Civil Procedure Outline

Part I. Selecting the Proper Court

Personal jurisdiction over the parties

Subject-matter jurisdiction over the type of suit
Defendants must be properly served with process
Venue must be correct

Personal Jurisdiction
1. In Personam Jurisdiction
Exercised over the defendant herself because she has some appropriate connection with
the forum
Valid judgment creates a personal obligation for defendant and is entitled to full faith in
credit in all states
Traditional Approach: Pennoyer v. Neff
Power of a state court to exercise jurisdiction over a defendant is founded upon physical
power of the state as a sovereign of all persons in its territory
Traditional bases of jurisdiction
o consent: Defendant can be subject to in personam jurisdiction if they appear in
court/consent to jurisdiction.
Special Appearance: D can make appearance where appearance limited to
challenge courts jurisdiction, does not have to argue case on merits or
adhere to courts jurisdiction.
Express consent: by contract, by appointment of agent to receive service
of process in state (sometimes required)
Implied consent: by engaging in activity within state, implying consent
Voluntary Appearance: appearing to argue case on the merits, not
contesting personal jurisdiction
o Domicile: State may exercise in personam jurisdiction over a resident thereofsomeone domiciled in the state
o Presence within the state: State has jurisdiction over defendant found within
the state presence can be served with process while in the forum
o Agent: State may require anyone doing business or entering a contract within
state to appoint someone to receive service of process (seen as the defendants
being present in that state through an agent)
Need for notice to the defendant
o Personal service
o Constructive service: less than personal (like publication)
Stretching Pennoyer
Expansion regarding individuals
o specific jurisdiction: jurisdiction created only for a claim that arises from activity
within the forum

o general jurisdiction: defendant can be sued in the forum for a claim that arose
anywhere in the world. Make clear that general jurisdiction appropriate where
defendants contacts with forum continuous and systematic that they are
essentially at home in the forum
personal service
domicile of a person
state of incorporation and principal place of business
cannot be based on purchases or sales
Perkins v. Benguet Consolidated Mining Co.
Helicopteros Nacionales de Colombia, S.A. v. Hall
Goodyear Dunlop Tires Operations, S.A. v. Brown
o Pushed idea of consent to include implied consent (by driving car, you are
implying consent to jurisdiction there)
Minimum Contacts Test: International Shoe
Shift focus to minimum contacts
o If not within forum, defendant must have minimum contacts with it such that the
maintenance of the suit does not offend traditional notions of fair play and
substantial justice
Presence within the forum still viable for in personam jurisdiction
Must be foreseeable that the defendants activities make her amenable to suit in the
forum, foreseeable be haled into court there
Can the state exercise in personam jurisdiction?

After IS: Purposeful Availment

Cases give relevant factors for applying the test
McGee v. International Life Ins. Co. 1957
o Jurisdiction can be based on a single contact with the forum
Hanson v. Denckla 1958
o To have relevant contact, defendant must purposefully avail himself of the
privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws.
o Purposeful availment:
substantial connection with state
engages in significant activities with state

creates continuing obligations between himself and residents

o contacts not accidental, reaching out to the state
World-Wide Volkswagen v. Woodson 1980
o Minimum contacts test has 2 parts:
Protect defendant from litigation in burdensome forum (fairness)
Ensures states dont infringe on sovereignty of other states (insistence on
contact between defendant and forum)
o Fairness considerations only relevant after Court finds relevant contact
Burger King Corp. v. Rudzewicz
o Clarify fairness as unconstitutional forum

Stream of Commerce: Asahi

Asahi Metal Industry Co. v. Superior Court 1987
o OConnor Theory: Merely putting product into stream of commerce, even with
knowledge it will get to forum, is not enough. Must have additional conduct that
indicates purpose to serve forum state market.
This theory endorsed (not upheld) in J. McIntyre Machinery Ltd. v.
Nicastro (2011)
o Brennan Theory: It is a contact to put a product into the stream of commerce, if
you can reasonably anticipate it getting into the forum state. Thats enough for
personal jurisdiction.
J. McIntyre:
o Dissent: if you target the US, you can be sued in any state
Defendant must have purposefully availed itself of the final state, merely placing item in
the stream of commerce is not sufficient basis for personal jurisdiction
Placing item in the stream of commerce with another act that shows intent to serve a state
is sufficient
The Burnham Case
Does service of process within the forum give in personam jurisdiction or does
jurisdiction have to be assessed under International Shoe?
2 theories
o Scalia: presence is good enough, traditional bases dont have to been analyzed
under IS
o Brennan: must meet IS standard in every case, traditional bases gone
Statutory Analysis
Each state has statutes authorizing courts to exercise personal jurisdiction in some
circumstances over nonresidents
Nonresident motor statutes
Long-arm Statutes
o Grant specific jurisdiction, cover more than motorist
o 2 approaches
Courts of state can exercise jurisdiction over a nonresident to the full
extent of the Constitution

Laundry-list: list of activities that subject nonresident to in personam

jurisdiction

2. In Rem and Quasi-in-Rem Jurisdiction

Exercise over defendant in the form of property
o Tangible property: yacht, book, etc
o Intangible property: debt, bank accounts
o Real property: land
3 requirements for exerting in rem jurisdiction (pre-Shaffer)
o presence of the res within its borders
o seizure of property at the commencement of proceedings (attachment)
o opportunity for owner (D) to be heard
In Rem: involve ownership of the property, bound to whole world
Quasi-in-Rem
o Adjudicate ownership of property
o No dispute over who owns property, but property relevant because plaintiff cant
obtain in personam jurisdiction over defendant
o Type I
When the dispute involves rights of the parties in the property itself
Close connection between litigation and property provides necessary
minimum contacts
o Type II
When dispute unrelated to the ownership of property
Defendant must have minimum contacts with the forum
No jurisdiction if property not located in state
No jurisdiction if property brought in by fraud or force
Courts sole basis of jurisdiction is the property, any judgment is only satisfied on the
property
Minimum Contacts and In Rem Cases: Shaffer v. Heitner
All assertions of state-court jurisdiction must be evaluated according to the standards set
forth in International Shoe and its progeny.
In Rem is really an action against the person, deprives D of property
For quasi-in-rem and in rem cases:
o Property must be attached at the outset
o Defendant must have minimum contacts with the forum
Presence of property in the forum probably satisfies requirement

