I.

SUBJECT-MATTER JURISDICTION
A. In General (OL I.A.)
1. To adjudicate a case, the court must have jurisdiction (power) to do so. Remember three concepts related to subject
matter jurisdiction.
a. !eneral " #ourt can handle an$ %ind o& case
b. Limited " 'ederal courts have limited jurisdiction and can preside over &ederal (uestions or cases in diversit$
c. #oncurrent jurisdiction " A case can be heard in state or &ederal court
). Two %e$ points to remember in &ramin* an answer about &ederal jurisdiction+
a. ,ust be a statutor$ basis &or each claim a*ainst each part$ to be in &ederal court
b. ,ust be a jurisdictional *rant to hear the case
(1) - 1..1+ &ederal (uestion jurisdiction
()) - 1..)+ diversit$ cases
(.) - 1./0+supplemental jurisdiction
B. Original Subject-Matter Jurisdiction of Federal Courts (OL I.1.)
1. Federal Question Jurisdiction 2)3 4.5.#. - 1..16
a. 1asic rule+
7oes a case arise under &ederal law8
b. 7eterminin* &ederal (uestion jurisdiction+
(1) 'ederal statute has created private ri*ht o& action
()) wellpleaded complaint rule+ 7e&endant claims &ederal de&ense but plainti&& cannot preemptivel$ claim
anticipated &ederal de&ense to sue in &ederal court because that violates wellplead complaint rule. I& case
couldn9t be brou*ht into &ederal court in the &irst instance, it cannot be removed to &ederal court
(.) state (uestions involvin* substantial (uestion o& &ederal law ma$ be su&&icient+ : is suin* in state law
ne*li*ence action, which re(uires resolvin* &ederal (uestion
). Diersit! Jurisdiction 2)3 4.5.#. - 1..)6
a. A"ount in Controers!+
(1) ,ore than ;0<,===
()) 5tandard+ #ourt will dismiss an action based on diversit$ i& it appears to a legal certaint! that the claim is less
than ;0<,===
(.) #laims ma$ be a**re*ated but multipart$ claims ma$ not be a**re*ated
b. Diersit! of #itigants+
(1) #omplete diversit$ dispute must involve citi>ens o& di&&erent states
()) ,inimal diversit$
(.) #omplete diversit$ is necessar$ to assert jurisdiction
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If t%ere are four I# citi&ens joined as 'laintiffs suing t(o IA citi&ens) t%ere is co"'lete diersit!
because no state a''ears on bot% side of t%e *+.
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If t%ree 'laintiffs) one fro" I#) one fro" IA) one fro" MI) sue defendants) one fro" F# and one fro" IA)
t%ere is no co"'lete diersit! because IA a''ears on bot% sides of t%e *+.
c. Deter"ining citi&ens%i' of 'arties+
(1) Cor'orations+
1
FEDERAL CIVIL PROCEDURE
5tate with principal o& business and where the$ are incorporated.
()) Indiiduals+
!eneral rule is that individuals are citi>ens o& the state where the$ were last domiciled, with intent to
remain inde&initel$.
5pecial rule+ The citi>enship o& an individual who is administrator or eAecutor o& an estate is
determined b$ the citi>enship o& the decedent
C. Su''le"ental Subject-Matter Jurisdiction 2)3 4.5.#. - 1./06 (OL I.#.)
1. Bow $ou %now there is a supplemental jurisdiction issue+
,ultiple claims and one o& the claims will be able to survive in &ederal court and one part would not survive in &ederal
court
). 'irst step+
As% $oursel& i& the claims are arisin* out o& the same case or controvers$ i.e. a common nucleus o& operative &act

a. I& $es, then+
,ore anal$sis is re(uired
b. I& no, then+
no supplemental jurisdiction
.. 5econd step+
Is the sole basis &or jurisdiction diversit$8
a. I& no, then+
5upplemental jurisdiction eAists
b. I& $es, then+
#on*ress sa$s there is no supplemental jurisdiction i& the : is tr$in* to *et around the amount o& controvers$
Re(uirement in a diversit$ case b$ assertin* supplemental jurisdiction
C. ?ven i& supplemental jurisdiction eAists, the court is not re(uired to eAercise it.
discretionar$
De$ words in each step+
E Is it a supplemental jurisdiction problem8
E Are the claims at issue part o& the same case or controvers$ i.e. common nucleus o& operative &act8
E Is there a &ederal (uestion8
E #ourt discretion to decline the claim
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Anne, a resident o& #ali&ornia, sues the 4.5. !overnment in &ederal district court under the 'ederal Tort #laims Act a&ter her
husband and two children are %illed when their plane crashed into an electric power cord. The ori*inal claim a*ainst the 4.5.
!overnment &or &ailin* to provide ade(uate runwa$ li*hts ma$ onl$ be brou*ht in &ederal court. Anne includes the cit$ o& 5an
7ie*o and the #ali&ornia utilit$ compan$ as de&endants in the action, alle*in* related state claims. 1oth #ali&ornia de&endants
move to dismiss based on lac% o& jurisdiction. Bow should the court rule on the motion8
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#ourt should dismiss the motions. :art o& this case can sta$ in &ederal court as there is &ederal (uestion here under the
'ederal Tort #laims Act. 1ut part o& the case cannot survive in &ederal court alone as there is no diversit$ between the
plainti&&s and de&endants, who are &rom #ali&ornia. This appears to then be a problem o& supplemental jurisdiction.
The &acts seem to arise &rom common nucleus o& operative &act. The claims arise &rom plane crash so there is a common
nucleus. Anne also has &ederal (uestion jurisdiction in &ederal court, so supplemental jurisdiction eAists to consider state law
(uestions.

D. 1e"oal and 1e"and of State Court Actions (OL I.7.)
1. 1e"oal
a. !eneral rule+
An action brou*ht in state court ma$ be removed b$ the de&endant to &ederal court i& the cause ori*inall$ could have
been brou*ht b$ the plainti&& in &ederal court.
b. ?Aceptions+
(1) i& : could have brou*ht the case in &ederal court onl$ based on diversit$ jurisdiction " re(uest &or removal on
*rounds o& diversit$ jurisdiction will not be *ranted i& an$ o& the de&endants in the case is a citi>en o& the &orum
state
()) i& there are multiple de&endants, all de&endants must join in removin* to &ederal court
c. Timin* issues+
the case should be removed within .= da$s. I& the case becomes removable solel$ on diversit$, it cannot be
removed i& it has been more than a $ear.
). 1e"and+
&ederal court would remand i& case was removed improperl$ or ma$ &ind a &orum selection provision en&orceable..
motion to remand must be made within .= da$s o& removal notice and de&endant has burden o& proo& that removal was
proper.
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Fohn resides in the eastern district o& Gew Hor%. Be &iles a lawsuit a*ainst his ph$sician, 7r. Da$, &or medical malpractice in
state court. 7r. Da$9s o&&ices are located in the southern district o& Gew Hor%, but he is domiciled in Gew Ferse$. Fohn9s
action demands over ;1==,=== in dama*es. ,a$ 7r. Da$ have Fohn9s action removed to &ederal court8 I& so, to which court
will it most li%el$ be removed8
The case could have been brou*ht in &ederal court as there is diversit$ o& citi>enship and amount in controvers$
re(uirement is met. 7r. Da$ is a citi>en o& Gew Ferse$. Fohn is resident o& Gew Hor% and sued the doctor in GH. I& a
plainti&& could have brou*ht the case in &ederal court, a re(uest &or removal on *rounds o& diversit$ jurisdiction will not be
*ranted i& de&endants in the case is a citi>en o& the &orum state. Bere, we seem to not have this problem i& 7r. Da$ is onl$
&ound to be a citi>en o& Gew Ferse$. Be can remove the case to the &ederal court that *overns same *eo*raphical area
as the state court where he has been sued.
0. 2rits of Habeas Corpus
1. Ihat a writ o& habeas corpus is and what it is not+
writ is a civil action a*ainst jailer that alle*es that reason &or con&inement is de&ective. It is not an appeal or to continue
the criminal case.
