CivPro: Cat I: Jurisdiction (A.

Federal SMJ) – MBE: 1-2 Qs

I: Civil Procedure Outline

A. Introduction
Rule To initiate a lawsuit against a defendant, there must be (1) subject matter jurisdiction (SMJ); (2) personal jurisdiction (PJ); and (3)
service of process/notice.
B. Personal Jurisdiction
In addition to having subject matter jurisdiction, a court must be able to exercise judicial power over the persons or property involved in the cases or controversies
before it. This authority is broadly referred to as “personal jurisdiction” and is governed by state statutes regarding jurisdiction and the due process requirements
of the U.S. Constitution. There are three general types of personal jurisdiction: (i) in personam jurisdiction, (ii) in rem jurisdiction, and (iii) quasi-in-rem jurisdiction.
A court cannot hear a case unless it has “personal" or "territorial" jurisdiction over the parties to a suit: (i) by filing a lawsuit, P voluntarily submits to the court's
personal jux (ii) Fed court must have personal jux (PJ) over D, just as a state court must (if so, the judgment follows D and can be enforced in any state under full
faith and credit)
a. Introduction
Rule A federal court MUST have personal jurisdiction over a defendant for its judgment to be binding. It is all about what is fair to the
defendant.
b. Governing law
Rule A federal court must generally determine personal jurisdiction as if it were a court of the state in which it is situated i.e., look at state
statutes to determine if it has personal jurisdiction over the parties before it.
Exception 1 Has national personal jurisdiction when authorized by federal statute, such as for federal statutory interpleader actions
Exception 2 Under the so-called “bulge provision,” a federal court has personal jurisdiction over a party who is served within a U.S. judicial district
and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service if the party
is either (a) a third-party defendant who is joined under Rule 14 or (a) required party who is joined under Rule 19
c. In Personam Jurisdiction
Traditional Basis
Element 1: (a) Domicile;  (b) Transient jurisdiction ( voluntarily present in the forum state when served);  (c) consent;  or (d) waiver (appearing in the action
without objecting to jurisdiction). 
Element 2: The above grounds comport with the Constitutional requirements of due process.
Consent Presence Domicile Waiver
i) Express: e.g., defendant Even if the defendant is just present in the Person: A person is domiciled in one state: the Participating in the action without
signs a contract where he state for a brief time, if he is served in the state that has her permanent home where she objecting to jurisdiction e.g., by
agrees to be sued in the state; state, then that state will have general intends to stay indefinitely (even if temporaitly motion or in the answer.
or a person authorizes an personal jurisdiction over him. absent from the state)
agent to accept service of Exception: Coerced into the state for Corporation: A corporation has two domiciles:
process. purpose of service (a) the state in which it is incorporated, and
ii) Implied: defendant fails to Exception: In state to respond to a (b) the state where its principal place of
object to personal jurisdiction summons or another judicial proceeding business is located (this means headquarters).
in its first response (answer or Partnership: A partnership or an LLC is
motion) filing a counterclaim domiciled where its partners or members are
citizens.
Long-arm Jurisdiction
Rule To exert personal jurisdiction over a defendant who is not a resident of the forum state: 
(a) The forum state must have a long arm statute;  AND
 (2) The Constitutional requirements of due process must be met i.e., (1) That the defendant have sufficient minimum contacts with the
forum state, (2) So as not to offend traditional notions of fair play and substantial justice. 
Prong 1: Minimum Sufficient minimum contacts exist when either general jurisdiction OR specific jurisdiction is present.
Contacts
General Jurisdiction Element 1 General jurisdiction exists when the defendant’s contacts with the forum state are so substantial and of such
nature that the defendant is essentially at home in the state
 Corporation: in its state of incorporation (its domicile); (3) in the state where it has its principal place of
business (its nerve center); and (4) in exceptional cases, anywhere else where the Corp has continuous
and systematic general business contacts and can fairly be regarded to be “at home”
Element 2 The claim DOES NOT need to relate to or arise from the defendant’s contacts in the forum state. 
Specific Jurisdiction Element 1 Defendant’s contacts with the state do not make him “at home” in the state
Element 2 Suit must arises out of or relates to the defendant’s contacts with the forum state i.e., (a) defendant
purposefully availed the state, and (b) It must be foreseeable that D could get sued in the forum state;
foreseeability that D’s goods might end up in the forum state is NOT enough (a) D must know or reasonably
anticipate that his activities in the forum would render it foreseeable that may be brought to court there (e.g.
foreseeability exists when the manufacturer of a defective product causes it to be imported into the forum
state).
Internet activity With respect to conduct via the internet, a court will consider how interactive the website is.  Generally, the
more interactive a website is, the more likely a court will find personal jurisdiction.  A passive website (one that
contains only information) has been held to be insufficient to subject the owner to jurisdiction.  *Courts have
held jurisdiction to be proper where defendants could reasonably anticipate that defamatory comments posted
online would target readers in plaintiff’s home state.
Example Merely making a website accessible to the public and posting information is generally considered passive on
the sliding scale and should not result in personal jurisdiction. Websites that are integral to a defendant’s
business, however, are on the other end of the sliding scale.
Stream of commerce Merely placing an item into the stream of commerce by itself is not sufficient to establish personal jurisdiction.
However, if one intentionally targets a specific area or does some other act that shows intent to
serve a particular state, there likely is jurisdiction.
Domestic Relations When a cause of action arises from personal/domestic relations, a temporary visit or brief stopover to a State
DOES NOT satisfy the minimum contacts requirement (even if the spouses were married during the visit).
Prong 2: Fair Play and Even if the minimum contacts test is met, it MUST be fair and reasonable for the defendant to be sued in the forum state (so that
Substantial Justice traditional notions of fair play and substantial justice are not offended).
(Fairness) c. Fairness – exercise of jux over D can’t offend notions of fair play & substantial justice on the basis of: (i) Convenience – an
inconvenient forum is not a basis for lack of fairness unless forum is so gravely difficult and inconvenient that D is put at a severe
disadvantage in comparison to P (but the parties’ relative wealth is irrelevant). (ii) State’s Interest – a state’s interest in protecting its
citizens (e.g. providing forum for its citizens to sue outof-state companies in special cases) (iii)Plaintiff’s interest – P’s interest in having
case ligated in the forum
Exception The bulge rule – allows P to serve process out of state from a fed ct as long as it is within 100 miles of the fed courthouse over parties
who are joined later as necessary parties or through impleader (i) allows P to reach beyond the state boundaries to assert PJ, even if
it’s not OK under state long-arm (ii) NOTE: no bulge personal jux over original defendant.
ii. Other Bases for jurisdiction – only used where there is no personal jux
In Rem Quasi in rem
a.The authority of a court to determine issues concerning rights in a. Party who owns property within the jurisdictional boundaries of the court.
property, either real or personal i.e., no parties are named; case = b. The court in that state may take control of that property and force the litigant to submit
name of the property to jurisdiction of that court if the litigant wants to get his or her property back.
b. Property must be in the forum state c. Submit to fight pending cause of action/law suit
c. Due process is met if the notice is “reasonably calculated, under all
the circumstances, to apprise interested parties of the action and
afford them an opportunity to present their objection i.e., it is not
sufficient to simply post the notice on the property or publish the
notice in a newspaper as to persons who are known to have an
interest in the property and whose whereabouts are reasonably
ascertainable.
C. Subject Matter Jurisdiction
a. Basic requirements
Element 1 Subject-matter jurisdiction is the power of a court to hear a certain type of case.
Element 2 Any person (including the court) can raise challenges to SMJ at any time, even on appeal i.e., even if fed court makes a mistaken
judgment on SMJ or a party fails to challenge SMJ, it does not waive the inquiry (i.e. you can always object to SMJ).
Exceptions Even if diversity of citizenship is met, fed courts will NOT hear cases involving (a) domestic relations i.e., issuance of a divorce; alimony
or child custody decrees OR (b) probate a decedent’s estate
b. Types of SMJx
The term “subject matter jurisdiction” refers to a court’s power to hear and determine cases of the general class and subject to which the proceedings in question
belong. The most common congressional grants of subject matter jurisdiction are (i) federal question jurisdiction, (ii) diversity jurisdiction, (iii) supplemental
jurisdiction, (iv) removal jurisdiction.
Type 1: Federal Question
Rationale: Federal courts should be able to hear cases that involve federal law for two
reasons—it protects a case from being subjected to varying interpretations by state courts
and it lets a judge more knowledgeable about federal law decide cases involving federal law.
Element 1 Express—Cause of action in question is Implied – Right is created by federal law, Complaint is a state claim that issues
expressly created by federal law i.e., U.S. and a c/a can be fairly implied and was question of federal law; can only be
Constitution, federal statutes, federal intended by Congress addressed by addressing the federal
administrative regulations, and U.S. treaties question