How to Answer Question on Personal Jurisdiction

Step 1: Statutory Bases for Personal Jurisdiction
Determine if statute permits the exercise of personal jurisdiction
o Laundry-list
o Full extent of Constitution
Only for specific jurisdiction (over some act in the forum state)?
In rem or quasi in rem: attachment statute
Step 2: Constitutional Analysis
In personam
o Does it involve one of the traditional Pennoyer bases of jurisdiction?
o Service of process on the defendant (or agent) in forum
o Consent in the forum
o Residence in the forum
o If yes mention Burnham split, argue both ways
o Does it need an International Shoe assessment?
o Involving nonresidents or others not falling within traditional basis
o Assess contact: minimum contacts with the forum? Relevant contact?
Did the contact result from Ds purposeful availment of the forum?
Contact must not have been accidental/fortuitous.
Was it foreseeable that D could get sued in that state?
o Assess relatedness: general/specific jurisdiction
Does Ps claim arise form Ds contact with the forum?
o Yes: specific
o No: general must be continuous and systematic, essentially
at home
o Assess fairness: does it offend traditional notions of fair play and justice?
Burden on D: must show forum is so gravely inconvenient it
puts D at a severe disadvantage almost impossible
o Relative wealth of parties irrelevant
Inconvenience for the defendant and witnesses
Forum states interest in adjudicating the dispute
Ps interest in obtaining convenient and effective relief
the interstate judicial systems interest in obtaining the most
efficient resolution of controversies
the shared interest of the several States in furthering fundamental
substantive social policies
In Rem or Quasi-in-Rem
o Constitutional assessment must start with Shaffer v. Heitner
Pennoyer requirement that attachment of property at outset not enough
Can be assessed under International Shoe
Ds contacts with forum must satisfy IS
Presence of property may satisfy IS test

3. Jurisdiction in Federal Courts

Federal district courts act like state courts with regard to in personam jurisdiction federal court
subject to same statutory restraints as a state court.
Rule 4(k)(1): Service of summons or filing of a waiver is effective to establish jurisdiction
Who could be subjected to the jurisdiction of a court of general jurisdiction in the state in
which the district court is located
o No federal statute can use state long arm statute
Who is a party joined
When authorized by a statute of the US
Rule 4(k)(2): Ensures at least one federal forum open to P raising a claim under federal
statute or law
Exercise must be consistent with the Constitution
o pure national contacts minimum contacts with nation as a whole
o national contacts plus minimum contacts with nation as whole, fairness,
substantial justice
o Circuit with forum of circuit, not nation as whole
Must be a federal question
D cannot be subject to any other court of general jurisdiction in any state
Applies to limited group of plaintiffs
o Alien (non-American)
o American citizen living abroad
4. Challenges to Jurisdiction

Notice and Service of Process

1. Service of Process
Rules of Notice
Due process requires that the parties be given reasonable notice of the lawsuit.
Notice may be given by:
o Actual notice (personal service)
o Notice reasonably calculated to reach D (substituted service)
Service at dwelling or usual place of abode with someone who lives there
Service on an agent - must tell defendant
o Must include complaint and summons
Constitutional requirement of service: notice must be reasonably calculated under all
circumstances to apprise party of the proceeding (Mullane)
For those who cannot be identified or located, constructive service in the form of
publication is okay (Mullane)
o Plaintiff must do the best they can to reach D using the best practical means
possible
o Form chosen must not be substantially less likely to bring notice to D than any
other form

If appointment for service of process on D is made by statute, statute must require the
notice be communicated to nonresident by mail or otherwise or statute invalid
Must be done correctly by procedure and comply with Due Process.
When service of process improper, court will ordinarily quash service but will not
dismiss complaint, so that the plaintiff can effect proper service.
Service of process serves 2 functions:
o Act by which the court obtains jurisdiction over defendant
o Gives the defendant notice of the lawsuit so that he has the opportunity to appear
and defend interests

Service of Process Rule 4 of FRCP

(a) Form: what summons must include
(b) Issuance: steps for issuance of the summons
(c) By Whom: service may be effected by any person who not a party and is at least 18
(d) Waiver of Service: permits defendant to waive service of process (not venue or
jurisdiction defenses) prepaid, 2 copies, inform of consequences
o defendant who waives service gets extra time to answer complaint
o does not have to pay formal service fees
o preserves objections to venue or personal or subject matter jurisdiction
o If D fails to return receipt, P must employ other means to ensure notice, D pays
o D gets 40 extra days to answer if he waives service
o Statute of limitations concern
(e) Service Upon Individual within a Judicial District of the US
o (1) service allowed if state law allows it: where federal court sits and where
service effected
o (2) personal service, substituted service, service upon an agent
(a) personal service
(b) substituted service at Ds usual abode (common sense), serve
someone of suitable age and discretion who resides there
(c) agent - D himself must have intended to confer authority upon the
agent (Szukhent)
(f) service to internationals Hague convention or law of the country
(g) service on infants or incompetents state law
(h) corporations - summons & complaint - allows process on a business to be made on an
officer, managing or general agent, authorized to receive service, state law can apply
(i) service upon US, reasonable time for service of process due to multiple officers
(j) service upon foreign, state, local governments
(k) Territorial limits of effective service
o (1)(a): can exercise personal jurisdiction and permit service of process outside
state in which it sits only if a state court in that state could do so
(l) proof of service to the court affidavit
(m) time limits of service 120 days after filing the complaint
(n) in rem jurisdiction
2. Immunity from Process and Etiquette of Service

