Civ Pro Outline - TABLE OF CONTENTS

Jurisdiction and Preclusion 2

Subject Matter Jurisdiction 2
Personal Jurisdiction 3
Venue 3
Preclusion 4

Phases of a Lawsuit
6
Notice and Service 6
Pleadings 6
Sanctions 8
Pre-Trial Discovery 8
Summary Judgment 10
Trial 11
Appeal 11
Standards of Review
11

Appendices 13
Index of Cases 13
FRCP Index
16

General test-taking reminders:

1. Each individual party requires its own analysis

2. When outlining your answers, itemize the “steps” in each claim
3.

1
 JURISDICTION AND PRECLUSION

Subject Matter Jurisdiction

1. Federal Question Jurisdiction: 28 U.S.C. § 1331
A. Claims arising under the U.S. Constitution or federal laws/treaties
B. Federal claims must be part of a well-pleaded complaint by the plaintiff
(Mottley)
C. Court can and must raise this question sua sponte
D. Constitutional language re: federal question jurisdiction is broader than the
statute
2. Diversity Jurisdiction: § 1332
A. Amount in controversy must exceed $75k
B. Total diversity of state citizenship required
I. No member of one party may be a citizen of the same state as any
member of the other party
II. Alienage jurisdiction re: non-citizens: “U.S. non-citizen” basically
counts as a single separate state (i.e. which country you’re from doesn’t
matter) EXCEPT:
a) Permanent Residents who are residents of the same state as the
other party do not count towards diversity jurisdiction
b) If there are U.S. citizens on both parties who have complete diver-
sity from one another, diversity jurisdiction applies even if non-citi-
zens are on both sides
III. What is state citizenship?
a) For individuals: one state citizenship
(1) You are a U.S. citizen domiciled in that state with intent to re-
main there
(a) Redner v. Sanders: a U.S. citizen domiciled abroad might not be
a citizen of any state
b) For corporations: up to two state citizenships
(1) you are incorporated in that state
(2) That state is your primary place of business
3. Supplemental Jurisdiction: §1367
A. My be extended to state-based claims that arise from the same “common nu-
cleus of operative fact” as the original federal “anchor claim”
I. §1367(b): DOES NOT apply to new claims or parties joined by original or
intervening plaintiffs of diversity jurisdiction claims if new claims
wouldn’t qualify for diversity on their own
a) Codification of Kroger: Kroger made a claim against a third party im-
ploded by the defendant; SCOTUS said no supplemental jurisdiction
over that claim since it would violate complete diversity
b) In the case of a FRCP 14-added third-party defendant bringing an addi-
tional claim against plaintiff, would π’s counterclaim against ∆2 be
barred under this rule? Spillenger says no bc in that case π is acting as
∆ re: that particular claim
B. §1367(c): Court may decline to exercise if:
I. the new/state claims predominate over federal claims
II. the new claims raise a “new or novel” issue of state law

2
 III. foothold claim has been dismissed
IV. for any other compelling reason
C. Claims asserted under §1367 are tolled while pending and for 30 days after
dismissal
4. Joinder of Claims: FRCP 18(a) permits a party to bring all claims against oppos-
ing party
5. Removal
A. Removal of Civil Actions: §1441
I. §1441(a): defendant(s) can remove an action filed in State court to Fed-
eral court as long as no defendant is a citizen of the forum State
(§1441(b)(2))
II. §1441(c): Joinder of State and Federal Claims — any claims for which there
is neither federal question or supplemental subject matter jurisdiction
must be severed and remanded to state court
B. Procedure for Removal: §1446 – all defendants must consent to removal
C. Procedure after Removal: §1447

Personal Jurisdiction
Remember: the issue of Constitutional personal jurisdic-
tion and the state’s long-arm statute must both be satis-
fied!
1. In Rem Jurisdiction
A. Established when D is not in the state, but has property in the state that is
seized at the outset of the lawsuit
B. Introduced by Pennoyer v. Neff and essentially eliminated by Shaffer v. Heit-
ner via introduction of “minimum contacts” analysis for in rem cases
2. In Personam Jurisdiction
A. General Jurisdiction
I. Sort of the “default” that we think of: a defendant is “at home” in the fo-
rum and can be sued there for any cause of action
a) Individual’s state of domicile
b) Business’s place of incorporation and principal place of business
c) Any place where a business has “pervasive and systematic contacts”
so as to render it “at home” - can cite both Goodyear and Daimler for
this even though they are technically negative examples
(1) Products ending up in a state does not suffice (Goodyear Dunlop)
(2) Substantial operations in a state aren’t enough if they’re an in-
significant proportion of the company’s global contacts (Daimler
AG)
II. Physical presence in a state at time of notice also establishes general
“transient jurisdiction” (Brennan’s words) per Burnham v. Superior Court
B. Specific Jurisdiction
I. Introduced via International Shoe: if no general personal jurisdiction, D
has to have certain “minimum contacts” that give rise to the claim
II. Calder Effects Test: if D did not act within the state but knew her actions
would cause harmful effects there, that suffices