Element 2 The federal issue/question appears or must be stated in the face of the plaintiff’s complaint i.e., elements/is plaintiff attempting to
enforce is/arises from a federal law. Not enough that the defendant raises a federal defense or counterclaims or an anticipated defendse
(irrelevant)
Note Some FQ cases have exclusive fed jurisdiction (e.g. patent infringement, fed securities laws, etc.)
Type 2: Diversity Jurisdiction
Element 1 Amount in controversy must exceed 75,000 (75,000.01) not including costs and interests
Element 2 There must be complete diversity rule i.e., there is no diversity of citizenship if any P is a citizen of the same state as any D (though,
there can be co-Ps or co-Ds from the same state)
Rules for Citizenship
Element 1 Determined by the party’s domicile i.e., permanent intent is state
Element 2 Test for diversity when the case is filed – subsequent change in a party’s citizenship is irrelevant or party’s citizenship at
the time the action is filed is irrelevsant e.g. getting a job in another state after action is filed is irrelevant
Rules for Domicile
a. Person
Rule Citizen if domiciled in a state, which is established by 2 concurrent factors: (i) Presence in state at some point WITH (ii) Intent
(subjective) to make it a permanent or fixed home
b. Corporations
General rule
Rule A corporation has two domiciles: (i) the state in which it is incorporated, and (ii) the state where its principal place of business
is located i.e., the headquarters where its decisions are made and the major officers sit
Note A corporation, unlike a natural person, can be a citizen of more than one state at a time
Unincorporated associations i.e., partnership, labor union, LLC
Rule Are treated as individuals i.e., deemed to a be citizen of every state where one of their eemployees individuals are domicile
e.g., if any partner lives in the same state as the other party, diversity is defeated
c. Foreign Citizens
Alien v. Alien All aliens are considered of the same “state,” meaning two foreign citizens v = NO diversity, UNLESS one party was joined later
and was not an indispensable party (e.g. two foreign aliens may not sue each other in fed court under alienage/diversity). b.
Alien in state Alien admitted to the US for permanent residence is treated as a citizen of the state in which he is domiciled (e.g. Japanese
citizen with a green card is living in NY can bring an action in fed ct against a citizen of Mexico) i.e., Diversity jurisdiction does
not exist when an action is between a citizen of a state and a noncitizen admitted to the United States for permanent
residence who is domiciled in the same state as the citizen.
Exception When an action is between citizens of different states, noncitizens may generally be additional parties to the action as
plaintiffs, defendants, or both. The noncitizens need not be from different countries from one another to preserve diversity.
US Citizen domiciled abroad US citizen permanently domiciled abroad is neither a citizen of a state nor a citizen of a foreign country & cannot sue or be
sued under diversity jurisdiction rules.
d. Special rules
i. Decedents, minors, & incompetents
Rule Domicile/citizen of the decedent, minor or incompentent is considered, NOT the citizenship of their representative or executor
i.e., can’t create diversity by appointing a representative who has a different citizenship than the decedent/infant/incompetent
EX: If a person tries to create diversity by appointing an executor who has different state citizenship than the decedent, this
will fail b/c SMJ will be based on the domicile of the decedent.
ii. Class Action
Rule Fed court has diversity jux over a class action when: (i) Aggregate amt in controversy exceeds $5,000,000 (i.e. total amount
claimed by all Ps) and (ii) Minimum diversity exists i.e. at least any member of the class of Ps is a citizen of a State different
from any of the defedant
Rule about the Amount in Controvery
Element 1 Exceeding $75,000 means that the amount in controversy must be over $75,000 (at least $75,000.01), not including costs and
interests in good faith unless “clear to a legal certainty” that P cannot recover more than 75K
Note about injunctions Injunctions counts towards and satisfy AIC requirement as long as the injunctive relief is worth $75,001 or more
Aggregation of claims
One plaintiff v. One defendant (i) Plaintiff may add the value of her claims together against a single defendant to exceed this amount
(ii) Even if the claims are totally unrelated to each other
One plaintiff v. different Not permitted unless they are jointly liable to the plaintiff
defendants
Multiple plainitff v. one Two or more Ps (even in a class action suit) cannot aggregate their claims unless they are seeking to enforce a single title or right
defendant to which they have a common or undivided interest e.g., quiet title action).

Note Counterclaims generally not counted in determining whether P has met amount)
Type 3: Supplemental Jurisdiction
Federal court with JX may exercise SJ over additional claims which court would not independently have SMJ (usually state law claims against a nondiverse D), but
that arise out of a “common nucleus of operative fact” such that all claims should be tried in a single judicial proceeding
a. Elements
Element 1 Existing claim over which the court already as SMJx based on FQ or Diversity Jx
Element 2 Second claim aries from the same common nucleus of facts i..e., rom the same case or controvery
i. Federal Question and Supplemental Jurisidction
Rule Additional claims against same party can be heard through SJ if common nucleus of operative fact test is met (same
requirements for pendent JX over claims involving joinder or intervention of additional parties)
ii. Exceptions/Limitations on Supplemental Jurisdiction Cases
Rule a. Permissive joinder—addition of a plaintiff asserting additional claim cannot violate complete diversity rule (and not required to
satisfy jurisdictional amount)
b. Counterclaims—compulsory counterclaims need not satisfy jurisdictional amount, but permissive counterclaims must satisfy both
DJ requirements
c. Cross-claims—may be asserted by a D against another D or by a P against another P, if the cross-claim arises out of the same
transaction or occurrence as the initial claim; no amount in controversy or citizenship requirement if the court has SMJ over original
complaint

c. Discretionary
Rule Even if the supplemental jurisdiction requirements are satisfied, the court has discretion NOT to hear the supplemental claim if: (a) FQ
is dismissed early in the proceedings (usually before trial); OR (b) State law claim is complex or state law issues would predominate
substantially over the claims which the district court has original jurisdiction (e.g., federal claims)
Type 4: Removal
Removal is a one-way street, in which only a defendant can remove a pending state court action to federal court e.g., case in NY Supreme Ct in Manhattan goes to
SDNY)
a. Elements
Element 1 Right is only available to defendants
Element 2 Case is in state court plainitff, but could have ORIGINALLY been brought in federal court in the SAME DISTRICT by plainitff
because of SJX
Element 3 If multiple Ds, all Ds must agree to remove (unless single defendant) to removal of the ENTIRE CASE/ACTION i.e., removal
applies to cases, not claims. Thus, the entire suit is removed—not just claims in the suit.
Exception for diversity case ONLY If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of
the state in which the action was filed.
Example: If a Texas corporation sues an Illinois defendant in Illinois state court, then the Illinois defendant is not permitted
to remove the action to federal court based on diversity jurisdiction.
Note about reverse removal If case originates in fed court, there is no ability for D to remove case from fed court to state court.
b. Process for removal
How a. File a notice in the federal court in which fistrict is pending
b. Include all pleadings and notice parties
c. Signed pursuant to Rule 11 and contain a short and plain statement of the grounds for removal;
When Must remove within 30 days of service of process of the first pleading that shows removable is possible, OR D can file notice
of removal within 30 days of service of an amended pleading, motion, order, or other court paper that shows that a non-
removable case is in fact removable
Effect of remove Once notice of removal is filed, the defendant(s) must give notice to the adverse parties and to the state court. The state
court then loses all power over the case and the federal court has the power over the case. This is true even if the
federal court does not have jurisdiction.
c. Rule about remand for plaintiffs who dispute removal!
Rule If plaintiffs wish to file a motion to remand due to a failure to comply with the procedural requirements of the rule, plaintiffs must do
so within 30 days after removal or they waive their objection.
Exception Plaintiffs may make a motion to remand for lack of subject-matter jurisdiction at any time.

