Preface

Casebook Correlation Chart

Capsule Summary

Chapter 1
INTRODUCTION

I.

CIVIL PROCEDURE GENERALLY

A.

“Civil” procedure vs. “criminal” procedure

B.

Two court systems

C.

Grounds for federal court jurisdiction

D.

Both systems studied

E.

A road map

1.

Personal jurisdiction

2.

Venue

3.

Subject matter jurisdiction

4.

Pleading

5.

Discovery

6.

Ascertaining applicable law

7.

Trial procedure

8.

Multi-party and multi-claim litigation

9.

Former adjudication

Chapter 2
JURISDICTION OVER THE PARTIES

I.

GENERAL PRINCIPLES

II.

JURISDICTION OVER INDIVIDUALS

A.

Individual’s presence

B.

Domicile

C.

Residence

D.

Consent

E.

Non-resident motorist statutes

F.

In-state tortious acts

G.

Owners of in-state property

H.

Conducting business

I.

Modern statutory treatment (Illinois)

J.

Foreign nationals

K.

Statutes going to limits of due process

L.

Limits of “due process” undefined for suits against individuals

III.

JURISDICTION OVER CORPORATIONS

A.

Issues covered

B.

Some general principles

C.

“Minimum contacts” as basis for jurisdiction (Int’l Shoe)

D.

The meaning of “minimum contacts”

E.

Suit based on products shipped into the forum state

1.

Suit asserts “specific jurisdiction”

2.

Long-arms allow

3.

Due process issues

4.

Several Supreme Court cases

5.

Intentional effort to market in-state (World-Wide Volkswagen case)

6.

Awareness of sales in foreign state (Asahi)

7.

Sale by D’s distributor into forum state (McIntyre)

8.

Summary on out-of-state vendors

F.

Establishing “minimum contacts” by use of an Internet Website

G.

Suits based on contractual relationship

H.

Class action plaintiffs

I.

Plaintiff’s lack of contacts

IV.

“GENERAL” JURISDICTION

A.

Where we are now

B.

The original “systematic and continuous” test

C.

The new “at home in the state” requirement

D.

Meaning of “at home” (Daimler v. Bauman)

E.

Use of agents by out-of-state defendant

1.

Use of corporate subsidiary

2.

Two-prong test for attributing subsidiary’s contacts to parent

3.

General vs. specific jurisdiction

Quiz Yourself on
JURISDICTION OVER INDIVIDUALS AND CORPORATIONS; GENERAL JURISDICTION

V.

FEDERAL JURISDICTION OVER THE PARTIES

A.

General principles

B.

Territory for service

1.

Not imposed by Constitution

2.

Service out of state

3.

100-mile bulge

4.

Foreign defendant not servable in any state

5.

Gaps possible

C.

Manner of service

1.

Individual

2.

Corporation

3.

Waiver of service

4.

Time for service

D.

Amenability to suit

1.

Federal question

2.

Diversity

Quiz Yourself on
FEDERAL JURISDICTION OVER THE PARTIES

VI.

JURISDICTION OVER THINGS

A.

General principles

1.

In rem actions

2.

Quasi in rem actions

3.

Method of attachment

B.

In rem jurisdiction

C.

Quasi in rem jurisdiction

D.

Limited appearances

E.

Federal quasi in rem jurisdiction

Quiz Yourself on
JURISDICTION OVER THINGS

VII.

NOTICE AND OPPORTUNITY TO BE HEARD

A.

General principles

B.

Traditional notice requirements

C.

Modern notice requirements

D.

Statutory provisions vs. actual results

E.

Opportunity to be heard

F.

Prejudgment remedies, including attachment

Quiz Yourself on
NOTICE AND OPPORTUNITY TO BE HEARD

VIII.

DEFENSES TO CLAIMS OF JURISDICTION

A.

General principles

B.

Special appearance

C.

Enforcement of judgments

D.

Collateral attack

E.

Defense of fraud or duress

F.

Immunity

1.

Witnesses

2.

Defendants

3.

Plaintiffs

4.

Federal immunity

Quiz Yourself on
DEFENSES TO CLAIMS OF JURISDICTION

IX.

VENUE

A.

General principles

B.

Venue in state actions

C.

Transitory vs. local actions

D.

Forum non conveniens

E.

Venue in federal actions

1.

