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Civ Pro Final Outline

1. Personal Jurisdiction
A. Traditional: gives General Jurisdiction, based on: 1. Presence: if you are physically there the court has authority over you 2. Citizenship/Domicile: regardless of where you are, if you are a Citizen based on your domicile, the Ct has jurisdiction over you 3. Property: If you own property within the state, the Court can attach it and exercise jurisdiction over your property.

B. Expanded
1. Consent: brought on by the increase in interstate automobile travel i. By appointment of an in-state Agent (Kane v. New Jersey) ii. By Statutes exercising authority over the person by virtue of their activities within the state a.Use of public roadways (Hess) iii. Mere transaction of business does NOT imply consent (Flexner)

C. Shoe: Minimum Contacts - when a plaintiff brings a suit in a forum other than where the defendant is from the minimum contacts doctrine requires that two objectives be met 1. Fair Play: the defendant should not be required to appear in a forum that would disadvantage him in any way 2. Contacts with forum: in the absence of the defendant from the forum, jurisdiction can be found based on the defendant's contacts with either the cause of action or the state. Characteristics of contacts: Consistent and systematic Volitional Purposefully avail the defendant of the protections and benefits of the state Cause harm to individuals within the state Create a reasonable foreseeability that the defendant will be haled into the forum court Were knowingly injected into the stream of commerce Unilateral contact with the forum by the PLAINTIFF does NOT create minimum contact Advertising directed at the state State specific design of product or service Distribution network within the forum Contacts must not be random, fortuitous or isolated

D. Long Arm Statutes: Statutes that base jurisdiction over a nonresident on their specific activities within the forum, activities such as: engaging in business transactions, committing a tort, possessing real estate and certain types of contracts with residents of the state. i. Due Process: All Long Arm Statutes are restricted by the Due Process clause of the constitution, this means that if a long arm statute can be shown to significantly disadvantage the defendant it will be deemed unconstitutional. ii. General Jurisdiction by Long Arm Statute: even though the cause of action may have occurred outside the forum, by a company that is not a resident of the forum, if the company can be shown to have sufficient contacts with the forum and there is a long arm statute that allows that state to reach out, there will be general jurisdiction. Owner of a company resides, has office and transacts business in Ohio for his foreign based company, he is found to be under the general jurisdiction of Ohio (Perkins) E. Power Over Property: If minimum contacts can be shown, any property within a forum is subject to the jurisdiction of the forum regardless of whether the owner is a resident or whether the cause of action occurred within the forum. Non-residents local bank accounted is seized for alimony payments (Pennington) Obligation of the debtor travels with him (Harris) 1. Minimum contacts are required for both in personam and in rem suits, presence of property or long arm statutes are not enough. Granny cannot be forced to either appear in court or give up her stocks (Shaffer)

F. Transient Presence
willful presence is sufficient for jurisdiction in personam; there is no need for minimum contacts, nor for the cause to have arisen out of minimum contacts. (Burnham)

G. Consent: if a defendant appears in court to challenge personal jurisdiction he must Raise the challenge by way of motion in his answer and, (rule 12(h) (1)) abide by the decision of the court as to whether there is jurisdiction, he cannot then challenge jurisdiction in another court. (Ins. Corp. of Ireland) Consent may be given by:

i. Appearance: showing up in court or challenging the jurisdiction ii. Registration and Contacts: The mere act of registering an agent or a company in a state does NOT, without minimum contacts, act as consent iii. By Contract: unless shown to be unfair or unreasonable, contracts specifying a specific forum for dispute will be considered as consent to jurisdiction by that forum H. Rule 4: Reach of the Federal Courts 1. 4(k)(1)(A) - Fed's piggy-back on the long arm statute of the state in which they reside. 2. 4(k)(1)(B) - parties joined under 14 and 19 are under the jurisdiction of any court within 100 miles of where the summons was issued. 3. 4(k)(1)(C)if service is authorized by a federal statute, the defendant is subject to the jurisdiction of any forum that the statute specifies. 4. 4(k)(2) - Aliens, if the claim arises under federal law and the defendant is not subject to the general jurisdiction of any state court he can be held under the jurisdiction of any federal court.