Note about diversity In a diversity case, the defendant may not remove a case more than one year after the original action was filed unless the plaintiff
acted in bad faith to prevent the defendant from removing the actions (e.g., the plaintiff deliberately failed to disclose the actual
amount in controversy to prevent removal).
d. Venune
Subject Matter Jurisdiction tells us IF we can go to fed court. Venue tells us WHICH fed court (e.g. Southern District of New York) – this applies to cases filed
originally in federal court
a. Proper Venue
For civil actions brought in federal court, venue is proper in any district where: 
Residence In any district where one D resides, as long all Ds reside in the same district (BUT, if all Ds reside in different districts in the
SAME state, venue is proper in the district where any one of the Ds resides); O
 Residence of an individual is determined by their domicile (residence and intent to make the place their permanent
home).
 A corporate defendant is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the
time the action is commenced. (Don’t confuse the corp’s citizenship for diversity jurisdiction purposes – corp is a
citizen of state of incorporation & PPB, BUT is a resident of every district where subject to PJ 4.)
 A non-resident of the U.S. (alien or U.S.  citizen living outside the U.S.) may be sued in any judicial district.
Portion or Property Where a substantial portion of the claim occurred OR where a substantial part of property is located (where property is the
subject of the action)
Personal Jurisdiction (fallback) If none of the above apply, then venue is proper in any judicial district in which any defendant is subject to the court’s
personal jurisdiction. 
Note about foreign residents A defendant who is not a resident of the United States may be sued in any judicial district.
b. Transfer of Venue
Used to transfer from one fed district ct to another fed district ct; to transfer, the case must have been able to originally be brought in the new forum & the court
must balance the convenience of the parties, convenience of witnesses, and the interest of justice
Proper Venue Improper Venue
If venue was proper when the case was filed, the court MAY (a) Dismiss the case; OR
transfer venue if:  (b) Transfer the case to a proper court if the interests of justice require it. 
(a) Needed for the convenience of parties and witnesses or (c) Amotion for improper venue must be made: (i) before the answer; or (ii) in the answer itself
interests of justice;  AND (d) Following a transfer, the law applied is that of the new transferee court. This prevents a
(b) The action could have initially been brought in the receiving plaintiff from altering the applicable law by filing in the improper court.
court (proper venue, subject matter jurisdiction, and personal
jurisdiction)
(c)   Following a transfer, the new court MUST apply the same
substantive law as the original transferor court. 
b. Forum Non Conveniens Clause
Rule A a court with proper jurisdiction and venue may dismiss a case where
the interests of justice indicate that it should be litigated in a different forum.
i) Some factors include: the availability of witnesses and evidence, enforceability of a judgment,
harassment of parties, administrative difficulties, etc.
(1) The burden is on the defendant to show that the other state is substantially more
appropriate than the forum.
E. Service of Process
Overview: In order to begin a lawsuit, the plaintiff will first file a copy of the complaint and summons (which summons the defendant to the court) with the court
and get a copy back that is stamped and bears the court’s seal. The plaintiff will then serve a copy of the summons and complaint on the defendant within 90 days
or ask the defendant to waive service. After service, the plaintiff files a “proof of service” with the court. The defendant then answers the complaint and the lawsuit
continues.
1. e. Proper Service required – Service must be reasonably calculated to apprise interested parties that action is pending; court can vacate default judgment under
FRCP 60 if service was NOT properly made (TEST = reasonable diligence)
Element 1 The service of process must be constitutional i.e., notice must be reasonably
calculated, under all of the circumstances, to apprise interested parties of the
pendency of the action.
Element 2 FRCP 60 if service was NOT properly made (TEST = reasonable diligence)
Element 3 Process Server must sign affidavit saying service was properly made and affidavit
of Service must be filed with the court.
- If D does NOT receive service, but D was served properly, case is still
valid & can go to trial
- Judgment made without proper service is VOID, even if D receive service
& knows of the lawsuit so long as service was IMPROPER
Note about jurisdiction over property: Merely posting notice on the property or publication is not
always adequate to have jurisdiction over the property. Persons who are
affected must be notified by mail if their addresses are known.
2. Rules
a. Timing (When)
Element 1 The Summons and Complaint must be served upon the defendant within 90 days of filing the
Complaint. 
Element 2 Dismiss the action without prejudice against that defendant;  OR (b) order that service be made
within a specified time. 
Exception If the plaintiff shows good cause for failing to serve within 90 days, the court MUST extend the
time for service for an appropriate period. Good cause is measured against: (a) P’s reasonable
efforts to effect service; and (b) prejudice to D from delay
b. Who
Element 1 Any person who is 18 years old and not a party.
Element 2 After serving the defendant, the process server must make a proof of service by filing an affidavit with the court
that sets forth the manner in which the service was made.
c. What
Element 1: Summons The name of the court and the parties, it must be directed to the defendant, the name and address of the plaintiff’s attorney
or (if unrepresented) the plaintiff, the time within which the defendant must appear and defend and notify the defendant that
a failure to appear and defend will result in a default judgment for the relief demanded, a signature by the clerk, and the
court’s seal.
d. How
How: Individuals (SAID) (1) State law: follow the state law methods where the federal court is located or where service is made.
(2) Agent: deliver a copy of each to an agent appointed (by defendant or law).
(3) Individual: deliver a copy of the summons and complaint to the individual personally i.e., cannot simply be left at D’s job or
in D’s mailbox.

 If process server locates D, but D refuses to accept the process, valid personal service is accomplished if the process is
left at the location.
 Service can be done anywhere within the forum state (e.g. even if D is in an airplane passing through the forum state's
air space) – Exemption: a person is immune from service if he is in the state as witness or party in another case
(4) Dwelling: leave a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of
suitable age and discretion who resides there

 It’s at D’s dwelling or usual abode (e.g. home, apartment, motel-by-month is OK, but vacation home, mother’s house,
or a place you are only staying at overnight is NOT OK)
 P serves someone of suitable age & discretion who resides there (doesn’t have to be a relative). Older teenagers are
usually OK, but small children (e.g. a 5 year old) do not qualify.
 Cannot give process to a mentally retarded person if condition is apparent to the process server b/c no discretion
Ex.: Delivering a summons and complaint to the defendant’s parents’ house, if the defendant nolonger lives there, is
insufficient service of process.

How: Corporations For a corporation, partnership, or association in the United States, the plaintiff can use the “SO” options:
(a) Use any of the state law methods where the district court is located or where service is made; or
(b) Deliver a copy and summons of the complaint to an officer, a managing or general agent authorized, or any other agent
appointed to receive service (e.g., the president or managing agent).
Note, however, that personal jurisdiction is not conferred if the officer is in another state on a non-business-related purpose.
This doctrine may also extend to others who are sued in a representative capacity but are physically present in a state for
personal reasons.
How: Foreign Service may be made by any means directed by the court so long as it is not prohibited by international agreement. (Thus,
email service would likely be permitted.) However, a foreign corporation, partnership, or association CANNOT be served by
personal service.  A court CAN authorize service via e-mail if:  (1) no international agreement prohibits it;  AND (2) it satisfies
due process (reasonably calculated to notify the defendant of the action and give him an opportunity to object)
How: Constructive Service Used as a last resort if all other methods of service fail and must first make motion to court for permission (e.g. newspaper,
facebook).
(a) Typically done by newspaper publication or posting at designated location.
(b) Service by Facebook OK if D is evading service & P can show it is D’s active account. (v
e. Waiver
Rule a. The plaintiff may ask the defendant to waive service of process by sending—by first class mail—the complaint, two copies of
the waiver form, and a prepaid means for returning the form.
b.The plaintiff must give the defendant at least 30 days after the request was sent (60 if outside of the U.S.) to return the waiver.
 Effect of waiver
Waives Does not waiver
a. A defendant who returns a waiver has 60 days (rather than 21) to answer the a. If D does NOT return the waiver form – P must then serve either personally or
complaint. by substituted service & D has to pay P for the cost of the service + atty fees if D
b. By returning, waives service but nothing else i.e., Waiving service does not wont pay
waive any objection to personal jurisdiction or venue. However,
under Rule 4(k),
f. Objection to SOP
Rule a. An objection to process (what was served) or service of process (the manner
in which one was served) must be raised in the first responsive pleading (answer
or motion).
b. ,any other documents must be served on the defendant (motions, discovery
requests, etc.) but mailing to the party’s attorney is usually sufficient under the
Rules.

IV. Choice of Law:

The Erie Doctrine

) General rule: A federal court is required to apply the substantive law of the state in which it sits, including the state’s conflict of law rules. However, federal courts apply
federal procedure law in diversity cases.

2) Erie is an issue when the following two elements are present: a) the federal court has to decide a claim that does not arise under federal law (that is, a claim that arises
under its diversity or supplemental jurisdiction); and b) there is a conflict between state law and federal law and the federal judge has to decide which law to apply.

If there is a conflict, under the Rules Enabling Act, federal law generally applies to any “procedural” issues unless the federal rules “abridge, enlarge, or modify any substantive
right.” So, federal rules apply unless the issues are substantive in nature

1. The Erie Doctrine (concerns choice of law between fed & state law – only arises in diversity cases) a. Essence of Erie – in diversity cases, fed courts must apply (i) state
substantive law (e.g. duty of care) & (ii) fed procedural law (e.g. method of serving process) (i) While fed courts are free to apply their own federal rules of procedure, ANY
issue of "substantive" law (other than federal Q) must be determined according to the laws of the state in which the fed ct is located, except when the U.S. Constitution or fed
statutes apply, fed courts deciding a diversity case MUST apply the state's statutes and the state’s common law (and then federal law for procedural issues only). (ii) Purpose –
designed to help ensure that the result that would be obtained in fed court would be essentially the same as would be obtained in the state court

2. Application of Erie – the difficulty in applying Erie is in determining whether a particular matter/issue is "substantive" (governed by state law) or merely "procedural"
(governed by federal rules); MUST follow 2 step analysis to determine whether matter is substantive or procedural: a. Is there some fed law (e.g., FRCP or FRE) on point that
directly conflicts with state law? – if so, apply the fed law, so long as it is valid (because of Supremacy Clause) (i) FRCP will take precedent over existing state rules when it
involves: (i) pleadings; (ii) motions; (iii) writs; (iv) forms of process; or (v) overall civil law practice/procedure b. If NO fed law is on point (i.e. NO direct conflict) – 3 approaches:
(i) Outcome determinative – apply state law if applying or ignoring the state rule effects the outcome of the case (e.g. under the outcome-determinative test, fed cts have
been required to follow state practice in such quasi-procedural areas as: (i) the effect of res judicata; (ii) determination of date of official commencement of a lawsuit; (iii)
sufficiency of minimum contacts; (iv) burden of proof; and (v) conflictof-law rules). (ii) Balance of interests – test is separate from (and intended to augment) outcome
determinative test (a) consider whether either the fed or state system have a strong interest in having its rule applied (e.g. if there’s a strong fed interest in having a jury
decide questions of fact, contrary state law won’t be followed unless there’s a stronger state interest). (b) the preference for state law must be balanced against the
deprivation of federal rights resulting from application of state law (c) after balancing the state’s interests against federal interests – heavier side wins (e.g. foreign
administrator of domestic estate was permitted to join in an action against the estate, according to FRCP, despite a contrary state rule, on grounds that FRCP reflects
constitutional fed policy) (iii)Avoid forum shopping – to prevent forum shopping (conscious choice of one court over another for reasons of more favorable substantive legal
doctrines), fed ct will apply state law if not following the state law on this issue will cause forum shopping.