Federal statute

2.

“Defendant’s residence” venue

3.

“Place of events or property” venue

4.

The “escape hatch” provision

5.

No “plaintiff’s residence” venue

6.

Corporation

7.

Unincorporated associations

8.

Waiver of venue claims

9.

Venue in federal removal cases

10.

Federal forum non conveniens

Quiz Yourself on
VENUE

Exam Tips on
JURISDICTION OVER THE PARTIES

Chapter 3
SUBJECT MATTER JURISDICTION

I.

GENERAL PRINCIPLES

II.

FEDERAL SUBJECT MATTER JURISDICTION GENERALLY

III.

DIVERSITY JURISDICTION

A.

Constitutional provision

B.

Complete diversity required

C.

Nominal parties ignored

D.

Refusal to exercise jurisdiction

E.

Date of determination

F.

Domicile, not residence, is what counts

G.

Citizens of D.C.

H.

Jurisdiction involving aliens

I.

Diversity involving partnerships and corporations

J.

Devices to create or destroy diversity

Quiz Yourself on
DIVERSITY JURISDICTION

IV.

FEDERAL QUESTION JURISDICTION

A.

Statutory basis

1.

Interpretation constricted

2.

No adequate definition

3.

Federal claim

4.

State-created claim needs interpretation of federal law

5.

Must be revealed by the complaint

6.

Claim based on the merits

7.

Exception for cases raising substantial federal issue

Quiz Yourself on
FEDERAL QUESTION JURISDICTION

V.

AMOUNT IN CONTROVERSY

A.

General rule

B.

Proof not required

C.

Eventual recovery irrelevant

D.

Whose point of view followed

E.

Aggregation of claims

F.

Effect of counterclaim

Quiz Yourself on
AMOUNT IN CONTROVERSY

VI.

SUPPLEMENTAL (FORMERLY “ANCILLARY” AND “PENDENT”) JURISDICTION

A.

Background

1.

1990 amendments

B.

The traditional “pendent” and “ancillary” ideas

1.

Pendent jurisdiction

2.

Ancillary jurisdiction

C.

The present “supplemental” provision

1.

Provision generally

2.

Federal question cases

3.

Diversity exclusions

4.

Aggregation to satisfy the amount in controversy (the Allapattah case)

5.

Discretionary rejection of supplemental jurisdiction

6.

No effect on personal jurisdiction

7.

Venue not required

Quiz Yourself on
SUPPLEMENTAL JURISDICTION

VII.

REMOVAL OF CASES TO THE FEDERAL COURTS

A.

General right to remove

B.

Removal statute

C.

Diversity and amount rules applicable

1.

Anomaly

D.

Removal not allowed by plaintiff

1.

Shamrock case

E.

Certain kinds of cases not removable

F.

Original state-court jurisdiction not required

G.

Pleadings not pierced

H.

Removal of multiple claims

I.

Remand

J.

Waiver

K.

Mechanics of removal

Quiz Yourself on
REMOVAL OF CASES TO THE FEDERAL COURTS

Exam Tips on
SUBJECT MATTER JURISDICTION

Chapter 4
PLEADING

I.

HISTORY AND GENERAL PRINCIPLES

II.

MODERN FEDERAL PLEADING GENERALLY

A.

Purpose

B.

General principles

C.

Mechanics of pleadings

1.

Kinds of pleadings

2.

Verification of pleadings

3.

Attorney must not file frivolous pleading (Rule 11)

4.

Pleading in the alternative

III.

THE COMPLAINT

A.

Definition of complaint

B.

Elements of complaint

C.

Jurisdictional allegation

D.

Degree of specificity required

E.

Single or separate counts

F.

Demand for judgment

G.

Special matters

IV.

MOTIONS AGAINST THE COMPLAINT

A.

Motions generally

B.

12(b)(6) motion to dismiss for failure to state claim

1.

Standard for granting

2.

Historical standard for granting

3.

Twombly “plausibility” standard

4.

“Plausibility” test given extra teeth (Ashcroft v. Iqbal)

5.

12(b)(6) dismissal motions after Twombly and Iqbal

6.

Amendment following dismissal

C.

Motion for judgment on the pleadings

D.

Motion for more definite statement

E.

Motion to strike

Quiz Yourself on
PLEADING GENERALLY, THE COMPLAINT AND MOTIONS AGAINST IT

V.