3
 III. World-Wide Volkswagen: D must have “purposefully availed” itself of the
forum - mere foreseeability that a product may enter a given state is not
enough
IV. McIntyre: a product ending up in a forum through a distributor is unlikely
to yield personal jurisdiction over manufacturing company – best bet is to
sue where distributor is based
V. Internet
a) Zippo test establishes “purposeful availment” according to how inter-
active the website is
b) Abdouch: if website is mostly passive, and whatever interactivity exists
within the forum did not yield the complaint, no jurisdiction
3. Long-Arm Statutes
A. FRCP 4(k)(1)(a): state statute re: jurisdiction must be satisfied in addition to
Constitutional issue. Don’t forget this!!!!!
4. Venue: §1391 determines which federal judicial district within a state may over-
see a suit
A. Just fyi: 1391(b) = venue in general, 1391(c) = residency as applicable to
venue
B. Permissible venues include:
I. District in which any defendant resides, if all defendants reside within that
state
a) Citizens and permanent residents “reside” in their place of domicile
(1) 1391(c)(3) says defendants not resident in the U.S. can be sued
anywhere - but noncitizens who are resident in the U.S. are bound
by this ^
b) Corporations “reside” in any district in states that have general juris-
diction
II. Where a substantial part of the events giving rise to the claim occurred, or
where property in question is situated
III. If the above N/A, anywhere that has personal jurisdiction over defendant
C. Venue-changing statutes:
I. 28 U.S.C. §1406: if venue isn’t proper in this federal court, instead of dis-
missing it we’ll just transfer to the court where venue is proper
II. §1631: basically §1406 but for personal jurisdiction — if no personal juris-
diction, court can transfer to another federal court where jurisdiction can
be established
III. §1404(a): Forum Non Conveniens - even if venue and personal jurisdiction
are proper, court can still transfer to another another (also proper) court if
the second court would be more convenient for parties and/or witnesses
(see also Piper Aircraft Co.)

Preclusion
1. Claim Preclusion (res judicata): a claim cannot be brought in another court
when
A. it is the same claim
I. Majority Rule incl. federal courts: arising from “same transaction or occur-
rence”

4
 II. Minority Rule: “same evidence/facts” essential to sustain both causes of
action
III. Interjurisdictional cases: per §1738 (“Full Faith and Credit Statute”), the
preclusion rule of the forum state in the first case applies
B. between the “same parties”
I. Exceptions:
a) Privity, i.e. successors by contract
(1) Spouses are not in privity, per Spillenger
b) Executor/Administrator of an Estate bound by judgments on the dece-
dent
c) Representation, i.e. class action suit or trade association acting on be-
half of constituent company
(1) Taylor v. Sturgell criteria for representation:
(a) Interests of nonparty and representative are aligned
(b) Either party understood herself to be acting in representative
capacity or original court took care to protect interests of non-
party
(c) Notice of original suit to persons alleged to have been repre-
sented
(2) Spouses, co-owners do not “represent” one another in this context
C. After a final judgment
D. On the merits
I. Jurisdictional dismissal is not “on the merits”; 12(b)(6)/summary judg-
ment motions or dismissals with prejudice are “on the merits”
II. Gargallo v. Merrill Lynch: law of first forum state determines preclusive
effect on second jurisdiction (in this case, Case2 not precluded where first
forum state had a law saying judgment over which there is no subject
matter jurisdiction—which applied to Case1—produces no preclusion)
2. Issue Preclusion (collateral estoppel)
A. An issue cannot be re-litigated between the parties on any claim if
I. an issue of fact or law is
a) must be the same issue (same element and burden of persuasion, e.g.
a civil case not preclusive on a criminal case)
II. actually litigated or determined by
a) Illinois Central Gulf Railroad v. Parks : issue of D’s negligence is pre-
cluded because D’s negligence was established in Case 1, but ques-
tion of P’s contributory negligence cannot be precluded bc we don’t
know if that’s why P lost Case 1
III. a valid and final judgment, and
a) a final judgment is still a final judgment even if under appeal
IV. the determination is essential to the judgment
a) e.g. if multiple determinations are factors in a judgment, such that it is
unclear if one determination is “essential” to the court’s decision, no
preclusion
B. Non-mutuality: same parties need not be in the case - not all states recog-
nize the doctrine of non-mutuality!
I. Party against whom preclusion is invoked must have been party in Case
1
II. Defensive use: D2 uses establishment of an issue against P to prevent P
from re-litigating the same issue