). !round &or *rantin* writs o& habeas corpus+
violation o& due process, violation o& ri*ht o& sel&incrimination, violation o& ri*ht a*ainst double jeopard$, violation o& the
ri*ht a*ainst cruel and unusual punishment
Limits+ eAhaustion o& state remedies and within one $ear o& &inal jud*ment o& custod$
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II. PERSONAL JURISDICTION
Hou must per&orm a separate personal jurisdiction anal$sis &or each and ever$ de&endant. 1e sure not to combine
them.
A. /erritorial Jurisdiction of t%e Federal Courts (OL II.A.)
1. !eneral rule+
A &ederal court can reach as &ar as a state court in appl$in* territorial personal jurisdiction
). 5ome special rules+
a. Gationwide jurisdiction
b. 1==mile bul*e " I& the 7 is joined under Rule 1C or 1J, and served in a judicial district not more than 1== miles &rom
where summons was issued
B. A''l!ing t%e General 1ule (OL II.1.)
1. Three wa$s to assert jurisdiction over a de&endant+
a. in personam
b. in rem
c. (uasi in rem
C. In Personam Jurisdiction (OL II.#.)
1. 1ased upon the de&endant9s relationship with the state+
a. 7omicile a person is considered to be domiciled within the state i& the person resides within the state and that
person has eApressed the intent to remain there inde&initel$
b. 5ervice " 7 who is served with process while in the &orum state is subject to the court9s personal jurisdiction even i&
presence in the state is temporar$ and entirel$ unrelated to lawsuit. ?Aception+ inducement or judicial proceedin*s

). 1ased upon consent or waiver+
a. eApress person ma$ eApressl$ consent to jurisdiction i.e. si*nin* a contract with &orum selection clause
b. implied " state ma$ have substantial interest in nonresidents in a particular instate activit$ i.e. drivin*
c. waiver " &ailure to raise personal jurisdiction in answer under Rule 1)(b)
.. 1ased upon contacts+
a. !eneral jurisdiction+
where a de&endant is re*ularl$ en*a*ed in business, has a &acilit$ or is so &re(uentl$ in a state that the number and
(ualit$ o& de&endant9s contracts with the state would be described as s$stematic and continuous
b. 5peci&ic jurisdiction and outo&state de&endantsKre(uirements+
(1) &ederal court lon*arm statute can reach out o& state de&endant
()) minimum contacts
c. #onstitutionalit$ o& assertion o& speci&ic jurisdictionKminimum contacts+
(1) i& one contact that the de&endant has with the &orum state is the cause o& action, minimum contacts eAist and
()) i& a de&endant has 'ur'osefull! aailed itsel& o& the bene&its o& the &orum state, su&&icient minimum contacts
&or personal jurisdiction eAist
D. In Rem Jurisdiction (OL II.7.)
1. Ihat it means+
1ased on the interests o& a particular piece o& propert$ located within the &orum state
). :rere(uisite+
there must be real or personal propert$ o& value located within the state where the &ederal district is located and that the
state has sei>ed the propert$ and *iven the owner proper notice
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0. Quasi in Rem Jurisdiction (OL II. ?.)
1. Ihat it means+
when the court sei>es real or personal propert$ o& value located within state or territorial limits and the dispute is
unrelated to the propert$
). Ihen it is constitutional+
,inimum contacts are still re(uired in order &or the court to eAercise (uasi in rem
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,ar$ and Todd are residents o& Gevada. The$ purchase a used car at an automobile dealership in Gevada and drive it across the
countr$. 4n&ortunatel$, as the$ are drivin* throu*h Gew Hor%, the car catches &ire, causin* severe injuries to ,ar$. ,ar$ and Todd
&ile a lawsuit a*ainst the dealership in a Gew Hor% &ederal district court. The dealership moves to dismiss the action based on lac%
o& personal jurisdiction. Bow should the court rule on the motion8
The dealership is the de&endant in this case, which is in Gevada. This is a situation o& speci&ic jurisdiction. I& the de&endant has
just one contact with the &orum state which is the cause o& action, minimum contacts eAist as lon* as the de&endant has
purpose&ull$ availed himsel& to the state. The minimum contacts re(uirement is &ul&illed here as the car sold in Gevada, which
ended up in Gew Hor%, is the subject o& the suit. Bowever, purpose&ul availment is lac%in* here because there is no indication
that the dealership attemptin* to direct their activit$ in Gew Hor% when the$ sold the car in Gevada. #ourt should *rant dismissal
III. VENUE
A. 3enue (OL III.A."?)
1. Ihat venue is all about+
Lenue is the &ederal court where the action is &iled. ?ven i& court possesses personal and subjectmatter jurisdiction
over a de&endant or cause o& action, the plainti&& must also show that venue is proper.
). Lenue is proper wherever $ou can satis&$ one o& two tests+
a. Lenue is proper where one de&endant resides i& all residents reside in same state
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A case &iled in the Gorthern 7istrict o& Illinois a*ainst &our de&endants, venue is proper i& at least one o& those
de&endants resides within the Gorthern 7istrict and all o& the de&endants reside somewhere in IL.
b. Lenue is proper where a substantial portion o& the events occurred
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I& a suit is &iled in the 5outhern 7istrict o& Illinois, venue will be proper i& this is a suit about an automobile accident i&
the accident occurred somewhere in the 5outhern 7istrict o& Illinois.
.. Third basis, but seldom used+
a. Lenue will eAist in a diversit$ case+
I& there is no other district where de&endant can be sued, then an$ district where de&endant is subject to personal
jurisdiction
b. Lenue will eAist in &ederal (uestion cases+
I& there is no other district where de&endant can be sued, venue will lie in an$ district where an$ de&endant can be
&ound
C. 7eterminin* residence in the conteAt o& venue
a. A corporation is deemed to reside+
(1) &or venue purposes, in an$ district, where corporation would be subject to personal jurisdiction.
5
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If a 4e( -or5 Federal Court %as 'ersonal jurisdiction oer a cor'oration t%at is located in Florida but
incor'orated in Dela(are) t%e cor'oration resides in 4e( -or5 for 'ur'oses of enue.
b. Aliens+
,a$ be sued in an$ district
<. #onsent and Iaiver+
Lenue can be waived i& not raised in Rule 1)(b) answer. 7 can also consent to venue in particular district.
B. /ransfer of 3enue and Forum Non Conveniens (OL III.'."!)
1. Trans&er+
a. #ourt can trans&er an action to an$ other district in which it mi*ht have been brou*ht &or convenience or parties and
witnesses, in the interest o& justice
b. I& the court trans&ers the case under 5ection 1C=C even thou*h venue was proper, then the law o& the ori*inal &orum
would &ollow the case in another venue
c. burden is on the part$ movin* &or chan*e o& venue to show the convenience o& parties and witnesses, and that the
action could have been brou*ht in trans&eree court.
d. i& the venue ori*inall$ is improper, the court ma$ trans&er to a district where the case mi*ht have been brou*ht, but
the law o& the ori*inal &orum will not &ollow the case.
). Forum non conveniens+
a. Ihat the doctrine is+
#ourt can decline to eAercise its jurisdiction and dismiss " not trans&er " an action where the action was brou*ht in
a seriousl$ inconvenient &orum and an ade(uate alternative &orum eAists
b. :rocedure and remed$+
(1) ,otion to dismiss based on a showin* o& inconvenience in current &orum and eAistence o& an alternative &orum

()) Iei*h the private (ease o& access to evidence, cost o& witness attendance, lessen eApenses and trial time)
and public interests (avoid application o& &orei*n law, resolve disputes locall$) to see i& the court will dismiss

BAR EXAM APPLICATION
Muestion 1
Applicants were as%ed to anal$>e issues arisin* &rom a removal o& a lawsuit to &ederal district court. A citi>en o& 5tate A was
involved in an automobile accident in 5tate 1 with a citi>en o& 5tate 1. The 5tate A driver sued the 5tate 1 driver in &ederal
district court in 5tate 1, invo%in* the &ederal court9s diversit$ jurisdiction and see%in* ;J=,=== in dama*es &or his demolished
sports car. The 5tate 1 driver &ailed to de&end the action, and a de&ault jud*ment was entered a*ainst him. The 5tate A driver
died one $ear later. The eAecutor o& his estate is a citi>en o& 5tate 1. The 5tate 1 driver then &iled a timel$ lawsuit in state court
in 5tate 1 a*ainst the estate, see%in* ;. million in dama*es &or his injuries. The eAecutor &iled &or removal o& the state action to
&ederal court in 5tate 1 and then &iled a motion to dismiss in &ederal court. The 5tate 1 driver has as%ed the &ederal court to
remand the action to state court, or, alternativel$, to den$ the eAecutor9s motion to dismiss.