THE ANSWER

A.

The answer generally

B.

Denials

C.

Signed by defendant’s attorney

D.

Affirmative defenses

E.

Counterclaims

VI.

TIME FOR VARIOUS PLEADINGS

VII.

AMENDMENT OF THE PLEADINGS

A.

Liberal policy

B.

Amendment as of right

C.

Amendment by leave of court

D.

Relation back

1.

Utility

2.

When action is deemed “commenced”

3.

Easier state “relation back” rule followed

4.

What’s a single “conduct, transaction, or occurrence”

5.

Change of party

VIII.

VARIANCE OF PROOF FROM PLEADINGS

Quiz Yourself on
THE ANSWER, TIMING, AMENDMENTS AND VARIANCE

Exam Tips on
PLEADING

Chapter 5
DISCOVERY AND PRETRIAL CONFERENCE

I.

GENERAL PRINCIPLES

II.

SCOPE OF DISCOVERY

A.

Scope covered by Rule 26(b)

B.

General scheme

C.

Relevance

D.

Privilege

E.

Trial preparation immunity

1.

Conflict

2.

Distinction

3.

Absolute or qualified

4.

Hickman v. Taylor

5.

Rules not adequate

6.

Revision of Rules

7.

Qualified immunity

8.

Absolute immunity

9.

Statements by witnesses

10.

Names of witnesses

F.

Discovery concerning experts

1.

Classes of experts

2.

Experts to be called at trial

3.

Experts retained by counsel, but not to be called at trial

4.

Unretained experts not to be called at trial

5.

Participant experts

G.

Impeachment material

H.

Insurance agreements

I.

Mandatory disclosure

1.

Automatic pre-discovery disclosure

2.

Disclosure of expert testimony

3.

Trial witnesses and exhibits

4.

Exclusion at trial

J.

Duty to supplement

K.

Privilege log

L.

Required meetings

Quiz Yourself on
SCOPE OF DISCOVERY

III.

METHODS OF DISCOVERY

A.

General characteristics

B.

Persons affected

C.

Times usable

D.

Oral depositions (Rule 30)

E.

Depositions upon written questions

F.

Interrogatories to the parties

G.

Requests for admission (Rule 36)

H.

Requests to produce documents and to inspect land

I.

Physical and mental examinations (Rule 35)

Quiz Yourself on
METHODS OF DISCOVERY

IV.

ORDERS AND SANCTIONS

A.

General availability of sanctions

B.

Abuse of discovery

C.

Compelling discovery

D.

Sanctions

1.

Financial sanctions

2.

Other sanctions

3.

Wilfulness usually required

4.

Which court may issue

5.

Physical exam

6.

Where allowed

7.

Sanctions prior to issuance of order

V.

USE OF DISCOVERY RESULTS AT TRIAL

A.

Use of results generally

B.

Rules on use

C.

Rule 34 requests to produce

D.

Depositions

E.

Interrogatories

F.

Admissions

G.

Physical and mental examinations

H.

Use in subsequent proceedings

Quiz Yourself on
ORDERS AND SANCTIONS; USE OF DISCOVERY RESULTS AT TRIAL

VI.

PRETRIAL CONFERENCE

Exam Tips on
DISCOVERY AND PRETRIAL CONFERENCE

Chapter 6
ASCERTAINING APPLICABLE LAW

I.

NATURE OF PROBLEM

II.

THE ERIE DECISION AND OTHER FUNDAMENTALS

A.

Rules of Decision Act

B.

Federal procedural law

III.

ERIE PROBLEMS

A.

Ascertaining state law

B.

Conflict of laws

C.

Burden of proof

D.

Procedure/substance problems

1.

Federal Rules always take precedence

2.

Rule’s validity under Enabling Act

3.

Little protection of state substantive interests

4.

Reliance on Erie to construe Rules

5.

Outcome-determination and the Federal Rules

6.

Byrd v. Blue Ridge

7.

Hanna v. Plumer

8.

Conflict must exist

9.

Conflict between congressional statute and state policy

Quiz Yourself on
ERIE PROBLEMS

IV.

FEDERAL COMMON LAW

A.

Federal common law still exists

B.

Federal common law in diversity cases

C.