5
 III. Offensive use: P2 brings a case against D, then uses establishment of an
issue against D to preclude D from relitigating
a) Parklane Hosiery Co.: trial courts have discretion in deciding whether
offensive nonmetal issue preclusion is justified
IV. Exceptions:
a) There are outstanding inconsistent judgments à la Currie problem
(train accident, multiple passengers sue, 26 lose and no preclusion;
one wins, creating preclusion)
b) Party against whom preclusion is sought could not appeal Case 1 judg-
ment
c) Substantive procedural differences between the two courts, e.g. Differ-
ent quality or extensiveness of procedures, significantly different bur-
dens of persuasion
3. §1738 - Full Faith and Credit statute: the law of the forum state in Case 1
must be applied in determining whether preclusion should operate - e.g. if ver-
dicts made without jurisdiction are preclusive, if non-mutuality doctrine is valid,
etc.

6
 PHASES OF A LAWSUIT

Notice and Service

1. FRCP 4 stipulates federal procedure of service of process
A. (m): Service must happen within 90 days of filing (unless extended for good
cause), or else dismissed without prejudice
B. (k)(l): Service or waiver of service establishes personal jurisdiction where
valid
C. (d): Waiver of service can be requested from defendant and is incentivized
2. All cases require a form of notice sensible under the circumstances and reason-
ably likely to actually inform the defendant of the suit
A. There is a required constitutional minimum of notice that a lawsuit is filed
against a defendant (what is it? who knows), per Mullane v. Central Hanover
Bank & Trust

Pleadings
1. Complaint
A. A complaint must allege facts that satisfy each element of a claim—merely
stating legal conclusions is insufficient (Gillespie)
B. FRCP 8(d): alternative pleading is allowed and even encouraged if you don’t
know what happened—the idea is that by the time you get to trial you will
have dropped the claims that don’t apply
C. Claims worth being especially aware of:
I. 42 U.S.C. § 1983:
a) Deprivation of a federal constitutional right under color of state
law
b) Respondeat superior won’t hold municipalities liable for acts of munici-
pal employees, so P must show “pattern and practice” of discrimina-
tory behavior to hold a municipality liable
II. Replevin:
a) P owns property
b) which D is wrongfully detaining
III. FRCP 9(b):
a) Fraud and Mistake allegations must be sufficiently particularized
(1) Requirements for pleading fraud:
(a) Defendant’s statement
(b) was false
(c) Defendant knew it was false
(d) Plaintiff relied on false statement
(e) Defendant intended plaintiff to rely on false statement
(f) Harm to plaintiff as result of reliance
b) Malice can be generally averred—although Twombly/Iqbal basically
cancel this out (at least with regards to high-stakes cases), requiring
that malice be such an obvious implication that it is more or less the
only plausible explanation
IV. Private Securities Litigation Reform Act:

7
 a) Effectively replaces FRCP 9(b) for claims raised under federal secu-
rities laws
b) Allows generality re: fraud but requires particularity re: malice/scienter
(1) Tellabs: scienter must be at least as likely as non-fraudulent in-
tent
2. Response
A. Default: FRCP 55 - failure to appear results in default judgment against defen-
dant
I. If P’s claim quantifiable, judgment entered for that amount; otherwise, or
if D is incompetent/minor, there is a hearing process
II. No barring of counterclaims that weren’t brought, since no answer was ac-
tually filed
B. Pre-answer motions: FRCP 12
I. FRCP 12(b)(6): motion to dismiss for failure to state a claim
a) Court assumes all complaint’s allegations are true for evaluation pur-
poses
b) Plaintiff will generally get leave to amend an insufficient claim
c) Plausibility: post-Twombly/Iqbal, only the most plausible inference
matters
(1) Strike all “conclusory allegations” (e.g. “D acted out of malice”)—is
an inference of e.g. malice compelled? If not, 12(b)(6)
II. 12(b)(2-5) claims must be made immediately (either as pre-answer mo-
tions or as part of the answer, whichever is first) or forever waived
C. Answer
I. Timing:
a) 21 days after service, or 60 days if service waived
b) If pre-answer motions are made, clock is paused until those are re-
solved; then, 14 days
II. Denials: FRCP 8(b)
a) Either general denial or can admit/deny specific allegations—per Zielin-
sky, better to deny carefully/specifically or else risk being held liable
under FRCP 11
b) No responsive pleading required = denial presumed—this is the case
for affirmative defenses
III. Affirmative Defenses: FRCP 8(c) — must be stated in respondent’s answer
a) Qualified immunity:
(1) Protects public employees from liability for actions performed in the
course of their jobs
(2) Elements:
(a) Public employee operated in official capacity
(b) under reasonable belief that there was an open question of law
(3) Gomez: D must allege good faith as an affirmative defense
b) Jones v. Bock: failure to exhaust administrative procedures is an affir-
mative defense under the Prison Litigation Reform Act
c) Statute of Limitations
(1) US v. Kubrick: under Federal Tort Claims Act, SoL begins to run
when plaintiff knows of injury and its likely cause
(2) Dissenting view: clock should start when you know of the injury, its
likely cause, and that there may be a legal remedy

8
 d) FRCP 12(f): motion to strike - equivalent to 12(b)(6) for affirmative de-
fenses
e) Answer can be amended during discovery if new affirmative defense
uncovered
IV. Counterclaims: FRCP 13
a) Compulsory counterclaims: 13(a) – counterclaims are compulsory if
arising out of the same transaction or occurrence as the original claim
and do not require adding a party over whom no jurisdiction; if not
brought, defendant is barred from bringing that claim forever
b) Non-compulsory counterclaims = permissive counterclaims
c) All counterclaims require a responsive pleading, per 7(a)(3)
3. Amendments to pleadings: FRCP 15
A. Parties can amend once as a matter of course within 21 days; otherwise,
need leave of court or permission of opposing party
I. Court should grant leave “when justice so requires” - change shouldn’t
hurt other party too much and amender should have good reason
B. Relation back: FRCP 15(c): new parties or claims can be added after SoL if
“relating back” to the original pleading
I. 15(c)(1)(B): new claims or defenses must arise out of same transaction
or occurrence as in original pleading — “notice” for D not required but
can be a factor in evaluating a motion to amend
II. 15(c)(1)(C): change of party or name of party allowed within 4(m) time
limit if
a) same transaction or occurrence
b) new D has enough notice that it won’t be prejudicial on the merits (i.e.
new D knew or should have known that but for the mistake it would
have been named as proper D)
4. Sanctions: FRCP 11
A. Applies to all written statements, but especially likely to come up at this
stage
B. Possible problems:
I. Improper purpose (harassment, delay, etc. - subjective standard)
II. Legal frivolousness (legal contention is unreasonable - objective standard)
III. Factual frivolousness (facts alleged lack evidentiary support and no
chance of discovery yielding such support - objective standard)
IV. Frivolousness of denials (must be reasonably based on evidence)
C. Possible sanctions:
I. Monetary or nonmonetary, but if monetary must be against the represen-
tative
a) i.e.: nonmonetary sanctions are presumably valid against represented
parties
II. Can be levied against attorney, law firm, or party
III. Motions for sanctions must be independent of any other motion

Pre-Trial Discovery
1. Scope of Discovery: FRCP 26(b)
A. Relevance
B. Proportionality - factors to consider include:

9
 I. Importance of issues at stake in the action
II. Amount in controversy
III. Parties’ relative resources and access to information
IV. The importance of the discovery in resolving the issues
V. Whether the burden or expense of the discovery would outweigh the ben-
efit
C. Need not be admissible at trial to be discoverable
2. Limitations on Discovery
A. Electronically Stored Information: 26(b)(2)(B) - if not reasonably accessible
because of undue burden or cost, it need not be provided unless requesting
party shows “good cause”
B. Frequency/Extent: 26(b)(2)(C) - court must limit if requested material is be-
yond scope, duplicative, or unnecessarily inaccessible
C. Privilege (e.g. attorney-client, spousal etc.): 26(b)(5) - if already-produced ev-
idence is later deemed privileged, it must be returned, sequestered or de-
stroyed
D. Work Product: 26(b)(3)
I. Criteria for protection:
a) Document or tangible thing
b) Prepared for trial or in anticipation of litigation
(1) Must be in anticipation or a concrete suit or expected suit—can’t
just be in general anticipation of litigation
c) By or for a party or party’s representative
II. Exception to Work Product Protection: if seeking party can show sub-
stantial need and/or undue hardship preventing other discovery of that in-
formation
a) Ordinary Work Product - can be excepted from protection
b) Opinion Work Product: mental impressions, conclusions, opinions, or le-
gal theories - absolutely protected and must be redacted if necessary
III. If product is prepared in anticipation of a specific (tangible) litigation, it
qualifies as work product for any and all litigation
3. Required Disclosures: 26(a)(1)
A. Timing: at or within 14 days of 26(f) discovery conference, unless stipulated
or ordered otherwise - parties joined later have 30 days from service or join-
der
B. Required disclosures include:
I. Name and address of any individual likely to have discoverable info or
likely to be used by disclosing party in support of claims or defenses
II. Copy of all documents, ESI, things that disclosing party has in possession
and may use to support claims/defenses
III. Computation of damages w/ supporting evidentiary material (unless pro-
tected by privilege)
IV. Applicable insurance agreements
4. Discovery Devices:
A. Requests for Production of Documents: FRCP 34
I. Timing: may be served upwards of 21 days from service of summons; 30
days to respond (or 30 days after 26(f) conference, whichever is later)
II. No maximum # of requests except per FRCP 26(b) re: scope
III. ESI: FRCP 34(b)(2)(D-E) - ESI must be produced as kept in the normal
course of business, unless requested in a different form

10
 IV. Requests can be satisfied by either handing over copies or permitting in-
spection
V. If objecting, must specifically state grounds for objecting
B. Interrogatories: FRCP 33
I. Max of 25 questions and subquestions to be written and served on oppos-
ing party
a) Can request leave of court for more questions
b) Answers must be given under oath, grounds for objection must be
stated specifically
II. Timing: post-26(f), 30 days to respond generally
III. Can be used for impeachment but limited evidentiary value
IV. 33(d) permits the party who was served an interrogatory to provide the
requesting party access to the source of the information where the burden
of finding the answer will be the same for either party
C. Requests for Admission: FRCP 36 - produces admitted facts, not evidence
I. No presumptive maximum - can ask party to admit facts or to verify docu-
ments
II. 30 days to respond unless otherwise stipulated or ordered
a) No response = admission
b) Requires specific denial (or specific detail why party cannot admit/
deny)
c) Lack of knowledge only valid if reasonable inquiry made to find the an-
swer
d) Grounds for objections must be clearly stated
III. Admitted matters can be withdrawn or amended, can’t be used for other
purposes
D. Depositions: FRCP 30; also FRCP 27, 28, 31, 32
I. Largely for unfriendly witnesses - only device routinely applied to non-par-
ties
a) Can be used in trial for impeachment
II. Must be taken under oath before an officer - FRCP 28
a) 30(b)(3): must state in deposition notice the method for recording tes-
timony
III. Timing: post-26(f) conference - deposition prior to conference requires
leave of court unless deponent will be leaving the country and unavailable
afterwards
IV. Quantity: presumptive max of 10, leave of court required for more or to
re-depose
V. Duration: 1 day of 7 hours, but court must grant more time if needed to
fairly depose - FRCP 30(d)(1)
VI. 30(b)(2): deponent can be requested to bring documents; if deposition
compelled by subpoena, called subpoena duces tecum
VII.Responding party may be required to designate a deponent for a particu-
lar subject of deposition as ID’d by deposing party (30(b)(6)
VIII. Attorney defending deposition can object (for judge to rule upon at
trial), but sanctions for frustrating or delaying fair examination
IX. Any party can move to terminate or limit a deposition bc of bad faith, an-
noyance, embarrassment, etc. - if terminated, court order needed to re-
sume deposition
E. Medical Examinations: FRCP 35