Ias removal to &ederal district court appropriate8 I& the &ederal court retains the action, should it *rant the eAecutor9s motion to
dismiss the personal injur$ action8
Applicants must eAplain the re(uirements &or an action to be removed &rom state court to &ederal court, as well as whether the
eAecutor9s citi>enship destro$ed diversit$.
An action brought in state can be removed to federal court, if the plaintiff could have initially brought it in federal court.
However, there is an exception for diversity jurisdiction such that a request for removal on grounds of diversity jurisdiction will
not be granted if any of the defendants in the case is a citizen of the forum state. he action would stay in state court in such
cases.
!emoval would be possible where at least one of the claims filed by the plaintiff would fall within the subject"matter jurisdiction
6
of the federal court. #ubject matter jurisdiction includes federal question jurisdiction $ issues and controversies arising under
federal law "" and diversity jurisdiction $ where opposing parties are citizens of different states and amount of controversy is
above %&',(((. #upplemental jurisdiction would also grant subject matter jurisdiction but that is not at issue here.
he issue is not of federal question. )hat remains is diversity jurisdiction and ascertaining the citizenship of the two parties.
*laintiff is a citizen of #tate A. An executor of an estate retains the diversity of the deceased estate owner, and not his own
residence or domicile, in an action over the estate. herefore, executor is a citizen of #tate + and not #tate A for purposes of
this lawsuit to see, damages from the deceased owner-s estate. #ince there is complete diversity between the parties and the
amount in controversy is over %&',(((, as the *laintiff as,ed for %. million in damages /and the court will defer to that0,
diversity jurisdiction exists in federal court. #ince executor is not a local defendant for purposes of this case, he can properly
remove the case and remand is not appropriate.
Assuming the motion is timely filed, the defendant has the burden of proving in a remand action that the removal to federal
court was proper. Here, the executor should be able to prove that and the motion to remand would be dismissed.
As for the executor-s motion to dismiss, we can assume that it is based on lac, of personal jurisdiction. 1an state + assert in
personam jurisdiction over the defendant who was involved in an accident in #tate +2 3nder the minimum contacts analysis, if
the one contact that the defendant has with the forum state is the cause of action and the defendant had purposefully availed
himself to the forum, then in personam jurisdiction exists provided that traditional notions of fair play and substantial justice are
not violated. Here, the accident, which is at issue in a personal injury suit, involved defendant who had availed himself to #tate
+. here does not appear to be issues of fair play and justice as both defendants are in the same state and the events
occurred in that state. 4n personam jurisdiction exists and the executor-s motion to dismissed should be denied.
BAR EXAM APPLICATION
Muestion )
Applicants were as%ed to anal$>e issues arisin* &rom a motion to dismiss &or lac% o& personal jurisdiction. A &reelance
journalist moved &rom 5tate A to 5tate 1 three $ears a*o. Althou*h 5tate A has alwa$s been his home and he sa$s he still
considers it NhomeO and plans to return Nsome da$,O he now votes, pa$s taAes, and owns propert$ onl$ in 5tate 1. Be publishes
an online newsletter that viewers can read and download throu*h a server in 5tate 1, but the$ cannot post messa*es to the
website. ,ost o& his stories and commentar$ concern people and events in 5tate A, most o& his readers live in 5tate A, and
most o& his advertisers are 5tate A &irms see%in* to attract customers in 5tate A. In a recent stor$, the journalist reported on
rumors he had heard concernin* :lainti&&9s alle*ed acceptance o& %ic%bac%s &or the award o& 5tate A contracts. 5oon a&ter the
publication, :lainti&& was &ired &rom his hi*hlevel *overnment position in 5tate A and sued the journalist, now 7e&endant, in
&ederal district court in 5tate A. The 5tate A lon*arm statute eAercises jurisdiction to the &ullest eAtent permitted under the
&ederal constitution. 7e&endant has &iled a motion to dismiss &or lac% o& personal jurisdiction.
Iould the &ederal court in 5tate A have personal jurisdiction over 7e&endant8
Applicant must discuss whether a &ederal district court can assert personal jurisdiction over a de&endant whose activities
occurred outside the &orum state but included contacts with the &orum via the Internet.
*ersonal jurisdiction is proper where the defendant is domiciled in a state where he intends to reside. 5efendant is domiciled in
#tate + but the fact that he intends to move to #tate A someday is not intent enough to find that he is domiciled in #tate A for
purposes of in personam personal jurisdiction.
*ersonal jurisdiction can also be found if the defendant-s contact with a state is the subject of the lawsuit and the defendant
has purposefully availed himself to the state. his is a finding of personal jurisdiction through specific jurisdiction. Here, *laintiff
sued on the basis of a story that defendant targeted in #tate A, and that contact is the contact enough to establish minimum
contact with #tate A. )ith minimum contact, there will be specific jurisdiction if 5 has purposefully availed himself to the state.
Here defendant-s contacts with state A are extensive through his readers, and advertisers. He has targeted his content into
#tate A frequently. *urposeful availment is thus present though benefits and protections of #tate A and jurisdiction is proper
over the defendant through specific jurisdiction.
IV. SERVICE OF PROCESS AND PLEADINGS (OL IV.)
A. Co""ence"ent of Action (OL IL.A.)
7
1. Bow a &ederal case is commenced+
upon the &ilin* o& complaint with the court
B. Serice of .rocess (OL IL.1.)
1. For" of Su""ons
a. A summons must+
(1) be si*ned b$ the cler%
()) identi&$ the court and the parties
(.) be directed to the de&endant
(C) state the name and address o& plainti&&9s attorne$ or plainti&&
(<) noti&$ the de&endant o&+
(a) time period within which it must appear or &ile answer
(b) warn the de&endant o& potential o& de&ault o& jud*ment i& de&endant &ails to appeal
(/) contain the seal o& the court.
To show that it is o&&iciall$ &rom the court
). Serice
a. Ihat is served+
summons is served with a cop$ o& the complaint
b. 1$ whom+
service ma$ be properl$ a&&ected b$ an$ person who is not part$ to the suit and over the a*e o& 13
c. 4pon whom+
(1) individuals+
hand deliver$ or usual place o& abode and leavin* it with someone o& suitable a*e
()) corporations, usual means+
serve an o&&icer, mana*in* a*ent, *eneral a*ent or authori>ed b$ law
.. 2aier of Serice
a. Bow it wor%s+
plainti&& can re(uest the waive and de&endant has dut$ to waive the notice
b. Ihat is not waived+
objections to court9s jurisdiction over the subject matter, parties or venue
c. Incentives to waive+
#arrot+ 7e&endant does not have to answer complaint &or /= da$s a&ter waiverP
5tic%+ #ourt ma$ impose costs &or actual service and reasonable eApenses
C. Dis"issal for Insufficient Serice of .rocess
a. #ourt will dismiss when+
:lainti&& &ails to properl$ e&&ect service pursuant to re*ulations outlined above
b. The de&ense o& insu&&icient service o& process is waived when+
it is not raised b$ the de&endant in answer or Rule 1)(b) motion to dismiss
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AleA sues 5all$ and Theresa in &ederal court. Be serves 5all$ a cop$ o& the summons and complaint in accordance with
the 'ederal Rules o& #ivil :rocedure. Be &ails to serve the summons and complaint on Theresa. Gevertheless, 5all$ e
mails a cop$ o& the complaint to Theresa the same da$ she receives it. Ihat actions ma$ Theresa ta%e on the complaint8
Actual notice is not enou*h. Theresa can &ile a motion to dismiss based on improper service o& process.