3 way to have grant of immunity justified as promoting the administration of justice, common
law rules
Witnesses, parties, and attorneys who come to a state to participate in a lawsuit often are
granted immunity from service of process in other suits
Person confined in jail or imprisoned is subject to civil process, irrespective of question
of residence, if he was voluntarily in jurisdiction at time of arrest and confinement
(Sivinsky v. Duffield)
Fraudulent service: if service done in fraudulent manner, court will not exercise
jurisdiction
o Court lacks jurisdiction (Wyman)
o Court shouldnt exercise jurisdiction in such situations (Tickle)
3. Challenges to Jurisdiction Over Persons and Property
3 ways to challenge jurisdiction
Ignore the Action default judgment will be entered
o Very risky. Cant try case on merits in home state. Cant do if have property in
original forum.
Raise the Jurisdictional Question Directly
o Special appearance: D appears specially for sole purpose to challenge jurisdiction,
limited to jurisdictional issue
o General appearance: if argue on merits, then voluntary submission to the court
o If lose under special appearance, might not be able to appeal. Must be a final
decision of the court
Some states say that question of jurisdiction appealable
Limited Appearance
o Defend the case on the merits based on property at stake. Limit affect of the
judgment to seized property
How to Challenge Jurisdiction in a Federal Court
Rule 12(b): may assert certain defenses in responsive pleading or by motion
Rule 12(g): in motion must assert defenses in 12(b) only
Rule 12(h): waiver of preservation of certain defenses can waive certain defenses if not
asserted at the beginning
Rule 15(a): may amend responsive pleading within 20 days
How to Determine if Notice is Satisfied
Step 1: Determine whether rule or statute prescribes a method for giving notice
Step 2: Assess whether that rule or statute, as applied to our case, comports with the
requirements of due process

Subject Matter Jurisdiction

What is subject matter jurisdiction?
What court will hear the case power to hear the case and the claims asserted in it

Federal courts have limited subject matter jurisdiction, can only hear certain types of
cases
o Constitution: Article III, Section 2: 9 categories of cases or controversies
Federal Question
Diversity
o Statute: Congress can define jurisdiction of courts it creates
Has never conferred full reach of constitutional jurisdiction
State court systems have general subject matter jurisdiction, can hear any claim at all
o Some may have exclusive courts (Probate Court)
At any level, at any point in the proceeding, the courts can raise the issue of federal
question jurisdiction.
o If anytime determined to not have subject matter jurisdiction, must dismiss.

1. Federal Question Jurisdiction

28 USC 1331 cases arising under a state law may be filed in federal court, grants
jurisdiction over a case that arises under any federal law, can be asserted in state court
instead
Rationale: federal judges may be expected to develop special expertise in matters of
federal law
No jurisdictional amount requirement
Two Rules for Invoking Federal Question Jurisdiction:
Well-Pleaded Complaint Rule: to invoke jurisdiction under 1331, federal law must be
part of the plaintiffs well-pleaded complaint
o defendants assertions of defenses or counterclaims do not count
o only well-pleaded portion the support for the claim
o anticipated defense is not part of well-pleaded complaint
o Is the plaintiff attempting to vindicate some right given by federal law?
o Louisville & Nashville Railroad Co. v. Mottley: defendants assertion of defense
under federal law doesnt count (original defendant: railroad)
Centrality of the Federal Issue: federal law must be a central issue in complaint
2. Diversity Jurisdiction
28 USC 1332 gives courts to hear cases in complete diversity, amount in controversy
over $75,000
o citizens of different states
o citizens of a State v. citizens of foreign state
o citizens of different States in which citizens of foreign state are additional parties
o foreign state as P and citizens of a State or of different States
Rationale: to prevent the bias or fear of bias against non-resident litigants in state court
Domicile: where person has true, fixed, and permanent home and principal
establishment, and to which he has the intention of returning wherever he is absent
therefrom.
o Can only have one at a time, given one at birth
o Look at voter registration, drivers license, bank accounts, etc
o To acquire new domicile:

Be physically present in new place

With intention to make his home there indefinitely
Citizenship determined at time action commenced, cant be changed by moving

Determining Whether Diversity of Citizenship is Invoked

Complete Diversity
o Strawbridge v. Curtiss: each plaintiff must be of diverse citizenship from each
defendant
o Parties on the same side of the dispute can be co-citizens
Natural Persons Citizenship
o To be a citizen of a State for diversity purposes:
Citizen of the US
Domiciled in that state
o Aliens admitted to US for permanent residence are citizens of state in which
domiciled
o Non-resident alien can sue or be sued in any federal court
o A citizen domiciled abroad is not a citizen of any state and is not an alien
Corporations Citizenship
o Corporation a citizen of:
Any State in which it is incorporated
State in which it has its principal place of business
Nerve center test: location of corporations home office or
executive headquarters, where corporation directs its activities and
makes its decisions
o Associations/non-corporations: aggregates of their members, citizenship of each
member
Legal Representatives
o Representative of infant, decedent, incompetent deemed to be a citizen of the
same State as person being represented
Amount in Controversy Requirement
o Docket control device, plaintiffs ultimate recovery irrelevant
o Ps good faith allegation that jurisdictional amount satisfied controls unless there
is a legal certainty the claim is really for less
o Cannot BE $75,000, must exceed
o Single party on each side can add together two or more claims to meet amount
in controversy requirement
o Can aggregate with multiple parties if claims are joint or common and
undivided
o Excludes interests and costs, sometimes attorneys fees may be considered
Exceptions
o Collusive Joinder
No jurisdiction where party improperly or collusively made or joined to
invoke the jurisdiction of such court
Manufactured jurisdiction
o Domestic Relations Cases
o Probate (Estate) Cases

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Alienage Jurisdiction
Dispute between a citizen of a U.S. state and an alien (citizen of foreign country)
Jurisdiction denied when case is between citizen of a state and a citizen of a foreign
country who has been admitted for permanent residence and is domiciled in the same
state
Does not allow two aliens to sue each other must have a citizen on one side
Is there Diversity Jurisdiction?
Step 1: Amount in Controversy exceeds $75,000?
Step 2: Is there diversity of citizenship?
o Is there complete diversity?
3. Supplemental Jurisdiction
Allows a federal court to hear claims that could not get into federal court by themselves
claims that do not invoke diversity, alienage, or subject matter jurisdiction.
Only for additional claims
Isnt needed if there is a standard independent basis of subject matter jurisdiction over the
claim
Fosters efficiency, convenience, and consistency of outcome
Court can exercise jurisdiction over state claim even if federal claim dismissed on the
merits (unless before trial, then should probably be dismissed)
28 US 1367 supplemental jurisdiction statute
o (a) common nucleus of operative fact for all claims
o (b) can take away supplemental jurisdiction when there is diversity, over claims
by P against persons made parties under FRCP when would defeat diversity
codifies Owen v. Kroger (P impleading another D destroyed diversity)
Policy concerns:
P voluntarily chose forum
D has no choice
Allowing the D to assert supplemental jurisdiction does not open
door to a scenario where complete diversity is swallowed
Ds subsequent suit (implead, cross-claim, counter-claim) is
logically related to, dependent upon and derived from
o (c) court may decline to exercise supplemental jurisdiction:
claim raises a novel or complex issue of State law
claim substantially predominates over the claim that invoked federal
jurisdiction
the court has dismissed all claims over which it had original jurisdiction
in exceptional circumstances, there are other compelling reasons
o (d) statute tolled while case is pending and for 30 days after dismissal
o when dismissed, P can assert claim in state court
To determine: 1) is there a common nucleus of operative fact? 2) Does the claim fall under
1367(b)? Yes, no supplemental. No, court has discretion to exercise.
Gibbs Test

