Civil Procedure for the Bar Exam

I. Personal jurisdiction

A. Question: in what states can P sue D? (doesn’t matter in which court)

B. Answer:

1. satisfy a statute (ex. Long arm) AND

2. satisfy constitution (due process)

a. test; does D have such minimum contacts with forum that exercise of jurisdiction would not offend traditional notions of fairplay and substantial justice?

b. Easy times; when domicile, consents or is present when served.

c. Tougher to judge;

1) Factors; (my parents forgot to read children’s stories)

a) Minimum contacts (must be something)

(i) Purposeful availment (D voluntarily reached out to forum)

(ii) Foreseeable that D could be sued here

b) Substantial fairness

(i) Relatedness – between contact and claim

(1) did claim arise from contact?

(2) NOT NEEDED if substantial ties, because then has general jurisdiction (for any claim by D)

(ii) Convenience – ok unless severe disadvantage in litigation

(iii) State’s interest – in subject/action

II. Subject matter jurisdiction

A. Question: which court can P use to sue D in a state? Fed or state

B. Answer

1. state; ok (but could be removed)

2. fed; limited

a. diversity of citizenship

1) citizens of different states AND

a) Not ok if any of the p’s are same state as any d’s.

b) No conclusive factors

c) Citizenship; if United States citizen, then domicile is

(i) Presence AND

(ii) Intent to make home (move not automatic)

d) Every citizen has exactly 1 at a time.

e) TEST at time of filing

f) Corporations; where incorporated and principal place of business (nerve or muscle)

g) Unincorporated associations; use citizenship of all members (general and limited partners)

h) Decedents, minors and incompetents, still use their citizenship not their representatives’ citizenship.

2) More then 75,000$

a) Test; whatever P claims in good faith

b) Unless no legal way to get it (statutory ceiling etc.)

c) Ok even if actually recovers less.

d) Aggregation

(i) Adding claims to meet 75,001

(ii) Only if 1 P and 1 D.

e) Equitable relief;

(i) D’s view of relief or P’s view of cost to comply

b. federal question

1) complaint must show a right or interest founded substantially on federal law. Claim must arise under federal law (well pleaded complaint rule). “p is enforcing a federal right”

2) Citizenship of parties does not matter (but additional claims must go through new tests)

c. supplemental jurisdiction

1) ok if NO diversity or fed. Q if

2) P must have 1 claim in fed ct already. AND

3) Same transaction or occurance

a) Except can’t use when would violate complete diversity.

b) Ok if first one was federal question and adding $ of claims gets over 75,000

4) Discretionary factors- ct can turn down if

a) FQ dismissed early in proceeding or

b) State issues complex or

c) State issues dominate.

III. Removal

A. Gives D power to have a case filed in state court, moved to federal court.

B. Test; ok if federal subject matter jurisdiction

1. diversity or FQ

C. where ok in federal court embracing state ct where filed.

D. When; no later then 30 days after service of first removable document (but not over 1 year)

E. Who; all D’s must agree, NEVER P’s.

F. Except

1. not if any D is citizen of the forum

IV. which law to use

A. erie doctrine

B. in diversity cases does the federal court use state or fed. law?

1. Use state when

a. Elements of claim or Defense

b. SOL (tolling)

c. Choice of law

d. No federal law conflicts

e. Or issue is substantive

1) Outcome determinative

2) Balance of interests says yes

3) Consider effect on forum shopping

V. Venue

A. Know fed ct and which state.

B. Question is which district?

1. removed case to fed district embracing state court where originally filed

2. Re; land (ownership, possession, injury), then filed in district where land lies

3. transitory

a. any district where all D’s reside or substantial part of claim arose.

b. Reside? Domicile, corporations broad definition.

c. But if all d’s reside in different districts in same state, any district ok

C. Transfer of venue

1. court’s discretion

2. test

a. only to where could have been tried.

b. for

1) convenience of parties and witnesses (private factors) or

2) interests of justice (public factors- burden on new court)

3. ct uses same choice of law rules and same other rules as original fed ct.

4. if original venue improper, ct can transfer or dismiss

VI. service of process

A. symbol of courts power over you

B. must give notice to D

1. deliver the= service of process= personal jurisdiction

a. summons and

b. complaint

C. service

1. who can serve? Any non party over 18 years

2. How?

a. Personal in state (or outside if forum allows)

b. Substituted service OK if

1) D’s usual abode AND

2) Serve someone of suitable age and discretion who resides there

c. Service on D’s agent OK

1) If within scope of agency (contract or law) or

2) Corporations registered agent, managing agent, or officer

3. OK if ok under state law

4. OK if waiver by mail

a. Process is mailed and D returns form in 30 days. Or

b. D doesn’t return and serve using other ways. Then D may have to pay for the cost of service.