8
C. .leadings and Motions (OL IL.#.)
1. Clai"s for 1elief
a. A pleadin* that states a claim &or relie& must contain+
(1) under Rule 3, a short and plain statement o& the *rounds o& the court9s jurisdiction with su&&icient &actual matter
that states plausible claim
()) a statement o& a claim, which i& true, would entitle the claimant to relie&
(.) and a demand o& relie&
b. 5pecial rule &or &raud or mista%e+
more detail, should be pled with su&&icient particularit$
). 1es'onses to a Clai" for 1elief
a. Options+
,otion to dismiss without &ilin* an answer. Or 7 can answer while includin* the motion to dismiss in answer
7 can also include or sometimes must include counterclaim and cross claim a*ainst cross part$
b. ,otion to dismissKThe de&endant ma$ raise the &ollowin* 1)(b) de&enses b$ motion to dismiss or b$ answer+
(1) lac% o& subject matter jurisdiction
()) lac% o& personal jurisdiction
(.) improper venue
(C) insu&&icient process " &orm o& the summons is de&ective
(<) insu&&icient service o& process
(/) &ailure to state a claim upon which relie& can be *ranted
(0) &ailure to join indispensable part$
c. Ris% o& waiver+ &our o& these de&enses are socalled Nthreshold de&ensesO and must be raised at the be*innin* o& the
case.
(1) the threshold de&enses are+
lac% o& personal jurisdiction, improper venue, insu&&icient process, insu&&icient service o& process

()) the threshold de&enses are waived i& not made+
in a preanswer motion to dismiss, and in an answer (and does not amend the answer within )1
da$s)
d. Answer$ the de&endant ma$ respond b$ answers, and the answer must+
(1) admit or den$ the claims
()) raise an$ o& the 1)(b) de&enses
(.) raise an$ a&&irmative de&enses i.e. 5OL, estoppel, contributor$ ne*li*ence
e. #ounterclaims and #ross#laims
(1) The de&endant must raise compulsor$ counterclaims and ma$ raise permissive counterclaims.
(a) A counterclaim is compulsor$ i&+
it arises out o& the same transaction or occurrence as the ori*inal claim in suit. 'ailure to raise this claim
is a waiver
(b) A counterclaim is permissive i&+
an$ claim a*ainst an opposin* part$ not arisin* out o& the transaction or occurrence that is the subject
matter o& the opposin* part$9s claim
()) The de&endant ma$ raise crossclaims, which are claims &or relie& a*ainst a copart$.
#laim a*ainst a code&endant to recover. Alwa$s optional.
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9
Foe &iles a complaint a*ainst ?d. In the complaint, Foe alle*es that ?d &raudulentl$ induced Foe to purchase a car b$
misrepresentin* the car9s a*e and condition. ?d &iles an answer den$in* the misrepresentation. Be then wants the action
dismissed based on Foe9s &ailure to state a claim. I& ?d did not assert Foe9s &ailure to state a claim as an a&&irmative de&ense
in his answer, is that de&ense waived8
Go, ?d can raise &ailure to state a claim later. It is not one o& the threshold de&enses.
.. A"ended .leadings (OL IL.#.<.)
a. :arties ma$ amend pleadin*s as a matter o& course (without court permission)+
OG#? within )1 da$s o& service o& ori*inal pleadin*
b. A part$ ma$ otherwise amend its pleadin*s+
with leave o& court or *ain written consent o& adverse part$
c. The doctrine o& Nrelation bac%O will treat a new claim in an amended pleadin*, &or statute o& limitations purposes, as
i& it had been &iled with the ori*inal claim.
(1) Relation bac% is available &or a new claim a*ainst the same part$ when+
the new claim arises out o& the same conduct, transaction or occurrence as the ori*inal claim
()) Relation bac% is available a*ainst a newl$added part$ when+
(a) the new claim arises out o& the same, conduct, transaction or occurrence as ori*inal claim
(b) the part$ to be added b$ the new claim had notice o& the &ilin* o& the ori*inal claim within 1)= da$s o&
service o& the ori*inal complaintP and
(c) the part$ to be added %new that, but &or a mista%e, the ori*inal claim would have been asserted a*ainst
him
C. 1e'resentations to Court and Sanctions (OL IL.7.)
a. Rule 11 re(uires+
ever$ pleadin*, motion or other paper &iled with the court must be si*ned b$ an attorne$ o& the part$ preparin* the
document or the part$ proceedin* prose
b. #ompliance means the si*nature certi&ies to the court that, to the best o& the person9s %nowled*e, in&ormation, and
belie&, &ormed a&ter an in(uir$ reasonable under the circumstances+
(1) the document is not bein* presented &or improper purposes, such as to harass the opposin* part$
()) the claims, de&enses, and other le*al contentions are warranted b$ eAistin* law or b$ a non&rivolous ar*ument
&or eAtendin*, modi&$in*, or reversin* eAistin* law or &or establishin* new lawP
(.) &actual contentions have evidentiar$ support
(C) the denials o& &actual contentions are warranted on the evidence or, i& speci&icall$ so identi&ied, are reasonabl$
based on belie& or a lac% o& in&ormation.
c. ,otions &or sanctions ma$ not be &iled unless+
the motion is served to the opposin* part$ and the part$ has )1 da$s to withdraw or correct o&&endin* pleadin*,
written motion or other paper
d. The Nsa&e harborO provision does not limit the court9s abilit$ to impose sanctions sua sponte.
V. JOINDER, INTERPLEADER, AND THIRD-PARTY PRACTICE
A. Joinder (OL L.A.)
1. Joinder of Clai"s
10
a. !eneral rule+
A part$ ma$ join as man$ claims in a sin*le action as the part$ has a*ainst an opposin* part$ re*ardless o& whether
the$ are related or not
I& the joinder o& claims would lead to jur$ con&usion or some other prejudice+
The court ma$ sever the claims &or separate trials.
). Foinder of .arties
a. Co"'ulsor! Joinder 64ecessar! and Indis'ensable .arties7
(1) Rule 1J does not re(uire the joinder o& parties when+
the parties are re(uired to join other parties ever$ time it is convenient or e&&icient
?@A,:L?$
If a . brings a negligence clai" for da"ages against onl! one of t(o joint tortfeasors) t%e unjoined
defendant is al"ost certainl! not a 1ule 89 'art!.
?@A,:L?$
If . sues onl! one of t(o defendants (%o o(e %er "one!) t%e absentee is al"ost certainl! not a 1ule
89 'art!.
()) The %e$ concept usuall$ is NprejudiceO to an absent part$. Rule 1J will appl$ in cases+
where in the part$9s absence, the court cannot *rant complete relie& or absence o& the part$ &rom the
lawsuit would impair ri*hts o& the absent part$ as a practice matter or leaves a ris% o& inconsistent
obli*ations
?@A,:L?$
. sues a D and see5s s'ecific 'erfor"ance. Contract is one t%at gae . an e:clusie franc%isee. Basis of
suit (as franc%isor D %as gien so"eone else a franc%ise. . suing franc%isor for s'ecific 'erfor"ance. If D
%as alread! gien ot%er entit! a franc%ise) t%at absentee is a 1ule 89 'art! because t%is court order (ill
re;uire t%e D to s%ut do(n t%e ot%er franc%isee. /%is is 'rejudice.
(.) I& a person who is re(uired to be joined cannot be joined, the court must determine whether, in e(uit$ and *ood
conscience, the action should proceed amon* the eAistin* parties or be dismissed.
(a) The court will dismiss the action i&+
there is another &orum available to the plainti&&s and de&endant
?@A,:L?$
I& absentee could not be joined in &ederal court because it would destro$ diversit$, the action could be
brou*ht in state court.
(b) I& there is no other place that the action could be brou*ht, the court will proceed. In order to avoid the
prejudice+
shape the relie& *ranted in a wa$ that won9t prejudice the outsider
?@A,:L?$
5peci&ic per&ormance &or &ranchisorQ&ranchisee contract. :lainti&& will see% dama*es rather than speci&ic
per&ormance, Rule 1J issue evaporates.
b. .er"issie Joinder
(1) ,ultiple persons ma$ be joined to*ether as plainti&&s or de&endants in one action i& two thin*s are true+
(a) the claims arise out o& same events or transaction AG7
(b) an$ (uestion o& law or &act is common to all plainti&&s
B. Inter'leader (OL L.1.)
11
1. :urpose+
:lainti&& has some holdin* that would eApose the plainti&& to multiple liabilit$ &rom adverse claims so the plainti&& can
commence an action &or interpleader to resolve liabilit$ between multiple claimants.
