (Counties)

b. There are federal venue statutes that control the location of cases within the Federal Court System. (District)

There is no constitutional right to venue in a particular place. It is purely statutory.

Local actions: land where the venue must be where the land is located.

Transitory actions: All other causes of action other than land.

There are three categories of disputes:1. In rem or quasi-in-rem cases in which real property is the basis of jurisdiction.2. Cases in which the plaintiff seeks a remedy in or to realty, such as a claim for quiet title,

ejectment, and foreclosure of a mortgage, enforcement or removal of a lien.3. Claims for damages for injury to land.

Venue is no longer reliant upon whether an action is local or transitory. Local is still recognized by most states still.

Even if all three are met a court can still transfer to a more appropriate location or may invoke the doctrine of forum non-convenience and decline as a matter of discretion to hear a case.

Forum non-convenience: gives the court the option to dismiss the case, even if venue is proper, so that the plaintiff can file their claim in the court that would be better.

Transfer of a case can only occur within the state and not between states. A court can however dismiss a case under “forum non-convenience” allowing the plaintiff to file a new claim in another state.

o Transferor: the court in which the case was originally filed.o Transferee: the court to which the case was transferred.

Supreme court held that courts with improper venue can still transfer cases even if they lack personal jurisdiction.

1404(a): Change of Venue: that deciding whether to transfer, the court considers: Convenience of parties Convenience of witnesses The interest of justice

1406(a): Cure of waiver or defects: has no provisions. If the venue is improper, then the case can be dismissed or if it is in the interest of justice, transferred. (Dismissal is not usually proper)

Can be raised by the defendant, plaintiff, or court)

§1391: Venue generally

§1447: Procedure after removal generally

5. Pleadings

Pleadings: When the plaintiff alleges her claim against the defendant and the defendant responds to those allegations and sets forth any defenses she may have. (Pleadings are just limited to giving notice)

This stage is relatively short and gives way to the discovery process, during which parties are given broad access to information in the possession of other parties and sometimes non-parties.

Rule 7: Pleadings Allowed: Form of Motions and Other PapersA motion is not a pleading, but a pleading is a motion.

Plaintiff initiates suit by filing a complaint. The defendant has a choice of how to respond:

File their own pleading (answer) in which she responds to the allegations in the complaint and raises new matters called an affirmative defense.

Plaintiff can then reply if the defendant choses to file their own pleading.

History of pleading: Common law pleading: Writ system where the person has to file a specific writ for the

claim. Facts of the case come out between the writ and response exchange. Code Pleading: abolished the writ system and made it more fact based Federal rules pleading: got rid of code pleading facts

6. Stating the Claim

Requirements of the complaint:A. Elements of the complaint: A complaint must contain the following three things, if not it

must be dismissed, but the plaintiff can amend to correct a formal deficiency.a. A “short and plain statement of the grounds for the courts jurisdiction. Code states

commonly require the plaintiff to allege a statement of the facts constituting a cause of action in ordinary and concise language without repetition. (Plaintiff must allege case is in proper subject matter jurisdiction)

b. A “short and plain statement of the claim showing that the pleader is entitled to relief”

c. A demand for the relief sought, which may include relief in the alternative or different types of relief.

i. In the demand “prayer” or if the plaintiff seeks monetary recovery the “ad damnum” clause, the plaintiff tells the court what recover she seeks from the defendant.

1. This does not limit the plaintiff’s recovery.2. Demand does not require a number amount.

B. Form of pleadings a. Must have the caption stating the state name of the court, title of the case by parties’

names, the file number, and the ID of the document itself.b. Civil procedure cases also have the letters CV in front of them.

C. Legal sufficiency: Even if the plaintiff states facts that are true, if there is failure to state a claim in which relief can be granted, then it’s dismissed.

a. Plaintiff’s complaint must be sufficient in two ways:i. Legally

ii. Factuallyb. To test the legal sufficiency of a case, file a demurrer to the complaint.

i. Federal courts don’t have demurrers.ii. Satisfied in Federal court by a motion to dismiss for failure to state a claim,

under rule 12(b)(6) often left with room to amend.D. Factual or formal sufficiency: The debate over specificity.

a. The pleading is sufficient if it puts the defendant on notice of what she is being sued for.

b. There are three pleading standards:i. The cone requirement of fact pleading

ii. Federal rules requirement of notice pleadingiii. “Twiqbal” standard of plausibility pleading (This regulates the plaintiff’s

access to the litigation stream)

Code states: Defendant challenging sufficiency with demurrerFederal rule states: Defendant challenging with a motion to dismiss for failure to state a claim.