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United Mine Workers v. Gibbs

If additional claim is so closely related to the plaintiffs original claim that invoked
subject matter jurisdiction as to be a part of the same overall dispute, the federal court can
hear the additional claim.
o Claim just share a common nucleus of operative fact
Eventually codified in 1367

4. Removal Jurisdiction
Removal gives the defendant, sued in state court, right to remove case to federal court
if the federal court would have had original jurisdiction over the action
28 USC 1441
o venue proper in the federal court of the state where the case was pending
How to Remove
28 USC 1446 (procedure for removal), 1447 (after removal)
All defendants must agree to remove a case
o Unanimous involvement in the notice of removal by all Ds who have been served
o Must remove case in 30 days, file notice of removal in federal court, containing
short and plain statement of the grounds for removal
o Last-Served Rule: 30 days runs when the last defendant is served with process,
even if its past 30 days since first defendant served
If removal improper for some reason other than lack of subject matter jurisdiction, P must
move to remand within 30 days
Case must satisfy federal subject matter jurisdiction, burden on defendant
Only federal court to which a case can be removed is the one that embraces
geographically the state court in which the case is pending
Must have diversity at time case removed
How Plaintiff can try to thwart removal
o Join defendant whose citizenship prevents removal
o Sue for exactly or less than $75,000
o Choose not to assert federal question claim
Exceptions
o No removal of a diversity case if any defendant is citizen of the forum local
defendant rule
o No case can be removed on basis of diversity more than one year after case filed
in state court
1447 (c): remands for lack of subject matter jurisdiction and on the basis of any defect
other than subject matter jurisdiction
o There are some remands that are neither forum selection clause (Kamm v. Itex
Corp.)
1447(d): district court order remanding a removed case to state court is not reviewable
unless specified in (c)
o Thermtron: cannot be read literally, must be in conjunction with (c). Remand
orders issued under (c) and invoking grounds specified therein
P files motion to remand

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o Motion to remand denied: goes to federal court (not appealable order)

o Motion to remand granted goes to state court
P moves to dismiss appeal or not
o Appellate court reviews the order to dismiss appeal to determine if the remand
order can be appealed has jurisdiction to determine if it has jurisdiction
If it has subject matter jurisdiction, then it can see if there are merits for
the appeal
Then look at defects under 1447(c)
o Thermtron exception to not-appealable order: remand order is immune from
appellate review only if it is made for 1447(c) grounds

Venue

Asks where, within the chosen court system, a case can be filed
Special venue statutes are controlling over general venue statutes.
Federal courts statutory inquiry
Improper venue may be waived by the defendant

1. Local Action Rule

Local Action: case involving title, possession, or injury to land
o Cases involving a remedy in real property, damage to realty
o Land is used as basis for jurisdiction
o Venue only where the relevant real property is found
Witnesses in same district where land located
Land officers are in district, more familiar with land
o Laid in common law by Livingston v. Jefferson
o No longer applies - 1391(a)(2)
Transitory: not local action, transitory action
Venue in the Federal Courts:
28 USC 1391
Improper venue can always be waived by the parties
o Venue waived unless timely objection is made
Plaintiff has 2 basic venue options
o Residence of the defendants
District in which D resides, if multiple, any district
o Events underlying the claim
substantial part of the events or omissions giving rise to the claim
occurred
Witnesses likely to be found there, P and D have been there
o If neither, then judicial district in which any defendant is subject to the courts
personal jurisdiction
Residence Requirements
o Human: resides where domiciled
o Corporations: resides in all districts in which it is subject to personal jurisdiction
when case is commenced, treat each district as a separate state. If not subject
anywhere, district in which it has the most significant contacts

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o Non-incorporated associations: reside in all districts subject to personal

jurisdiction
o Nonresidents: any district
Fall-Back Provisions
o 1391 (a)(3) and (b)(3) apply only when no district anywhere in the US satisfies
2 venue choices
o usually claim that arose outside of US
o 1391 (a)(3): only diversity of citizenship. in which any D is subject to personal
jurisdiction at the time the action is commenced
o 1391 (b)(3): permits venue in any district in which any defendant may be
found really meant for foreign based cause of action with multiple defendants
in different states

2. Forum Non Conveniens

More for doctrine of dismissal, because it cannot transfer (different judicial system)
A case pending in an appropriate forum is dismissed because there is another forum that
is far more appropriate start with asking is there an alternative forum for P to pursue?
2 types of interest served by forum non conveniens (established by Gulf Oil):
o Private interest
Practical issues of convenience
Relative ease of access to evidence
Ability to compel attendance of witnesses at trial through subpoena
Expense of obtaining attendance of willing witnesses
o Public interest
Administrative difficulties of keeping the case
Local interest in having local controversies decided at home
Avoiding problems with the conflict of laws and application of foreign
law
Unfairness of burdening citizens with jury duty in case unrelated to forum
Plaintiffs choice of forum should rarely be disturbed
o Unless foreign plaintiff: presumption in favor of plaintiff is significantly less
Alternative forum can be outside United States
There must be an alternative forum to dismiss on FNC grounds.
Change in law is not considered to be a factor unless alternative forum clearly provides
no remedy at all.
o Only if the remedy provided is so clearly inadequate that it is no remedy at all
should the unfavorable change in applicable law be given substantial weight.
Strong presumption given to trial courts judgment
o Appellate court should not overturn unless there was clear abuse by the trial judge
Court may condition dismissal on grounds of having D waive defenses in other
jurisdiction
3.