11
 I. After 26(f) conference (duh), no presumptive maximum
II. Per court order - only if requesting party shows that condition is “in con-
troversy” and there is “good cause” for examination
III. A party that requests an examiner’s report waives any privilege concern-
ing testimony about all examinations of the same condition
5. Enforcement of Rules
A. FRCP 26(g): “Rule 11 of Discovery”
B. FRCP 37: Motion to Compel
I. 37(b) - sanctions for disobeying Motion to Compel may include:
a) Court-ordered admission/establishment of fact
b) Prohibiting party from supporting or opposing designated claims or de-
fenses
c) Striking pleadings in whole or in part
d) Staying further proceedings until order is obeyed
e) Dismissing action or proceeding in whole or in part
f) Default Judgment against disobedient party
g) Contempt of court (but not re: failure to submit to medical exam)
II. 37(c): sanctions for Failure to Disclose (i.e. re: mandatory disclosure) or
Failure to Admit (i.e. denying a request to admit something that later
turns out to be true)
III. 37(d): No Response - party fails to show up or respond to requests
IV. 37(e): Failure to Preserve ESI
a) Must take reasonable steps to preserve ESI in anticipation/conduct of
litigation
b) If ESI irreparably lost, and party acted w/ intent to deprive other
party:
(1) Court may presume lost info was unfavorable to sanctioned party
(2) Court may instruct the jury that it may or must do same
(3) Court may dismiss action or enter default judgment
C. Spoliation of Evidence - Zublake
I. Destruction, significant alteration, or failure to preserve evidence:
a) Party having control over evidence had an obligation to preserve it
b) Records were destroyed w/ “culpable state of mind”
c) Destroyed evidence was “relevant” to party’s claim or defense
II. Sanctions can include adverse inference instruction

Summary Judgment: FRCP 56

1. Rules and Timing
A. Should be granted when no genuine dispute as to material fact, i.e. evi-
dence would not reasonably support any finding for nonmoving party
B. Can be sought for whole or part of any claim or defense
C. Court has discretion to convert 12(b)(6) into summary judgment motion if ap-
plicable
D. Court has discretion to raise MSJ on its own
2. Process of Evaluation
A. Court considers only information that would be admissible at trial
B. MUST ANSWER THESE TWO QUESTIONS:
1. Has moving party shown enough in its motion?

12
 a) Celotex: D-MP just needs to show a gap in the record re: essential ele-
ment of P-NMP’s case, though it can also affirmatively undermine an
essential element
(1) Forces P-NMP to assemble critical evidence early in discovery
b) P-MP has to show conclusively that element has been established—
higher bar
2. IF YES TO 1: Has nonmoving party done enough to withstand mo-
tion?
a) Matsushita: NMP “must do more than simply show that there is some
metaphysical doubt as to the material facts” — must come forward
with specific facts
(1) Or NMP can argue that MP hasn’t conclusively shown deficiency in
the evidence
b) All inferences must be made in favor of NMP
c) 56(f): NMP can show that it cannot present essential facts for specified
reasons (e.g. too early in the process) and court can delay decision

Trial
1. Judgment as a Matter of Law/Directed Verdict: FRCP 50(a)
A. A party can move for, or a judge can make, a ruling that a reasonable jury
would not have a legally sufficient evidentiary basis to find for the party on
one or more issues
B. Resolves the issue against the party that failed to make sufficient showing
C. Does not involve weighing the evidence/credibility—it's about a lack of evi-
dence essential to a claim/defense
D. Differs from summary judgment in that no need for moving party to “show
enough”
2. Partial Judgment: FRCP 54(b)
A. A court can certify the resolution of the case as pertains to fewer than all
claims or parties, thereby rendering the partial judgment “final” and there-
fore immediately appealable, if court finds “that there is no just reason for
delay”

Appeal
1. Issues raised on appeal can’t be new—they must have been first raised in trial
court
2. Final Judgment Rule: 28 U.S.C. §1291
A. Appellate courts only have jurisdiction over final judgments from a district
court (except district courts directly appealable to SCOTUS)
B. Final judgment = all claims as to all parties have been resolved, except in
case of partial judgment per 54(b)
C. Exceptions:
I. Writ of Mandamus: petition for writ to appellate court, which would grant
immediate appellate review
a) Extremely rare - sometimes appellate courts will deny in such a way as
to indicate what they hope the lower court will do even without the writ

13
 II. Collateral Order Doctrine: immediate appeal available for interlocutory de-
cisions that impact the rights of a party
a) e.g. a decision rejecting qualified immunity is immediately appealable
because winning qualified immunity on appeal after having already
testified would defeat the point
III. 28 U.S.C. §1292(b): “Interlocutory Appeal” when the district and appellate
courts both agree that there is substantial ground for a difference of opin-
ion on an interlocutory decision
3. Standards of Review
A. Factual Findings:
I. By judge: “clearly erroneous” - FRCP 52
II. By jury: if any evidence to support verdict, it must be affirmed
a) Most jury verdicts are appealed after a trial court’s denial of a losing
party’s motion for a new trial —> “abuse of discretion” standard
B. Mixed Questions of Law and Fact (“Evaluative Facts”):
I. Finding of negligence = finding of fact —> “clearly erroneous” standard
II. Intent to Discriminate under Title VII = fact —> “clearly erroneous” stan-
dard
III. Actual Malice for libel = finding of law —> “de novo” standard
C. Rulings of Law: de novo standard
I. Includes anything re: sufficiency of allegations or evidence under control-
ling substantive law, e.g. 12(b)(6), summary judgment, judgments as a
matter of law
D. Most rulings on discovery issues are subject to an “abuse of discretion”
standard on appeal, per Spillenger, because they are “ancillary rulings” in-
volving the application to the distinct circumstances of the individual case of
broad standards
E. Harmless Error Doctrine: if an incorrect decision by a lower court would not
have affected the proceeding’s outcome, no reversal