1. Code pleading: Requires the plaintiff to make a statement of facts constituting a cause of action in ordinary and concise language without repetition. (Must plead ultimate facts)

a. If a plaintiff’s facts are too specific they could be guilty of pleading the evidence and demurrer would be sustained.

b. If a plaintiff’s facts are too general they could be guilty of pleading conclusions of law and demurrer also sustained.

2. Federal Rule Pleading: (1938): (Sets up a set of rules to set up for discovery)a. There are no facts at the early stage. (Notice pleading)b. It puts the defendant on sufficient notice that they’re involved in a lawsuit against

them.c. Allows them to know what the allegations are and who is suing them.

Pleadings that are allowed:1. Complaint2. Answer to complaint3. Answer to counterclaim designed as a counterclaim4. Answer to cross claim5. Third-party complaint6. Answer to a third-party complaint7. If the court orders one, a reply to an answer

Motion: a request for a court order (for the court to do something)

Rule 8: General Rules of PleadingsAfter caption, the next part is stating the basis of your claim, what the subject matter is for jurisdiction. (It is not required to prove there is personal jurisdiction because a court can hear a case even if there is no personal jurisdiction.)

At the time the claim is made, there is not need for the plaintiff to prove yet that the allegations are true. This comes during discovery.Form 11: Complaint for Negligence

Bell Atlantic Co. V. Twombly Conley test: Starts with notice pleading then goes towards the discovery stage. Standard of

plausibility, factual support.

Iqbal Case: Not only had to prove what was going on but Iqbal had to prove they had the intent to

discriminate while doing it.o Couldn’t show what the intent was.

Form 7: Statement of Jurisdiction

McCormick v. Kopmann

Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court; SanctionsSupreme court came up with this rule so that lawyers need to make a reasonable inquiry and the court needs to apply required sanctions an attorney and their clients if appropriate.

Inconsistent pleadings : in the same complaint the plaintiff can allege A is true and B is true, but both together cannot be true.

Before an attorney makes any arguments before the court they need to make reasonable inquiries with their clients.

Model Rules of Professional Conduct: Rules 3.1-3.3

The defendant can do two things in her answer : 1. Respond to the allegations of the complaint2. Raise new matter through an affirmative defense.

Responding: During a response the defendant can admit, deny, or claim that she lacks sufficient into to admit or deny.

Allegations that are properly denied are said to be joined, which means they are in dispute and may proceed to adjudication.

Denials: there are three kinds of denials1. General denial2. Specific denial3. Qualified general denial

Due Process requires that you take reasonable steps under the circumstances to provide the defendant’s proper notice. (Mullane Case): The more serious the case the greater reasonableness required to give notice.

Two additional elements of the Due Process Clause:1. Reasonable notice2. Opportunity to be heard

Rule 18: Joinder of ClaimsRule 18(a): Allows a claimant to assert every claim she has against the opposing party. Applies even if the claims are not transactionally related, are based upon different theories, and even if the claimant is seeking different remedies.

Every time a plaintiff adds a claim, there needs to be subject matter jurisdiction over the claim. If not it can’t be added.

Allows a party, not just a plaintiff, to make/join any claims.

Rule 15: Amending the Pleadings: It is fairly east to amend a claim during discovery because it is foreseeable, new evidence will show or raise new claims.Rule 15(c)(1)(a)(b): Amendment relates back:

Once the court sees that the claim relates back it also needs to meet the circumstances under rule 15(a).

When a court is deciding to grant amending the pleadings they look at:o Bad faitho Undue delayo Unfairly prejudice: Put in an unfair advantage

The other party is going to have a hard time preventing a pleading to amend unless they have one of the things listed above.

Marsh v. Coleman Co

Rule 20: Joinder rules: Every time a new claim or party is brought into a lawsuit, you have to look at the Subject Matter Jurisdiction and Personal Jurisdiction for each one. The only time you’re allowed to bring them in is if the FRCP allows or tells you that you have to. (Have to have some question of fact or law common between them)

Rule 13: Counterclaim and Crossclaim

Transaction and occurrence or series of transactions and occurrences: There needs to be a logical relationship between the claims (The butfor test) Courts are also looking at if there is an overlap of the facts and witnesses.

Crossclaim: What defendant is entitled to do, is they can sue a co-defendant or bring a crossclaim where if the plaintiff wins against both, but collects only from one, one defendant can collect some of the money back from the co-defendant who plaintiff did not originally collect from.

Rule 14: Third-party Practice Only allows defendant to bring in a third party defendant if they may be liable for all or part

of the claim against the defendant. Under Rule 14(a)(2)(D), third party defendant can sue original plaintiff for claims arising

out of the same transaction or occurrence as the main claim.