1. Overview – development of legally binding fed law by the fed cts in the absence of directly controlling constitutional or statutory provisions (i.e. any rule of fed law created
by fed ct where Congress has power to act but has not done so). a. State cts must apply fed substantive law & cannot apply procedural rules if it interferes w/ proper
application of fed laws. (i) Fed will review any state court decisions involving fed law. (ii) SC can review any state court decision involving fed law, provided all state remedies
are exhausted 2. Three main areas in which fed common law has been created: a. Protect fed interests – where the SC has decided that federal rules are necessary to protect
unique federal interests such as: (i) Interest in resolving disputes between states (e.g. interstate water disputes); (ii) Admiralty and maritime cases. b. Congressional intent –
where the fed ct has acted to effectuate congressional intent: (i) The fed cts determine that Congress intended that they fashion a body of common law under a statute in a
particular area (e.g. Labor-Management Relations Act). c. Interpret Constitution – where the fed court interprets the Constitution – e.g. Fed courts created a cause of action
for money damages against fed govt officers who violate constitutional rights (Biven

A preliminary injunction maintains the status quo pending the outcome of an action in order to protect irreparable  harm to a party. 

The court may issue a preliminary injunction 

only:  (1) upon notice to the adverse party;  AND (2) if the 

moving party gives security in an amount the court deems 

proper (which will be used to reimburse the non-moving 

party for any injury caused by the injunction if the moving 

party does not succeed on the merits)

III. Pretrial Procedures

A. Preliminary Injunctions and Temporary Restraining Orders
Interlocutory injunctions are court orders requiring a person to do or cease doing a specific action before trial. The purpose is to prevent irreparable injury
that will occur before there is a final judgment
1. Common rules to both PI and TRO
Element 1: Timing Applications for PIs and TROs must be filed simultaneously with or after the complaint commencing
an action (cannot file TRO and then file complaint a week later)
Element 2: Security A preliminary injunction and a TRO both require movant to post security in amount court considers
proper to pay costs/damages sustained by a party being wrongfully enjoined/restrained.
Exception: The U.S, its officers, and agencies are not required to give security.
Element 3: Content and scope Every order granting injunction or TRO must state:
(i) Reasons why it issued;
(ii) Specific terms; and
(iii) Detailed descriptions of the acts restrained or required on its face (without referring to other
documents); TRO and PI can be reversed for lack of specificity (eg. if TRO is missing details about
what acts are enjoined)
Element 4: Persons bound A person is bound only if he has received actual notice AND is one of the (i) parties (ii) parties’
officers, agents, employees, and attorneys, OR (iii) other persons in active concert or participation
with parties, officers, agents, etc
2. Preliminary Injunctions
a. Types
Mandatory Prohibitory
A mandatory injunction, which is a specific relief, requires a person to A prohibitory injunction, which is a form of preventive relief, restrains or
engage in an affirmative act that typically changes the status quo. prohibits a party from engaging in a specified behavior.

b. Elements
Rule Requirement 1 – M Very likely to succeed on the merits of the case i.e., even though we are not hearing the
LLOSM merits of the case rn, when we do – will likely be successful/win
Requirement 2 – H Harm the plaintiff will suffer if the injunction isn’t entered SHOULD OUTWEIGH the
level/degree of harm to defendant if injunction is entered
Requirement 3 – I Irreparable harm should preliminary relief be denied (i.e., cash will not be able to cover the
loss, hence the appropriateness of equitable relief
Requirement 4 – B Issuance of the injunction supports public interest
c. Denials or Granted
Granted a. PI order usually provides that injunction will continue until a hearing on the merits or until further order
b. Serve the order – as the service will bind the parties, their agents and attorneys with actual notice
Denials If the moving party has an adequate remedy at law i.e., can be compensated by money damages for any potential loss, then a
motion for a preliminary injunction should be denied.
d. Submission requirements
Rule Requirement 1: The other party must have notice+hearing;  AND
Requirement 2: The moving party must give bond in an amount the court deems proper i.e., which would use to be reimburse
the non-moving party for any injury caused by the injunction if the moving party does not succeed on the merits-causings the
other party to suffer loss/prevent wrongful injuction e.g., preventing software company from selling something and turns out
you are wrong and they have been damaged – will need to be compensated
2. Temporary Restraining Order (On-Notice):
General rule A TRO or a Temporary Restraining Order (TRO) is
 (i) an emergency remedy used to maintain the status quo pending the outcome of a hearing or application (usually a
preliminary injunction application);
(ii) only available if the plaintiff can show immediate and irreparable harm.
a. Elements
Requirements for a TRO Requirement 1 She is likely to suffer irreparable harm if the TRO is not issued;
(same as a preliminary Requirement 2 She is likely to suffer greater harm than the defendant will if the TRO is not issued;
injunction) Requirement 3 She is likely to succeed on the merits
Requirement 4 The TRO is in the best interest of the public
b. Requirements
Requirements for the Requirement Non-moving has had notice+opportunity to defend itself (before hearing)
court 1
Requirement Moving party has given bond in an amount the court deems proper if granted (which will be used to reimburse
2 the non-moving party for any injury caused by the injunction if the moving party does not succeed on the
merits)
b. Timing
Rule a. Lasts no more than 14 days from issuance unless extension for good cause or with adverse party
consent;
b. If extended beyond 28 days without adverse party's consent, TRO is treated as preliminary
injunction (and becomes appealable)
c. Appealability
Rule Not immediately appealable. However, TRO with notice lasting more than 28 days is treated as a preliminary
injunction (which can be appealed).
3. Ex Parte TROs: A party seeking a TRO can do so on an ex parte basis i.e., without notice to an adverse party
a. Elements
Rule   Element 1 Provides specific facts in sworn statement that clearly show that immediate and irreparable
injury, loss, or damage will result to if the moving waits for the adverse party to be heard
Element 2 Efforts have been made and failed to contact adverse party – the movant's attorney certifies in
writing any efforts made to give notice & the reasons why it should not be required.
Element 3 The moving party must given security in an amount the court deems proper i.e., which would use
to be reimburse the non-moving party for any injury caused
b. Timing
Time limit - expiring a. Expires within 14 days unless the restrained party (i) consents to an extension or (ii) good cause is shown for a single 14-day
extension (for total of 28 days, then TRO dissolves).
b. Once TRO expires, a person cannot be held in contempt of the expired order (
Time limit - modifying An adverse party may move to dissolve or modify an ex parte TRO on two-day’s notice to the moving party.
c. Notice
Rule If TRO is issued without notice of the hearing, restrained party must still receive notice of TRO
before he be held in contempt for violating it
3. Appealing TRO
Rule a. In general, a grant or denial of a TRO is NOT appealable because it is NOT a final judgment on the
merits, BUT the adverse party may move to modify or dissolve the TRO by giving 2 days’ notice to the
party who obtained the order.
b. On 2 days’ notice to the party who obtained the order without notice (or on shorter notice set by the
 court) the adverse party may appear and move to dissolve or modify the order.
c. The court must then hear and decide the motion as promptly as justice requires