Transfer of Venue
transfer can only be affected within a court system
party seeking transfer (usually defendant) has the burden of showing that the case should
proceed in another court
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court ordering transfer: transferor court

court to which case transferred: transferee court
Plaintiffs choice of venue must be given substantial weight (not as much as dismissal)

Transfer Provisions in Federal Court

1404 applies when transferor court is a proper venue
o where it could have been brought any court where P could have originally
established proper venue and jurisdiction
o Court tries to determine whether another district might be the center of gravity
for the case litigation makes more sense than present venue
o Original courts lack of personal jurisdiction doesnt affect power to transfer
o In the transferee court, apply originally applicable laws and rules
o Factors to consider:
where relevant events took place
whether one court could compel attendance of witnesses more readily
location of evidence and witnesses
relative court docket loads in the two courts
if theres a forum selection clause in a contract
familiarity with applicable law
1406 applies when the transferor court is an improper venue
o Court may dismiss or in the interest of justice, transfer
o Results in a change of law, apply the law of the district in which transferee court
sits

Is venue proper?
Does court have
personal
jurisdiction?
Does court have
subject matter
jurisdiction?
Notes

28 1631 - Transfer
to cure want of
jurisdiction
Yes or no it does
not matter.

28 1404(a)
Change of Venue

28 1406(a) - Cure
or waiver of defects

Yes

No

Yes

Yes

No

Yes

Yes

Yes

Codified FNC and

replace dismissal
with option to
transfer.

Applies when P picks

the wrong venue.

Plugged the gap.

Part II. Choice of Law

1. The Erie Doctrine
The Rules of Decision Act, 28 USC 1652
The laws of the several states, except where the Constitution or treaties of the U.S. or
acts of Congress otherwise required or provide, shall be regarded as rules of decision in
civil actions in the courts of the U.S., in cases where they apply.

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Statute states federal courts must apply state law as the rules of decision in civil cases,
except where federal law applies
Swift v. Tyson
o laws of the several states only means state statutes and common law of local
concern
o federal courts in diversity cases free to apply their own conception of general
common law
Black & White Taxicab Co. v. Brown & Yellow Taxicab Co.
o Brown & Yellow dissolved its corporation in Kentucky and reincorporated in
Tennessee in order to invoke diversity jurisdiction and get federal court to uphold
general federal law in their favor

Erie R.R. Co. v. Tompkins

Facts
o Tompkins (PA) walking along path next to train track operated by Erie RR (NY),
something hit him, sustained serious injuries.
o PA state law: Tompkins was a trespasser and would lose
o Wanted federal court to apply general common law and hold Tompkins was
invitee, so he would win district court affirmed
Opinion
o Concern for litigant equality
o Swift doctrine unconstitutional: equal protection of law impossible, those who can
invoke diversity jurisdiction get access to law that those in state court cannot
o State common law to govern in diversity cases
o law is statutes and judicial declarations
Concurrence
o In diversity cases, federal court must apply state substantive law but may apply
federal procedural law
Substantive (follow state law):
Statutes of limitations
Rules for tolling statutes of limitations
Choice of law rules
Elements of a claim or defense
Requirements for a new trial
Procedural (can ignore state law):
What court decides if new trial should be held
Interpreting State Law
Federal court must apply the substantive state law that would be applied by the highest
court of the state.
If no law on that issue, federal court must try to determine what decision the highest court
of the state would reach on that issue.
o Dont have to follow trial court decisions, intermediate appellate courts
o Federal judge has to make best guess

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o Look at trends in laws from other states

o Certification procedure: can certify questions of state law to the state high court
for clarification
o High court subject to qualification more like what they would believe today on
the subject

Once a court determines that it has to apply state law, what state law to apply?
Klaxon v. Stentor Electric Manufacturing Co.: must apply the law of the state in which it
sits, including its choice of law rules

Pleadings
What are pleadings?
Documents in which claimants set forth their claims and defending parties respond to the
claims and raise defenses
Inform the other parties of each partys contentions
FRCP 7(a): 3 basic pleadings
o Complaint
o Answer

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o Reply
FRCP 10: general guidance for the form of all pleadings
o (a): form of pleadings clerk assigns file/docket number to case
o (b): numbered paragraphs
o (c): may attach written instrument (ex: contract)

FRCP 8: Requirements for Plaintiffs Complaint

8(a): requirements of complaint
o 8(a)(1): statement of grounds for subject matter jurisdiction
short and plain statement of the grounds for the courts subject matter
jurisdiction
can use Federal Rules forms
o 8(a)(2): statement of the claim
short and plain statement of the claim showing that the pleader is entitled
to relief, statement of the facts constituting a cause of action
needs to have factual and legal sufficiency
demurrer: challenging legal sufficiency
o 8(a)(3): demand for relief sought
prayer for relief, monetary recovery, ad damnum clause
FRCP 54(c): plaintiff may recover whatever amount and type of relief
shown appropriate at trial, regardless of what they asked, unless default
judgment
Legal Sufficiency
o Complaint must state a legally sufficient claim, or be dismissed with prejudice
o Court looks only to face of complaint, not evidence
o Does the law recognize a right to recover on the facts she has alleged?
Factual Sufficiency
o Only need a short and plain statement of the claim because pleading
requirements liberalized, lowering barrier to get into litigation stream. Coupled
with expanded discovery provisions.
o How much detail is required?
Conley v. Gibson: plaintiff must give defendant fair notice of what the
plaintiffs claim is and the grounds upon which it rests.
Bell Atlantic Corp. v. Twombly: plaintiff must include enough facts to
state a claim to relief that is plausible on its face
Not really for all types of cases (only difficult ones, not a
heightened pleading standard)
Ashcroft v. Iqbal: Complaint must state a plausible claim for relief
o Common counts: plaintiff can assert claims in legal shorthand, one-sentence
statement of claims
Defendants Response: Answer and Motions
FRCP 6
o (b): party may move for an extension of time in which she is required to do
something, must be approved by the court
FRCP 8 answer, 21 days

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o Respond to each allegation