VII. Pleadings

A. Notice pleading= only enough detail to provide notice and allow response

B. Rule 11; attorney or pro se party must sign all docs.

1. signing= certification that

a. not improper purpose

b. legal contentions are warranted by law

c. factual contentions/denials have evidentiary support (or are likely to after further investigation)

2. effective every time you present to court (argue during trial etc)

3. sanctions;

a. discretionary

b. for deterrence (non $ penalties ok and $ goes to court)

c. attorney/firm/party

4. 21 day safe harbor-

a. after notice fix w/o sanctions

b. Filer must wait 21 days to file with court

5. Sua sponte can be raised by court but still need (notice and chance to be heard)

C. Complaints

1. NEED

a. Statement of subject matter jurisdiction

b. Short and plain statement showing you are entitled to relief

c. Demand for judgment

2. special matters

a. for fraud, mistake and special damages (not normally flow from event)

b. NEED detail (particularity and specificity)

D. D’s response

1. two ways (motion or answer) within 20 days

2. motion or

a. Not a pleadings

b. Asking for a court order

c. What

1) Too vague or motion to strike

2) Lack of subject matter jurisdiction (made anytime)

3) Lack of PJ, improper venue, insufficiency of process, insufficient service of process ( made in first response or waived)

4) Failure to state a claim, failure to join indispensable party (made anytime through trial).

3. answer

a. is a pleading

b. within 20 days of complaint or 10 days after court rules on motion

c. NEED

1) Respond to allegations

a) Deny

b) Admit

c) Lack sufficient information to admit/deny

(i) Can’t use if information is under your control or public knowledge

(ii) Acts as denial

d) no denial (or no response)

(i) Acts as admit

2) Raise affirmative defenses (SOL, res judicata, self defense etc.) or waive

a) The even if I did, I still win because…

4. counterclaim

a. against opposing party

b. filed with answer

c. MUST/compulsory if same T/O (if don’t file, waive)

d. Permissive/may can raise in separate case

e. Need federal jurisdiction

1) Diversity

2) Fed Q

3) Supplemental

5. cross claim

a. against co-party

b. May permissive, same T/o

c. Federal jurisdiction (diversity, fed Q, supplemental)

6. amend pleadings

a. right

1) P right to amend once before D serve’s answer (not motion)

2) D right to amend once within 20 days of serving answer

b. Court will if justice so requires

1) Factors; delay, prejudice

c. Variance

1) If evidence at trial does not match what is pleading

2) D can object to conform to the evidence.

d. Amendment after SOL runs

1) Ok to amend if relate back if same T/O conduct (can avoid SOL)

VIII. Joinder of parties

A. May if

1. arise from same T/O AND

2. raise at least one common question

B. Must if

1. necessary indispensable (required)

a. court needs for complete award

b. new parties interest may be harmed

c. D faced with risk of multiple obligations

d. joint tortfeasors are not necessary

2. feasible

a. personal jurisdiction and

b. not ruin diversity

c. court decides if P or D

d. if no

1) court proceeds without or dismisses entire case

2) factors

a) alternative forum

b) actual likelihood of prejudice

c) can court shape relief to avoid prejudice

C. impleader

1. defending party wants someone to help pay

a. insurance (indemnity), jt. Tortfeaser (contribution)

b. need personal jurisdiction (diversity, fed Q, supp J)

2. RIGHT

a. 10 days to answer

3. CT

a. Other

4. steps file 3^rd party complaint and serve

5. P can assert claim to new D: if same T/O

6. new D can assert claim against P if same T/O

D. intervention ≠ tested lately

E. class action

1. Rep sues on behalf of group

a. Need ALL

1) Numerosity- too many to be practicable

2) Commonality

3) Typicality- rep = typical of class

4) Representative adequate (fairly and adequately)

2. type

a. (rare) necessary to avoid harm to class members (claimants to fund)

b. Injunction/declaratory damages

1) Class treated alike by D

c. Damages

1) Common Q predominate over Ind. Qs

2) Class action best method to handle

3. procedure

a. ct determines early if OK to certify

b. define class and appoint class counsel, rep, claims and defenses

4. notice

a. for type 3. Yes, including ind. Notice to all reasonably identifiable members

1) ok to opt out

2) bound if don’t can’t use other counsel.

3) Rep pays for expenses

b. Type 1 or 2 no

5. who bound

a. all except those who opted out (type 3)

6. settlement/dismissal

a. court has to approve

b. notice to class members

c. if type 3 second chance to opt out.

7. jurisdiction

a. still need SMJ

b. but for diversity only use Rep’s citizenship and money

IX. discovery

A. required disclosures (don’t need ask)

1. initial

2. experts who will testify (after identify)

3. pretrial

B. discovery tools

1. NOT until after rule 26 conference unless court allows

Applies to parties?	tool	Applies to non party?
X	Depositions= sworn oral testimony	X only compelled if subpoena (might require to bring stuff)
X	Interrogatories Q in writing, under oath, must respond in 30 days
X	Requests to produce or make docs available	X if subpeona
X	Physical or mental exam NEED CT ORDER and Actual controversy and Good cause	X
X	Request for admission

2. parties and attorney’s sign tools under oath and duty to supplement.

a. Warranties

1) Proper purpose and

2) Unduly burdensome

C. Scope of discovery

1. anything relevant to claim or defense (pleading)

2. ct can order “relevant to subject matter of case for good cause

3. relevant = reasonably calculated to lead to the discovery of admissible evidence