B. Crafting the Lawsuit: Pleadings and Motions

Note: Fed Rules use “notice pleading,” where pleading is sufficient if it puts the other side on notice
A. Complaint
a. General time frame
Element 1 The complaint and summons must be served on the defendant within 90 days.
Element 2 The answer must be served on the plaintiff within 21 days after formal service of the summons and complaint unless he has
waived service, in which case he has 60 days.
b. Requirements of a complaint
Element 1: Statement of jx— Short and plain statement of grounds upon which the court’s jx depends i.e., why court has SMJ; not violating SMJx
Element 2: Statement of the claim Short & plain statement of the claim, showing entitled to relief i.e., need not be stated with great specificity or
particularity, but you must plead facts supporting a plausible claim i.e., enough actual content that allows the court to
draw the reasonable inference that defendant is liable (more than possibility but less than probability) e.g., dates/location
Element 3: Demand for judgment Description of relief sought (e.g., money damages,  injunction,  etc.) but description itself doesnot limit what can be
recovered except in default cases
NOTE: with a pro se litigant, the court is usually more lenient, but these requirements must still be me
Exception where facts MUST be pled with (i) Circumstances establishing Fraud;
specificity or particularity (the facts (ii) Mistake, OR
supporting each element of the claim (iii) Special Damages (those that don’t normally flow from an event
must be stated)
B. Responses
Defendant can file (1) pre-answer motion (not a pleading, but a request for a court order attacking the validity of the complaint) or (2) answer.
a. Answer
ii. Basic Requirements
Element 1 It is the D’s pleading, in which D can (a) admit or deny each allegation; (b) indicate he lacks info to answer; and/or (c) raise affirmative
defenses
 Admissions – D can either expressly or implicitly admit an allegation. If so, D is precluded from submitting evidence to disprove
allegations unless D amends answer.
General denials Specific Denials
a. A party that intends in good faith to deny all the allegations of a   A party that does not intend to deny all the allegations MUST either (a) specifically deny
pleading (including the jurisdictional grounds) MAY do so by a general designated allegations, or (b) generally deny all except those specifically admitted.
denial. 
b. A general denial is improper if the party cannot in good faith deny ALL
of the allegations.
Element 2 Must be filed within 21 days of service of process, or 14 days after a Rule 12 motion is denied or postponed until trial
Element 3 a. Raise affirmative defenses
b. Certain defenses are waived if not explicitly pleaded in the answer; these may include: (a) Contributory negligence; (b) Claim preclusion
Self-defense; (c) Statute of frauds v  Res judicata; (d) Fraud; (e)Statute of limitations; (f) Self-defense; (g) Res judicata
b. Pre-answer MTD
d. Rule 12 Motion to dismiss
Element 1 Rule 12(b) defenses may be raised by motion or in the answer
Element 2 * Waiver—these defenses are waived if not included in D's first response (answer o
12(b) motion to dismiss), whichever is first, provided they were available
a. Can be raised at any time – even on appeal
Lack of subject matter jurisdiction a. P bears burden of proving SMJ exists;
(SMJ) b. P's pleadings must contain “short and plain statement” of the grounds in which SMJ exists
c. Can be asserted anytime – any party or the court can raise the issue at any time, even on appeal
b. Pre-answer motion or answer or waived
Lack of PJx a. Covers all of the defenses of lack of person jurisdiction
b. Waived if not made within 21 days of service of process of complaint either by an answer or by a pre-answer motion, or she must seek
additional time to answer. If a defendant does not take one of these steps, then she risks a default.
Improper venue a. Covers defects in cases that are tried in the wrong venue
b. Waived if not made within 21 days of service of process of complaint either by an answer or by a pre-answer motion, or she must seek
additional time to answer. If a defendant does not take one of these steps, then she risks a default.
Insufficient process a. Covers defects in the form of the summons or complaint
b. Waived if not made within 21 days of service of process of complaint either by an answer or by a pre-answer motion, or she must seek
additional time to answer. If a defendant does not take one of these steps, then she risks a default.
Insufficient SOP a. Covers defects in the manner of transmitting notice
b. Waived if not made within 21 days of service of process of complaint either by an answer or by a pre-answer motion, or she must seek
additional time to answer. If a defendant does not take one of these steps, then she risks a default.
c. Before or during trial – but NOT after trial
a. Failure to state claim on which relief can be granted
By filing a motion to dismiss for failure to state a claim upon which relief can be granted means, the moving party is asking the court to dismiss the complaint because the allega
contained within the complaint do not form any legally cognizable claim. In other words, the movant is asserting that even if all the plaintiff's claims were true, there is no relief
the court would be empowered to grant to the plaintiff.
Rule a. Challenges the legal sufficiency of the pleading i.e., plainitff, in complaint, not ‘inserted’/has enough elements that would help meet th
elements of the claim
b. D asserts that even if P were to prove all the allegations in the complaint, P would still not be entitled to any relief.
c. Judge must assume that all of the assertions of the nonmoving party are true and inferences and ambiguities are viewed in the light mo
favorable to the P
d. Motion may be raised any time before trial OR at trial, BUT motion must be made before trial is over – as soon as the trial is over, you lo
b. Failure to join an indispensable party
Rule a. Court will not automatically dismiss the case but will order joinder of the indispensable party if feasible:
b. Motion may be raised any time before trial OR at trial, BUT motion must be made before trial is over (as soon as the trial is over, you lo
c. Only D can file a Rule 12 motion to dismiss
d. Court looks only at the complaint in making its ruling (filed BEFORE discovery).
Note about waivers a. Lack of SMJ Motion can NEVER be waived – can be raised any time in the case (even on appeal).
b. If you make a motion under Rule 12, you waive any claim that you may have for Lack of Personal Jurisdiction, Improper Venue, Insuffici
Process, or Insufficient Service of Process, unless you include it as part of your motion.
(i) If D makes a Rule 12 motion, if D fails to raise one of these four "disfavored" defenses in initial response, D has waived the omitted defe
for all time
 EXCEPTION: courts now allow a motion to dismiss to be amended before the motion is heard if: (i) the adverse party is not prejudiced by
amendment; and (ii) no delay results.
If D does NOT make a Rule 12 motion, you still waive the above defenses, unless you include it as a defense in your answer or amended a
d. Motions addressed to the face of the pleadings
Before pleadings are closed
a. Rule 12 Motion to Strike
Under Rule 12(f), if a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, then the court, upon motion or upon its
own initiative, may order that such defense or material be stricken. Defenses that tend to complicate litigation significantly or that are insufficient at law may be stricken
to avoid unnecessary time and money in litigating invalid and spurious issues.
Example: Mary’s complaint against Todd for the fallen tree limb, if paragraph #8 stated, “The defendant’s automobile is red,” Todd could move to strike paragraph 8
because whether Todd’s car is red or blue or magenta with lime green dots is immaterial to the underlying action.

Element 1 Before responding to a pleading, a party may move to have stricken any insufficient defense or any redundant, immaterial, or scandalous
matter strike
Element 2 Must be brought before the responsive pleading OR if no response is permitted (i.e. an Answer), within 21 days after service of the
objectionable pleading.
Element 3 Court may order to strike something from the pleadings if it contains: (i) insufficient defenses; (ii) redundancies, (iii) immaterialities; OR
(iv) scandalous matters (reflects cruelly on a party's moral character, uses repulsive language, or detracts from the dignity of the court)
b. Motion for More Definite Statement
Under FRCP 12(e), if a pleading to which a party may respond is too vague or ambiguous, so that the responding party could not reasonably be expected to respond, the
responding party may move for a more definite statement. A motion for a more definite statement asks the court to order the pleading party to revise the pleading so
that the responding party may reasonably be given a chance to respond. The motion must point out the defects in the pleading that have caused the moving party to be
unable to respond, and ask for specific details that are needed.

Element 1 Filed when opposing party’s pleading is so vague or ambiguous that the party can’t reasonably prepare a response.
Element 2 MUST be made before filing a responsive pleading AND must point out defects complained of and details desired.
Element 3 The motion must specify the defects in the pleading, as well as the details sought by the party making the motion.
Element 4 If granted, opposing party has 14 days to comply by re-pleading/re-amending the pleadingg or court can strike the pleading (or make any
other order).
After pleadings are closed
c. Motion for judgment on the pleadings (like SMJx before SMJx)
A motion for judgment on the pleadings is very similar to summary judgment in that it asks the court for an order of judgment determining liability of lack thereof. A
motion for judgment on the pleadings will occur before the trial and, unlike a motion for summary judgment, does not concern any matters other than what is contained
within the pleadings. In other words, the moving and responding parties will not submit any affidavits or discovery documents with or in response to the motion. If the
parties present any matters outside the pleadings, the motion will usually be treated as one for summary judgment. S

Element 1 Motion made by a party after the pleadings are closed i.e., after the answer is filed
Element 2 A party asks the court based solely on facts in the pleading, that if all the facts in the pleadings are true, the case must be resolved in
favor of a party as a matter of law.
Element 3 Draws all reasonable inferences in favor of the nonmoving party
Element 4 Graning this motion may terminate the case or be granted in part, such as with respect to a single issue.
Note If matters outside the pleadings are presented (and not excluded by the court), the motion must be treated as motion for summary
judgment.