?@A,:L? S $
:iece o& propert$, pri>e, proceeds o& an insurance polic$
). Locabular$
a. 5ta%e+
Ihat is bein* &ou*ht about8
b. 5ta%eholder+
Iho has the sta%e8
c. Adverse claimants+
Iho can be joined usin* interpleader to *et their ri*hts adjudicated8
,-.O/,0/ICA#
Amanda purchases a house &rom 7avid, who promises to replace the roo& within two months o& the closin* date.
7urin* the closin*, ;1=,=== is placed into escrow, which is to be released a&ter the roo& is replaced. 7avid repairs
sections o& the roo&, but &ails to replace the entire roo&. Ihen the escrow a*ent re&uses to *ive him the ;1=,===, 7avid
sues. ,a$ the escrow a*ent include Amanda in the lawsuit8 I& so, how8
The escrow a*ent has ;1=,=== and he can use interpleader to join Amanda so that he is not subject to multiple
liabilit$ &rom adverse claimants.
.. <inds of Inter'leader
a. 1ule inter'leader$
Interpleader ma$ be initiated b$ an$ person eAposed to multiple liabilit$ pursuant to Rule )). The sta%eholder ma$
initiate the claim or invo%e the rule interpleader b$ his own initiative or b$ counterclaimin* or cross claimin* a*ainst
a claimant in an action *at has alread$ been commenced a*ainst the sta%eholder
b. Statutor! inter'leader+ a sta%eholder ma$ instead use statutor$ interpleader to join all adverse claimantsP b$
statute, onl$ minimal diversit$ amon* claimants is re(uired, nationwide service o& process is available, and the
minimum amount in controvers$ is onl$ ;<==P venue is proper wherever an$ claimant residesP these rules ma%e it
much easier to proceed with an interpleader in &ederal court b$ statute rather than b$ rule.
C. /%ird-.art! .ractice or I"'leaders (OL L.#.)
1. Ihat a thirdpart$ claim is &or+
Ihen the de&endant becomes a third part$ plainti&& b$ proceedin* a*ainst a nonpart$ who ma$ be liable &or all or part o&
the plainti&&9s claim a*ainst the de&endant . 7 must &ile a summons and complaint with the court where ori*inal action is
pendin*.
#ases+ joint tort&easors and indemnit$
). Ihat it is not &or+
a. where the de&endant blames someone else &or the cause o& action
b. not about usin* joinder device to brin*in* in another part$ who is liable to third part$ plainti&&. Liabilit$ is to the
ori*inal plainti&&
7o not con&use blame with claim. Hou do not have to implead them to blame them &or an action. Impleaders
re(uire a particular t$pe o& cause o& action that could stand alone in a separate suit.
D. Interention (OL L.7.)
12
?@A,
TI:

1. Ihat intervention is &or+
Gonpart$ ma$ assert a ri*ht or interest or de&ense in an on*oin* action
). Intervention b$ Ri*ht
a. 4pon a &indin* b$ the court that a nonpart$9s application was timel$, the nonpart$ shall be allowed to intervene in
an action i&+
(1) a &ederal statute con&ers an absolute ri*ht o& the part$ to intervene
()) A nonpart$ is assertin* a protectable interest relatin* to the propert$ or transaction involved in the lawsuit,
and the nonpart$9s interests will not be ade(uatel$ represented in court+
(a) Interest+
the outsider must have interest at sta%e in the case
(b) Impairment+
The part$ would be prejudiced i& the case proceeds without them
(c) Inade(uate+
The interests o& the nonpart$ are not ade(uatel$ represented in the case
.. Intervention b$ :ermission+
a. 5tandard+
the &ederal statute allows a conditional ri*ht to intervention or the intervener has a shared common (uestion o& law
or &act
VI. CLASS ACTIONS
A. .rere;uisites to a Class Action (OL LI.A.)
1. Gumerosit$+
The number o& members o& the class are so numerous that separate joinder o& each member is impracticable
). #ommonalit$+
Le*al and &actual issues are common to those raised b$ each member o& the class
.. T$picalit$+
#laims or de&enses o& the representative part$ are t$pical o& those raised b$ each member o& the class
C. RepresentativenessQAde(uac$+
Representative part$ can &airl$ and ade(uatel$ protect and represent the interests o& each member o& the class
<. Reason &or proceedin* as a class action+
Inconsistent or var$in* jud*ments &or individual class members that could establish incompatible standards
B. S'ecial 1ules 1elating to Class Actions (OL LI.'.)
1. .ersonal Jurisdiction$ The court is not re(uired to have personal jurisdiction over the absent members o& the plainti&&
class, as lon* as the$ receive ade(uate notice o& the pendenc$ o& the action and are a&&orded the opportunit$ to opt out o&
the class 2:hillips :etroleum #o. v. 5hutts, C0) 4.5. 0J0 (1J3<)6+
a. It remains unclear, however, whether the court must have personal jurisdiction over the+
absent members o& the plainti&& classes where there is no notice or opportunit$ to opt out o& class
b. In ever$ case, the court must have personal jurisdiction over+
each de&endant that is named in the action
). Subject-Matter Jurisdiction$ In )==<, #on*ress passed the #lass Action 'airness Act (#A'A), which trans&ormed the
doctrine in cases &ounded in diversit$ jurisdiction.
a. :rior to #A'A, diversit$ jurisdiction re(uired complete diversit$ between all o& the named class representatives and
all o& the de&endants. ,oreover, there was no diversit$ jurisdiction, unless ever$ member o& the class had a claim
that eAceeded the amount in controvers$.
13
b. #A'A eApands &ederal subjectmatter jurisdiction to include classes where+
(1) class has more than 1== persons
()) at least one member o& the class is diverse &rom at least one de&endant
(.) total amount in controvers$ eAceeds ;< million
?@#?:TIOG$
CAFA=s broad grant of subject-"atter jurisdiction does not a''l! to 687 local controersies
and 6>7 certain ciil rig%ts and ot%er categories of cases.
C. Settle"ent (OL LI.!.)
1. #lass actions ma$ not be settled or compromised without court approval.
). In evaluatin* a settlement proposal, a court must consider+ 'air, reasonable and in the best interest o& the class
BAR EXAM APPLICATION
Muestion .
Applicants were as%ed to anal$>e issue arisin* &rom a class action lawsuit brou*ht in &ederal district court b$ a &armer who alle*ed
that the de&endant, Truc%co, mar%eted a line o& pic%up truc%s with de&ective shoc% absorbers. The alle*ed losses o& class
members who had purchased these truc%s ran*ed &rom the cost o& replacin* the shoc% absorbers to serious personal injuries
su&&ered in accidents alle*ed to have been caused b$ the de&ective shoc% absorbers. 'armer9s onl$ claim personall$ was the
replacement cost. Ihen 'armer moved to certi&$ the class, Truc%co pointed out that man$ plainti&&s had su&&ered a wide variet$ o&
personal injuries alle*edl$ resultin* &rom the de&ective shoc% absorbers, and that 'armer9s law$er was recentl$ admitted to the bar
and had never handled class action liti*ation. The &ederal district court denied 'armer9s motion &or class certi&ication.
Ias the court9s rulin* on the motion &or class certi&ication appropriate8
Applicants must eAplain that class certi&ication is unwarranted where the &acts su**est the absence o& claim t$picalit$ and
ade(uate representation.
!ule 6. requires that in order to certify a class, four requirements must be met. hese are commonality, numerosity, typicality,
adequacy of representation. 1ommonality and numerosity is not an issue as class suffers from injuries relating to defective
shoc, absorbers and there are many members within this class even though it is unclear how many members. At issue here is
typicality and adequacy of representation.
7*41A8479 he injuries suffered by the numerous plaintiffs vary widely, such that it would be difficult to give one remedy in a
single class action to all members of the class. #ee )almart v. 5u,e, where the #upreme 1ourt ruled that all members must
suffer the same injury. +ecause injuries vary widely, some members may have tort claims, others may have claims based in
contract so typicality is defeated.