D. limits

1. privileged matter is NOT discoverable (evidence rules)

2. work product /trial prep is not discoverable

a. “prepared in anticipation of litigation”- fearing suit counts

b. Not necessarily made by lawyer (only by rep of party)

c. Sometimes

1) Evidence/facts IF

a) Substantial need

b) ≠ otherwise available

d. NEVER

1) Mental impressions

2) Opinions

3) Conclusions

4) Legal theories

E. Expert witness

1. testifying at trial= must provide information that may be used at trial

2. consulting expert= only if exceptional need

F. enforcement

1. problems

Overly burdensome	Protective order-
Trade secrets
Answers some/objects to some and objections not upheld	Partial violation of discovery rule= light sanction
≠ respond at all	Complete violation of discovery rule= heavy sanctions
False denial to admit (and proved)	then only costs and attorney’s fees
Failure to make required disclosure	Can pick full or partial

a. person seeking protective order must certify that they tried in good faith to get it w/o court intervention

b. light sanctions

1) order to finish answers THEN

2) sanctions, cost, attorney’s fees, and get contempt (unless refuse to submit to medical exam)

c. heavy sanctions

1) NO chance to fix

2) Immediate: sanctions, cost, attorney’s fees and get contempt

d. Sanctions

1) Establishment order (makes facts true)

2) Strike pleadings of disobedient party

3) Disallow evidence at trial on that issue

4) Dismiss P’s case ( if in bad faith)

5) Default judgment (if in bad faith)

e. Exceptions

1) No sanctions for electronically stored information if lost in good faith and by routine operation of electronic system

X. Pretrial adjudication

A. Failure to state claim (demurrer)

1. D moves

2. test; assuming all allegations true would P win judgment?

a. Don’t look at evidence

b. Only at face of complaint

3. if made after D’s answered

a. then motion for judgment on the pleadings.

B. Summary judgment

1. not need trial and ≠ disputes of fact

2. NO dispute on matter of fact

3. view evidence in light most favorable to non-moving party (including affidavits)

4. entitled to judgement as a matter of law

5. OK to weigh if one side has NO evidence, but not ok to weigh sufficiency or quality of evidence. (look only at evidence which uses first hand knowledge)

C. Conferences and meeting

1. pre trial conferences ct can expedite case and foster settlement

2. final pre trial conference

a. ct decides issues to be tried, evidence to be offered and that supercedes pleadings, it is a road map for trial.

XI. Trial, judgment and post trial motions

A. Jury trial

1. jury determines fact and instructed on law by judge

2. right to if $ (7^th amend, fed ct only)

3. NO if equitable (nonmonetary)

4. mixed? Jury decides facts under $ and judge under equitable

5. how

a. must demand in writing within 10 days after service of last pleading (w/ jury issue)

6. selection

a. voir dire

1) unlimited for cause (bias, prejudice, related)

2) 3 preemptory strikes

a) Not for gender or race (jury selection = state action)

B. Motion for judgment as a matter of law (directed verdict)

1. take case from jury

2. after otherside has been heard

3. standard “reasonable people would not disagree on the result”

4. before jury decides

C. renewed judgment as a matter of law

1. after jury decides

2. have to have made motion for judgment as a matter of law

3. losing party files

4. standard;

a. “jury reached conclusion that reasonable people would never reach”

D. Motion for a new trial

1. errors @ trial- judge thinks parties should start over

2. not as radical as judgment as a matter of law

3. move within 10 days after judgment

4. possible grounds

a. prejudicial error makes judgment unfair

b. new evidence (no fault)

c. prejudicial misconduct

d. judgment against weight of evidence

E. appeal

1. only from final judgment

a. on merits of entire case

b. notice in trial court within 30 days of entry of final judgment

c. final = after making order did trial court have anything left to do? (on the merits)

2. interlocutory (non-final) review

XII. claim and issue preclusion

A. whether a judgment already entered (case 1) precludes litigation of any matter in another case (case 2)?

B. Claim preclusion/res judicata

1. only get to sue on claim once

2. NEED

a. Brought by same P against same D

b. 1 ended in valid final judgment on the merits

1) =Any judgment unless says otherwise

2) ≠ judgment on

a) Jurisdiction

b) Venue

c) Indispensable parties

c. 1 and 2 asserted same claim (same T/O) minority says same rights (personal injuries, property damage etc.)

C. Issue preclusion/collateral estoppel

1. can’t relitigate same issue litigated before

2. NEED

a. Case 1 ended in valid final judgment on merits

b. Same issue litigated AND determined in case 1

c. Issues was essential to judgment in case 1

d. Against who only if party to case 1

e. By whom (most courts say mutuality) if party to case 1

1) Nonmutuality-

a) defensive (not party to 1, but D in 2)

(i) ok if against party who had full and fair opportunity to litigate in first case

b) offensive (not party to case, but P in 2)

(i) NO but trend and some courts say

(1) Ok if not unfair

(i) Factors; full and fair opportunity to litigate, could foresee multiple suits, user could not have easily joined case 1, not inconsistent judgments on record.

(ii)