Admit
Deny
D lacks sufficient info on which to admit or deny 8(b)(5)
o Raise affirmative defenses
o 8(b)(3): must specifically deny allegations or generally deny
general denials deny all of it, cant be used often. Denying everything,
including jurisdictional grounds (subject matter) not personal (not in
complaint)
o 8(b)(4): admit the part that is true, deny the rest
o 8(b)(5): lack sufficient info to admit or deny treated as a denial
o 8(b)(6): failure to deny an allegation is considered an admission
general denial (deny everything) doesnt happen often. Specific: deny
specific claims
o 8(c)(1): 19 classic affirmative defenses
if not brought up in answer, affirmative defense effectively waived
FRCP 7 reply, pleading made by P in response to Ds answer
o 7(a)(7): only required if the court orders one
o no responsive pleading is required to an answer, any allegations by D in her
answer are automatically denied by P
FRCP 12 motions
o (a)(1): 21 days to serve after being served with complaint
o (b): defenses, 1-4 must be asserted in first response or else waived
lack of subject matter jurisdiction
lack of personal jurisdiction
improper venue
insufficient process
insufficient service of process
failure to state a claim on which relief can be granted
failure to join an absentee under Rule 19
o (c): motion for judgment on the pleadings
court will take allegations of complaint as true and determine whether they
state a legally cognizable claim
o (e): motion for more definite statement, when complaint is vague & ambiguous
have 14 days to fix statement, or may be stricken. Must be made before
responsive pleading, point out defects and details desired
o (f): motion to strike
redundant, scandalous, impertinent material. Must show matter to be
stricken will cause harm in proceeding
disfavored, used simply to delay proceedings, rarely granted
o (h): if you dont raise in a preliminary motion or answer, or answer amended as a
matter of course, you have waived defenses 2-5
o (h)(2): defenses are not waived, may be raised in any pleading, by motion under
12c, at trial
failure to state a claim upon which relief can be granted
failure to join a person required by Rule 19(b)

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 failure to state a legal defense to a claim

o (h)(3): if court determines at any time it lacks subject matter jurisdiction, must
dismiss
Dismissals
FRCP 41(a) - Voluntary Dismissal
o P filed a case and wants to dismiss it, usually without prejudice
o 41(a)(1): file a notice of dismissal, only before other party serves an answer or
motion for summary judgment
o 41(a)(2); counterclaim pending court dismisses against Ds objection only if
counterclaim can remain pending for independent adjudication
FRCP 41(b) Involuntary Dismissal
o 3 situations: failure of P to
prosecute the case
comply with the Federal Rules
comply with a court order
o dismissal of any claim doesnt have to be whole case
o Link v. Wabash Railway Co.: permits district court to dismiss sua sponte, without
a motion by D
o Dismissed with prejudice
Default and Default Judgment Rule 55
FRCP 55(a) entry of default
o Caused by Ds failure to respond appropriately to the suit, interlocutory order
o Clerk has no discretion
o P must show by affidavit or otherwise that D failed to plead or otherwise defend
o Cuts off Ds right to file a response to the complaint
o Must give party notice of default by first-class mail at least 7 days before default
judgment hearing
FCRP 55(b) entry of default judgment
o Enter default judgment after default in limited circumstances, because prefer to
resolve disputes on the merits, not technicalities
o Clerk can enter if 4 things are true:
Claim must be for a sum certain or for an amount that can be made by
calculation
P must provide an affidavit of the damages due
D must have failed to appear in the case
D cannot be a minor or incompetent
o Otherwise, P must seek entry of default judgment by application from judge
o Hold a hearing, courts look at:
Whether Ds failure to respond is willful
Whether P has been harmed
Whether D has a meritorious defense to the underlying case
FRCP 55(c) defaulting party may move to set aside default for a good cause
o Reasonable excuse, done in reasonable time, D must show he has a viable defense
FRCP 60(c) motion to set aside any judgment, not just default judgment

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o 60(b)(1) motion o set aside based on mistake, inadvertence, surprise, excusable

neglect
Amended and Supplemental Pleadings Rule 15
FRCP 15(a)(1) as a matter of course
o P has right to amend before being served with response
o D can amend once within 20 days of serving answer
FRCP 15(a)(2) permissive amendments
o Party may amend only if opposing party consents in writing or court grants leave
to amend
o Foman v. Davis: district court must state its reasons for denying a motion for
leave to amend, amendments should be generally allowed
FRCP 15(a)(3) when P amends, D must respond in 10 days
FRCP 15(b) variance amendments during and after trial
o Party seeks to introduce evidence at trial of claim or defense not pleaded
o Party agrees to variance
Issues addressed in evidence must be treated as if raised in pleadings
Can move to amend pleadings to conform them to evidence
o Party objects to variance
Allows party to move to amend
Most instances, court will deny admission and motion to amend
FRCP 15(c) relation back
o Allows for an amended pleading asserted after statute of limitations has run that
relates back to a pleading that was filed before statute ran
o Permitted if amended pleading arose out of the conduct, transaction, or
occurrence set out-or attempted to be set out-in the original pleading
o Also permitted if relation back is permitted by the law that provides the statute of
limitations applicable to the action
o 15(c)(1)(C): amendment after the statute of limitations has expired to add new D
claim arises from same conduct, transaction, or occurrence as general
complaint
within 120 days after filing of the original complaint, new D has received
notice of the suit
120 days, new D knew or should have known that the action would have
been brought against it, but for a mistake concerning proper partys
identity
only really for when P sued the wrong D initially, but right D knew
about case and new that, but for the mistake, would have been named
FRCP 15(d) supplemental pleadings
o Concern the assertion of things that occurred after pleadings filed
o Update the parties and the court on the dispute, new facts after pleading filed
o District judge has great discretion in determining whether to grant the motion,
generally allowed if wont cause undue delay or prejudice
Professional Responsibility Rule 11

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FRCP 11(a): signature requirement on the attorney of record for a party, court must strike
any document that is unsigned
FRCP 11(b): signature is a certification to the court
o Presumes lawyer has made an inquiry reasonable under the circumstances to
satisfy herself things are true duty of reasonably inquiry
o Recertified every time she presents a document to the court
o 11(b)(1): not to harass, cause delay, or increase cost of litigation
o 11(b)(2): legal contentions are warranted by law, or by non-frivolous manner for
extending law
o 11(b)(3): factual contentions have evidentiary support, will find during discovery
o 11(b)(4): denials of factual allegations warranted on the evidence
FRCP 11(c): violations
o Court can determine a violation sua sponte
o 11(c)(1)(B): require party to show cause why specified behavior didnt violate
o 11(c)(2): party may move for sanctions against other party
party has 21 days to fix violations before sanctions safe harbor
imposed at the discretion of the court
purpose is to deter such behavior in the future
monetary or not
o generally, losing party pays winning partys costs (not attorneys fees)
FRCP 11(d): rule does not apply to discovery documents