A5:;3A17 <F !:*!:#:=A4<=9 Also, unclear is whether the counsel or farmer can properly or adequately represent the
class given the counsel just graduated from law school, so adequacy of representation is a clear problem here. 1ounsel may
not be competent enough to represent the interests of a large class when he is a newbie lawyer.
Also, here it is not clear that common questions would predominate or would be the best device to proceed given the wide
variety of injuries. +ecause class fails the typicality and adequacy requirements, the class certification denial was appropriate.
BAR EXAM APPLICATION
Muestion C
Applicants were as%ed to anal$>e issues arisin* &rom a motion to dismiss an amended complaint. :at, a resident o& 5tate A,
was in a tra&&ic accident with a truc% in 5tate 1. The police accident report mista%enl$ identi&ied the truc% as owned b$ 5mith
Truc%in*. 1oth 5mith Truc%in* and 5mith Transport, the correct compan$ name, are owned and operated b$ Robert
5mith, who is a*ent &or service o& process &or each. Two da$s be&ore the deadline &or &ilin* suit under the applicable statute o&
limitations, :at &iled a proper diversit$ action in &ederal court in 5tate 1 a*ainst 5mith Truc%in*, with service on the a*ent. 'ive
da$s a&ter &ilin* her complaint and be&ore an$ responsive pleadin* had been served, :at amended her complaint to name
14
5mith Transport as de&endant, a*ain servin* the a*ent. 5mith Transport moved to dismiss the amended complaint on the
*round that the applicable statute o& limitations had run. The court denied this motion.
7id the trial court err in re&usin* to dismiss the amended complaint a*ainst 5mith Transport8
Applicants must consider whether the statuteo&limitations would bar assertion o& a claim a*ainst a misidenti&ied de&endant
added to the action b$ an amended complaint &iled a&ter the applicable statute o& limitations had run.
*laintiff can amend the complaint within 6> days without see,ing leave of court or adverse party-s permission. he doctrine of
relation bac, allows a plaintiff to amend complaint to name new parties and new claims under special circumstances even if
the #<8 has run since the filing of the original complaint. A plaintiff can amend complaint to add new parties where the events
or claims arise out of the same incident as those in original complaint, where the party has had notice of the lawsuit through
proper service of process, and where the party has only been left out mista,enly from the lawsuit. Here, !obert had notice as
the agent of service process. +oth #mith ruc,ing and #mith ransport belong to him and he was served with proper process
as #mith ruc,ing. he addition of #mith ransport is to correct an error in filing and it has been done in a timely fashion within
' days of filing the complaint. hus, the trial court did not err in granting the request as requirements for relation bac, are met.
VII. DISCOVERY
A. Oerie(
1. The purpose o& the provisions &or discover$ and disclosure are to enable the parties to obtain and evaluate all the
relevant in&ormation about a case, in order to tr$ to settle it or *et read$ &or trial without &ear o& surprise. The parties
control the process, subject to court intervention as necessar$.
B. Discoer!
1. 5cope (OL LII.1.)
a. 5tandardKa part$ is entitled to discover in&ormation that+
(1) Relevant to the claim or de&ense o& the part$
()) Got unreasonabl$ cumulative or burdensome and
(.) Got privile*ed
b. 7iscoverabilit$ v. admissibilit$+
7iscover$ is much broader than admissibilit$
c. Ior%product+
In&ormation that is prepared in anticipation &or liti*ation b$ part$ or part$9s law$er. !enerall$ spea%in*, this is not
allowed. :art$ see%in* it can obtain this in&ormation onl$ b$ showin* special need and avert undue hardship.
d. #onsultin* eAperts+
!enerall$ spea%in*, not discoverable but can be discovered i& part$ see%in* it can show that impracticable &or the
part$ to obtain &acts and opinions on the same subject b$ other means
). ,echanisms and Limits+
a. 7epositions+
:resumptive limit on number (1=) and duration " one da$, seven hours
b. Iritten interro*atories+
Limit o& )< &or each part$ and must be answered in writin* under oath
c. 7ocument re(uests
d. Re(uests &or admission o& certain &acts
e. :h$sical or mental eAamination+
I& *ood cause is shown. Onl$ %ind o& discover$ &or which advance court approval is re(uired
.. Resolvin* disputes+
a. Initiated b$ a proponent o& discover$+
15
,otion to compel
b. Initiated b$ an opponent+
,otion &or protective order
c. #ourt on either t$pe o& motion is to award eApenses and attorne$s &ees unless the losin* part$ was substantiall$
justi&ied in its position.
C. Mandator! Disclosures (OL LII.#.)
a. Initial disclosures+
Iith limited eAceptions, parties are re(uired to disclose some in&ormation as a matter o& course upon the
commencement o& the liti*ation 2'ed. R. #iv. :. )/(a)(1)6. ,andator$ disclosure is re(uired b$ both parties &or the
&ollowin* in&ormation+
(1) identit$, name, address, phone number o& individuals li%el$ to have discoverable in&ormation
()) cop$ or description o& all documents, electronicall$ stored in&ormation and tan*ible thin*s that the disclosin*
part$ has in it possession, custod$ or control
(.) computation o& dama*es claimed b$ the disclosin* part$, to*ether with supportin* materials and
(C) insurance a*reements under which an insurance compan$ ma$ be liable to satis&$ all or part o& the possible
jud*ment
?@A,:L?$
A 'laintiff "ust disclose to t%e defendant t%e na"es of all (itnesses to an accident t%at is t%e subject
of t%e 'laintiff=s action.
b. ?Apert disclosures+ about J= da$s be&ore trial
I& parties are *oin* to use an eApert witness, the$ must deliver a report prepared and si*ned b$ the witnessP the
report must contain+
(1) all the opinions that eApert has about case
()) what data did eApert use
(.) eAhibits or summaries use
(C) (uali&ications o& eApert and listin* o& publications authored in last 1= $ears
(<) prior testimonies o& the eApert in the past C $ears
(/) statement o& compensation
c. :retrial disclosures+ .= da$s be&ore trial, or at another time set b$ the court, the parties must disclose+
(1) witnesses
()) the desi*nation o& those witnesses whose testimon$ the part$ eApects to present b$ deposition and, i& not ta%en
steno*raphicall$, a transcript o& the pertinent parts o& the depositionP and
(.) documentations, eAhibits and summaries
VIII. PRETRIAL, TRIAL, AND POST-TRIAL MOTIONS AND JUDGMENTS
A. Dis"issals (OL LIII.A.)
It is important to watch &or how a case is disposed o&. 5ome dispositions bar later liti*ation o& the same claim
and some do not. Iatch and determine the disposition is Nwith prejudiceO (cannot be brou*ht a*ain) or Nwithout
prejudice.O Another wa$ o& sa$in* somethin* has been dismissed with prejudice is to sa$ that the dismissal
acts as Nan adjudication upon the merits.O
1. Inoluntar! Dis"issals
a. 7ismissal &or lac% o& subjectmatter jurisdiction, personal jurisdiction, venue, or &ailure to join a part$+
Iithout prejudice unless court orders otherwise
16
?@A,
TI:

b. All other involuntar$ dismissals+
are dismissals with prejudice, such as &ailure to state a claim or prosecute, unless the court sa$s otherwise
). 3oluntar! Dis"issals
a. 1$ notice be&ore de&endant answers or &iles motion &or summar$ jud*ment, or dismissal b$ stipulation unless the
notice or stipulation states otherwise, the dismissal is without prejudice. 1ut i& the plainti&& previousl$ dismissed an$
&ederal or statecourt action based on or includin*+
5econd dismissal is with prejudice
b. 1$ motion+
#ourt will *rant unless de&endant would su&&er prejudice
B. Su""ar! Judg"ent (OL LIII.1.)
1. :urpose and standardKthe purpose o& summar$ jud*ment procedure is to avoid needless trials. Accordin*l$, the
standard is that the court must determine whether+
One part$ is entitled to jud*ment as a matter o& law
). :rocedure+
a. A part$9s own alle*ations+
part$ ma$ not use own pleadin*s to support claim &or summar$ jud*ment
b. A&&idavits+
Out o& court statements but the court can ta%e these into account
c. Other evidence+
Thin*s *athered in discover$ such as deposition or admissions
d. 'or a plainti&&+
:lainti&& must prove ever$ element o& the cause o& action. ?vidence is viewed in li*ht most &avorable to plainti&&&
e. 'or a de&endant+
1urden o& proo& to show a&&irmative de&enseP OR
7e&endant can produce evidence that :lainti&& cannot prove elementP OR
A&&irmative showin* o& absence o& evidence to prove that plainti&& cannot prove an element
,-.O/,0/ICA#
On 'ebruar$ 1<, the :lanetar$ :artnership sues Lenice in &ederal court &or ;1<=,===. 1elievin* that she has paid all monies
due to one o& the partners in the partnership, Lenice does not &ile an answer. Instead, she immediatel$ moves &or summar$
jud*ment, attachin* her a&&idavit with copies o& the canceled chec%s to the motion. Bow should the court rule on the motion8
A part$ ma$ move &or summar$ jud*ment at an$ time until .= da$s a&ter the close o& all discover$. 7e&endant can produce
evidence to win on summar$ jud*ment. 5o the court should *rant summar$ jud*ment.