Federal common law in state courts

Exam Tips on
ASCERTAINING APPLICABLE LAW

Chapter 7
TRIAL PROCEDURE

I.

BURDEN OF PROOF

A.

Two meanings of “burden of proof”

B.

Factors in allocation

C.

What meets burden

II.

PRESUMPTIONS

A.

Definition

B.

Assumptions for discussion

1.

Burden of production

2.

Burden of persuasion

III.

PREPONDERANCE OF THE EVIDENCE

Quiz Yourself on
BURDEN OF PROOF, PRESUMPTIONS AND PREPONDERANCE OF EVIDENCE

IV.

ADJUDICATION WITHOUT TRIAL

A.

Trial sometimes unnecessary

B.

Voluntary dismissal by plaintiff

C.

Involuntary dismissal

D.

Summary judgment

Quiz Yourself on
ADJUDICATION WITHOUT TRIAL

V.

TRIALS WITHOUT A JURY

A.

When tried to court

B.

Effect

C.

Evidence rules

D.

Findings of fact

E.

Appellate review of factual findings from bench trials

Quiz Yourself on
TRIALS WITHOUT A JURY

VI.

THE JURY

A.

Seventh Amendment

B.

Number of jurors

C.

Unanimity

D.

Jury selection

E.

Instructions

F.

Juror misconduct

Quiz Yourself on
THE JURY

VII.

CHALLENGING THE JUDGE FOR BIAS

A.

Judicial bias generally

B.

The federal recusal statute

C.

Bias great enough to violate due process

VIII.

DIRECTED VERDICT / JUDGMENT AS A MATTER OF LAW

A.

Effect

B.

Standard for granting directed verdict

C.

Erie effect of directed verdict standards

D.

Use of JNOV

Quiz Yourself on
DIRECTED VERDICT; JUDGMENT AS A MATTER OF LAW

IX.

SPECIAL VERDICT AND INTERROGATORIES

X.

NEW TRIAL

A.

Judge’s discretion

B.

Federal new trials

C.

New trial so judge can correct own error

D.

New trial for prejudicial conduct by party, witness or counsel

E.

New trial for jury misconduct

F.

New trial where verdict against the weight of the evidence

G.

New trial where verdict is excessive or inadequate

H.

Remittitur and Additur

I.

Partial new trial on damages

J.

New trial for newly discovered evidence

K.

Appealability of new trial order

Quiz Yourself on
NEW TRIAL

XI.

JUDGMENT NOTWITHSTANDING VERDICT (JNOV) / JUDGMENT AS A MATTER OF LAW (JML)

XII.

CONSTITUTIONAL RIGHT TO JURY TRIAL

A.

Seventh Amendment

B.

Modern statutes and procedural devices, and their effect on the jury-trial right

C.

Mixed legal and equitable claims

D.

Deciding whether a particular statutory claim is legal or equitable

E.

Procedural devices and the expansion of legal claims

F.

Limitations on jury trial right

Quiz Yourself on
CONSTITUTIONAL RIGHT TO JURY TRIAL

XIII.

REMEDIES

A.

Introduction

B.

Damages generally

C.

Compensatory damages

D.

Punitive damages

1.

Due process limits

E.

Equitable remedies

XIV.

APPEALS

A.

Appeals generally

B.

The scope of appellate review

C.

The “final judgment” rule, and exceptions to it

1.

The rule in general

2.

When is a judgment “final”

3.

Multi-claim and multi-party federal litigations (FRCP 54(b))

4.

Certifying the issue

5.

The “collateral issue” exception

6.

Orders involving the grant or denial of an injunction

Quiz Yourself on
APPEALS

Exam Tips on
TRIAL PROCEDURE

Chapter 8
MULTI-PARTY AND MULTI-CLAIM LITIGATION

I.

BACKGROUND

II.

COUNTERCLAIMS

A.

Generally

B.

Federal Rules

1.

Permissive counterclaim

2.

Compulsory counterclaim

C.

“Transaction or occurrence”

D.

Counterclaims by third parties

E.

Failure to raise a compulsory counterclaim

F.

Jurisdictional requirements for counterclaims

1.

Supplemental jurisdiction

2.

Permissive counterclaims not supplemental

G.

Pleading of counterclaims

H.

Statutes of limitations for counterclaims

Quiz Yourself on
COUNTERCLAIMS

III.

JOINDER OF CLAIMS

A.