I. Challenging Jurisdiction
1. Direct Attack: done by making a special appearance in which the defendant is allowed to argue the issue of jurisdiction, if any of the merits are argued by the defendant he will be considered to have made a general appearance and will be under the jurisdiction of the court. 2. Collateral Attack: If a defendant does not challenge jurisdiction by special appearance and does not argue the merits, after the court has made a judgment he may challenge the jurisdiction in a different court but he may not argue the merits of the case. 3. Limited Appearance: in a quasi in rem case where a non-resident has had his property seized by a foreign forum he may enter a limited appearance wherein he is allowed to defend his interest in the property without consenting to personal jurisdiction.

2.

Subject Matter Jurisdiction


A. Diversity - 1332 1. Rules: i. Complete Diversity: No plaintiff can be from the same state as any defendant ii. The citizenship of the parties is determined at the time the complaint is filed a. Corporations: is a citizen of where it is 1. Incorporated 2. Principal Place of Business i. Nerve Center ii. Place of Activities b. Aliens: Citizen of where they are domiciled iii. The amount in controversy must be 75,000 or more (in good faith) a. Plaintiff is allowed to aggregate claims against a single defendant in order to meet the 75,000 minimum. b. Plaintiff can sue two separate parties for less than 75,000 each if both suits arise out of the same transaction and the total is 75,000 or greater.

2.

Exceptions i. Minimal Diversity; at least one plaintiff is from a different state of at least one defendant a. Extremely rare, class action suits, 75+ deaths from one action, federal interpleader act of 1917

B. Federal Question - 1331 1. Arising Under rule: To invoke federal question jurisdiction, the federal issue must be part of a well pleaded complaint and must also be a sufficiently central part of the dispute. i. ii. Well Pleaded Complaint a. Sets forth an original claim arising under a federal issue unadorned by anticipatory defenses or extraneous material Centrality of the Federal Issue a. It is not enough that the claim merely touches on a federal issue, the claim must turn substantially on the federal issue

C. Supplemental Jurisdiction - 1367

1. By Plaintiff: If a plaintiff wishes to include a claim lacking an independent basis for federal jurisdiction with a proper federal claim he may do so if both claims arise out of a common nucleus of operative fact. 2. By Defendant: i. Diversity rule: no supplemental jurisdiction over claims by plaintiffs against parties joined by impleader, required or permissive joinder, or intervention because it would destroy diversity ii. Court may refuse to exercise Supplemental Jurisdiction if a. Complex issue of State Law b. Tail wagging the dog; supplemental claim substantially predominates c. Original claim was dismissed d. Exceptional circumstances

D. Removal - 1441 1. Rule: A defendant can remove any suit that could have originally been brought in a federal court. i. A Plaintiff cannot remove. 2. Exception: A defendant cannot remove a case in his home state on the basis of diversity.

E. Challenging Subject Matter Jurisdiction


1. Direct Attack, Rule: Subject Matter Jurisdiction may be challenged at any time. 2. Collateral Attack, Rule: If the claim has been contested, the right has been waived. However, if there was a default judgment then the defendant may have the opportunity to challenge the jurisdiction in a subsequent action.

3.

Venue

A. Venue - 1391 1. Rule: A suit can only be brought: i. Where the defendant resides (if more than on defendant it can only be brought there if they all reside in the same state) ii. Where the action occurred (or where there property that is the subject is located) iii. If there is no other district where the suit can be brought, it can be brought in any district with personal jurisdiction (where ever he is present)

B. Transfer/Change of Venue - 1404, 1406 1. 1404 Rule: For the sake of convenience and the interests of justice, the court can transfer any action to: i. anywhere that it could have originally been brought ii. any other division in the same district a.The transfer carries with it the law of the jurisdiction from where it is being transferred 2. 1406 Cure or waiver of defects i. If the court does not have venue authority it can dismiss the case or, ii. Transfer to anywhere that it could have been brought originally Forum Selection Clauses i. Rule: Forum Selection Clauses are not dispositive, typically they will be upheld but it is at the court's discretion.

3.

