Attack Outline Page 1

Tuesday, November 16, 2010

5:34 PM


Civil Procedure
Specific jurisdiction (this is a narrow exercise of jurisdiction)
x Minimum contacts that give rise to the cause of action.
x Focuses on the time the acted, not the time of the lawsuit
x Min contracts is based on the premise that parties who conduct activities in a s sate accept the risk that those
actives will give rise to a suit
General jurisdiction
x Continuous and systematic contacts. Does not have to give rise to the cause of action

Personal Jurisdiction Test

1. Do the traditional basis apply?
1. Elements
1. Presence
2. Agent (implied consent)
3. Citizenship
4. Waiver
2. It is undetermined whether International Shoe has abolished the traditional basis or if they work in
conjunction with one another. Because of the split of authority we must analyze it under the test set out in
international shoe
2. Does international shoe apply
1. Minimum contacts (assess jurisdiction general or specific)
1. Purposeful availment (reaching into the state and obtaining benefits)
2. Conduct, continuous and but limited (the quality and nature of which would make a lawsuit
foreseeable)
2. Does not offend the traditional notions of fair play and substantial justice (fairness factors)
1. Inconvenience for the (is it grave?)
2. interest
3. States interest
4. Efficiency
5. Shared interstate substantive policy
3. Does a state statute give PJ
4. Is it adjudicating a property claim or is it being used to show minimum contacts
1. In rem, quasi in rem
1. Property must be located within the state
1. Must satisfy international shoe
Notice

1. Due Process
A. Notice
1. Notice of deprivation of life liberty or property, prior to it becoming compromised in a significant way
2. This notice must include the facts and legal issues at hand so that deprivation can be prevented
B. Service
1. Personally
2. Substitute (given to someone of suitable age at your usual abode)
3. Agent (implied consent from availment)
4. Method permitted by state law
5. If a CORPORATION
a. An officer, manager, or agent
C. Reasonably calculated under the circumstance to give actual notice
D. Was it waved?
E. Does the know the did not get served?
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2. Opportunity to be heard
A. A must be able to develop the facts and legal issues at stake in the litigation
1. Must be granted at a meaning full time and manner
2. At a time when the deprivation can still be prevented
B. Depending on the interest at stake is whether a hearing is enough or a full trial is necessary
1. Must at least notify the party involved in the litigation

SMJ

1. State court (can hear pretty much everything)
A. Exceptions
1. Cases "arising under" the Constitution, laws of the United States, and treaties (federal question
jurisdicion)
2. Cases affecting ambassadors and other official representative of foreign sovereigns
3. Admiralty
4. Controversies where the U.S. as a Party
5. Controversies involving a State and citizens from another state
6. Cases between citizens of different states (diversity)
7. Cases between citizens of the same state claiming lands under grants of different states
8. Cases between a state or its citizens and foreign states and their citizens or subjects
2. Federal District Court
A. Diversity
1. Complete Diversity
x Domiciled
x Presence plus intent to remain there indefinably
x Corporations
x Wherever they are incorporated
x PPB (nerve center)
x Unincorporated
x Citizenship on the membership
x Sub issues
x Court may realign parties
x Alienage
x Citizens of foreign state
2. Amount in Controversy
x Must exceed $75,000
x Aggregation
x Multiple claims against a single
x EXCEPTION

B. Federal Question
x Two can sue for a joint claim, or undivided interest
1. Creation Test
x Are they enforcing a federal right, usually found in a statute
x Exception
x Breach of contract or torts
x Actions usually arise though state common law and therefore cannot create a federal
claim
x No right to sue
x Enforcement through a federal agency
x When statutes create a private right but no remedy courts have interpreted it to create a right to
sue
x Some issues are so important that they would substantial effect federal law and must go to
federal court
2. Well pleaded complaint
x Must look at the claim
x A may raise a federal issue as a defense, but It does not affect jurisdiction
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x The issue presented by the must be a federal issue, and not anticipated defense

C. Supplemental Jurisdiction
1. Common nucleolus of operative fact
x Claims arising from the same transaction or occurrence, making them apart of the same
controversy
x Even if is CNOF federal court may dismiss novel state issue
x Does 1367(b) take away jurisdiction? (does exercising supplemental jurisdiction over such claims
have would be inconsistent with the jurisdictional requirements)





D. Removal
x Are we trying to bring in a third party by (impleader, compulsory or permissive joinder, or
intervention?)
x Is this a diversity case?
x Does the court have independent grounds for jurisdiction?
1. State court Federal Court (can only go from state trial court to a federal district court)
x It is removable if it meets federal SMJ requirements