c. Counterclaims
Rule A counterclaim is a claim brought by a defendant against a plaintiff.  There are
two types of counterclaims:  permissive and compulsory. Usually raised by
defendant against plainitff, which may be pleaded in D’s answer to the
complaint
Permissive Counterclaim Compulsory Counterclaim
a. Claim by D against P that does not arise from the same transaction a. Claim by defendant against plainitff that arises from the same transaction or
or occurrence as any of P’s claims occurrence as one of plainitff’s claims
b. Not required in answer—may be filed with defendant’s answer to b. Must be stated in the answer i.e., must be filed in D’s answer or it will be
P’s complaint, but does not have to be (i.e., can be asserted in a waived (i.e., D cannot assert it in a separate action at a later time)
separate action filed by D) c. Defendant must ensure the court has jx to hear any counterclaim
c. Independent basis for jursidction (Compulsory counterclaims will always have supplemental jx)
b. Cross-claims
Element 1 A pleading may state a claim against a co-party (i.e.  co defendant)
Element 2 It must have arisen out of the transaction or occurrence that is the subject of the original action or the subject of a
counterclaim
Element 3 Cross-claim must ask for actual relief from the co-party against whom it is directed. (e.g. D1 claims that he is blameless,
and that D2 is the one who should be liable for all of P’s claims; this is not a cross-claim b/c D1 is not asking for actual
relief from D2, instead, D1 is merely asserting a defense.)
Element 3 Jrisdiction—must have independent basis for SMJ. However, cross-claims will almost always satisfy supplemental jx
requirements b/c they must arise from the same transaction or occurrence
c. Joining claims
A party seeking relief from an opposing party—through a claim, counterclaim, crossclaim, or third-party claim—may join all of the claims it has against that party regardless
of whether there is any connection between those claims. In other words, if you have one claim, you can (generally) bring them all!
1. Joinder
a. Permissive Joinder
Element 1: Joined parties assert a right to relief arising from the same transaction or occurrence as P’s claim (Defendants may be joined if right
Same transaction or occurrence to relief asserted against them arises from same transaction or occurrence)
Element 2: There is a common question of law or fact in the joined parties’ claims or claims against them e.g., after bus accident, all injured
Common question of law or fact passengers and bystanders join as Ps; common issue is driver’s negligence; other issues (e.g., damages) are tried individually for
each plaintiff
Element 3: SMJx SMJx is present for each claim i.e., court must have jx overEACH joined parties and claims

Note about misjoinder Misjoinder of parties is NOT a ground for dismissing an action.  Instead, the court may add or drop a party on just terms.  The
court may also sever any claim against a party
Note Different from impleader, which involves joinder of non- parties by D, whereas permissive joinder involves joinder of non-parties by
P
b. Mandatory Joinder
A party MUST be joined in an action if: 
Element 1 That party is a necessary party
- Without absentee, court cannot grant complete relief e.g., A contract is signed by two people and the plaintiff. If the plaintiff
seeks rescission against only one party, the court will say she needs to sue both parties and the missing party should be joined.
- Absentee has a legal interest that may be impaired or impeded, or
- Absentee has an interest that creates a risk of multiple or inconsistent rulings and obligations
Element 2 Joinder is feasible
- (a) There is PJ over the absentee-necessary party; and (b) Joining the absentee will not destroy SMJx (diversity)
Element 3 If a party has not been joined as required, the court MUST order that the party be joined to the action.  A party who refuses to join
as a plaintiff may be joined as either a defendant or an involuntary plaintif
If party cannot be joined:
Rule If joinder is NOT feasible, the court will consider the  following factors when deciding whether to continue or 
dismiss the action:
(1) The extent to which a judgment in the party’s absence might prejudice that party or the existing partiesif the case
goes forward; 
(2) Whether an adequate judgment in the party’s absence could be rendered;  and 
(3) Whether the plaintiff would have an adequate remedy if the action were dismissed i.e., alternature forum
2. Impleader (Newly joined party is third-party D (“TPD”) (Original D becomes third-party P (“TPP”)
Impleader allows defendant to join a non-party who may be liable to defendant for all or part of the claim brought by P against the original D
a. Requirements
Element 1 The defendant must allege that the nonparty is or may be liable to the defendant, and
Element 2 The nonparty’s liability to the defendant is for all or part of the claim against the defendant.
Claims merely arising out of the same transaction or occurrence are insufficient UNLESS some derivative liability exists (i.e.  indemnification or contribution).
Element 3 To commence an action against a third-party, the defendant (third-party plaintiff) must serve a Summons and Third-
Party Complaint upon the third-party.
Element 3 Must be within 14 days after serving her answer. After 14 days, D must get permission from court
b. Procedure
In order to implead a TPD, D must (i) File a third-party complaint naming the
party (e.g. the insurance company) as a TPD (ii) Serve process on the TPD,
because he’s not been joined in the case yet e
Note about bulge If the third-party defendant is served within 100 miles of the courthouse, then there is personal jurisdiction over the thirdparty
defendant (even if the defendant is technically served outside of the state where the court is located).

*Bulge rule is NOT available for serving process on original Ds – it ONLY applies to service of process on a necessary party joined
under Rule 19 OR a third-party D joined under Rule 14. 5. Int
Note about adding claims Once a defendant impleads a third party, he may bring any independent claim under Rule 18(a). The third party may assert a
defense against the defendant or plaintiff. The third party must assert any compulsory counterclaims. Ex.: Bob sues Gary for
negligently building his house. Gary impleads his subcontractor, Sam, and says that Sam is liable for the harm. Gary may also add an
unrelated claim he has against Sam (e.g., for defamation). A defendant does not have to implead a third-party defendant. There is
no compulsory impleader. A defendant may simply seek indemnification separately.
3. Intervention
This occurs when a nonparty moves to become a party (they want to intervene in the case).
Note: The nonparty cannot increase the scope of the action. But she can file pleadings and participate in the action. She will be bound by the decision as if she were
named as a party.
a. Intervention as a matter of right right
Element 1 They have an interest relating to the property or transaction that is the subject of the action,
Element 2 The protection of this interest would be impaired because of the action;
Element 3 Interest is not adequately represented by the existing parties; OR
Element 3 Federal statute gives an unconditional right to intervene
Element 4 Motion to intervene is timely i.e., not when litigation is well on its way
Element 5 In diversity cases, interveners must establish independent SMJ. Supplemental jx will not cover diversity
intervention
Example Ex.: A gas pipeline company seeks to acquire a license to put a pipeline from Michigan down to
the lower part of the United States. Persons whose homes will be “taken” by eminent domain in
the process may seek to intervene
b. Permissive Intervention
If intervention of right is not warranted, a court MAY still allow a non-party to intervene permissively where the non-party:
Element 1 Has a claim or defense that shares a common question of law or fact with the main action or is given a
conditional right to intervene by a federal statute. 
Element 2 Files a timely motion
Element 3 Intervening will not unduly delay or prejudice the adjudication of the original parties’ right
4. Interpleader
Interpleader allows a property holder to initiate a suit to compel multiple claimants to that property to litigate the dispute
Property holder = stakeholder
Other parties who want the property = claimants
Stakeholder plaintiff may also make a claim to the stake
Rule Interpleader Statutory Interpleader
a. Complete diversity required—stakeholder must be a. Only minimal diversity required—one claimant must be diverse from at least one other claimant
diverse from all claimants; OR FQJx b. Amount in controversy must be $500 or more
b. Amount in controversy must exceed $75k c. Personal jurisdiction over any claimant served with process anywhere in US
c. SMJ, PJ, and Venue requirements are the same as for d. Venue is proper in any district where any claimant resides, even if the claimants reside in different states
any other federal case e. Deposit property with court or post bond
d. No deposit required
Example—deceased had life insurance policy with DE corp. having PPB in CA; claimants from NJ & CA all claim interests
Rule 22 interpleader—improper b/c lack of diversity
Statutory interpleader—proper b/c NJ claimant is diverse from CA claimants
5. Class Action
One or more representative members of a class may sue or be sued on behalf of the entire class if: 
i. Initial Requirements that plaintiff must show:
Element 1: Numerosity Too many claims for practicable joinder of all
Element 2: Commonality Some questions of law or fact in common to the class
Element 3: Typicality Named representatives’ claims/defenses are typical of those of the class
Element 4: Adequate representation Named representatives, & his lawyer, will fairly & adequately represent the class b. Next step – ca
ii. Types of Certifications
Risk of Inconsistent/Dispositive Adjudications Declaratory Relief Predominance & Superiority
When separate actions would create a risk of (i) The party opposing the class has acted or refused to Common questions of law or fact to the class members
inconsistent adjudications for other class members, or act on grounds that apply generally to the class so that predominate over any questions affecting individual
(ii) harm the interests of absent class members; injunctive or declaratory relief would be appropriate to members and a class action is s
the class as a whole;
iii. Notice
Rule Only needed in TYPE 3 i.e., class representative pays to give individual notice to all members
reasonably identifiable, telling: (i) they can opt out, (ii) they will be bound if they do not opt out, & (iii)
 they can enter a separate appearance through counsel (No notice required for TYPE 1 or 2)
iv. Jurisdiction requirements
SMJx- FQ Class might invoke FQ jux by asserting a claim arising under fed law (e.g., fed civil rights)
SMJx - Diversity i. If the class seeks to invoke diversity jurisdiction, look to the citizenship of the representative only,
NOT all the class members
ii. Representative’s claim must exceed 75K
v. Appeals
Element 1 Court of appeals has discretion to review orders granting or denying certifications of class actions.
Element 2 Must seek review within 14 days of the order granting or denying the class.
Note Appeal does NOT stay proceedings at trial court unless ordered by trial judge or court of appeals