INSERT ALYSSA’S NOTES

You will not have supplemental jurisdiction over a third party defendant.1367(a): gives supplemental jurisdiction if the court has original jurisdiction over the claim.1367(b): Can take it away.

Are the parties added by a plaintiff? (Rule 20 or rule 14) Original claim solely based on 1332 diversity Claim is brought by original plaintiff against defendant, not by defendant v. plaintiff(If these are met there will not be supplemental jurisdiction.)

1367(c): If B doesn’t take it away, the courts still don’t have to grant supplemental jurisdiction.1367(d): Statute of limitations: 30 days after it is dismissed unless state law is a longer period of time.

7. There are four rules stating that as a matter of law based on the relevant facts the jury could find for only one of the parties:

1. Rule 12(b)(6): Failure to state a claim upon which relief can be granteda. Made during or after discovery (Is there a genuine dispute of a material fact)

2. Rule 56: Summary judgment or Partial Summary Judgment (at discovery)a. Deals with one or more of the elements of the claim, but won’t negate the whole

claim.b. Slaven v. Salem

3. Rule 50(a): Motion to dismiss the direct verdict (Judgment as a matter of law)4. Rule 50(b): Judgment not withstanding the verdict (ask for a new trial)

Direct verdict: a motion for judgment as a matter of lawJudgment not withstanding the verdict (JNOV): a renewed motion as a matter of law

Must be filed within 28 days after he entry of a judgment, the time limit can be enlarged by the court.

Both have same standard as summary judgment: Whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.

Discovery: Process by which the parties find out what the other parties knows. These are all part of discovery:

They can send interrogatories written questions that have to be answered honestly and truthfully.

Depositions under oath the opposing party ask the other party or witnesses questions and the answers get transcribed. Can be used at trial. (Recorded and added to the record)

Medical records Written documents Anything that could lead to something being admissible in court

Rule 56: If the court is shown that there is no genuine dispute of material fact, they will dismiss the claim and grant summary judgment.

For the defendant to get a complete Summary Judgment motion granted, they just need to show there is no genuine dispute of material fact for one of the elements of the crime.

For the plaintiff to get a complete Summary Judgment motion granted, they just need to show there is no genuine dispute of material fact for all of the elements of the crime.

o Plaintiff can get partial Summary Judgment if they can prove no genuine dispute for some of the elements.

Affirmative defendants: defendant has the burden of proof to show that each element has no dispute of material facts.

Burdens of Proof: There are two types1. Burden of Production: Whoever has the burden of production, will also have the burden of

persuasion. Evidence has been introduced as to each element of the prima facia case to support each element. (Doesn’t go to the strength of the evidence, but just the production of evidence)

2. Burden of persuasion: The judge looks at how persuasive the evidence given is.

Direct witness testimony: Direct witness is testifying that they saw something happen.

Inferences: Don’t have a direct witness to say something, but from circumstantial evidence and testimony if can be inferred by the jury that something happened. There are two steps for inferences:

1. Is there an inference that could be had?2. Just how strong is the inference to have the judge let the jury infer something in regards to

the facts?

Rule 50(a): Direct verdict motion Parties can more from a directed verdict motion after either the plaintiff or the defendant is

fully heard on an issue. (Only by the plaintiff after the plaintiff is done or by the defendant and plaintiff one the defendant is done)

Burden of production comes up when talking about the relevance of the defendant’s witness.

o Some courts will only look at the time’s evidence when granting summary judgment.o Under Federal Courts they will also look at defendant’s evidence.

Rule 50(b): Judgment Notwithstanding the Verdict (JNOV)

This can only be raised by the party that raised the 50(a) motion and the 50(a) motion was raised first, but they can only bring it up if the judge denied a 50 (a) motion.

The party making it needs to make it 28 days after jury verdict, saying that the jury could not have reached the verdict they did with the facts that were presented and the judge should reverse the judgment based on the evidence.

CAN ONLY BE MADE IF THE 50(a) MOTION WAS RAISED FIRST.

Rule 59: New Trial; Altering or Amending a Judgment This is not asking to reverse the judgment made, but is in fact asking for a new trial

altogether. This motion is often brought in conjunction with a rule 50(b) motion. The judge has the authority to grant a rule 59 motion or bring it up on her own under rule

59(d) if she feels as though there was some ruling error or that the trial would get remanded on appeal anyways.