C. Forum Non Conveniens


1. Rule: If a party makes an adequate showing of inconvenience, the principle of forum non conveniens allows a judge to decline to hear, or to transfer, a case even though the court is an appropriate court for the case.

4.

Applicable Law

A. State Law in Federal Courts


i. Swift Rule: established a general common law that the federal courts could at their discretion apply in place of state law 1. Substantive Law: Concerns competing standards of duty in tort law. i. Erie Doctrine: undid Swift, There is no Federal Common Law, Federal Courts must piggyback on the laws of the state. The two aims of this doctrine are: 1. Discouragement of forum shopping 2. Avoidance of inequitable administration of the laws 2. Procedural Law: When determining whether to apply a federal rule i. Outcome Test: If the application of the federal law would result in a different verdict, the court must apply the state law. There cannot exist two conflicting bodies of law within one state. (York) a. The exception is that state law cannot define the remedies allowed by a federal court. ii. Balance Test: If there is a contradiction between the Federal and State rules the weight of the two must be compared, and the heavier of the two must be applied. Byrd v Blue Ridge (Construction hurt while working in foreign state is statutorily denied the right to sue) The need for federal judges to maintain their power to comment on the weight of evidence and credibility of witnesses is greater than the need for conformity of procedure between state and federal courts. iii. Rules Enabling Act: If it can be shown that the conflicting federal rule is truly procedural and on point then it must be applied. If there is a federal rule on point and the rule is arguably procedural you must follow it. (Hanna)

B. Ascertaining State Law


1. Which State Law Governs

i. Klaxon v Stentor. Rule: The Conflict of Laws Statute of the forum state dictate which state law governs. ii. Allstate v Hague. Rule: A state can apply it's own statutes if it has sufficient contacts with the parties and the transaction.

C. Federal Common Law


1. When the federal courts has to make a decision that is not governed by federal statute it creates federal common law, this has been the case in specific areas such as interstate water disputes, commercial disputes, admiralty and maritime questions, etc.

D. Federal Law in State Courts


1. The Supremacy Clause requires States to apply Federal law in cases where state and federal law both apply. i. Dice v Akron (railroad worker unwittingly signed a waiver of liability)

5.

Modern Pleadings
A. The Complaint

1.

Detail Required Under the Codes i. Gillespie v Goodyear, 1963. It is not sufficient to merely allege that a party has been negligent, the pleading must include the facts/theory that supports the claim. Detail Required Under the Rule of Federal Procedure i. FRCP 8(a): A claim for relief must include a short and plain statement of a. Grounds for jurisdiction b. The theory under which the plaintiff is entitled to relief c. The type of relief being sought ii. Conley v Gibson. Rule: A complaint should not be dismissed for failure to state a claim unless it is beyond doubt that the plaintiff cannot prove any set of facts in support of his claim. UNDONE BY TWOMBLY iii. Twombly. Rule: Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. iv. Ashcroft v Iqbal. Rule: The facts presented must allow the court to determine that it is plausible not merely possible that the plaintiff is entitled to relief.

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3.

Burden of Pleading/Production i. Rule: The plaintiff has the burden of legitimately alleging the existence of facts relating to all the basic elements required for relief; if he cannot even allege that the relevant facts it is doubtful he will be able to produce them at trial. ii. Pleading: look to the federal rules iii. Production: Look to the state Special Matters i. FRCP 9 governs the special requirements of a pleading involving specific matters such as capacity to sue/be sued, fraud, conditions precedent, etc.

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Prayer for Relief i. FRCP 8(a)(3): the specific type of relief must be included in the pleading

ii. Bail v Cunningham. A jury award need not be limited by the amount demanded in the pleading. iii. FRCP 54(c): A default judgment cannot be awarded in an amount exceeding the amount or of a different type than that demanded in the pleading