E. Remand
x Must be executed by the , and can only be brought if the could have originally brought
the action in district court.
x If there are multiple they all join in the notice. (agree to removal)
x You can only remove to the federal district court that embraces the state court
x MUST remove within 30 days of service that makes the case removable (usually the
complaint)
x If removal is taking place on the grounds of diversity, complete diversity still applies
1. Federal Court State court (movement wanted by the )
x Time limitation, 30 days, (from the notice for removal)
x All the failed to join in on the removal
x SMJ defect (no time limit to remand on this element)
x If remand is denied no usual immediate appeal. ( loses at the federal court can be used as an
appealable issue for the reversal of the judgment)
x However orders to remand are made non appealable by 1447(d)
x Legislative intent to minimize length of time to go to trial
x Detriment to to litigate in state court
x Harm done by erroneous remands does not outweigh the delay that an appeal
causes to the case

Venue

1. Generally
A. The place of the Trial
Tells you which federal or state court the trial is to be held it once PJ and
SMJ have been established
x May lay venue in district where all reside
x If all reside in different districts proper venue is in any district where ANY resides within
the state
x Business reside in every district it is subject to PJ (not to be confused with citizenship)
x May lay venue in any district where a substantial part of the claim arose
2. Transfer of Venue (Original federal court = Transferor, Other federal court transferee)
A. When the transferor is PROPER
Convince/Justice (Public/Private factors)
B. When transferor is IMPROPER
Court can dismiss or transfer
3. Forum Non Connivance (FNC)
A. Dismissal because transfer is not possible

Erie
Public/private factors, look at evidence residence of victims, ,,

Issue of application of state substantive law in federal court
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1. RDA / REA ACTS
A. RDA (rules of decisions act) demands the application of state substantive law when you cam (e.g. federal law
otherwise requires, constitution ect..)
B. REA (rules enabling act) creates that statutory authority for the adoption of the federal rules of civil
procedure
2. Substantive










TYSON : FED COURTS DO NOT HAVE TO APPLY STATE COURT DECISIONS OR STATE STATUTES ON
NATIONAL (COMMERCIAL) ISSUES
ERIE: FED COURTS IN DIVERSITY CASES MUST APPLY STATE SUBSTANTIVE LAW AND FED
PROCEDURAL LAW
GUARANTY TRUST V YORK: IF STATE LAW OR PROCEDURE IS OUTCOME DETERMINATIVE, STATE
RULE OR LAW MUST BE APPLIED
BYRD V BLUE RIDGE: FED COURT MUST BALANCE WHETHER VALID FED RULE MUST YIELD TO STATE
INTERESTS IN STATE RULE
HANNA V. PLUMER WHERE FED RULE AND STATE LAW IN DIRECT CONFLICT, MUST CONSIDER TWIN
AIMS OF ERIE
x Avoid forum shopping, and equitable administration of the law ( treated different in state and
federal court? Does this take away right of the involuntary party?)
GASPIRINI V CENTER FOR HUMANITIES: IF AN EITHER FEDERAL OR STAT[ CHOICE IS NOT
PRESENT, FED COURTS MUST SEEK TO ACCOMMODATE THE STATE AND FEDERAL INTERESTS.
SHADY GROVE V. ALLSTATE IF THE FEDERAL RULE AND STATE RULE (OR STATUTE) ANSWER THE
SAME QUESTION, THEN FEDERAL RULE MUST BE APPLIED, UNLESS IT EXCEEDS STATUTORY
AUTHORIZATION OR CONGRESS`S RULEMAKING POWER.
3. Test for Erie
1. Outcome determinative (no difference in federal or state court [allowed in federal court if the outcome
would not be different])
2. Balance Interest (federal usually follow state law unless there are federal interests in doing it
differently) (interest in allocating decisions between judge and jury [who gets to decide the fact])
3. Twin aims (avoid forum shopping, inequitable administration)
4. Question of Application (if state and federal rules answer the same question the federal rule must be
applied, unless it is exceeds authorization or rulemaking power)

Pleading
1. The complaint (Must state grounds for SMJ)
A. Short plain statement of the claim to give notice (traditionally did not require detail)
1. Modern view: Twombly Ickball test
x FACTS supporting a PLAUSABLE claim, that ignores conclusory statements, and uses the courts
common sense to determine whether the claim is plausible .
x Fraud defamation and special damages need to be plead with specificity
2. The response (must respond in 21 days in one of two ways)
A. Motion (a request for a court order, not a pleading)
12(b) Dismiss
x PJ, Venue, insufficient process, insufficient service (waived if not used in first 12(b) response)
x failure to state a claim, failure to joint an absent party (indispensable party) (can be raised any
time during trial)
x SMJ (cant be waived and can be asserted anytime)
B. Answer (is a pleading)
1. A response to the complaint
x Admit/deny/state insufficient information
2. Raise affirmative defense rule 8(c)(1)
x Add facts/ must plead or risk waiver