C. Jur! /rials (OL LIII.#.)
1. The ri*ht to a jur$ trial in a civil action+
b$ statute or seventh amendment
). I& rel$in* on the 5eventh Amendment+ remember that the 5eventh Amendment spea%s o& Npreservin*O the ri*ht to jur$
trial+
a. whether the claim more closel$ resembles actions in law or in e(uit$ and
b. whether remed$ sou*ht is le*al (dama*es) or e(uitable in nature
.. Iaiver+
7emand &or jur$ trial must be made within 1C da$s a&ter the service o& the last pleadin* directed to the triable issue

17
C. Fur$ selectionKjuries are selected throu*h voir dire process, which in &ederal court tends to be conducted b$ the court+
a. Three bases &or challen*es &or cause+
*eneral dis(uali&ication, implied bias, actual bias
b. :eremptor$ challen*es+
three peremptor$ challen*es allowed to eAcuse jurors without havin* to state the reason be&ore the court. #annot
be eAercised on basis o& race or seA.
D. Judg"ent as a Matter of #a( 6Directed 3erdict7 (OL LIII.7.)
1. 5tandardKThe standard &or a motion &or jud*ment as a matter o& law (&ormerl$ directed verdict) is the same as &or a summar$
jud*ment motionKeven loo%in* at the evidence in the li*ht most &avorable to the nonmovin* part$, is the movin* part$ entitled
to win8 :ut another wa$, i& the jur$ came bac% with a verdict &or the nonmovin* part$, would the court have to set it aside
an$wa$ and enter jud*ment &or the movin* part$8
). :rocedure+
Motions for JMO# are "ade at close of t%e non-"oing 'art!=s case but can be "ade at an! ti"e after all of t%e
non-"oing 'art!=s eidence %as been sub"itted but before t%e case is sub"itted to t%e jur!
0. 1ene(ed Motion Judg"ent as a Matter of #a( 6J4O37 (OL LIII.?.)
1. 5tandard+
The renewed F,OL re(uires anal$sis identical to F,OL motion.
). :rocedure+
Iithin )3 da$s a&ter the jur$ verdict or dischar*e o& the jur$ i& no verdict, part$ who had previousl$ moved &or F,OL, has
to serve a motion to set aside the verdict and an$ jud*ment entered on the verdict.
.. 5pecial note on preservin* the ri*ht to brin* the RF,L motion+
The court ma$ not entertain renewed motion &or F,OL unless a motion &or F,OL was made durin* trial

F. Motion for 4e( /rial (OL LIII.'.)
1. 5tandard+
,otion &or a new trial ma$ be based upon procedural error, jur$ prejudice or misconduct. #ourt determines whether the
error was harmless as opposed to merel$ imper&ect.
a. 'or a ,GT based upon some t$pe o& procedural error, the court will evaluate whether the error occurred and, i& so,
whether it was harmless (note particularl$ that one t$pe o& procedural error, juror misconduct implicates 'ed. R.
?vid. /=/(b), which limits judicial in(uir$ to eAternal in&luences on the deliberation process).
b. 'or a ,GT based upon the wei*ht o& the evidence, the court will evaluate whether the jur$9s verdict is a*ainst the clear
wei*ht o& the evidenceP in doin* this, the trial court ma$ consider the court9s own view o& the credibilit$ o& the
witnesses, unli%e in its evaluation o& a motion &or F,L or a RF,L.
c. 'or a ,GT based upon the eAcessiveness or inade(uac$ o& the verdict, the court will evaluate whether the jur$
misunderstood its dut$ or has acted with eAtreme prejudice.
). :rocedure+
Iithin )3 da$s o& verdict, losin* part$ ma$ &ile &or a new trial
G. Conditional 4e( /rial (OL LIII.!.)
?@A,:L?$
I& a new trial limited to the issue o& dama*es would be proper, the court ma$ *rant the new trial subject to the condition that
the motion &or new trial would be denied i& the plainti&& consented to a certain reduction in the amount o& the jud*ment.
1. 1e"ittitur+
As%s the jud*e to reduce the award o& dama*es that are eAcessive
). Additur+
:lainti&& ma$ as% jud*e to increase the award o& dama*es. This is not permitted in &ederal court.
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,. 1elief fro" Judg"ent or Order (OL LIII.B.)
The court ma$ correct, on its own, clerical error, oversi*hts and omissions in enterin* jud*ment
1. :rocedure+
,otion under Rule /=(b) must be made within a reasonable time or no more than a $ear a&ter entr$ o& the jud*ment

IX. APPEALS
A. Final Judg"ent 1ule (OL I@.1.)+
Onl$ &inal jud*ments are appeals, with some eAceptions. One that disposes o& all issues as to all the parties
B. Standards of 1eie( (OL I@.#.)
1. #onclusions or rulin*s on law+
de novo
). 'indin*s o& &act+
reversed onl$ i& clearl$ erroneous
.. Other determinations b$ trial jud*e, such as rulin*s on discover$ motions+
abuse o& discretion
C. S'ecial Cases$ .er"itted Interlocutor! A''eals (OL I@.7.)
1. Injunctions+
Immediatel$ appealable.
). #ollateral order doctrine+
Interlocutor$ orders are appealable when the$ conclusivel$ determines a disputed (uestions, resolves an important
issue completel$ separate &ro the action and e&&ectivel$ unreviewable on appeal &rom a &inal jud*ment
.. #erti&ication+
'ederal courts can certi&$ an order &or appeal when the order involves controllin* (uestion o& law as to which a
substantial *round o& di&&erent o& opinion eAists and an immediate appeal &rom the order ma$ materiall$ advance the
termination o& liti*ation
D. Multi-Clai" or Multi-.art! Judg"ents (OL I@.?.)
1. Ihen it applies+
One o& the claims a*ainst one o& the parties has been adjudicated
). Ihat can happen+
trial jud*e ma$ decide that there is no reason to den$ appeal and can sever the case
X. PRECLUSION LAW
A. .ur'oses$
1es judicata and collateral esto''el - /%e 'ur'ose is to 'ro"ote judicial econo"! and finalit! of litigation
B. Res Judicata or Clai" .reclusion (OL @.A.).)
1. :revents reliti*ation o& claims+
a. between same parties and those in privit$
b. in the same transaction or occurrence or event
c. i& the adjudication was on the merits with proper jurisdiction
). Gote especiall$ what it means to be the Nsame claimO i& multiple theories o& recover$, or two %inds o& dama*es, arise
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&rom the same transaction or events, all are part o& the same NclaimO &or res judicata purposes. 7isposition o& one upon
the merits will prevent reliti*ation o& the others. :lainti&&s are not allowed to NsplitO claims and brin* di&&erent parts
se(uentiall$. This promotes judicial econom$.