B. Responding to the complaint


1. Time permitted for response i. FRCP 12(a): Must answer within 20 days of receiving the summons, however, in most cases an extension will be requested and granted Motions to Dismiss i. FRCP 12(b,c,d,f): Answering the complaint i. FRCP 8: A defendant must include in his response either an admittance, denial, or a plea of insufficient information. ii. Denials: If a defendant does not specifically dent any averment in the complaint he may be considered to have admitted to it, he can cover himself by including a general denial along with his specific denials iii. Affirmative Defenses: FRCP 8(c): In determining whether a defense not raised in 8(c) will be accepted the court looks to federal statutes for federal question cases or to state practice in diversity cases. The Reply i. FRCP 7(a): the court will only allow pleadings listed in this rule Amendments i. FRCP 15 ii. Beeck v Aquaslide: The court may allow the pleading to be amended in the interest of serving justice. iii. Worthington v Wilson: names of parties can be changed/corrected Supplemental Pleadings i. FRCP 7(a), 15(d): Used to cure defects in the original pleading or to add claims or provide additional facts. Frivolous Pleadings i. FRCP 11: Pleadings and motions must be signed. ii. Surowitz v Hilton: Aunt who signed pleading in derivative suit had no idea what was going on, court said it didn't mater.

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6.

Joinder

A. Joinder of Claims
1. Permissive Joinder i. FRCP 18: A party asserting a claim may join as many claims against one party as it desires, the claims do not have to be transactionaly related. ii. Claims that the court would not have jurisdiction over cannot be joined.

B. Addition of Claims
1. Counterclaims i. FRCP 13 a.Compulsory: If a counterclaim arises out of the same transaction and has not been brought separately it must be stated in the pleading unless it would require adding another party that the court would not have jurisdiction over. Arises out of when: i. Same facts ii. Would not be barred by Res Judicata iii. Could be supported by the same evidence iv. Any other logical relation b.Permissive: anything that is not compulsory 2. Cross-Claims i. FRCP 13(g): A party may cross-claim anything arising out of the same transaction or related to the property involved in the transaction ii. Joinder of parties to cross-claims governed by FRCP 19 & 20

C. Capacity and Standing


1. FRCP 17

D. Joinder of Parties

1.

Permissive Joinder i. FRCP 20: Parties may be joined (as plaintiffs or defendants) if: a. there is a right to relief common to them b. arising out of the same transaction and there is c. a question of law or fact common to them all.

ii. FRCP 42: The court at it's discretion may consolidate or separate any trial. 2. Mandatory Joinder i. FRCP 19: Parties must be joined when there is subject matter jurisdiction if otherwise there would be incomplete relief, impaired ability to protect one's interests, or inconsistent obligations. Misjoinder and Non-joinder i. FRCP 21: Misjoinder is not grounds for dismissal, rather the court may at its discretion join or sever any party or claim at any time.

3.

E. Impleader: bringing in a party to indemnify yourself i.e. insurance company 1. FRCP 14 F. Interpleader: 1. FRCP 22 G. Intervention: butting in on an ongoing suit 1. FRCP 24

7.

Adjudication Without Trial or by Special Proceedings

A. FRCP 56: Summary Judgment 1. Summary Judgment: i. Reasons for moving for SJ To eliminate baseless claims To force an opponent to divulge To potentially avoid the jury To get partial judgment To bludgeon the opponent To encourage settlement To educate the judge ii. Final Judgment Rule and Rule 54(b): When there is more than one claim or party to an action a final judgment for only one of the claims will be entered only if the court expressly states that there is no just reason for delay. iii. Revision: A ruling for Summary Judgment may be revised by the judge at any time prior to a final judgment being entered 2. The Movant's Burden i. Rule: Rule 56 does not explicitly or implicitly require the moving party to support its motion with affidavits or other similar materials negating the opponents claim. ii. Two methods of satisfying SJ: 1. Affirmative evidence negating an essential element of the opposing party's claim 2. Show that the opposing party lacks sufficient evidence to establish his case

iii. Favorable Light: The court must view the facts from the perspective favorable to the non-movant. iv. Genuine Dispute: When the facts of the case blatantly contradict the theory under which a party is moving for SJ the court should not view the facts in favor of the moving party because there is no genuine dispute. a. Scott v Harris (high speed chase caught on video) v. Standard of Proof: Evidence presented to the judge as support for SJ must be Clear-and Convincing. vi. Plausible Motive: A plausible motive is often a required as part of the movant's burden.

vii. Partial Summary Judgment: the judge may enter a partial SJ at his discretion.