Joinder of claims generally

IV.

JOINDER OF PARTIES

A.

Reason for joinder

B.

Permissive joinder

C.

Use in multi-plaintiff product liability cases

D.

Jurisdiction in permissive joinder cases

1.

In personam jurisdiction

2.

Subject matter jurisdiction

3.

Venue

E.

Compulsory joinder (Rule 19)

Quiz Yourself on
JOINDER OF CLAIMS AND JOINDER OF PARTIES

V.

CLASS ACTIONS

A.

Background

B.

Rule 23 generally

C.

Rule 23(a)’s prerequisites for class actions

D.

“Common questions of law or fact” (Wal-Mart case)

E.

“Fair and adequate” representation of class

F.

23(b)(1) actions

G.

23(b)(2) actions

H.

23(b)(3) actions

I.

Requirement of notice

J.

Binding effect of class action decision

K.

Subject-matter jurisdiction issues

L.

Determination that no valid class action exists

M.

Waiver of the right to bring class action

N.

Settlements

1.

Notice requirement

2.

Financial condition

3.

Settlement-only class actions

O.

Attorneys’ fees

P.

Mass tort cases

Quiz Yourself on
CLASS ACTIONS

VI.

INTERVENTION

A.

Intervention generally

B.

Intervention as of right

C.

Permissive intervention

Quiz Yourself on
INTERVENTION

VII.

INTERPLEADER

A.

Definition

B.

Need for jurisdiction over both claimants

C.

Federal statutory interpleader

D.

Federal Rule interpleader

Quiz Yourself on
INTERPLEADER

VIII.

REAL PARTY IN INTEREST

A.

Assignment

B.

Suit in assignee’s name

C.

Representative

IX.

THIRD-PARTY PRACTICE (IMPLEADER)

A.

Third-party defendant

B.

Claim must be derivative

C.

When leave of court not needed

D.

Impleader by plaintiff

E.

Jurisdictional requirements relaxed

F.

Claims involving third-party defendant

Quiz Yourself on
THIRD-PARTY PRACTICE (IMPLEADER)

X.

CROSS-CLAIMS

A.

Definition of cross-claim

B.

Requirements

C.

Jurisdiction

Quiz Yourself on
CROSS-CLAIMS

Exam Tips on
MULTI-PARTY AND MULTI-CLAIM LITIGATION

Chapter 9
FORMER ADJUDICATION

I.

GENERAL PRINCIPLES

II.

CLAIM PRECLUSION (MERGER AND BAR)

A.

Definition

B.

Scope of claim

C.

Adjudication on the merits

D.

Counterclaims

1.

No splitting

2.

Collateral estoppel danger

3.

Compulsory counterclaims

E.

Change of law

F.

Persons not party to first action

Quiz Yourself on
CLAIM PRECLUSION (MERGER AND BAR)

III.

COLLATERAL ESTOPPEL

A.

Effect

B.

Issues to which collateral estoppel applies

1.

Same issue

2.

Actually litigated and decided

3.

Issue essential to verdict

4.

Foreseeability of future litigation

5.

Courts of limited jurisdiction

6.

Differences in burden of proof

7.

Settlement

8.

Findings of law

9.

Where second decision fails to apply estoppel

C.

Persons bound by collateral estoppel

D.

Persons who can benefit from estoppel

1.

Mutuality

2.

Demise of mutuality

3.

Offensive/defensive distinction

4.

Offensive estoppel approved by Supreme Court

5.

Factors in case-by-case analysis

6.

Use of criminal conviction

Quiz Yourself on
COLLATERAL ESTOPPEL

IV.

FULL FAITH AND CREDIT

A.

Scope

B.

Effect

C.

Misinterpretation of another state’s law

D.

No duty to decisions of other countries

E.

Full Faith and Credit to res judicata effect

F.

Federal suit follows state suit

G.

State suit follows federal suit

Quiz Yourself on
FULL FAITH AND CREDIT

Exam Tips on
FORMER ADJUDICATION

ESSAY EXAM QUESTIONS AND ANSWERS

TABLE OF CASES

TABLE OF REFERENCES TO THE FEDERAL RULES OF CIVIL PROCEDURE

TABLE OF REFERENCES TO TITLE 28, UNITED STATES CODE

SUBJECT MATTER INDEX