?@A,:L?$
A part$ obtains new counsel, who thin%s o& new theories o& recover$, and discovers new dama*es, but the second case
would be about same car accident liti*ated in the &irst case+ it is still the same Nclaim.O
C. Issue .reclusion 6Collateral 0sto''el7 (OL @.A...)
1. ,utual collateral estoppel+ :revents reliti*ation o& issues+
a. #ases will be between same parties, one a&ter another
b. There will be common issue in both actions that was actuall$ decided in &irst action
c. 7isposition o& the issue was essential to the jud*ment o& the &irst action
1e sure to note the di&&erence between and adjudication upon the merits and Nactuall$ liti*ated.O The$ sound li%e the same thin*
but the$ are not. NAdjudication upon the meritsO just means that res judicata applies to a claim that has been
disposed o&, even i& no one ever reall$ decided it on the underl$in* merits (such as a dismissal as a sanction &or
violatin* a court order). NActuall$ liti*atedO means what it sounds li%e.
). Gonmutual estoppel+
a. A*ainst a part$ who was not a part$ to the &irst action+
#ollateral estoppel ma$ not be used a*ainst someone who was not a part$ to the previous action
b. 7e&ensivel$ b$ a part$ who was not part o& the &irst case a*ainst a part$ who was a plainti&& and lost the issue in the
&irst case+
7e&ensivel$, nonmutual estoppel because plainti&& had da$ in court and lost
c. O&&ensivel$ b$ a part$ who was not part o& the &irst case a*ainst a part$ who was a de&endant and lost the issue in
the &irst case+
O&&ensive, nonmutual estoppel ma$ be permitted i& the issue was &airl$ and &ull$ liti*ated in the &irst case and the
de&endant had all the procedural opportunities available to them in the &irst action
.. 4se o& #riminal #ases in #ivil :roceedin*s
a. Ac(uittal+
5tandard o& proo& is di&&erent in a civil case so de&endant cannot use issue preclusion in civil case.
b. #onviction+
It is possible i& issue was &airl$ and &ull$ decided
,-.O/,0/ICA#
Ton$ is involved in a motor vehicle collision with 1art, the driver o& a truc% owned b$ 1art9s emplo$er, #hester Truc%in*. Ton$
loses his &irst suit a*ainst 1art &or personal injur$ and propert$ dama*e. Be then sues #hester Truc%in* &or the same relie&. I&
1art was actin* within the scope o& his emplo$ment, ma$ #hester Truc%in* ar*ue that Ton$9s lawsuit is barred b$ the doctrine
o& res judicata or collateral estoppel8
Res judicata or claim preclusion bars claims made a*ainst the same part$ arisin* out o& the same event or transaction,
which has previousl$ been adjudicated on the merits in a place o& proper jurisdiction. Ton$9s lawsuit would not be barred b$
res judicata because there are two di&&erent parties. Bowever, collateral estoppel ma$ be used here b$ #hester de&ensivel$
i& the jur$ &ound that 1art was not ne*li*ent because under theor$ o& respondeat superior, that would be imputed to
#hester, and he would be able to use de&ensive, non mutual estoppel.
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XI. CONCURRENT JURISDICTION
A. /%e 0rie Doctrine (OL @I.1.)
1. Bow to reco*ni>e a potential N?rie MuestionO+
a. a &ederal court sitin* solel$ in diversit$ OR
b. &ederal court ma$ have a case in supplemental jurisdiction with state law issuesP AG7
c. con&lict o& law+ state and &ederal laws or procedure di&&er
). Ihat the ?rie doctrine see%s to do+
a. reduce variation o& result to prevent &orum shoppin*
b. tr$ to respect role o& limited &ederal *overnment
c. accomplish uni&ormit$ in the wa$ cases are processed throu*h &ederal s$stem
.. The crucial but elusive distinction+
whether the issue at (uestion is substantive law or procedural law
?@A,:L?$
5tate statute that sa$s Nmedical malpractice claim must be dismissed at the complaint sta*e unless accompanied b$ an
a&&idavit &rom a ,.7.O 7e&endant as%s &ederal court to appl$ the state law in order to have the claim dismissed. Is the
state law is substantive or procedural8
C. The substanceQprocedure distinction
a. An eas$ case+
5tandard to appl$ to tort&easor " &ederal court applies state substantive law on ne*li*ence
b. Another eas$ case+
Bow the complaint is served " 'ederal Rules o& #ivil :rocedure appl$
c. A harder case+
:rocedural matter that is not covered b$ &ederal law. 'ederal court is re(uired to balance the interest
7o not use the words NsubstantiveO or NproceduralO until $our neAt to last sentence.
A..#-I4G /,0 01I0 DOC/1I40
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?@A,
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BAR EXAM APPLICATION
Muestion <
Applicants were as%ed to anal$>e issues arisin* out o& a motion to compel production o& certain documents. A #it$ Transit
Authorit$ bus collided with a car driven b$ an outo&state Tourist. Immediatel$ a&ter the accident, &ollowin* Transit Authorit$9s
standard procedures, the bus driver called his supervisor and completed an operator9s accident report &orm. 5oon the Transit
Authorit$ supervisor arrived, too% the bus driver9s statement, and recorded it in her investi*ative report, alon* with witness
in&ormation, photo*raphs, and a dia*ram o& the scene in her report. Tourist sued Transit Authorit$ &or personal injur$ in &ederal
court, and served re(uests &or production o& all accident reports relatin* to the collisionP and &or the bus operator9s entire
personnel &ile, includin* disciplinar$ actions, sa&et$ records, and drivin* records. Transit Authorit$ re&used, and Tourist has
made a motion to compel production o& the accident reports and the bus operator9s personnel &ile.
5hould Tourist9s motion to compel production be *ranted in whole or in part8
Applicants must discuss (1) whether accident and investi*ative reports prepared in the ordinar$ course o& business are
discoverable, and ()) whether the bus operator9s personnel &ile is discoverable.
*arty is entitled to discovery of information that is relevant to the claim or defense of party, not burdensome to produce
and not privileged. :ven if the information is not admissible, it may be discoverable if it can lead to other admissible
evidence. he bus operator-s personnel file is discoverable as it is not privileged information, not burdensome to produce
and may contain information that is relevant to proving negligence, such as evidence of habit, routine of driving rec,lessly.
#o the personnel file is discoverable because it is relevant.
he accident and investigative reports prepared in ordinary course of business would be discoverable unless they are
treated as wor, product, prepared for purposes of litigation. hese accidents reports appear to have been prepared in
anticipation for litigation by agents after an accident, and qualify under wor, product doctrine. 3nless the proponent for
compelling discovery can show undue hardship and substantial need, the wor, product will not be discoverable.
BAR EXAM APPLICATION
Muestion /
Applicants were as%ed to anal$>e issues arisin* &rom a motion &or a new trial. :lainti&& complained that she had been passed
over &or promotion to a mana*ement position in #orporation in &avor o& a less eAperienced male collea*ue. 5hortl$ therea&ter,
:lainti&& was &ired. :lainti&& sued #orporation in &ederal district court, alle*in* seA discrimination in violation o& &ederal law.
7urin* voir dire, the court as%ed each prospective juror whether he or she had ever been a part$ to an emplo$ment
discrimination lawsuit, and the$ all said no. At the end o& the trial, the jur$ deliberated &or several hours and then returned a
verdict &or :lainti&&. Two da$s a&ter the entr$ o& jud*ment, #orporation learned &or the &irst time that the jur$ &oreperson had
previousl$ &iled and lost two emplo$ment discrimination lawsuits. ?i*ht da$s a&ter jud*ment, #orporation moved &or a new trial.
5hould the trial court *rant #orporation9s motion &or a new trial because o& the jur$ &oreperson9s conduct8
Applicants must consider whether the jur$ &oreperson9s apparent bias a*ainst #orporation so &undamentall$ undermined the
&airness o& the trial that the court should *rant #orporation9s motion &or a new trial.
8osing party may file a judgment for a new trial in a limited number of situations, such as procedural error, jury prejudice or
misconduct. 1ourt determines whether the error was harmless as opposed to merely imperfect. Here the motion is timely file
within 6? days of jury verdict. he basis for the appeal is procedural error because during voir dire, the jury selection, the bias
of the jury foreperson was not revealed. he court has to decide if this procedural error is harmless or whether the party was
prejudiced due to the error in a way that could have determined outcome of trial. Here, the fact that the foreperson is involved
ma,es it more li,ely for the court to find harmful error because the foreperson wields influence on the jury. #o the court is li,ely
to grant a new trial.
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