F. Discovery
Purpose of discovery: to preserve testimony for trial, ascertain facts, and determine the undisputed factual matters at issue.
a. Basic Requirements (What)
Element 1 Any nonprivileged matter that is relevant to any party's claim or defense i.e., the relevant information sought need not be
admissible at trial e.g., insurance, subsequent remedial measures, etc
Element 2 Discovery needs to be proportional to the needs of the case (the burden or expense of the proposed discovery cannot
outweigh its likely benefit).
Element 3 Not privileged i.e., if material is privileged under state law, then it is not discoverable.
Exception: Attorney Client privilege Confidential communications between attorney and client for legal advice purposes are not discoverable unless privilege
has been waived through disclosure.
Exception: Work Product privilege Work product prepared in anticipation of litigation is immune from discovery unless party can show: (1) substantial need
and (2) information is not otherwise available, BUT party can never override privilege to obtain mental impressions,
conclusions, opinions or legal theories.
Note Ordinary business records are not considered work product prepared “in anticipation” of litigation.
b. Good cause
Element 1 i. A party may seek a “protective order” limiting discovery to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.
ii. If good cause is shown & movant certifies he tried to resolve the dispute without court intervention
c. Duty to preserve discovery
Rule Once a person reasonably anticipates litigation, that person has a duty to preserve ALL relevant evidence and
cannot destroy the same, even if litigation has not yet been commenced.  Federal courts have the inherent power
to sanction parties for any abuse of the judicial process, including destroying or failing to preserve relevant evidence
d. Conducting discovery
Rule Discovery is conducted by counsel. Discovery materials are sent back and forth through counsel. The judge sets a
scheduling order but the parties do the rest.
Discovery devices
A. Automatic Disclosure There are three types of disclosures required under Rule 26: initial disclosures, expert testimony, and pretrial disclosures.
Note that this can be modified by stipulation or court order.
a. Initial disclosures (mnemonic = DISS):
The parties must disclose (within 14 days after the 26(f) conference):
Element 1 Plainitff must providedamages computation and copies of materials on which the computation is based,
Element 2 Defendant must provide insurance information applicable to all or part of P’s claim
Element 3 The names and addresses of all potential supporting witnesses that the party may use to support its claims/defenses. (except those
that will be used solely for impeachment), and
Element 4 Copies or descriptions of all relevant supporting documents (except those that will be used solely for impeachment).
Note The parties do not have to disclose unfavorable witnesses or unfavorable information.
Note Formal discovery (e.g. interrogatories) cannot commence until the parties have met and conferred to arrange for initial
disclosures & prepare a discovery plan
b. Testifying expert disclosures
Element 1 Ninety days before trial, parties are required to disclose the names of their testifying experts with a report concerning their opinions,
the bases of those opinions, their qualifications, compensation, and other information.
Exception 2 If evidence is offered solely to rebut another party’s disclosure of expert testimony, it must be made within 30 days after the disclosure
being rebutted.)
c. Pretrial disclosures
Element 1 Thirty days before trial, a party must disclose the identity and reports of experts, the names of witnesses to be called at trial,
documents and depositions the parties plan to offer at trial.
Element 2 Parties may object within 14 days after receiving this disclosure.

Element 3 Objections not made are waived unless the court finds good cause.
b. Interrogatores
Element 1 Written questions served on adverse parties that are answered under oath i.e., can ONLY be used to obtain information for parties to
the action
Element 2 May not exceed 25 questions which includes subparts (e.g. you can’t serve 10 interrogatories, each with three subparts) unless LOC
Element 3 Each interrogatory must be answered separately and completely under oath within 30 days after being served with the interrogatories
Element 4 The answering party has a duty to investigate and give all of the information he can reasonably attain i.e., undertake a "good faith"
investigation of sources reasonably available to him in formulating answers to interrogatories, such as knowledge of other persons that
reasonably can be obtained through investigation (attorney, employees, etc.)
c. Requests to admit are used to eliminate issues at trial.
Requests to parties to admit the truth of discoverable information
Element 1 Matters are deemed admitted unless a responding party sends a sworn denial, an objection, or specifies reasons why
he cannot admit or deny (e.g., lack of knowledge) i.e., the opposing party can show jury the admission
Element 2 Requests for admission admitted unless response within 30 days (court can extend or shorten time)
Element 3 An admission CANNOT be used for any other purpose (e.g. used in a subsequent l
d. Physical or mental examinations
Element 1 Must obtain court order prior to examination i.e., This is the only method that requires a court order. A party can insist
on a court order before undergoing a physical examination, even if he is putting his medical issues in dispute.
Element 2 Only available where a person’s physical or mental condition is an issue in the case (e.g., tort involving injury)
Element 3 Only granted when ood cause shown e.g., n a plaintiff is, say, complaining of substantial injuries.
Element 4 The court determines the time, place, manner, and physician of the examination.
Element 5 ) Party that requests exam receives the report (b) Adverse party may seek to discover the report, but in doing so he
waives doctor/patient privilege & must disclose all relevant reports prepared by his physician
e. Depositions
Depositions are oral proceedings in which an attorney may examine any person under oath

a. Basic elements
Element 1 Only method applicable for both parties and non-parties
Element 2 In federal court, one can take 10 depositions per side (and a party may not depose the same person more than once
without leave of court or stipulation of the parties).
Element 3 A deposition is limited to one day of seven hours
Element 4 Proper written notice must be given to both parties, which will compel attendance
Deposition of corporate entity
Rule The deposition notice does not have to name the party to be deposed; it may simply notify the corporation or
association of the specific matter on which they seek examination and the corporation or association picks the person
who is deposed. n entity. May designate different people to testify on different topics.
c. Note about non-parties
Rule Non-parties may be deposed, but must be subpoenaed
d. Documents
Rule Attorney must seve subpoena duces tecum used to compel a deponent to bring documents to the deposition
f. Scope
Rule May cover any issue within the scope of discovery i.e., the attorney may make objections such as qualification of a
witness, competency of a witness, relevancy, conduct, etc. However, the witness is usually required to answer the
question anyway.
Element 2 An objection must be stated concisely and in a non-argumentative and non-suggestive manner.
Exception Deponent’s counsel may object to questions, but deponent is still required to answer unless an objection is based on
privilege (i.e., answering would reveal privileged information), counsel can instruct deponent not to answer
f. ESI (electronically-stored information)
Element 1 Electronically stored information (“ESI”) is discoverable. The word “document” includes electronically stored
information such as such as e-mails, text messages, and digital files.
Element 2 When a party reasonably anticipates litigation i.e., litigation is probable, it must take  reasonable steps to 
preserve the information (such as to  suspend its routine document retention/destruction policy  and put in 
place a “litigation hold” to ensure the preservation  of relevant documents). 
g. Sanctions
a. General rule
Rule A party may be sanctioned under Rule 37(e) for failing to preserve ESI only if: 
(1) The ESI should have been preserved in the anticipation of litigation; 
(2) The party failed to take reasonable steps to preserve it;  AND
(3) Tt cannot be restored or replaced through additional discovery.
b. Type of Sanctions
Negligent Non-neglient
If destruction was negligent, the court may order measures no 2. Only upon finding that the party acted with intent to deprive another party of the information’s use
greater than necessary to cure the prejudice. in the litigation, the court may:
Ex: The court may forbid the party that failed to preserve ESI from a. Presume that the lost information was unfavorable to the party (or instruct the jury that it may or
putting certain evidence in the record or may allow the parties to must make such a presumption), or
present evidence regarding loss of ESI to the jury. b. Dismiss the action or enter a default judgment.
Bar Exam Tip: This does not include a requirement that the court find prejudice to the other party. The
fact that evidence is destroyed infers there is prejudice.
f. Continuing Duty to Disclose
Rule The duty to disclose is ongoing before and during trial. Once material is disclosed pursuant to
 discovery obligations, all parties have a continuing obligation to supplement their production if:
(i) the information becomes incomplete due to new information; OR
(ii) the disclosed information is discovered to be incorrect in some respect
EX: In a divorce action, there is a continuing duty to disclose fully and accurately all assets and
liabilities until formal entry of a divorce decree
III. Sanctions
Two types of sanctionable violations
a. a. Failure to Disclose or to Supplement an Earlier Response – a. If party fails to provide information or identify a witness as required, the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial UNLESS failure
was substantially justified OR is harmless.
b. If a motion is made, the court may also: (i) order payment of the reasonable expenses, including
attorney's fees, caused by the failure; (ii) inform the jury of the party's failure; and (iii) impose other
appropriate sanctions.
b. failure to admit – If the requesting party later proves a matter/document to be true/genuine, the requesting party
may move to recover the reasonable expenses, including attorney's fees, incurred in making that p