14
Appendix A: Index of Cases
SUBJECT MATTER JURISDICTION
Mottley - cause of action/complaint must arise under federal law, not suffi-
cient for anticipated defense or response thereto to be federal
Redner v. Sanders - for the purposes of diversity jurisdiction, a U.S. citizen
domiciled abroad might not be a citizen of any state
Owen Equipment and Erection Co. v. Kroger - no supplemental jurisdiction if
incomplete diversity
United Mine Workers v. Gibbs - supplemental jurisdiction is valid if the state
and federal claims arise from the same “case or controversy”/from a “com-
mon nucleus of operative fact”
In re Ameriquest - district court has jurisdiction over state claims so related to
the foothold federal claim that they form part of the same case or contro-
versy
PERSONAL JURISDICTION
Pennoyer v. Neff - establishes In Rem and In Personam personal jurisdiction
International Shoe - ∆ must have minimum contacts with the state such that
jurisdiction over ∆ would not offend “traditional notions of fair play and sub-
stantial justice” - invents the minimum contacts requirement!
World-Wide Volkswagen v. Woodson - mere foreseeability that a consumer
might bring ∆’s product into forum state is not enough to establish jurisdic-
tion
Burger King v. Rudzewicz - by signing a contract re: FL law with a FL-based
corp, ∆s had purposefully availed themselves of FL law—enough to warrant
Florida jurisdiction
Calder v. Jones - libel case brought by Jones (CA) against FL newspaper - if
you knowingly act so as to affect a party in another state, that state has juris-
diction
Zippo Mfg. Co v. Zippo Dot Com - establishes interactivity-based test to de-
termine whether a given website provides basis for personal jurisdiction
Abdouch v. Lopez - if complaint does not arise out of defendant’s (website’s)
contacts with that state, no jurisdiction
J. McIntyre Machinery, Ltd. v. Nicastro - ∆ must personally avail itself of the
forum state to be subject to jurisdiction - a separate distributor bringing prod-
ucts into the state does not suffice
Shaffer v. Heitner - property in the forum state is not sufficient for personal
jurisdiction; you still need minimum contacts
Burnham v. Superior Court - if you’re physically present in the forum state at
the time that you are served, that is sufficient for jurisdiction
Goodyear Dunlop Tires v. Brown - products ending up in a state is not suffi-
cient for specific jurisdiction if claim doesn’t arise from those products being
in that state
Daimler AG v. Bauman - general jurisdiction over a corporation exists if the
corporation’s connection with the forum state is “so continuous and system-
atic” as to make the corporation basically “at home” in that forum state, but
those contacts must be considered in the context of their proportion of corpo-
ration’s overall global contacts