Discovery
What is discovery?
Each party has the opportunity to learn relevant information from the other party
Each side should know almost everything the other side knows, prevents gotcha
evidence
Rules are very broad, discovery can be very expensive
Scope of discovery is much broader than what is admissible in court
Required Disclosures Rule 26(a)
disclosures each party must make even though no one asks for them, produced early in
the litigation
26(a)(1)(A):
o (1) name, address, telephone number of each person likely to have discoverable
information
o (2) copies of all of the documents and things that party may use to support claim
or defense (ie only favorable)
o (3) P must provide computation of damages and evidence for that
o (4) D must identify any insurance agreement that may be liable
o made within 14 days after the meeting required by 26(f)
26(a)(1)(B): exempts certain kinds of cases
26(a)(2): required disclosures concerning expert witnesses
o requires disclosure of anyone who might be an expert witness during trial

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o must provide written report of expert statement of opinions and basis, 90 days
before trial
26(a)(3)(A): required pretrial disclosures
o each party must serve the other with detailed info about evidence being presented
at trial
name, address, phone number of each witness to be called
designation of witnesses giving testimony by deposition, not live
Each document or exhibit given at trial
o Served with the party and filed with the court

Expert and Consulting Witnesses Rule 26(a) and (b)

Expert Witnesses (testifying at trial)
o Rule 26(a)(2)(A): each party must identify experts testifying at trial
o Rule 26(a)(2)(B): each witness must prepare a written, signed report detailed
info
Complete statement of all opinions and reasons
Data considered
Exhibits used to support
Qualifications
Other cases hes served as expert
Compensation to be paid
o Rule 26(a)(2)(C)(i): must be presented at least 90 days before trial
o Rule 26(b)(4)(A): parties can take experts deposition
o Rule 26(b)(4)(C)(i): requires side discovering to pay expert
Consulting Witnesses (not testifying at trial)
o Rule 26(b)(4)(B): if expert consulted before litigation and not officially
employed, other party cant discover. Only discover if a medical expert or if cant
get info by other means, no special requirement for names
Privileged Matter Rule 26(b)
Privilege: confidential communications between particular people, can be waived
Must disclose privileged info, but not content of the info
26(b)(1): parties may discover any nonprivileged matter that is relevant to any partys
claim or defense (pertinent), info may be discovered even if cant be presented at trial
and will lead to admissible evidence, court can order anything relevant to subject matter
26(b)(2): proportionality
o 26(b)(2)(C): permits court to limit number of requests for admissions sent in each
case, proportionality
o 26(b)(2)(C)(i): when discovery sought duplicative, can be found somewhere more
convenient unreasonably redundant
o 26(b)(2)(C)(ii): if party has time to discover something, should do so promptly
o 26(b)(2)(B): party doesnt have to provide Electronically Stored Info from source
not accessible due to cost
26(b)(3): work product (trial preparation materials)
o Rule 26(b)(3)(A): work product is documents and tangible things that are
prepared in anticipation of litigation or for trial.

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o
o
o
o
o

Hickman v. Taylor: though not privileged, protected, because prepared

with an eye toward anticipated litigation.
As long as done before litigation, protected from discovery
Interrogatories not permitted
Rule 26(b)(3)(A)(ii): protection can be overcome if the party can show:
Substantial need for the materials to prepare the case
Cannot, without undue hardship, obtain the equivalent by other means
Rule 26(b)(3)(B): protect against disclosure of certain things (mental impressions,
conclusions, opinions, or legal theories) opinion work product
Rule 26(b)(3)(A): protects work product by anyone, not just attorney
Rule 26(b)(3)(C): anyone right to obtain own previous statement
If product contains both work product and non, that info should be redacted

Protective Orders Rule 26(c)

26(c)(1): judge may enter a protective order to shield people from annoyance, etc list
of 8 things, make a motion certifying made an effort to confer with other parties before
court involvement
o 26(c)(1)(D): limit scope to ensure party is not being embarrassed
o 26(c)(1)(E): discovery proceed with only limited persons present
o 26(c)(1)(G): order for discovery be made in ways to protect competitive
advantage (trade secrets)
Supplementing Responses Rule 26(e)
26(e)(1): imposes duty to supplement or correct any disclosure and responses
o 26(e)(1)(A): if the party learns that something is incomplete or correct, only when
not otherwise been made known
o 26(e)(1)(B): supplemental responses if court orders them
26(e)(2): requires party to supplement info in experts report and deposition
Discovery Devices
Depositions Rules 30 (oral question), 31 (written question), 32 (waiver of errors)
o Person asked questions, respond orally, testimony recorded and transcribed into
book-like form
o Swears testimony will be the truth under penalty of perjury
o Lawyer for each party has a right to ask questions
o 30(b)(1): must name the person to be deposed, indicate time, date, location of
deposition
o A party can depose anyone, even nonparties nonparties must be
subpoenaed under Rule 45
o 30(c)(2): limits the type of objections that can be properly raised in depositions
o 30(a)(2)(A)(ii): no one can be deposed more than once unless court ordered
o 30(b)(6): can depose someone to get someone elses information
o 30(a)(2)(A)(i): limits each party to no more than 10 depositions in a case
o 30(d)(1): limits each deposition to a single day, no more than 7 hours
o Rule 31 (written) are extremely rare, work the same way. Submitted in advance
and read by the court reporter. Cheaper, questions are pre-scripted