 
C. Amendments to a Complaint
i. Before time has passed
Rule -A party may amend a pleading once as of right within 21 days after service of:  (a) the original pleading;  OR (b) a responsive pleading or
pre-answer motion to the original pleading e.g., E.g., if D answers P’s complaint, P has 21 days from service of the answer to amend
complaint
-Response to amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after
service of amended pleading, whichever is later (unless court orders otherwise)
ii. After time has passed
Rule Otherwise, D must either obtain:
(1) other party’s consent or
(2) leave of the court which is given wide latitude to amend provided no prejudice to adverse party or bad faith.
 A leave will be granted freely when justice requires (lenient standard); court looks to: (a) Length of and reasons for movant’s
delay; (b) Potential prejudice to parties; and (c) Futility of amendment
Note An amended pleading replaces the pleading it amends; it is a complete pleading and should repeat the allegations in the original
pleading that are not changed (it supersedes the original pleading).
iii. Relation back
Rule The relation back doctrine applies when a party amends a pleading to add a new claim or defendant after the statute of limitations
has run.
New claim Amendment will relate back if the new claim concerns the same conduct, transaction, or occurrence as the original pleading i.e., if
the new claim is based on the same general set of facts as the original pleading
New defendant a. Amendment concerns the same conduct, transaction, or occurrence as original pleading, and
b. Within 90 days of filing of the original complaint:
c. New defendant knew of or received notice of action; and
 d. New defendant knew or should have known that, but for a mistake, she would have been named originally
  ** Applies when P sued the wrong D first, but the right D was aware of the mistake

D. Rule 11
a. Basic Requirements
Rule 11 requires the attorney or pro se party to sign all pleadings, written motions, and other papers.
Element 1 Signature requirement applies to every pleading, written motion and other paper (does NOT apply to disclosures and discovery demands
or responses)
Element 2 Filing is not for an improper purpose (e.g., harassment, delay);
Element 3 Doesn’t present legal issues in bad faith i.e., the legal contentions are warranted by law or by a non-frivolous argument to change law
Element 4 The factual contentions have evidentiary support i.e., the factual contentions (or denials) have evidentiary support or are likely to after
further investigation
Element 5 Tthe denials of factual contentions are warranted or reasonably based on lack of information
b. Procedure
Element 1 The certification renews every time that document is presented to the court (“continuing certification”).
Element 2 If found to be frivolous, opposing party may move for Rule 11 sanctions to be imposed
c. Sanctions – Opposing Party
A party CANNOT file a Rule 11 motion for sanctions with the court without first:
Element 1 Serving a motion for violation is served on other party (ORAL notice is insufficient), but it is NOT immediately filed on the court.
Element 2 Safe harbor Giving the violating party 21 days to withdraw the document or fix the problem i.e., paper/pleading
Element 3 a. If he does so, there can be no sanctions no matter how outrageous the original misconduct.

b. If party does not fix the problem (e.g. fails to withdraw a frivolous complaint), the motion for sanctions that was served on the opposing
party 21 days earlier can then be filed with the court, which describes the conduct in violation of Rule 11
Element 4 court must give attorney or party a chance to be heard before imposing sanctions
d. Sanctions - Court
Element 1 Court has authority to raise Rule 11 problems sua sponte i.e., safe harbor does NOT apply in such instances (eg. court can sua sponte order
a monetary sanction without need for a motion)
Element 2 Court must give the party it is sanctioning the opportunity to show why it did not violate Rule 11
e. Type of Sanctions
Element 1 Sanctions are discretionary and aimed at deterring misconduct (not to punish).
Element 2 FRCP 11 sanctions can be imposed on any attorney, law firm, or party that is responsible for violation (e.g. P could also be
sanctioned if he misleads his lawyer).
Note Absent exceptional circumstances, a law firm is jointly responsible for a violation committed by its partner, 
associate, or employee. 
Liability for clients
Rule If violation is primarily a professional dereliction, sanctions are imposed solely on attorney/firm and reimbursement by the client is
prohibited, BUT if violation is a deliberate litigation strategy and p is aware, some part of sanctions can fairly be imposed on client.
(a) Only attorneys can be sanctioned for bad/fake analysis of law since the lawyer (and not the represented party) is in charge of deciding
what legal theories are proper to assert i.e., A court CANNOT issue monetary sanctions against a client for an unwarranted claim,
defense, or legal contention made by their attorney.
(b) Clients can be sanctioned if they sign false facts
 G. Adjudication without trial
1. Dismissal
a. Voluntary Dismissal
Element 1 P may voluntarily dismiss her case, either with or without court approval (i.e., leave
of court)
Element 2 Dismissal will be without prejudice (i.e., P can bring claims again), unless an
exception applies (see below)
Without leave of court With leave of court
a. Allowed before D serves an answer or motion for summary judgment (“MSJ”) a. Required if there has been an answer, motion, or prior dismissal
b. P voluntarily dismisses w/o court order by filing written notice of dismissal or b. Court has discretion to grant dismissal on terms and conditions it deems proper
stipulation signed by all parties who have appeared b. Dismissal is without prejudice unless court states otherwise; the second voluntary
c. Dismissal is without prejudice provided this is the first time that P has dismissed dismissal is "with prejudice"
her case; otherwise it is with prejudice c. All parties, including the defendants, stipulate to the dismissal
*P may dismiss without prejudice ONCE by serving a notice of dismissal (one free
shot).
b. Involuntary dismissal (i.e. failure to prosecute a claim)
Element 1 Acts as adjudication on the merits, EXCEPT in the case of lack of jurisdiction,
improper venue, or failure to join a party under Rule 19.
Element 2 A party's simple negligence in complying with the court's order does not warrant
dismissal, but the sanction of dismissal is appropriate where the party's actions are
flagrant and unnecessary
With prejudice Without prejudice
P may not assert the claim again; the claim is extinguished. ch a dismissal means P may assert the claim again (assuming SOL has not run).

Default entry and judgment – made when D has failed to plead or defend; court can set it aside for good cause (e.g. D was not served properly) 4. Settlement – to allow for
future claim preclusion, settlement should be “with prejudice” (e.g. if settlement agmt is executed via voluntary dismissal, it is without prejudice, meaning parties can re-file
lawsuit later). 5. Summary Judgment – to screen out cases that do not need a trial (rarely granted for party with burden at trial). a. Court looks at evidence that MAY be
presented at trial (e.g. affidavits, admissions, etc.) b. Either party may file a motion for SJ at any time until 30 days after the close of all discovery. c. Moving party must show
that there is no dispute on a material issue of fact AND that he is entitled to judgment as a matter of law d. NOTE: motion for SJ follows discovery, meaning SJ is generally a
post-discovery motion while motion to dismiss for failure to state a claim is made only at the pleadings and precedes discovery Sepe
F. Pretrial Motions
a. The following must be raised in a pre-answer motion: (these have to do with the pleadings):
Element 1: Motions
Motion for a more definitive statement Motion to strike
This is used when a pleading is so vague or ambiguous that the defendant cannot This allows the party to motion (or the court on its own) to strike any insufficient
reasonably form a responsive pleading. defense or redundant, immaterial, or scandalous matter (although leave to amend is
permitted).
Element 2: Timing
Rule This motion made be made before responding to a pleading, or if a response is not
allowed, 21 days after being served with a pleading.
b. First Pre-answer motion or answer
Element 1 The following must be raised in the first responsive action taken (answer or motion
i.s., if they are not raised, they are waived unless the defendant amends within 21
days.
Type 1: Lack of personal jurisdiction If not raised in one’s first motion or responsive pleading, it is waived. However, even
if one does not raise it in one’s first responsive pleading, one may amend one’s
pleading as a matter of course within 21 days of serving the pleading.
Type 2: Improper venue
Type 3: Insufficient process or service of process a. Objecting to process means that the proper documents were not served (e.g., the
plaintiff served the summons but not the complaint).
b. Objecting to service of process means that the summons and complaint were not
served in a permissible manner.
c. Affirmative defenses
Rule Affirmative defenses must be raised in the first answer
a) Res judicata
b) Statute of limitations i) Even though this is considered an affirmative defense, as a
practical matter in federal court, so long as the plaintiff is not prejudiced, it will likely
be allowed to be brought up in a 12(b) motion before trial.
c) Other affirmative defenses include: contributory negligence, the existence of an
agreement to arbitrate, assumption of risk, payment, release, satisfaction, discharge,
license, fraud, duress, estoppel, statute of frauds, statute of limitations, immunity
granted by law
d. The following can be raised at any time from a pre-answer motion through trial, but NOT ON APPEAL (these relate to the case itself)
Type 1 Failure to join a necessary party
Type 2 Judgment on the pleadings (usually when no answer is filed)
Type 3 Failure to state a valid claim upon which relief can be granted
e. Antime at all (even on appeal)
Rule Lack of subject-matter jurisdiction