Joinder

1. Claim joinder by the (may join as many claims as they want [SMJ must be assed each time])
2. Claim joinder by the (claims joined by the , become claimant)
A. Counter claim (claim against opposing party, filed with answer, two kinds)
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1. Compulsory (must arise from the same t/o as the claim) (waived if not asserted)
2. Permissive (does not rise from the same t/o from the claim) (does not have to be asserted)
B. Cross claim(claim against coparty, can only occur if you have multiple parties. Same t/o)
3. Proper Party (who may be joined? Used by
A. Co / , same t/o, and raise one common question [ASSESS SMJ]
4. Indispensable parties (who MUST be joined, non party called absentee)
A. Meet one of the three requirements
1. w/o absentee court cannot complete relief
2. w/o absentee their interest could be harmed test focus on absentee themselves
3. w/o absentee could suffer from inconsistence of multiple obligations
B. Feasibility of Absentee
1. Is there PJ, and if bringing in the absentee does not destroy diversity
2. If joinder is necessary but not feasible (go to step 3)
3. Process without absentee or dismiss. [o`t dismiss if the cant get relief somewhere else. If the
court does dismiss the absentee is indispensable (rule 12(b)(7)
5. Impleader (brings in a 3rd party)
A. A third party (TPD), TPD may be liable to for damages, (common for indemnity claims in insurance) TPD
can assert a claim against a , or a against a TPD if they arise from the same t/o [assess SMJ]
6. Intervention (absentee joins themselves)
A. The intervener may choose whichevers side they wish to be on (court may realign)[two types]
Intervention of right, (interveners interest may be harmed if not joined) [must have SMJ]
Permissive intervention, (must show common question) [asses SMJ
7. Class action
A. Prerequisites for a class action
Numerosity ( <40 no less then 25)
Commonality
The reps (A representative sues on behalf of the group, (not class until the court certifies it, and the
class ,must appoint class council (not necessarily the rep, must fairly and adequate represent the class)
claim is typical of the class members
Adequate, must represent the class members
B. Types of class actions
Damage class actions, the tie among the members is a injury by the in the same way
x Predominate factor (question in the class must predominate over individual questions) mass tort
x Superiority requisite, (it is the superior method for resolving the dispute)
C. Notice of Pendency (must give individual notice who are reasonably identifiable, can opt out)







Discovery
D. Who is bound by the judgment (all members are bound except those who opted out) (must does the
judgment violate due process)
E. Settlement (must be approved of by the court, individuals can appeal the settlement)
F. SMJ (the representative is the only one that needs to be diverse to each , and AIC exceed the 75,000)
G. Class Action Fairness ACT (CAFA) (basically grant SMJ ANY class member is diverse, and the aggregate
damages exceed 5 million) ( can easily get to federal court)
1. Required disclosures
1. initial disclosures: disclosures that must be made without discovery unless otherwise stipulated or directed
A. Witnesses: any information on any person that by be a witness or have information that may help the party
support its claims or defenses
B. Documents: a copy or description of all documents, data compilations and tangible things in the possession of
a party that may be used to support its claims
C. Insurance: information on any agreement in which a person in the insurance business may be liable
D. Experts: the identity of any person ho may be used at trial to present evidence
Testifying Required :(identify the expert, written report)
NonTestifying: cannot dispose those specially retained experts that another party does not intend to
call for testimony)
E. Timing: within 14 days of initial conference
F. Objections: a party can object after the initial conference as to what information it will disclose. The court in
it ruling will determine what disclosures are required
2. PreTrial Disclosures: shortly before the trial the parties provide each other, and the court with,
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A. (1) a list of witness who will testify (2) a list of documents or exhibits that will be presented at trial (3) a list of
witness who testimony is expected to presented by the use of depositions
2. Discovery tools
1. Deposition (sworn oral testimony [party or nonparty, nonparties must be subpoenaed), interrogatories (written
question and answer under oath [only goes to parties]) Request to produce (written request that someone give you
access [can be used against nonparty must be subpoenaed]) Medical Exam (order a party or someone in the
parties custody or legal control, cannot force employees to do it) Request for admission (ask party to admit or deny
any discoverable matter)
3. Scope of discovery
1. General
A. May obtain discovery regarding nay matter no privileged, that is relevant to the claim or defense of any party
(reasonably calculated to lead to admissible evidence)
B. For good cause, the court may order discovery of any matte relevant to the subject matter involved in the
action
C. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence
2. Limitations
A. If discovery is unreasonably cumulative or duplicative, or it is obtainable from some other source that is
more convenient, less burdensome or less expensive
B. The party seeking discovery has had ample opportunity by discovery in the action to obtain the information
sought
C. Burden or expense of the discovery outweighs its likely benefit
3. Relevance of discovery
A. The rule does not limit discovery to evidence relevant to the disputed issues (relevant to the subject matter)
B. Reasonably calculated to lead to discovery (allow discovery of information which could lead to evidence)
4. Protective Orders (where there is a motion for a protective order the court should compare)
A. Hardship to the party against whom discovery is sought (if discovery is allowed)
B. Hardship to party seeking discovery (court determines magnitude of hardship, to protect against annoyance,
embarrassment, oppression(if discovery is denied)
C. Scope of the Order (discovery not be had, limit to specific terms, the scope, and confidential information)
D. Validity of the order (good cause, limited to the contact of pretrial discovery, does not restrict the
dissemination of information)
5. Pre trial conferences (confer to consider the nature and basis off their claims, and make or arrange for the
disclosures required)
6. Work product (trial perpetration material)
A. Absolute privilege (protection of attorney's metal impression, and legal theories, no justification to discovery)
Can far stronger showing to discovery attorneys metal impression to disclose
B. Qualified privilege (documents and tangible things, protects whether has produces rather than discovered)
Substantial need, and the information is not otherwise available
C. Attorney Client Privilege (four elements,
1. asserted holder of the privilege is sought to be a client (or potential client)
2. The person whom the communication was mate
a. Is a member of the bar or a court, or his subordinate and
b. In connection with this communication is acting as a lawyer
3. The communication relates to a fact which the attorney was informed (by his client, without the
presence of strangers, for the purpose of securing primary an [opinion on law, legal service, assistance
in some legal proceeding], and not for the purpose of committing a crime or tort)
4. The privilege has been (claimed, and not waived by the client)
Pre trial Adjudication
1. Motion to dismiss for failure to state a claim (court does not look at evidence), (look at complaint on its face),
make corrections for sloppy claims, e.g. fails to argue an element necessary to obtain relief.
2. Motion for summary judgment (court looks at evidence, must show there is no dispute of material fact, and entitle
to relief as a matter of law, and not trial is necessary)
Trail