15
 Gibbons v. Brown - just because a party has brought suit in a particular juris-
diction they’re not automatically held liable for defending future suits in that
jurisdiction - decided on FL long-arm grounds, not Constitutional grounds, as
is generally preferred
PRECLUSION
Taylor v. Sturgell - airplane case - virtual representation is not a constitution-
ally approved method of nonparty preclusion
Gargallo v. Merrill Lynch - full faith and credit statute requires that a federal
court apply the preclusion rule of the forum state from Case 1
Illinois Central Gulf Railroad v. Parks - issue preclusion only applies if the pre-
vious case was adjudicated on the merits such that the court’s determination
on the issue in question was essential to their decision
Parklane Hosiery Co. v Shore - courts have discretion on whether or not to al-
low offensive non-mutual issue preclusion
Gillispie v. Goodyear Service Stores - you have to actually allege material facts upon
which your claim is based, you can’t just allege the elements of the claim
Mitchell v. Archibald & Kendall - in determining a 12(b)(6) motion, a court need not
consider any additional theories or evidence from plaintiff beyond the facts as
stated in the complaint
Bell Atlantic Corp. v. Twombly - anti-trust case - facts need to be so substantial that
the claim is “more than plausible"
Ashcroft v. Iqbal - after striking all conclusory statements as to scienter, the claim
(including scienter elements) must be “plausible” i.e. the most likely inference to be
drawn from the facts
Tellabs v. Makor Issues & Rights, Ltd. - under Private Securities Litigation Reform
Act, an implication of fraudulent intent must be at least as persuasive as one of
non-fraudulent intent - court can consider all assertions (i.e. both those with + with-
out particularity) in evaluating this
Bias v. Advantage International, Inc. - once MP makes a prima facie showing to sup-
port its Summary Judgment claims, NMP must provide specific facts showing a gen-
uine issue for trial
Tolan v. Cotton - “stolen” car police shooting - reasonable inferences should be
drawn in favor of NMP at summary judgment
McCormick v. Kopmann - a complaint may contain multiple factually incompatible
allegations
Zielinski v. Philadelphia Piers, Inc. - under FRCP 8(b), allegations not specifically de-
nied are deemed admitted
Gomez v. Toledo - re: qualified immunity, good faith must be pleaded as an affirma-
tive defense
Jones v. Bock - under Prison Litigation Reform Act, plaintiff’s failure to exhaust all
administrative remedies must be pleaded as an affirmative defense
Christian v. Mattell, Inc. - FRCP 11 sanctions are re: filings, not re: party’s behavior/
attitude
Layman v. Southwestern Bell Tel. Co. - addtl. evidence can only be introduced as
part of an answer if the answer includes an affirmative defense
United States v. Kubrick - Statute of Limitations runs from the time the injury and its
source were made known or should have been known to plaintiff
Zubulake v. UBS Warburg LLC - a party’s responsibility to bear the cost of accessing
electronic data will be evaluated according to the value/relevance of that data

16
Carnival Cruise Lines, Inc. v. Shute - forum selection clauses are valid if found judi-
cially fair
Worthington v. Wilson - FRCP 15(c) added party only relates back if the original
party was listed by “mistake” - “unknown” does not count as “mistake” for this pur-
pose
Adickes v. Kress - Summary Judgment MP must show that there is no genuine issue
of fact
Celotex Corp. v. Catrett - to win/survive Summary Judgment, the party with the bur-
den of proof must sufficiently establish the existence of an element essential to that
party’s case - court ruled that MP had satisfied Step 1 of SJ and told lower court to
evaluate NMP’s Step 2 entry
Arnstein v. Porter - credibility of parties is an issue for jury determination, so SJ is
improper if it would depend upon making determinations of credibility
Visser v. Packer Engineering Associates - in discrimination cases, “plaintiff is old” is
not sufficient - you must actually allege facts that show plaintiff was terminated for
being old
Scott v. Harris - for Summary Judgment, facts must be viewed in the light most fa-
vorable to the non-moving party only if there is a genuine dispute to alleged facts
Pullman-Standard v. Swint - if a district court’s findings are clearly erroneous, an ap-
pellate court may only set aside and remand, not substitute its own judgment
Mullane v. Central Hanover Bank & Trust Co. - requires constitutional minimum of
notice to defendant of lawsuit filed against him
Matsushita Electric Industrial Co., Ltd. v. Epstein - a federal court may not withhold
full faith and credit from a state court judgment approving a class action settle-
ment, even though the settlement releases claims within the exclusive jurisdiction
of the federal courts
Piper Aircraft Co. v. Reyno - forum non conveniens allows a court to dismiss a case if
it determines that another forum would be more appropriate (location of witnesses,
cause of action etc.)
V.L. v. E.L. - in determining whether to afford full faith and credit to State 1 court’s
judgment, State 2 court must also afford full faith and credit to State 1’s determina-
tion of jurisdiction

17
Appendix B: FRCP Index
4: summons and service
7: types of pleadings
8: rules of pleading
9: “pleading special matters”
10: “form of pleadings”
11: sanctions
12: answers - defenses, objections, pre-trial motions
13: counter claim and cross claim
14: third-party practice
15: amended and supplemental pleadings
18: joinder of claims
19: required joinder of parties
23: Class Actions
26: discovery and duty to disclose
27-32: depositions
33: interrogatories to parties
34: production of documents, tangible things, ESI, etc.
35: physical and mental examinations
36: requests for admission
37: “Rule 11 for discovery”
45: subpoena
52: findings/conclusions by the court; judgment on partial findings
54: costs
55: default and default judgment
56: summary judgment

18