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o Rule 32: waiver of errors and irregularities in the taking of depositions, use of
depositions at trial or hearing
o To impeach the testimony of the deponent as a witness
o If deponent is dead, 100 miles from trial, unable to testify
o For any purpose if deponent is an adverse party
Interrogatories Rule 33
o Written questions, to which the responding party must respond in writing within
30 days of being served with the questions
o Signed under penalty of perjury
o Mainly used to discover background facts, clarify pleadings
o 33(a)(1): interrogatories may be served on any other party
o 33(d): business records option, if burden on each party would be the same, a
party can open up business records to the other
o 33(a)(1): imposes a limit of 25 interrogatories on each other party
Requests for Production Rule 34
o Allows one party to request other party produce documents, etc, materials must be
in that partys control
o Includes electronic information
o 34(b)(1)(C): can request specific form of electronic info
o 35(b)(2)(D): can object to requested form
o 34(b)(1): draft a request for info, served on all parties, with reasonable
particularity, party has 30 days to respond allow or object
o 34(b)(2)(E): party must keep all records as they are kept in the usual course of
business
o 34(c): allows nonparties to be compelled to produce things under subpoena
Medical Examinations Rule 35, any health care professional
o 35(a)(1): party must show a persons condition is in controversy
o Motion must state place, time, manner, scope of exam, person who will
perform it
o Permits for medical exam only of a party, but permits court to order a
party to produce another person in custody (ex: child)
o 35(a)(2)(A): only available if the court grants a partys motion to subject someone
to physical or mental examination, must show good cause of examination
o 35(b)(1): party must deliver exam to requesting party
o 35(b)(3): once person examined receives report, must produce reports of own
doctors concerning medical condition
o 35(b)(4): person who was examined waives any privilege in reports of other
professionals concerning the same condition
Requests for Admission Rule 36
o 36(a)(1): admissions binding only in the pending case
o 36(a)(1)(A): permits party to force another party to admit or deny any
discoverable matter about facts
o 36(a)(1)(B): permits same regarding genuineness of documents
o 36(b): conclusively established unless the court allows to be withdrawn
o Device to force a party to take a position on specific issues
o Requests can only be served on parties

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o 30 days to respond with written and signed response to requests

Sanctions for Discovery Abuse Rule 37
37(a)(2): sanctions against a party sought in the court in which action is pending,
sanctions against nonparties sought in the district court for which discovery sought
Partial Failures
o First Step: Motion to Compel 37(a)
37(a): only sanction is court order compelling a response
37(a)(1): motion to compel, that party may be able to recover fees
37(a)(3)(B): partial failures
Failure to answer a question at a deposition
Failure of an entity to designate proper person for deposition
Failure to answer interrogatory
Failure to state in response if item will be produced
37(a)(4): evasive answer considered a failure to respond
o Second Step: Violation of Motion 37(b)
37(b)(2)(A): if party fails to respond, severe sanctions
37(b)(2)(A)(i)-(vii): possible sanctions, not exclusive
(i) establishing order, making something a fact
(ii) refuse to let that party introduce evidence at trial
(iii) stifle pleadings relating to discovery
(iv) stay the proceedings until party complies
(v) dismissal against plaintiff
(vi) default judgment against defendant
(vii) hold party in contempt
Total Failures
o 37(d)(1)(A): party either
Fails to appear for deposition
Fails to serve answers or objections to interrogatories
Fails to serve written response to request for production
o 37(d)(1)(B): failure for interrogatory or production, party seeking discovery must
say tried to get it without court interruption
o 37(d)(2): party failing cant say objectionable and escape sanctions must have
gotten protective order
o 37(d)(3): other sanctions, doesnt permit contempt. Didnt violate court order
Sanctions Concerning Required Disclosures
o 37(a)(3)(A): for required disclosures, compel disclosure for required items,
appropriate sanctions
o 37(b)(2)(A): allows for sanctions
o 37(c): party that doesnt provide info on witnesses cant use evidence at trial
Sanctions Concerning the Duty to Supplement
o 37(c)(1): impose same sanctions
Sanctions Concerning Medical Examinations
o 37(b)(2)(A): sanctions for not undergoing medical exam
o 37(b)(2)(A)(i)-(vi): other ones

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o 37(b)(2)(B): party ordered to produce someone under their legal control and
doesnt is subject to sanctions
o 37(b)(2)(A)(vii): contempt not imposed
Sanctions Concerning Requests for Admission
o 37(c)(2): party who objected to request for admission must pay for expenses if
other party shows in trial it was true
o 37(c)(2)(A)-(D): unless one of these
ESI safe harbor provision under 37(e)
Certification Under Rule 26(g)
o 26(g)(1): certification requirement for required disclosures, other requests
o 26(g)(1)(A): signature is certification that disclosure is complete to the best of
partys knowledge
o 26(g)(2): party only must respond to signed document
o 26(g)(2)(B): everything that must be signed is a certification (its true, etc)
o 26(g)(3): sanctions for improper certification

Scheduling Discovery Rule 16

16(b)(1): court must enter a scheduling order for process of litigation
16(b)(2): scheduling order entered no more than 120 days after D served with process
26(f): conference between parties at least 21 days before scheduling order
o (f)(2): consider claims, defenses, if can be settled
o (f)(3): parties express views and proposals
o 14 days after conference submit discovery plan, make required disclosures
16(a): permits pretrial conferences
16(c)(2): status conference, call conference to assess where parties are
16(d): conference result in entry of order reciting action taken, final pretrial order is a
roadmap for litigation, replaces pleadings
16(e): final pretrial conference, formulation for plan for trial
16(f): court may only modify final pretrial order to prevent injustice
Summary Judgment Rule 56
If the court determines before trial that there is no genuine dispute as to any material fact,
it may enter judgment as a matter of law without a trial.
Opposing party fails to show genuine issue of material fact or doesnt present anything
that party loses.
Moving party has the initial burden of point to the absence of genuine issue to a material
fact in the case, then shifts to opposing party to produce evidence that there is a genuine
issue.
Genuine issue has to be sufficient evidence that a reasonable jury could find in favor of
the nonmoving party.
A material fact is one that might affect the outcome of the case under governing law.

Rule 56(a): party may move for summary judgment, identifying each claim or defense on
which judgment is sought. Grant summary judgment if no genuine dispute as to any
material fact, must give reasons for granting or denying

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Rule 56(b): party may move for summary judgment at any time until 30 days after close
of discovery
Rule 56(c)(1)(A): May use to consider:
o depositions
o documents
o electronically stored information
o admissions
o stipulations
o interrogatory answers
o other materials
Rule 56(c)(4): affidavits can refer to documents (must be attached), must be:
o Based on personal knowledge
o set out facts that would be admissible in evidence
o demonstrate that the affiant is competent to testify on the matters stated

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