B. Dismissal of Actions
1. Voluntary Dismissal i. Generally does not constitute as an adjudication on the merits unless the court believes it is being used to harass a defendant. ii. Dismissal to avoid Statute of Limitations a. Typically a court will allow a voluntary dismissal at any point before the trial has begun, when a trial can be said to have begun is a matter of dispute, i.e. discovery b. The courts are split as to whether a plaintiff may move to dismiss in order to re-file in a court where the statute has not run.

2.

Dismissal for Failure to Prosecute i. FRCP 41(b): intended to deter harassment or unnecessary delay, acts as an adjudication on the merits.

C. Default Judgment 1. FRCP 55

8.

Appellate Review
A. Finality

1.

Collateral Orders i. Rule: When a decision is made regarding a claimed right that is separable from the original action and will not be merged in the final judgment it can be reviewed before a final judgment is ordered, i.e. being held in contempt, counsel being disqualified, etc. ii. Cohen v Beneficial Mandamus i. 1651: if the party has no other means by which to appeal it may request a higher court to issue an order to the lower court to do or not do something, the issue of a mandamus is extraordinary and typically only issued to avoid an extreme injustice, i.e. denial of a jury trial Discretionary Appeals and Orders Regarding Injunctions i. 1292(a)(1): The court of appeals can review injunctions before a final judgment is rendered. ii. 1292(e): The supreme Court can prescribe new rules governing interlocutory appeals.

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B. Time to Appeal
1. App. Rule 4(a)(1)(A): Appeal must be entered within 30 days of the entering of the final judgment, unless an extension is granted by the lower court.

C. Reviewability
1. Issues Subject to Review i. In order for a review to occur the court requires the following criteria: a.The errors must appear in the court record b.The aggrieved party must have objected promptly c. It must not have been a harmless error, an error not affecting substantial rights d.Must be included in the appellate brief e.The court may not allow a review from a "winning party"

9.

Res Judicata and Preclusion


A. Claim Preclusion

1.

To be precluded the prior decision must have been: i. On the merits ii. Involving the same parties iii. involve the same matters (claims) properly considered in the first action

2. Rush v City of Maple: Issues of Personal and Property damage arising out of the same transaction should not be split.

B. Defense Preclusion
1. Mitchell v Federal: If a defendant could make a counterclaim and he chooses not to he cannot bring a separate suit later on the same grounds as the counterclaim.

C. Issue Preclusion
1. Rule: 5 questions for Issue Preclusion: i. What issues were Litigated and determined in the prior suit, ii. Was the issue Necessary to the judgment, iii. Was there a valid final judgment on the merits iv. Against whom may issue preclusion be asserted (only parties bound by the prior litigation) v. By whom may preclusion be asserted (Mutuality) Actually Litigated i. Cromwell v County of Sac: Only matters upon which a prior verdict or judgment was rendered are precluded from being argued in a subsequent suit. Necessarily Decided i. Rios v Davis: A finding of fact by a jury or court, which does not become the basis or one of the grounds of the final judgment, is not conclusive against either party to the suit. Conclusions of fact are NOT precluded from being argued in subsequent suits.

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D. The Required Quality of Judgment


1. i. 2. i. Judicial Tribunals Hanover v Robert Non-judicial Tribunals Holmberg v State

E. Parties Benefitted and Bound

1. Mutuality Doctrine: A party that is not bound by a prior decision cannot invoke issue preclusion against a party that is bound by a prior decision. i. Parklane v Shore: Trial judges should not allow offensive issue preclusion when a Plaintiff easily could have joined the prior suit or when preclusion would be unfair to a defendant.

Inter-System Preclusion
1. Full Faith and Credit: A judgment must be given as much affect where presented for enforcement as it would have had where rendered. 2. Greater or Lesser Affect: Federal courts may not give lesser effect to states' preclusion rules; it is not clear if they can give greater affect, but probably not. 3. Semtek v Lockheed: Federal common law governs the claim-preclusive effect of a dismissal by a Federal court sitting in diversity, which in turn will apply the claim-preclusion laws of the state in which the Federal court is located.

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