1. Right to jury trial (process to resolve dispute of facts)
7th amendment preserves the right to a jury trial at law and not equity (test)
Could you get a jury in 1791 (almost always yes) (focus on the remedy, legal or equitable)
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Legal remedy (money, damages), Equitable remedy (specific performance, injunction, rescission
of a contract)
Old view: CENTER OF GRAVETY, (post 1950) Modern view: UNDERLAYING CLAIM
Three Rule: (1) determined issue by issue, not center of gravity, (2) issue of fact underlays both fact and
equity you get a jury, (3) generally the jury issues first
2. Motions during trial
A. Judgment as a Matter of Law (JMOL) (comes up at trial, and takes it way from the jury),
B. Renewed judgment as a matter of law (RJMOL) (exactly the same, as JMOL, comes up later, but had to have
been previously moved for (denied earlier) decision a reasonable person would not reach and therefor a
judge can decide)
C. New trial (after the judgment had been entered, no basis, considered less drastic then RJOMOL)

Appeal
(Review of what happened in the trial court. An appeal does not include a new trial. It is a review of what happened
in the trial court. The appellate court relies on the transcript and other records of the proceedings below.)
1. Final Judgment Rule (cannot appeal until the trial court inters a final judgment) [test]
Does the TC have anything to do on the merits of the case? (yes, then not final, not appealable)
2. Interlocutory appeal(non final judgment appeals), collateral orders (important, and effetely unreviewable if we
have to wait), mandamus (petition to compel the court to preform, must be no adequate remedy, and a clear abuse
of discretion), judgment upon multiple claims or parties (a Jude can create a final order on any claim among
multiple parties if they are discrete and separate issues) injunction (ordering specific performance

Claim and Issue Preclusion (res judicata and collateral estopple)
1. Generally (you get one case to vindicate a claim, you can only sue one time) Issue spot: final judgment entered, and
case pending, issue whether the fist case prevents litigation of the second, 2 ways to preclude, claim preclusion/ res
judicata, issue preclusion/ collateral estoppel)
2. Claim Preclusion [three elements]
(1) case is the same between clamant and , (2) case 1 ended in a valid judgment on the merits, (3) both
cases involve the same claim. Majority View (3rd element) defines claim as the same t/o, Minority view (3rd
element) primary rights you get a different claim for each right invaded
3. Issue Preclusion (prevents relitigation of particular issues, compels the court to make the same finding of fact on
the identical issue that the first court made.) [five elements]
(1) case 1 ended in a final judgment on the merits, (2) show same issue was litigated and decided in case 1,
(3) show that issue is essential to issue in case 1, (4) against whom preclusion is used [same in every court,
must be against a party who was involved in claim 1], (5) by who whom is the preclusion used [mutual and
non mutual] mutual: only by someone who was a party or privity to case 1 (can be rejected), non mutual: non
parties to 1st case, Can assert issue preclusion in second case)