This must also be brought within 28 days after entry of judgment.Will be granted if:

Trial errors by judge regarding:o Evidenceo Insufficient evidence

New Evidence comes up within that 28 days that would cause the case to sway a different way for a different possible outcome

Size of the award grantedo If the size “shocks the conscious” in that it is too large or too small the judge could

grant a new trial or the judge could lower or raise the award if the parties agree to that new number.

Motion for a new trial based on the verdict going against the clear weight of the evidence.o This is when the judge goes into the credibility of the witnesses (Burden of

persuasion)

Res Judicata: precludes people from bringing the same claim against another, more than once. Also referred to as claim preclusion.

A claim is described as arising from the same transaction or occurrence. Elements of Res Judicata:

o Same claimo Same parties between first and second suito Valid prior judgmento Judgment raise on the merits

(Wasn’t dismissed by something)If all of these elements are met, Res Judicata is found, and you cannot bring a new (second) claim against the opposing party.

Res Judicata barrs claims that were litigated at the first trial and it barrs claims that even though they were not litigated, should have and could have been, brought up at the first trial. This is referring to claims that were available to the party, but they did not bring rise to it in the first case.

Elements expanded:1. Same claim: arising from the same transaction or occurrence.

a. If you don’t bring all of the claims up when you bring a claim in federal court, you’ll be barred from bringing them up in state court. (vice versa) Unless, the Federal

court has exclusive rights to hear something and you can’t bring that specific claim in state court because of the exclusiveness, but you bring a state claim to begin with.

b. Federal claims, so long as the courts allow, can be brought in both state and federal court unless they’re exclusive, which if exclusive will not be barred by res judicata.

2. Same parties: Parties have to match exactly if the parties switch plaintiff and defendant roles then res judicata will not apply. (Needs to have same party configuration)

a. This can occur through privity. If the court believes that one of the parties in the second suit was basically the same, as the party in the first suit then res judicata will apply. (i.e. if the first party was acting on behalf of the second party)

3. Valid and on the merits: the first lawsuit had to have been valid and decided on the merits. (Wasn’t dismissed for some reason)

a. If dismissed because of personal jurisdiction or subject matter jurisdiction, that’s not on the merits.

4. Final: if the first case has a pending appeal, the decision is still final.

Collateral Estoppel : precludes a party from relitigating issues that were actually litigated and decided in a prior action. If an issue could’ve been raised, but wasn’t, collateral estoppel will not bar a party from litigating that issue again. (Typically used when Res Judicata doesn’t bar a claim from being raised)

Elements of collateral estoppel: Issue in the second case was the same as the first Issue must’ve actually been litigated Even if an issue was litigated in a prior action, it may not be barred unless the issue was

decided on in the first issue. The decision on the issue in the prior action was necessary to the courts judgment

(essential to the judgment) Mutuality

Elements expanded:1. Same issue: same issue litigated in both suits2. Actually litigated: same issue was decided by rule 56, rule 50(a) or (b) or trial verdict, but

if in the first suit the party admits to stipulates to an issue or defaults or agrees to a settlement then collateral estoppel will not bar the second suit because the party never litigated the issue.

3. Actually decided: Looking at the rendered verdict/decision can you tell whether that actual issue was decided on

a. General verdict: the jury finds for either the plaintiff or defendantb. Special verdict: The jury looks at the merits of defendant’s defenses and plaintiffs

claim and rule in favor of one or the other.4. Issue must be necessary/essential for the jury or fact finder to come to the decision.5. Mutuality : (has three steps)

a. Are the parties the same? (Doesn’t have to be the same configuration)i. If yes then okay

ii. If no, next stepb. Is the party against who issue preclusion is raised, a party in the first suit?

i. If no, can’t use issue preclusionii. If yes, next step

c. Is the party asserting issue preclusion using it defensively against losing party from the first suit?

i. If yes, issue preclusion is allowedii. If no, if is not allowed

Defensive v. Offensive use: When the defendant uses issue preclusion, it is called defensive non-mutual use of

collateral estoppel.o Will allow new defendant to estopp plaintiff from bringing a claim against

them for the same reason as was brought against them in the first suit. When the plaintiff uses it, it is referred to as the offensive non-mutual use of

collateral estoppel.o Will allow new plaintiff to estopp defendant from trying to relitigate an issue

they already lost.

Parklane Factor Test:1. Could the plaintiff’s have joined in first suit?2. Are future lawsuits foreseeable to defendant in the first suit?3. Were there inconsistent prior verdicts?4. Does new forum provide beneficial procedural opportunities to defendant that

weren’t there in the first suit?Federal court will always use the Parklane test, but most state courts don’t.

Erie Doctrine: Law applied in Federal courts (Erie v. Thompkins) All Federal courts need to look at the state law when diversity is present.